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https://www.courtlistener.com/api/rest/v3/opinions/1029444/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO NEIL MURPHY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:01-cr-00115-MR-1)
Submitted: June 29, 2009 Decided: July 16, 2009
Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, PLLC,
Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Cortney Escaravage, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Neil Murphy appeals the district court’s
judgment revoking his supervised release and sentencing him to
eighteen months’ imprisonment followed by a three-year term of
supervised release. On appeal, Murphy challenges the
revocation, maintaining that the district court erred in
admitting unreliable hearsay statements and that the court’s
findings were insufficient to support the revocation. Finding
no reversible error, we affirm.
Murphy first argues that the district court admitted
unreliable hearsay testimony. Specifically, he asserts that the
district court erred in admitting hearsay statements of Shawn
Harris, the alleged victim, through the testimony of police
officers when the Government failed to show the evidence was
reliable and failed to show a need to present hearsay evidence
instead of a live witness. In this regard, Murphy further
maintains that the district court failed to balance Murphy’s
right to confrontation against the Government’s good cause to
deny the right. Murphy claims that, aside from the hearsay
testimony, there was no evidence presented that he was involved
in the robbery. The Government responds that the statements
were admissible hearsay because they qualified as excited
utterances and, in any event, the statements had substantial
indicia of reliability.
2
The district court’s decision to admit hearsay
evidence is reviewed for abuse of discretion. See United
States v. Mohr, 318 F.3d 613, 618 (4th Cir. 2003). Supervised
release revocation hearings are informal proceedings in which
the rules of evidence need not be strictly observed. Fed. R.
Evid. 1101(d)(3). While the Federal Rules of Evidence regarding
hearsay do not apply at a supervised release revocation hearing,
a defendant is still afforded some confrontation rights in a
revocation proceeding. In Morrissey v. Brewer, 408 U.S. 471
(1972), the Supreme Court held that a defendant must receive a
fair and meaningful opportunity to refute or impeach evidence
against him “to assure that the findings of a parole violation
will be based on verified facts.” Id. at 484. Among the
defendant’s rights in a parole revocation context is “the right
to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation).” Id. at 489; see also Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973) (extending Morrissey rights to
probationers). The due process requirements recognized in
Morrissey are incorporated in Fed. R. Crim. P. 32.1(a)(2), which
is applicable to supervised release revocation proceedings.
We have held that a showing that the hearsay evidence
is “demonstrably reliable” is sufficient to satisfy the
requirements of Rule 32.1. United States v. McCallum, 677 F.2d
3
1024, 1026 (4th Cir. 1982). We have reviewed the parties’
briefs and the materials submitted in the joint appendix,
particularly the transcript of the revocation hearing, and
conclude that the hearsay evidence was sufficiently reliable.
Therefore, the district court did not abuse its discretion in
admitting the evidence.
Last, Murphy argues that the district court’s findings
were insufficient to support the revocation of his supervised
release. This court reviews the district court’s revocation of
supervised release for abuse of discretion. United States v.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999). The district court
need only find a violation of a condition of supervised release
by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(2006). We review for clear error factual determinations
underlying the conclusion that a violation occurred. United
States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003); United
States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). After
reviewing the record, we conclude the district court’s finding
that Murphy committed the violations alleged in the petition is
sufficiently supported. Therefore, the court properly revoked
Murphy’s supervised release.
This court will affirm a sentence imposed after
revocation of supervised release if it is within the applicable
statutory maximum and is not plainly unreasonable. United
4
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).
Murphy does not challenge the specific sentence imposed by the
district court upon revocation of supervise release, and
therefore, he has waived that issue.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029360/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL CHAPARRO,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00012-JPB-DJJ-2)
Submitted: June 1, 2009 Decided: June 29, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sherman L. Lambert, Sr., SHERMAN L. LAMBERT, SR., PLLC,
Shepherdstown, West Virginia, for Appellant. Sharon L. Potter,
United States Attorney, Thomas O. Mucklow, Assistant United
States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joel Chaparro appeals his conviction and thirty-three
month sentence for aiding and abetting the distribution of
cocaine, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2006). Chaparro’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious issues for appeal but
challenging the district court’s refusal to provide a jury
instruction on entrapment. Although informed of his right to do
so, Chaparro has not filed a pro se supplemental brief. We
affirm.
We review de novo a district court’s decision to deny
a defendant’s requested instruction on entrapment. United
States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006). “An
entrapment defense has two elements: (1) government inducement
of the crime and (2) the defendant’s lack of predisposition to
engage in the criminal conduct.” Id. Before giving an
entrapment instruction, the district court must make a threshold
inquiry as to whether sufficient evidence exists for a
reasonable jury to determine there was entrapment. See id.
Mere solicitation of a crime is insufficient to merit an
entrapment instruction, as solicitation alone would not persuade
an otherwise innocent person to commit a criminal act. See id.
“When government agents merely offer an opportunity to commit
2
the crime and the defendant promptly avails himself of that
opportunity, an entrapment instruction is not warranted.” Id.
at 335 (internal quotation marks, citation and alteration
omitted).
In this instance, it is clear that any inducement by
the Government’s confidential informant was mere solicitation,
and did not rise to the level of entrapment. The record shows
that, at the informant’s request, Chaparro immediately sought to
aid an undercover agent, whom Chaparro believed to be the
informant’s brother, in the procurement of cocaine. Though the
informant was undoubtedly friendly toward Chaparro, this fact
had no bearing on Chaparro’s willingness to aid in the
distribution of cocaine. This conclusion is underscored by the
fact that, even without the informant’s involvement, Chaparro
repeatedly organized deals between the undercover agent and a
local drug dealer. Indeed, there was no evidence presented that
could lead a reasonable jury to determine that Chaparro was
anything other than a ready and willing participant in the
crime, and that the informant and the undercover agent merely
offered him the opportunity to engage in criminal conduct.
Accordingly, as Chaparro failed to demonstrate any “lack of
predisposition to engage in the criminal conduct,” Ramos, 462
F.3d at 334, we find that the district court did not err in
refusing to give an entrapment instruction to the jury.
3
In accordance with Anders, we have examined the entire
record in this case and found no meritorious issues for review.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349523/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This matter involves the breakup of a partnership which had been formed between the plaintiff and the defendant for the purpose of owning and operating a package store known as "Your Bottle Shop" located in Milford, Connecticut. The partnership venture began in 1972 and lasted until November 1994 when for various reasons, some of which are known to the court, it broke up and subsequently the store was sold.
It is the plaintiff's claim that the business deteriorated because of the defendant Alan Pressler's mismanagement which resulted in considerable financial loss over several years prior to the sale and the plaintiff brings this action seeking restitution for his losses.
When the partnership was formed the principals, Lawrence Dietler, the plaintiff, and Alan Pressler agreed that Pressler would manage the store on a day-to-day basis and Dietler would provide the record-keeping aspects of the business. The partnership was on a 50/50 basis. Each brought to the business his own special skills; Pressler had been involved in retailing for some time and in particular the operation of a liquor store which he had previously owned in Fairfield, Connecticut. Dietler, a certified public accountant, had no prior experience in liquor store operations and engaged in an accounting practice in Fairfield, Connecticut. Accordingly, he brought those skills into the partnership for the purpose of maintaining the records. Each CT Page 3583 put in $15,000 as well as the partnership borrowing some additional capital and the enterprise commenced. Everything proceeded in an acceptable fashion apparently as no complaints were expressed until about June of 1992 when the plaintiff did a rundown on annual revenue for the operation for the years 1990, 1991 and 1992. (P. Ex. 5) Dietler by a note to Pressler dated June 15, 1992 set out the gross profit figures for those years from the records he maintained for the partnership and by a note written on the accounting sheet suggested that something was seriously amiss with the returns from the business and advanced the notion that perhaps Pressler was discounting too severely and/or someone was "Tapping the Till". Dietler suggested that Pressler take such steps as were appropriate to remedy the situation.
Prior to this the plaintiff had, in 1989, moved to Massachusetts and so for some years prior to this letter of June 1992 had not been proximate to the store's location and for some reason not made clear to the court an estrangement had developed between the parties and neither party had spoken to the other since 1989. The court presumes that this development did not result in any benefit towards advancing the partnership. In any event, the business continued to deteriorate as well as the relationship between the parties and in October 1994, upon application of the plaintiff to this court, one Robert Hillman, a certified public accountant, was appointed receiver and took over the operation of the store. The following month, November 1994, Pressler advised Hillman that he was giving up the business and planned on having some long-delayed surgery performed. In his testimony Pressler indicated that he left because he couldn't get along with the receiver and after running a store for 25 years "I didn't like to be told". Hillman asked Pressler to get someone to run the store but no one was produced and as a result the store was closed and Hillman changed the locks in order to prevent any unauthorized access. Subsequently, the store was sold in April 1995 for $75,000 plus the inventory and photographs offered in evidence by the subsequent purchaser Allen Vallillo (P. Ex. 13 A-K) clearly reflect the disordered condition of the store which undoubtedly had an affect upon its value for sale purposes. At the time when the store was in operation Vallillo testified that he had offered $125,000 plus the inventory for the store but nothing came of that transaction. This is, however, one indication of the value of the going business.
Pressler testified that prior to his departure in November CT Page 3584 1994 he was very aware of the poor financial condition of the store. His suppliers had put him on a C.O.D. basis as he had been posted for slow payment in May 1994. He claims that between 1990 and 1994 he put in $55,000 of his own money to keep the business afloat. This money, he testified, came from his father's estate, unbeknownst to cobeneficiaries.
As pointed out by counsel for the plaintiff, Mr. Dietler and Mr. Pressler upon the formation of this partnership, entered into a fiduciary relationship with each other. See Oakhill Associatesv. D'Amato, 228 Conn. 723, 727. Under the law at that point they "act as trustees toward each other and toward the partnership". They owe to each other the obligation of fair dealing.
In this case, the plaintiff claims to have established the relationship of a partnership between the parties (and this has been admitted by the defendant in response to paragraph two of the plaintiff's Fourth Count that "he owed a fiduciary duty to the plaintiff to operate the liquor store in a reasonably prudent manner".
According to Konover Development Corp. v. Zeller,228 Conn. 206, 229-30 once a fiduciary relationship is established the burden of proving fair dealing properly shifts to the fiduciary and the burden of proof requires on the part of the individual owing the duty of fair dealing to establish such by clear and convincing evidence or, clear, convincing and unequivocal evidence. The character of this evidence must then be significantly beyond the usual standard in a civil case of a preponderance of the evidence.
While the plaintiff filed a four count complaint the first two counts are concerned with a claim for appointment of a receiver, dissolution and winding up of the corporation which are no longer relevant as this has been accomplished by the sale of the business. The remaining counts are concerned with the plaintiffs claim for conversion (Third Count) and breach of fiduciary duty and damages as flowing therefrom. (Fourth Count)
The testimony and evidence support the plaintiff's claim of conversion. Plaintiff's Exhibit 6 shows a total of $15,500 withdrawn from Shawmut Bank on the account of Your Bottle Shop over a period from September 1994 to November 1994. Nothing has been offered in evidence to suggest where these funds of Your Bottle Shop went. Additionally, Mr. Pressler after he left the CT Page 3585 store sent out bills to certain charge customers requesting them to make payment direct to him as his home as he was selling the store. See Plaintiff's Exhibit 3. This does not smack of fair dealing with one's partner. The receiver was the proper recipient of these assets of the partnership.
A substantial loss was sustained by Your Bottle Shop over the holiday season of 1994. Hillman was forced to close the store when Mr. Pressler failed to show up on December 1, 1994 or failed to supply a substitute. He later claimed as set out over his signature in Plaintiff's Exhibit 4, a statement of claim to the Unemployment Commission, that the closing of the store was due to the receiver locking him out but the circumstances surrounding that episode suggest to the court that Mr. Pressler because of the appointment of a receiver essentially abandoned the business without adequate notice to either the plaintiff or the receiver resulting in the loss of the holiday business and the resultant deterioration of the premises. This resulted in a diminution of the value of the business for any future sale. This view as to the value of a "going business" as contrasted to a "closed store" was expressed by Thomas Richardson, a witness offered by the plaintiff who had 32 years experience in the retail liquor business.
The December sales loss was calculated to be $56,180 based upon evidence of prior years. The effect upon the value of the store in a "closed status" was an estimated reduction in value of at least $50,000 as later demonstrated by the eventual sales price which was in excess of that figure.
It is claimed by the plaintiff that he is due damages for the defendant Pressler's sale of products below cost for the final six months of the operation of the liquor store. The court does not view this claim as being evidence of a breach of a fiduciary duty but rather a desperate attempt on the part of Pressler to keep the store afloat and by so doing protect the assets of the partnership, however misguided that attempt might have been.
Accordingly, the court concludes from the evidence offered that the defendant breached his fiduciary duty to the plaintiff. As a result of these derelictions of the defendant the plaintiff has suffered 1) the loss of the $15,500 drawn from Shawmut Bank, 2) the loss of seasonal sales calculated to be $56,180 and 3) the diminution in the value of the business by the defendant's abandonment calculated to be $67,000 as testified to by Thomas CT Page 3586 Richardson and Allan Vallillo. These damages total $138,680. The plaintiff's loss is therefore 50% or $69,340.
While the defendant testified that he contributed $55,000 of someone's money there is nothing in the evidence to suggest that this contribution was made known to the plaintiff at the time it was made nor any evidence as to what use the funds were put nor any evidence beyond that of the plaintiff's unsupported testimony that the funds in fact went into the business and accordingly, the court declines to credit the defendant for this claimed contribution.
Judgment may enter in favor of the plaintiff for $69,340 plus costs.
George W. Ripley Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3349524/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]RULINGS ON MOTIONS FOR SUMMARY JUDGMENT
This action involves a law firm and former client. The complaint, in a single count, alleges failure of the defendant to pay attorney's fees. The defendant denies the sums are due and asserts five special defenses. In addition, the defendant brings a counterclaim in nine counts. The plaintiff moves for summary judgment to enter in its favor on the entire nine count counterclaim. The defendant moves for summary judgment in his favor on the complaint. Both parties have filed opposition papers to these motions. At the time of the filing of these motions, the case was scheduled to begin jury selection.
The history of this case does not present a pleasing picture. As noted by the court (Silbert, J.) in its June 19, 1995 ruling, it "has been dominated by the all too apparent personally antagonistic feelings of the attorneys toward each other."1
In addition, at the time of that ruling, nearly two years ago, there were over eighty filings; there are now over 180 filings. The counterclaim that is the subject of the plaintiff's Motion for Summary Judgment is in its seventh revision. The court file measures one and one-half feet. The court surmises that the personal antagonism between the parties and counsel, which required unusual judicial intervention2, has led this litigation away from an orderly and efficient resolution. The words of Learned Hand, while dated in imagery, are poignant:
And yet I dare say that an ingenious actuary might find upon irrefragable computation that in general loss of time, misprision of judges, consequent appeals, discouragement of suitors and the like, the annual loss to our country through bad pleadings equalled the cost of four new battleships, or a complete refashioning of primary education. CT Page 4143
Learned Hand. "The Deficiencies of Trials to Reach the Heart of the Matter." 1921, in Lectures on Legal Topics 3:89, 94-95 (1926).
Summary judgment must be granted if the pleadings, affidavits, and other documentary proof show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Conn. Practice Book § 384; Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105,639 A.2d 507 (1994); Telesco v. Telesco, 187 Conn. 715,447 A.2d 752 (1982); Yanow v. Teal Industries, Inc., 178 Conn. 262,422 A.2d 311 (1979). A "material" fact is one which will make a difference in the outcome of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). In ruling upon a summary judgment motion, the court merely determines whether an issue of fact exists, but does not try the issue if it does exist. Michaud v. Gurney, 168 Conn. 431,362 A.2d 857 (1975).
The purpose of summary judgment is to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 273 A.2d 716 (1970);Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 253 A.2d 22
(1968). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Connecticut Bank Trust Co. v. Carriage LaneAssociates, 219 Conn. 772, 780-81, 595 A.2d 334 (1980).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . [the nonmovant] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with . . . evidence disclosing the existence of such a disputed issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court." (Citations omitted; internal quotation marks omitted.) Home Insurance Co. v. Aetna Life Casualty Co.,235 Conn. 185, 202, 663 A.2d 1001 (1995).
I
As to the June 21, 1995 revised counterclaim, the plaintiff CT Page 4144 raises three general categories to argue that summary judgment should enter in its favor on the counterclaim. First, it claims that the applicable statute of limitations bars each count of the counterclaim. Second, it argues that the counts fail to state viable causes of action. Finally, it asserts that this defendant has no standing to bring several of the counts.
A proper counterclaim is an independent action. "It has been defined as `a cause of action existing in favor of a defendant against a plaintiff which a defendant pleads to diminish, defeat or otherwise affect a plaintiff's claim and also allows a recovery by the defendant.'" Home Oil Co. v. Todd, 195 Conn. 333,341 (1985).
In his seventh revised counterclaim dated June 21, 1995, in nine counts, the defendant seeks damages from the plaintiff. In Count One, the defendant alleges unjust enrichment for money he paid the plaintiff; in Count Two, the defendant alleges unjust enrichment for money he paid the plaintiff; in Count Three, the defendant alleges a failure to provide accounting; in Count Four, the defendant alleges unjust enrichment for the interest charged by the plaintiff on outstanding bills; in Count Five, the defendant alleges defamation; in Count Six, the defendant alleges unjust enrichment for fees paid to the plaintiff; in Count Seven, the defendant alleges bad faith and breach of fiduciary duty; in Count Eight, the defendant claims damages for retaining new counsel; and in Count Nine, the defendant alleges that the plaintiff violated General Statutes § 42-110a, et seq.
A
It is incumbent upon the defendant to allege some recognizable cause of action in his counterclaim. Brill v. Utley,159 Conn. 371, 374 (1970). Failure by the plaintiff to file a motion to strike does not relieve the defendant's burden. In thisseventh revised counterclaim, the defendant has failed to state a recognizable cause of action in Counts 1, 2, 3, 4, 6 and 8. "A judgment in the absence of written pleadings defining the issues would not merely be erroneous, it would be void." Telesco v.Telesco, 187 Conn. 715, 720 (1982).
In Counts One, Two, Four and Six, the defendant asserts a cause of action for unjust enrichment. In order to prevail under a theory of unjust enrichment, the defendant must plead and prove specific elements. Unjust enrichment is the appropriate cause of CT Page 4145 action here since the plaintiff and defendant did not have a contract.
Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to contract. 5 S. Williston, Contracts (Rev. Ed.) § 1479. Recovery for unjust enrichment is appropriate when a defendant retains a benefit that has come to him at the expense of another. Polverari v. Peatt, 29 Conn. App. 191, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992); see National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034
(1985); Schleichler v. Schleichler, 120 Conn. 528, 534, 182 A.2d 162 (1935).
The elements of unjust enrichment are well established. Plaintiffs seeking recovery for unjust enrichment must prove "(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefit, and (3) that the failure of payment was to the plaintiffs' detriment." Bolmer v. Kocet, 6 Conn. App. 595, 612-13, 507 A.2d 129 (1986).
Ayotte Bros. Construction Co. v. Finney, 42 Conn. App. 578,580-581 (1996).
In Count One, the defendant alleges an oral contingency agreement between the parties. He then alleges that the plaintiff billed the defendant on an hourly basis plus finance charges, discontinued the representation and failed to file suit. The final factual allegation states simply "The defendant has paid money to the plaintiff for services on this matter." The court fails to set forth the necessary elements of unjust enrichment. By his own allegations, the parties had an oral contract.
In Count Two, the defendant alleges that the plaintiff agreed to represent the defendant and promised to file suit "if necessary" to recover the damages. He further alleges that the plaintiff "refused to file suit", and that the defendant paid money to the plaintiff for services. Exhibit 33, a letter from the defendant and Exhibit 40, another letter by the defendant, show that in fact the plaintiff was representing a corporation, namely Madison Electrical Contractors, Inc., and not the defendant. The defendant's affidavit contains no averments raising an issue as to this fact. While the defendant's memorandum suggests the defendant was personally liable for the CT Page 4146 litigation referenced in Count Two (pp. 11-12 of the Defendant's Opposition papers), that is argument and not evidence. HomeInsurance Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202
(1995). Accordingly, the court finds that a judgment based upon unjust enrichment cannot, as a matter of law, enter in favor of the defendant. Judgment may enter in favor of the plaintiff on Count Two.
In Count Three, the defendant alleges that he has suffered damages because the plaintiff failed to provide accounting. It is clear from the exhibits attached to both parties' summary judgment papers that detailed statements of services rendered were sent to the defendant after October 13, 1988, when the trust account was apparently depleted. There is no affirmative relief recoverable under this count as stated. Certainly the plaintiff has the burden to prove the elements of its complaint, and through his denials and special defenses the defendant may proffer evidence of payments made. Judgment may enter in favor of the plaintiff on Count Three.
In Count Four, the defendant alleges that the plaintiff billed the defendant at an interest rate over 19 percent per year, and that the defendant did not agree to it. The defendant alleges further that the interest charges violated General Statutes §§ 37-1 and 37-3a. Neither of those statutes is applicable as a basis for this cause of action. The final factual allegation is simply "The defendant paid interest to the plaintiff." Again, the elements of unjust enrichment are not met since there is no allegation that a payment at the illegal rate was made. The defendant's February 21, 1997 affidavit does not buttress the proposed cause of action in unjust enrichment beyond claiming, without supporting documentation, that he made a payment of $109 at the rate of over 18% a year. Judgment may enter in favor of the plaintiff on Count Four.
In Count Six, the defendant alleges that the plaintiff represented him in an arbitration matter brought against Madison Electrical Contracting, Inc., in which the defendant was an officer. He further alleges that, had the plaintiff been diligent, the matter could have settled for $11,000 prior to the arbitration hearing. The arbitration award was $16,628.39. The defendant alleges that he paid in excess of $10,000 to the plaintiff for the representation. It is clear from the supporting documentation of both parties that this defendant was not a party to the arbitration, and nothing beyond the defendant's position CT Page 4147 as an officer of the corporation is alleged. Accordingly, as pleaded, the defendant cannot prove the elements of unjust enrichment.
B
Counterclaims are generally subject to the statute of limitations to the same extent as if the claim was brought as a separate action. E. Stephenson, Connecticut Civil Procedure § 129(f) (2d. Ed. 1970). "For the purpose of the statute of limitations, an action upon the subject of a counterclaim is deemed to have begun when it is filed, or, where permission to do so is necessary, when a proper motion for that purpose is served on the opposing party." Pacelli Bros. Transportation. Inc., v.Pacelli, 189 Conn. 401, 413-414 (1983), citing Consolidated MotorLines, Inc. v. MM Transportation Co., 128 Conn. 107, 108-109
(1941)3. In this case, the first counterclaim was filed on August 23, 1994. While the defendant cites Keenan v. Yale NewHaven Hospital, 167 Conn. 284 (1974) to argue that his counterclaim relates back to the complaint, he is mistaken. As noted above, a counterclaim is an independent cause of action bythe opposing party, and Keenan expressly exempts a new cause of action from the relation back doctrine.
There is no genuine issue as to a material fact that General Statutes § 52-597 bars Count Five which sounds in defamation. General Statutes § 52-597 provides that no action "shall be brought but within two years from the date of the act complained of." The defendant's allegations aver that the letter was published in June 1990, and a copy of the June 27, 1990 letter is attached as Defendant's Exhibit 10. Since the original counterclaim was filed on August 23, 1994, this claim is time barred.
Count Seven incorporates all the allegations of the previous six counts and alleges that, based upon those allegations, the plaintiff acted in bad faith and breached its fiduciary duty. General Statutes § 52-577 applies to this count since it sounds in tort. That statute provides that "no action shall be brought but within three years from the date of the act or omission complained of." There is no dispute that the attorney client relationship ended no later than July 1991. Since the first counterclaim was filed in August 1994, this count is time barred.4
CT Page 4148
In Count Nine, the defendant incorporates all the allegations of the previous counts and alleges that, based upon those allegations, the plaintiff has violated CUTPA, General Statutes § 42-110a, et seq. That statutory action contains its own period of limitation. General Statutes § 42-110g(f) provides that no action "may be brought more than three years after the occurrence of a violation of this chapter." There are no allegations of violations after July 1991. The count is time barred under General Statutes § 42-110g(f).
II
The defendant moves for summary judgment on the complaint on the grounds that it is barred by General Statutes § 52-576 or § 52-581 and by the statute of frauds.
It is undisputed that the parties entered into a written agreement regarding two matters involving the defendant personally. (Exh. 12). The date of that written agreement is January 29, 1988. According to the documents submitted by the defendant, the last activity on either matter referenced in Exhibit 12 was no later than May 1989. With those undisputed facts, the defendant attempts to argue that because the complaint was brought in July 1994, any claim as to those matters is barred by the six year statute of limitations, § 52-576 (pp. 24-25 of Defendant's Opposition and Motion for Summary Judgement). While mathematics has never been this court's strong subject, it appears obvious to the court (1994 minus 1989 equaling 5 not 6) that the question of § 52-576 barring these claims remains an open one.
As to the remaining matters for which it is undisputed that there exists no agreement in writing, the defendant claims that General Statutes § 52-581 bars any recovery by the plaintiff. As with all the arguments and oppositions thereto, both counsel have failed to provide the court with adequate pertinent authority.
General Statutes § 52-581 provides
(a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action CT Page 4149 accrues.
This statute of limitations applies only to executory contracts.Mac's Car City. Inc. v. DeNigris, 18 Conn. App. 525, cert denied,212 Conn. 807 (1989). If there has been full performance, then the six year statute applies. Since there exists a genuine issue as to whether the § 52-581 applies and will bar this action, summary judgment must be denied on this ground. Connecticut Bank Trust N.A. v. Reckert, 33 Conn. App. 702, 714 (1994). The defendant also raises General Statutes § 52-550 as a grounds for entering summary judgment in his favor on the complaint. General Statutes § 52-550 reads
Sec. 52-550. Statute of frauds; written agreement or memorandum. (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.
[Emphasis added]
The defendant argues that since there is no written agreement that he will act as a guarantor for the corporate entities, the above provision bars the plaintiff's action. The plaintiff responds by relying on the language of (a)(5) of the statute. The plaintiff is misplacing its reliance. It is subsection (2) noted above that would bar the enforcement of any such agreement. Here, in order to overcome the statute of frauds defense the plaintiff must prove 1) the guaranty agreement was mainly for the defendant's own benefit and not the corporate entity's, OttoContracting Co. v. S. Schinella Son, Inc., 179 Conn. 704, 710
(1980), or 2) that there has been conduct amounting to part performance subsequent to the making of the contract. Heyman v.CBS, Inc., 178 Conn. 215, 222 (1979). Whether the plaintiff can meet these exceptions to the application of § 52-550 remains CT Page 4150 a question for the fact finder at trial. The court cannot decide an issue of fact it finds on a summary judgment motion. Once it finds such an issue exists it must deny the motion. Telesco v.Telesco, 187 Conn. 715, 718 (1982).
For the above reasons, the defendant's Motion for Summary Judgment is denied. The case will proceed to trial on the complaint, answer and special defenses.
DiPentima, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3349525/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The petitioner, by counsel, has filed a second amended two count petition for a writ of habeas corpus. The first count is based on a claim of ineffective counsel and the second count alleges a violation of due process.
On March 4, 1999, the Petitioner, who was represented by Attorney Joseph Buckman, entered a plea of guilty to a charge of robbery in the first degree, a Class B felony, in the case of State of Connecticut v. Jeffrey Vaneck, in the Judicial District of Stamford/Norwalk at Stamford. On that same date, the court, (Commerford, J.) accepted the plea, found the petitioner guilty, and sentenced the petitioner to a term of imprisonment of eight and one-half years to serve in accordance with the agreed recommendation. The sentences were to run concurrently with two concurrent seven year sentences which the defendant was then serving, imposed on two drug charges on September 29, 1998. The state did not proceed on a second count, charging the petitioner with being a persistent dangerous felony offender, which charge was based on a 1991 conviction of sexual assault in the first degree in which the petitioner was sentenced to a term of imprisonment of twelve years, execution suspended after three years.
The first count of the petition, in support of the claim of ineffective assistance of counsel, alleges that (a) counsel failed to challenge the photo array from which the store owner identified the petitioner as the perpetrator of the crime (b) failed to investigate the background of witness Susan Schmidt so that her statement given to the police could be shown to be in exchange for her testimony against the petitioner; (c) coerced the petitioner into accepting the plea agreement; (d) and failed to advise the petitioner that he was also charged in the second count with being a persistent dangerous felony offender. This last claim was added several days after the hearing before the court to conform the petition to the evidence offered at the trial. These alleged acts and omissions by trial counsel are claimed as demonstrating ineffective assistance of counsel and that there is a reasonable probability that but CT Page 7113 for these acts and omissions, the petitioner would not have pleaded guilty and would have exercised his right to a trial.
The second count alleges that the plea of guilty was not voluntarily and knowingly made because the court failed to inform the petitioner of the minimum sentence which must be imposed upon a conviction of a Class B felony.
In order for the petitioner to prevail on the first count he must demonstrate first that his counsel was ineffective in one of the ways alleged, and second, if ineffective assistance of counsel is proven, that there was such an interrelationship between the ineffective assistance and the plea that it can be said that the plea was not voluntary and intelligently made because of the ineffective assistance. Dukes v. Warden, 161 Conn. 337, 344. (1971).
The short answer to the allegations of the first count is that the court finds that the petitioner has failed to prove any of these allegations. During his testimony before this court he didn't even mention (a) and (b) of his petition. His testimony before this court with respect to what he was told and what he knew at the time of his plea was inconsistent, contradictory, and in connection with some of his testimony, contradicted by court records which were in evidence. Simply put, the court does not believe the petitioner. He has failed to prove that his counsel was ineffective.
With respect to the second count, the respondent has admitted that at the time the plea of guilty was accepted and the petitioner sentenced to the agreed recommendation, that the court did not advise the petitioner of the minimum sentence of one year. The ramifications of this omission, if there are any, were not mentioned during the hearing before the court. In view of the overall situation confronting the defendant at the time of his plea, and the nature of the agreed recommendation, this court does not believe that had the minimum sentence been mentioned that it would have affected in any way the willingness of the petitioner to plead guilty.
For the reasons set forth above, the second amended petition dated May 12, 2000 is dismissed. ______________ Hadden, J.T.R. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/694607/ | 52 F.3d 1510
Tom RAPP, Harry Rapp, Mark Rapp, Lori Rapp, Patricia Rapp,Mary Rapp, Michael Rapp, and Debra Wallace, Petitioners,v.UNITED STATES DEPARTMENT OF TREASURY, OFFICE OF THRIFTSUPERVISION, Respondent.
No. 93-9500.
United States Court of Appeals,Tenth Circuit.
April 14, 1995.
James R. Cage (Magdalena C. Bowen with him on the brief), Berryhill, Cage & North, P.C., Denver, CO, for petitioners.
Elizabeth R. Moore, Asst. Chief Counsel (Carolyn B. Lieberman, Acting Chief Counsel, and Thomas J. Segal, Deputy Chief Counsel with her on the brief), Office of Thrift Supervision, Washington, DC, for respondent.
1
Before SEYMOUR and TACHA, Circuit Judges, and VRATIL, District Judge.*
2
VRATIL, District Judge.
3
Petitioners Tom Rapp, Harry Rapp, Mark Rapp, Lori Rapp, Patricia Rapp, Mary Rapp, Michael Rapp, and Debra Rapp Wallace ("the Rapps") petition for review of an order of the Director of the Office of Thrift Supervision ("OTS") dated December 4, 1992. In that order, the Director found that the Rapps in concert had willfully acquired and/or retained control of a federally-insured thrift without filing prior notice, in violation of the Change in Bank Control Act of 1978 ("the Control Act"), 12 U.S.C. Sec. 1817(j), and the Savings and Loan Holding Company Act ("the Holding Company Act"), 12 U.S.C. Sec. 1467a. Pursuant to that finding, the Director assessed various civil money penalties, in the aggregate amount of $1,415,243, against the individual Rapps.
4
This Court has jurisdiction under 12 U.S.C. Secs. 1467a(i)(2)(C), 1817(j)(16)(F), and 1818(h)(2). For reasons stated below, we affirm the Director's order.
A. FACTUAL BACKGROUND
5
The Rapps are related family members. Tom and Harry are brothers. Harry is married to Patricia. Tom is married to Mary and they have four children: Mark, Lori, Michael, and Debra.
6
In 1984, Charles Bartlett recruited Tom to help organize First Northern Savings ("FNS"), a new local savings and loan association in Greeley, Colorado. Tom believed that he had a conflict of interest due to his involvement with a local bank, so he suggested that his daughter Lori participate. As a result, Lori became an organizer of FNS and served on its Board of Directors from its inception in 1984 until August 21, 1990. Although Tom was not formally an organizer of FNS, he was extremely active in marketing and selling FNS shares, and he vastly influenced the Rapp family's acquisition of FNS stock. In addition, Tom served as director of FNS from July 15, 1985, through October 31, 1989, holding positions as chairman of the board and vice president.
7
Between October, 1984, and July, 1985, the Rapps and two Rapp-owned partnerships, RAPCO and TRASCO,1 collectively acquired at least 87,000 shares--43 percent--of outstanding FNS stock. The Rapps acquired the stock as a short-term investment, expecting to sell a control block at two to three times its book value within several years.
8
In late August or early September of 1985, Tom divined through a newspaper article that the Rapp family might need government approval to own 43 percent of FNS stock. As a result, he and FNS president Charles Bartlett solicited legal advice on behalf of FNS. By letter dated September 17, 1985, counsel advised that the Rapp stock ownership constituted a control violation and that one of two things must occur: either (1) the Rapps should give notice of their control ownership to the Federal Savings and Loan Insurance Corporation ("FSLIC") pursuant to 12 C.F.R. Sec. 563.18-2 (1985),2 or (2) as a group, the Rapps should immediately divest sufficient shares to bring their combined ownership to less than 25 percent of total outstanding shares. The Rapps elected not to file notice with FSLIC, but within one week they transferred 38,750 shares (approximately 45 percent of their holdings) to other individuals.
9
Specifically, on September 17, 1985, Harry and Patricia transferred 16,500 shares of FNS stock to Judy Nelson, who worked as a secretary at Harry's company. On September 18, 1985, Tom and Mary transferred 12,250 shares to Ivan Shupe, a long-time family friend. And on September 23, 1985, Mark transferred 10,000 shares to his business partner, Bruce Copp. The Director found that these stock transfers were sham transactions, structured to reserve the attributes of ownership and control to the Rapp family while formally registering the stock in the names of third parties.3
10
After the stock transfers, the Rapps continued to search for potential buyers for the stock which they had already--at least nominally--sold to Nelson, Shupe and Copp. Indeed, on March 17, 1986, Mark sold to Harold Winograd the stock which he had nominally transferred to Copp.4
11
On August 20, 1987, Nelson asked Harry to take the FNS shares out of her name and cancel and return the promissory note and agreement.5 On September 9, 1987, Harry cancelled and returned the agreement and promissory note, but he did not transfer the stock out of Nelson's name. Shortly thereafter, Nelson informed FNS that she had assigned the stock back to Harry and Patricia and on October 30, 1987, FNS notified the Federal Home Loan Bank Board ("FHLBB") that the Rapp family might be in violation of the Control Act.6
12
On December 29, 1987, Harry transferred the "Nelson" shares to Harry Asmus, Tom's neighbor and long-time acquaintance, and Kathryn Landrum, Harry's sister-in-law. Through TRASCO, Harry's wife and sons provided full financing for the transactions and took back non-recourse demand notes secured by the stock. Asmus and Landrum endorsed the stock certificates and Harry retained possession of them. Asmus and Landrum paid no interest or principal on the notes. On December 9, 1988, Harry informed Landrum that he had overstated the financial condition of FNS and would discount her note to reflect year-end book value. Landrum replied that she had no alternative but to return the stock and that she expected Harry to cancel the note and waive interest to date. Harry subsequently sold the stock to an unrelated third party for half what Landrum had purportedly paid him.
13
After the Rapps learned of their control violation in September, 1985, and even after they had executed the nominal transfers to Nelson, Shupe and Copp, the Rapps acquired additional shares of FNS stock. On April 11, 1986, Tom purchased 500 FNS shares. On the same date Tom's sister, Katherine Rapp Miller, purchased 1,000 shares. On December 31, 1987, Lori exercised stock warrants for an additional 2,500 shares.
14
Throughout the time that the Rapp family was in violation of the control statutes, Tom was actively involved in efforts to sell a control block of FNS stock at a premium price. He placed numerous advertisements in national publications, claiming that he and his family and friends owned over 50 percent of FNS stock and offering to coordinate a sale of that stock for a personal fee.
15
On January 10, 1990, the OTS issued Enforcement Review Committee Resolution No. ERC 90-7, along with a Notice of Assessment of a Civil Money Penalty ("Notice of Assessment"), charging that since July, 1985, the Rapps had continually owned and had the power to vote more than 25 percent of the outstanding voting stock of First Northern Savings, in willful violation of Section 1817(j)(16) of the Control Act. The notice assessed a $1,000,000 penalty against Tom Rapp, with an additional $10,000 penalty for each day the violation continued. The notice also assessed penalties of $50,000, plus $1,000 for every day of continuing violation, against each of the seven remaining petitioners.7
16
On February 2, 1990, the Rapps answered the Notice of Assessment and requested an administrative hearing. The Administrative Law Judge ("ALJ") recommended summary judgment against the Rapps on, inter alia, the Rapps' affirmative defenses of estoppel and breach of contract. The ALJ held an administrative hearing from November 13 through 14, 1990, and April 16 through 19, 1991. On August 22, 1991, the ALJ issued his recommended decision, finding that the Rapps had engaged in a pattern of misconduct in willful violation of the Control Act. He recommended civil penalties in the amount of $100,000 against Tom Rapp and $20,000 against each of the remaining Rapps. Both the Rapps and the OTS filed exceptions to the ALJ's recommended decision.
17
On December 4, 1992, the OTS Director issued his Decision and Order on Assessment of Civil Money Penalties ("Final Decision "), which found that from June 26, 1985 through November 13, 1990, over consecutive time periods, the Rapps in concert had violated both the Holding Company Act and the Control Act. More specifically, the Director found that from June 26, 1985, through December 31, 1989, the Rapps had violated the Holding Company Act, while from January 1, 1990, through November 13, 1990, the Rapps had violated the Control Act. As a consequence of these findings, the Director imposed statutory penalties in the following amounts: $971,600 against Tom Rapp; $186,900 against Harry Rapp; $186,900 against Mark Rapp; $29,370 against Lori Rapp; $16,020 against Patricia Rapp; $13,585 against Mary Rapp; $5,434 against Michael Rapp; and $5,434 against Debra Rapp Wallace.
18
The Rapps challenge the penalties on three separate grounds. First, they argue that the Director erroneously rejected their affirmative defenses that the OTS had breached an agreement to settle the civil money penalties for $5,000 or, alternatively, that the OTS was estopped from asserting civil money penalties in excess of $5,000. Second, the Rapps assert that the record does not justify second-tier penalties against individual family members. Finally, the Rapps claim that the OTS violated their constitutional due process rights.
B. STANDARD OF REVIEW
19
Judicial review of OTS action is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 701 et seq. Under the APA we must "hold unlawful and set aside agency [adjudicatory] action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] ... (E) unsupported by substantial evidence...." 5 U.S.C. Sec. 706(2); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S. Ct. 814, 822-23, 28 L. Ed. 2d 136 (1971), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977). Section 706 sets forth separate and distinct standards and each requires us to engage in a "substantial inquiry." Overton Park, 401 U.S. at 415, 91 S.Ct. at 823; Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284, 95 S. Ct. 438, 441, 42 L. Ed. 2d 447 (1974). Although an agency's decision is entitled to a presumption of regularity, "that presumption is not to shield [the agency's] action from a thorough, probing, in-depth review." Overton Park, 401 U.S. at 415, 91 S.Ct. at 823.
20
Under the arbitrary and capricious standard, we ascertain whether the agency examined the relevant data and articulated a rational explanation for its decision. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866-67, 77 L. Ed. 2d 443 (1983). In reviewing the agency's explanation, we determine whether the agency considered the relevant factors and whether it made a clear error of judgment. Id. at 43, 103 S.Ct. at 2866-67. Normally, we set aside agency action as arbitrary and capricious if
21
the agency has relied on factors which Congress has not intended for it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
22
Id. As the reviewing court, we may not compensate for such deficiencies by supplying a reasoned basis for the agency's action that the agency itself has not given. Id.
23
Evidence is substantial under the APA if it is enough to justify, if the trial were to a jury, refusal to direct a verdict on a factual conclusion. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Under the substantial evidence test, we consider conflicts in the record and specifically define those facts which support the agency's decision. See Olenhouse, 42 F.3d at 1576. "This requires a plenary review of the record as it existed before the agency." Id. at 1575.
C. DISCUSSION
1. Affirmative Defenses
24
As noted above, the Rapps requested an administrative hearing on certain "affirmative defenses" to the Notice of Assessment dated January 10, 1990. More specifically, the Rapps argued that the OTS had agreed to settle all claims upon payment of a $5,000 penalty or, in the alternative, that the OTS was estopped from collecting a penalty greater than $5,000. The ALJ found that the OTS was entitled to summary judgment on petitioners' defenses, which they characterized as breach of contract and estoppel defenses. The Director adopted the ALJ recommendation in this regard, and petitioners challenge that decision. Because of the summary nature of these rulings, we take as true for purposes of appeal all facts properly asserted by the Rapps. See, e.g., Oberstar v. FDIC, 987 F.2d 494, 498 (8th Cir.1993).
25
In January, 1989, FHLBB notified the Rapps of the alleged Control Act violation. At that time, FHLBB offered to settle the matter upon payment of a $10,000 civil penalty and entry of an agreed cease and desist order. More particularly, FHLBB proposed a cease and desist order which would have required the Rapps to transfer to an approved trust all stock exceeding 9.9 percent of outstanding FNS stock. FHLBB's proposed order would have required the Rapps to also obtain approval of a rebuttal of control submission under Section 574.4(e)(1) of the Control Act Regulations, or allow the trustee to sell the stock exceeding 9.9 percent, with any profits being paid to FSLIC.
26
On May 1, 1989, the Rapps rejected FHLBB's offer and proposed to settle the civil penalties for $1,000. FHLBB rejected that proposal and proposed a $7,500 penalty. By letter dated May 24, 1989, the Rapps again rejected FHLBB's offer and proposed a $5,000 settlement. FHLBB eventually agreed to the Rapp's $5,000 penalty offer and by letter dated June 22, 1989, sent them a proposed desist order which incorporated stipulations identical to those proposed in January, 1989.
27
The Rapps refused to accept the proposed stipulations and order. For the first time, they objected to a requirement that FSLIC receive the profit resulting from any sale of their stock. The parties thereafter continued to negotiate this point, focusing on the definition of "profit." Finally, however, by letter dated October 30, 1989, the OTS (which had then succeeded FHLBB under FIRREA) informed the Rapps that it saw no basis for further negotiations.8
28
On November 21, 1989, the Rapps wrote to the OTS, expressing an interest in continued negotiations. The OTS rebuffed this overture by letter dated November 28, 1989, noting that the Rapps had rejected all prior proposals and stating that the OTS did not intend to make a further proposal.
29
On December 18, 1989, the Rapps informed the OTS that its definition of profit was agreeable. They also expressed a belief that all issues were resolved and offered to sign and return corrected documents. The OTS did not respond to this proposal. Instead, on January 10, 1990, it issued the Notice of Assessment of penalties against Tom Rapp in the amount of $1,000,000 plus $10,000 for each day of continuing violation, and against the remaining petitioners in the amount of $50,000 plus $1,000 for each day of continuing violation. The Rapps contend that this penalty constituted a breach of the parties' agreement to settle the civil money penalty for $5,000. In the alternative, petitioners contend that the OTS is estopped from assessing a penalty in excess of $5,000.
30
a. Breach of Contract
31
The Director found that no contract existed between the parties. Specifically, he noted that the amount of penalty was only one of many issues in a multi-faceted negotiation which continued long after the parties agreed to a $5,000 penalty. This finding is well-supported by the record and is not arbitrary, capricious, or an abuse of discretion. Although the parties agreed to the amount of penalty, the record clearly establishes that they failed to agree on other terms material to the settlement. See Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1493 (D.C.Cir.1984) (absence of agreement on material term prevents formation of contract); Mid-Continent Petroleum Corp. v. Russell, 173 F.2d 620, 622 (10th Cir.1949) (no contract created where material terms and conditions of agreement are unsettled). No contract resulted from the Rapps' last-ditch and arguably disingenuous "acceptance" of a proposal which they had long since rejected. Under any reasonable view of the record, the OTS offer expired long before the Rapps attempted to accept it. Petitioners' breach of contract claim therefore fails as a matter of law, and the Director did not err in so holding.
32
b. Estoppel
33
Alternatively, the Rapps assert that the OTS is estopped from imposing a civil penalty exceeding $5,000. Specifically, the Rapps claim that the Director misapplied the law by requiring them to show affirmative misconduct by the government as a condition of estoppel.
34
This Circuit has found that in order to prevail on a claim of governmental estoppel, the party seeking relief must show affirmative misconduct by the government. See Board of County Comm'rs of County of Adams v. Isaac, 18 F.3d 1492, 1499 (10th Cir.1994). The Director rejected the Rapps' allegation that the OTS had engaged in affirmative misconduct by enlarging the amount of penalties assessed against them. See Final Decision, p. 30-31 n. 34. In this regard, the Director did not err. "Affirmative misconduct means an affirmative act of misrepresentation or concealment of a material fact." Isaac, 18 F.3d at 1499. The Rapps make no allegation that FHLBB or the OTS affirmatively misrepresented or concealed a material fact. Thus the Director's conclusion is well-supported in fact and in law.9
2. Penalty Assessment
35
The Rapps challenge the Director's assessment of second-tier penalties--as opposed to lesser, first-tier penalties--under the Control Act. The Control Act imposes second-tier penalties in the maximum amount of $25,000 per day for any violation which
36
(I) is part of a pattern of misconduct;
37
(II) causes or is likely to cause more than a minimal loss to such institution; or
38
(III) results in pecuniary gain or other benefit to such person.
39
12 U.S.C. Sec. 1817(j)(16)(B)(ii). A Control Act violation under Section 1817(j) which does not meet these criteria qualifies for first-tier penalties in the maximum amount of $5,000 per day. 12 U.S.C. Sec. 1817(j)(16)(A).
40
The Director held that second-tier penalties were appropriate because the individual petitioners had engaged in a "pattern of misconduct" and had received "other benefit" under Sections 1817(j)(16)(B)(ii)(I) and (III), respectively. Petitioners argue that the Director's statutory interpretation is unreasonable and that his factual findings are arbitrary, capricious and unsupported by the evidence.10
41
a. Sham Transactions
42
In finding a "pattern of misconduct," the Director concluded that the stock transfers to Nelson, Shupe and Copp were sham transactions. Petitioners challenge this conclusion, arguing that it is unsupported by the record. We disagree. On this record, the Director could easily find that the stock transfers to Nelson, Shupe and Copp were transfers in name only, designed to conceal the Rapps' control violation and buy time for them to find bona fide purchasers who would buy the stock at a premium price.
43
The Rapps assert that the transactions were legitimate because Nelson, Shupe and Copp received genuine investment opportunities, in that they could pay off the notes and retain any profit. The record reflects that Nelson, Shupe and Copp had no intent of paying off the notes, however, and that they acquired their stock at prices which substantially exceeded the "going prices" of FNS shares. The likelihood that they would ever realize any profit was apparently slim or none. On this record, we readily affirm the Director's conclusion that the stock transfers were sham transactions.
44
b. Pattern of Misconduct
45
The Rapps challenge the Director's further finding that the control violations by individual Rapps were part of a "pattern of misconduct" under Section 1817(j)(16)(B)(ii)(I). Specifically, petitioners assert that a "pattern of misconduct" under subsection (I) requires two or more Control Act violations and that misconduct surrounding a single violation cannot give rise to a "pattern of misconduct" under the statute.11 The Rapps also complain that factually, the record does not support a finding that each individual engaged in a "pattern of misconduct."
46
The Control Act does not define a "pattern of misconduct" and the legislative history is seemingly silent on this point. Congress has not specifically addressed the issue and in fact has entrusted the OTS with responsibility for administering the statute. We therefore give considerable deference to the Director's interpretation and limit our review to a determination whether his construction of the statute is reasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S. Ct. 2778, 2783, 81 L. Ed. 2d 694 (1984); Home Mortg. Bank v. Ryan, 986 F.2d 372, 376 (10th Cir.1993).
47
Under the statute, any person who commits a control violation, "which violation ... is part of a pattern of misconduct," is liable for second-tier penalties. 12 U.S.C. Sec. 1817(j)(16)(B)(ii)(I). The statutory language does not limit second-tier penalties to patterns of Control Act violations, nor does it stipulate that in order to incur liability for second-tier penalties each member of an offending control group must independently demonstrate a separate "pattern of misconduct." The plain language of the statute authorizes second-tier penalties if the control violation is part of a pattern of misconduct. In our view, the Director acted reasonably in so construing it.
48
In this case, citing the Rapps' repeated efforts to conceal their control violations and their continuing refusal to comply with control regulations, the Director found a "pattern of misconduct" which authorized imposition of second-tier penalties. In support of his conclusion, the Director cited the Rapps' ongoing acquisition of FNS stock, the sham stock transfers, Tom's misrepresentations to state regulators and FNS directors concerning the propriety of the sham transactions, Harry's attempt to mislead state investigators with respect to Nelson's stock ownership, and subsequent stock purchases by Tom and Lori after they had clearly learned of the control violation. See Final Decision, p. 26-27.
49
These findings were supported by substantial evidence, and the Director did not exceed his authority in finding that each petitioner's violation was part of a "pattern of misconduct" under Section 1817(j)(16)(B)(ii)(I).
50
c. Other Benefit
51
In part, the Director based the imposition of second-tier penalties on his finding that although petitioners had not received pecuniary profit from their control violation, they had received "other benefit" under Section 1817(j)(16)(B)(ii)(III). The Rapps contend that the Director erred in concluding that their control of FNS, without more, constituted "other benefit."
52
As a preliminary matter, contrary to petitioners' argument, the Director did not find that control ownership alone constituted "other benefit" sufficient to justify imposition of second-tier penalties in this case. The Director did state that petitioners' control was a benefit, but he found that the benefit was more than de minimis. Indeed, the Director outlined various benefits which the Rapps had secured as a result of their control violation: they demanded and received seats on the FNS board of directors, with Tom serving as of chairman of the board, and through Tom, the Rapps advertised the institution for sale, demanding a premium price for the family's control block of stock and negotiating a personal fee to bring the transaction to completion.12 See Final Decision, p. 28.
53
More importantly, on this record, the Director's conclusion that petitioners benefitted from their control violation is not arbitrary, capricious, or unsupported by the record.13 See Motor Vehicle, 463 U.S. at 43, 103 S. Ct. at 2866-67.
54
d. Mitigating Factors
55
The Rapps complain that the Director failed to properly consider mitigating factors, especially the fact that FNS did not suffer financial loss as a result of the Rapps' misconduct. In determining the penalty to be assessed against each individual Rapp, however, the Director reduced the tentative penalty by 80 percent because petitioners' conduct did not cause a loss or risk of loss to FNS, and because the Rapps had no prior control violations. On this record, we find that the Director sufficiently considered mitigating factors and did not abuse his discretion in imposing the penalties. See, e.g., Morgan v. Secretary of Hous. and Urban Dev., 985 F.2d 1451, 1458 (10th Cir.1993) (we will not disturb amount of penalty imposed unless it is abuse of discretion or otherwise arbitrary or capricious).
3. Due Process
56
Finally, the Rapps claim that the Director violated their statutory and constitutional due process rights in two respects.14 First, they assert that the Director changed theories midstream by imposing penalties against them under the Holding Company Act, when the Notice of Assessment and ALJ had imposed penalties under the Control Act. Second, they contend that by announcing a new matrix methodology for assessing civil money penalties, the Director wrongfully performed an act of broad policy-making in a single adjudicatory proceeding. To remedy these purported violations, the Rapps ask not that the matter be remanded for statutorily and constitutionally sufficient procedures, but that petitioners be entirely relieved from any penalties for proven violations.
57
a. Notice of Statutory Basis for Penalties
58
The Notice of Assessment and the ALJ levied civil money penalties under the Control Act, but the Director found that petitioners had violated the Holding Company Act from June 26, 1985, to December 31, 1989, because they had acted in concert with the RAPCO and TRASCO partnerships during that period.15 The Rapps do not claim that the Holding Company Act is inapplicable, and we assume for purposes of this appeal that it does apply. Likewise, the Rapps do not claim that the Holding Company Act and the Control Act are substantively different in any respect relevant to this case. Rather, they argue that in "suddenly switching statutes," the Director violated petitioners' statutory and constitutional right to notice of the legal claims asserted against them.
59
Section 554 of the APA requires procedural fairness in the administrative process. See 5 U.S.C. Sec. 554(b)(3) ("Persons entitled to notice of an agency hearing shall be timely informed of ... (3) the matters of fact and law asserted."); Department of Educ. of State of Cal. v. Bennett, 864 F.2d 655, 659 (9th Cir.1988). Notice is sufficient as long as the party to an administrative proceeding is reasonably apprised of the issues in controversy and is not misled. State of Wyo. v. Alexander, 971 F.2d 531, 542 (10th Cir.1992); Savina Home Indus., Inc. v. Secretary of Labor, 594 F.2d 1358, 1365 (10th Cir.1979). In order to establish a due process violation, petitioners must demonstrate that they have sustained prejudice as a result of the allegedly insufficient notice. See Savina, 594 F.2d at 1365 (no due process violation where no prejudice alleged); Brock v. Dow Chemical U.S.A., 801 F.2d 926, 930-31 (7th Cir.1986).
60
Petitioners claim they sustained prejudice because they would not have entered into stipulations regarding RAPCO and TRASCO if they had known that the Holding Company Act was at issue. Petitioners do not specify what stipulations were prejudicial, however, or why notice of the Holding Company Act ramifications was material to their strategy. RAPCO and TRASCO were major players in the Control Act violations and petitioners seemingly agree that if the Holding Company Act did not apply by virtue of 12 U.S.C. Sec. 1817(j)(17)(C), their identical conduct in concert with RAPCO and TRASCO would have violated the Control Act.16 See Final Decision, p. 17-18 n. 21. We therefore comprehend no material prejudice with respect to petitioners' strategy concerning the stipulations.
61
The Rapps complain that prior to FIRREA the Holding Company Act differed substantially from the Control Act,17 in that the Control Act prohibited only willful violations and provided de novo review by a district court, while the Holding Company Act at that time did not. Contrary to petitioners' assertion, however, both statutes required proof that a violation was willful. Compare 12 U.S.C. Sec. 1730a(j) (1988) with 12 U.S.C. Sec. 1817(j) (1988). It is true that prior to FIRREA, the Control Act provided de novo trial in district court for any action to collect a penalty,18 while the Holding Company Act did not.
62
Significantly, petitioners do not contend that the disparity in post-assessment collection procedures colored their participation in the administrative hearing or affected in any material way their due process rights at that hearing. Petitioners merely assert that the appellate procedures differed and that, a fortiori, the notice was insufficient and the resulting penalties are unenforceable because petitioners received insufficient opportunity to challenge the imposition of Holding Act penalties in an administrative hearing. The Rapps do not disclose how they would have challenged such penalties, or in what way lack of notice has prejudiced them. Indeed, even in this appeal, petitioners do not challenge the imposition of Holding Act penalties or contend that the Holding Act is inapplicable to their conduct. In short, the Rapps have identified no issue which they would have presented differently had the Notice of Assessment stated that penalties would be assessed under both the Control Act and the Holding Company Act. On this record, petitioners have failed to allege material prejudice based on insufficiency of notice, and thus we find no violation of petitioners' due process rights. See Savina, 594 F.2d at 1365.
63
b. Penalty Matrix
64
In 1980, the Federal Financial Institutions Examination Council ("FFIEC") issued a list of thirteen factors designed to assist federal bank and thrift regulatory agencies in deciding whether to impose civil money penalties and, if so, in what amounts. See Interagency Policy Regarding the Assessment of Civil Money Penalties by the Federal Financial Institutions Regulatory Agencies, 45 Fed.Reg. 59,423 (1980). In 1990, the OTS published a policy statement which, for internal use in assessing civil money penalties, contained a matrix incorporating the thirteen factors. See OTS Regulatory Bulletin 18-3 (1990). The matrix assigned to each factor a mathematical value which reflected its weight relative to the other factors. The OTS assigned each factor an additional value, reflecting (on a scale of 1 to 6) the degree to which that factor applied in the facts of the particular case. Through mathematical calculations prescribed in the regulatory bulletin, the OTS then arrived at a single number which when applied to the matrix, suggested a range of appropriate penalties.
65
In the Rapps' case, the Director found that the matrix was inadequate because it did not appropriately account for the three-tiered penalty structure imposed by FIRREA and sometimes resulted in "inconsistent and arbitrary" penalty assessments. See Final Decision, p. 37-38. As a result, the Director employed a different approach in weighing and evaluating the thirteen factors.19 Specifically, using FIRREA's three-tier penalty structure as a starting point, the Director proposed an initial penalty amount for each petitioner. The Director increased or decreased that amount by various percentages, based on weights that he assigned to aggravating or mitigating factors corresponding with the thirteen matrix factors.20 See Final Decision, p. 38-49. The Director detailed his decisional process at great length so as to provide "additional guidance on the assessment of civil money penalties in other matters." Final Decision, p. 19.
66
Petitioners do not claim that the Director's chosen method of assessing penalties was itself improper. Nor do they challenge the manner in which the Director applied that method to the facts of this case. Petitioners' sole argument is that while the Director applied the previously published matrix factors, he did not follow the matrix methodology and the substituted methodology resulted in higher penalties against them. The Rapps contend that use of the substituted methodology was unlawful, in that it constituted broad policy-making and application in a single adjudicatory proceeding.21
67
Administrative agencies are not precluded from announcing new principles in an adjudicative proceeding, however, and the choice between rule-making and adjudication lies in the first instance within the agency's discretion. See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S. Ct. 1575, 1581, 91 L. Ed. 1995 (1947) (agency must retain power to deal with problems on case-by-case basis if administrative process to remain effective); First Bancorporation v. Board of Governors of Fed. Reserve Sys., 728 F.2d 434, 437 (10th Cir.1984). Here, the Director chose to follow the methodology which was necessary, in his view, to appropriately account for the three-tier penalty structure in FIRREA.22 This action did not amount to an abuse of discretion.
68
The Director had a duty to assess penalties appropriately under the applicable statutes, "regardless of whether those standards previously had been spelled out in a general rule or regulation." Chenery, 332 U.S. at 201, 67 S.Ct. at 1580. To rigidly say that the Director could not alter or amend the previously articulated matrix methodology would unreasonably restrict his ability to deal with the specialized problem of penalty assessment, especially where--as the OTS admitted in this case--the agency had little experience under FIRREA. See id. at 202-03, 67 S.Ct. at 1580-81.
69
By its terms, the OTS matrix methodology was an announcement of policy which the OTS hoped to implement in future adjudications. See Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 620, modified on other grounds, 1994 WL 484506 (5th Cir.1994); Pacific Gas & Elec. Co. v. Federal Power Comm'n, 506 F.2d 33, 38 (D.C.Cir.1974). In publishing the matrix methodology, the OTS stated that it was adopting the matrix because of new FIRREA changes and the agency's "relative inexperience" in the area. The OTS noted that it intended to revise the matrix as the agency gained experience in assessing penalties, and cautioned that the matrix "should be regarded as a living and evolving document." The OTS further stated that the matrix was "not a substitution for sound supervisory judgment," but was merely a "tool" in making penalty assessments.
70
The record establishes that the OTS never intended to bind itself to the matrix, and that petitioners had no reasonable or legally protected expectation that the OTS would apply matrix methodology in their case. Indeed, petitioners claim no detrimental reliance and demonstrate no prejudice, aside from speculation that a lower penalty might have resulted under the original scheme.
71
"[W]here Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy the relation of remedy to policy is peculiarly a matter for administrative competence." Butz v. Glover Livestock Commission, 411 U.S. 182, 185, 93 S. Ct. 1455, 1458, 36 L. Ed. 2d 142 (1973) (quoting American Power & Light Co. v. SEC, 329 U.S. 90, 112, 67 S. Ct. 133, 145-46, 91 L. Ed. 103 (1946) (quotation omitted)). Thus, we will not disturb the amount of penalty imposed by the Director unless it is an abuse of discretion or otherwise arbitrary or capricious. See Morgan, 985 F.2d at 1458. While it is true that in some instances an agency's reliance on adjudication may amount to an abuse of discretion, see First Bancorporation, 728 F.2d at 437, that is not the situation here. This is not a case in which the OTS sought to impose a new liability for past actions which were taken in good-faith reliance on OTS pronouncements and thus, on this record, the Director's action was not an abuse of discretion. See NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 295, 94 S. Ct. 1757, 1772, 40 L. Ed. 2d 134 (1974).
D. CONCLUSION
72
For the foregoing reasons, we AFFIRM the Director's order.
*
The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation
1
RAPCO is an investment partnership comprised of Tom's wife Mary and their children, Mark, Lori, Michael and Debra, petitioners herein. TRASCO is an investment partnership comprised of Harry's wife Patricia and their three sons. The sons are not parties to this action
2
Apparently this advice was based on the premise that late notice is better than no notice at all. Section 563.18-2(c) requires 60 days prior written notice whenever any person or persons acting in concert will acquire direct or indirect power to direct the management or policies of an insured institution or to vote 25 percent or more of any class of voting securities of an insured institution. Within the 60-day review period, FSLIC may disapprove the proposed acquisition. See 12 C.F.R. Sec. 563.18-2(g)
3
Each transfer was structured as a "sale" in which the buyer executed a non-recourse, interest-bearing demand note for the full purchase price of the stock. The Rapps retained the stock certificates, endorsed in blank by the buyers, as security. The buyers executed hypothecation agreements which permitted the Rapps to pledge the stock as collateral. These transactions were free of risk to the buyers. The buyers were not responsible for interest or principal on the notes unless and until third parties purchased the stock. In that event, depending upon the resale price, Nelson, Shupe or Copp could pay off the notes and retain the profit, or default on the notes and walk away from the transaction with no personal liability whatsoever
4
Copp played no role in this transaction. Mark informed Copp that he had a buyer and was going to take the stock back. Mark (not Copp) received the sale proceeds, and the sale to Winograd was for $70,000 less than the purported sale to Copp some six months earlier
5
Shortly after the transfer to Nelson, Harry and Patricia signed an agreement wherein they retained all right, title and interest in the stock purportedly sold to Nelson, including the right to dividends. In the agreement, Harry and Patricia also assumed liability for any capital gains tax resulting from Nelson's sale of the stock
6
Shortly thereafter, on December 11, 1987, the State of Colorado sent Nelson a questionnaire concerning her ownership of FNS stock. Harry completed the questionnaire, stating that Nelson still owned 16,500 shares of FNS stock. At the administrative hearing Harry denied that he had completed the form but both the ALJ and the Director found otherwise and their findings are supported by substantial evidence
7
The Notice of Assessment also imposed penalties against Stan Rapp, a brother of Tom and Harry. The Director found that penalties were not warranted as to Stan, because of his minimal involvement in the scheme. The Rapps do not challenge this finding and Stan is not a party to this appeal
8
In August, 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act ("FIRREA"), which abolished FHLBB and vested regulatory authority over federally-insured thrifts in the newly created Office of Thrift Supervision ("OTS"). See 12 U.S.C. Sec. 1461, et seq
9
The Rapps also argue that at the administrative hearing, the ALJ improperly excluded evidence relating to the petitioners' breach of contract and estoppel claims, in violation of their due process rights and 5 U.S.C. Sec. 556(c) and (d). By the time of the administrative hearing, however, the ALJ had properly eliminated the estoppel and breach of contract claims through summary judgment. Evidence concerning those claims was not relevant to the issues presented at the hearing, and the Rapps were not entitled to an evidentiary hearing on those matters. See, e.g., Puerto Rico Aqueduct and Sewer Auth. v. U.S. EPA, 35 F.3d 600, 606 (1st Cir.1994) (due process does not require agency to convene evidentiary hearing when no genuine issue of material fact exists), cert. denied, --- U.S. ----, 115 S. Ct. 1096, 130 L. Ed. 2d 1065 (1995); Oklahoma Bankers Ass'n v. Federal Reserve Board, 766 F.2d 1446, 1452 (10th Cir.1985) (agency must provide evidentiary hearing where dispute of material fact exists). See also 12 C.F.R. Sec. 509.26 (1990). Petitioners' due process argument is therefore without merit
10
Petitioners also complain that the Director's decision implies that the Rapps knew of their control violation in 1984 and that the violation continued through the date of the Director's final decision. These arguments are immaterial to the outcome of this appeal. The Director imposed penalties only from September 17, 1985, through November 12, 1990, the day before the administrative hearing began. He imposed no penalties for any violation before September, 1985, or after the date of the administrative hearing. The Rapps were not prejudiced by any "implication" that they violated control regulations during other time periods. See 5 U.S.C. Sec. 706 (on judicial review of administrative action "due account shall be taken of the rule of prejudicial error")
11
The Rapps further argue that because a "pattern of misconduct" cannot arise from a single control violation, first-time Control Act offenders (such as themselves) are immune from second-tier penalties under Section 1817(j)(16)(B)(ii)(I). The statutory language does not command this result, however, and the Director did not abuse his discretion in rejecting it
12
That the Rapps considered their control a "benefit" is demonstrated by their refusal to relinquish it--even when confronted with knowledge that it was illegal
13
Because the Director specifically found that the Rapps derived non-pecuniary benefit from their control violation, we do not address petitioners' argument that control in itself is not a benefit under 12 U.S.C. Sec. 1817(j)(16)(B)(ii)(III). But cf. Oberstar v. FDIC, 987 F.2d 494, 502 (8th Cir.1993) (obtaining effective control of financial institution is no doubt "other benefit" under Sec. 1818(e)(1)(B)(iii))
14
We reject without further discussion the Rapps' contention that the OTS penalized them for pursuing administrative remedies by imposing daily penalties for the period after the Notice of Assessment, before the administrative hearing. Based on the Director's finding that the Rapps continued to violate control regulations during this time, it was not improper to assess daily penalties against them. See, e.g., Abercrombie v. OCC, 833 F.2d 672, 676-77 (7th Cir.1987) ("As a practical matter, [persons] who know they are liable for a specified amount for each day a violation continues would be likely to cure the violation in a short order.")
15
The Director opined that control violations which involved joint participation by individuals and partnerships fell under both the Holding Company Act and the Control Act, but that the Control Act did not apply to transactions which were subject to the Holding Company Act. See 12 U.S.C. Sec. 1817(j)(17)(C). He held that for the period when the Rapps acted jointly with RAPCO and TRASCO, they had violated the Holding Company Act and therefore not the Control Act. The partnerships had relinquished their stock ownership by December 31, 1989, so the Director applied the Control Act for the latter period
16
The Director found that the Notice of Assessment provided adequate notice to the Rapps because the Control Act and the Holding Act prohibit the same activity, apply substantially identical legal standards, and permit the same maximum penalties on the facts of this case. Final Decision, p. 17 n. 21. We agree. The two statutes prohibit identical activity (owning or controlling in excess of 25 percent of voting stock) by different entities, and the same regulations have applied to both statutes since 1985. See 12 C.F.R. Sec. 574 et seq
17
The Director imposed Holding Company Act penalties during both pre-FIRREA and post-FIRREA periods. Thus, petitioners' argument with regard to substantive differences between the pre-FIRREA statutes applies only to a portion of the Holding Company Act penalties assessed against them
18
Prior to FIRREA, the Control Act provided that in any action by the agency to collect a penalty, "the person against whom the penalty has been assessed shall have a right to a trial de novo." 12 U.S.C. Sec. 1817(j)(16). In Miller v. FDIC, 906 F.2d 972, 976 (4th Cir.1990), the Fourth Circuit concluded that this section guaranteed a de novo review as to all aspects of a penalty assessment, including liability and amount
19
Actually, the Final Decision factors do not perfectly correspond to those listed in the matrix. They are substantially similar, however, both in terms of the factors identified and the relative weights assigned to them
20
The thirteen decisional factors were as follows: (1) willfulness; (2) frequency or recurrence; (3) continuation of violation; (4) failure to cooperate; (5) concealment; (6) harm to the institution or public confidence; (7) gain or benefit; (8) restitution; (9) prior violations; (10) previous criticism; (11) compliance program; (12) unsafe or unsound practices, or breaches of fiduciary duty; (13) previous measures. See Final Decision, p. 44-49
21
Petitioners couch their argument in due process terms, but they do not assert that notice of the new methodology would have affected their conduct in any way. Instead, the Rapps assert that the mere act of announcing a broad policy in an adjudicative setting is impermissible and, therefore, the penalties must be vacated
22
Although the matrix was published in 1990, after FIRREA had been enacted, the OTS had been working on the matrix prior to the enactment and the Director expressed concern that the matrix did not account for FIRREA's three-tier penalty hierarchy. Specifically, he found that under the matrix, "the sum of factors for a first-tier violation could indicate a penalty in excess of the statutory maximum; the sums for second-tier and third-tier violations could indicate penalties well below what Congress contemplated...." Final Decision, p. 37-38 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1601949/ | 1 So.3d 185 (2008)
ERICKSON
v.
STATE.
No. 2D08-198.
District Court of Appeal of Florida, Second District.
May 7, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601912/ | 1 So.3d 175 (2009)
BLACKMON
v.
STATE.
No. 1D08-5829.
District Court of Appeal of Florida, First District.
January 21, 2009.
Decision without published opinion. Belated App. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601907/ | 869 So.2d 1100 (2003)
HEALTH INSURANCE CORPORATION OF ALABAMA et al.
v.
Edward SMITH and Bernice Smith.
1010570.
Supreme Court of Alabama.
April 11, 2003.
Rehearing Denied June 27, 2003.
*1102 Robert A. Huffaker and John Peter Crook McCall of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
L. Andrew Hollis, Jr., and Josh J. Wright of Hollis & Wright, P.C., Birmingham, for appellees.
SEE, Justice.
Health Insurance Corporation of Alabama, Baptist Health Services Corporation, and Advantage Health (hereinafter referred to collectively as "HICA") appeal from the trial court's denial of their motion to compel arbitration of the claims filed against them by Edward Smith and Bernice Smith. The trial court denied HICA's motion to compel arbitration on the ground that the insurance contracts between the Smiths and HICA do not substantially affect or involve interstate commerce. We reverse and remand.
Health Insurance Corporation of Alabama, an Alabama corporation, issues Medicare supplement insurance policies under the trade name Advantage Health. Baptist Health Services, also an Alabama corporation, sponsors the policies. On April 23, 1993, Edward Smith and Bernice Smith, residents of Fort Deposit, completed applications and tendered the first month's premiums for Medicare supplement insurance policies for both of them. The insurance applications identified HICA as the insurer and listed a Montgomery, Alabama, address for the insurer.
In an affidavit filed in support of HICA's motion to compel arbitration, Craig Bodway, vice president of compliance for Olympic Health Management Systems, Inc. ("Olympic"), a subsidiary of Aon Corporation, stated that HICA's agent faxed the Smiths' insurance applications to Olympic, which managed the Medicare supplement policies for HICA, in Bellingham, Washington, for its review and approval. HICA then mailed the Smiths' original applications to Olympic in Washington state, and Olympic then mailed the Medicare supplement policies to the Smiths in Alabama. The policies identified HICA as the insurer and listed HICA's Montgomery address. Olympic maintained the Smiths' customer file in Washington and HICA had access to that file by computer. The Smiths' insurance applications indicate that they asked HICA to deduct their insurance premiums each month from a checking account they maintained in Alabama.
Olympic is the third-party administrator for all of HICA's Medicare supplement insurance policies. Olympic reviews in Washington all applications for HICA Medicare supplement policies, and Olympic makes all decisions as to whether to issue coverage. Once a policy is issued, Olympic handles any subsequent customer communications and claims administration from Washington. If an insured contacts HICA directly, HICA forwards the correspondence to Olympic in Washington for it to prepare a response. Olympic pays all *1103 claims either from its Bellingham, Washington, office or from the office of a subcontractor in Carrollton, Texas. HICA pays Olympic an administration fee for those services. The Smiths have not named Olympic as a defendant in their complaint.
The Medicare supplement insurance policies Olympic mailed to the Smiths contain an arbitration clause[1] and a clause giving the Smiths a 30-day inspection period within which to review the policy and, if they found any provision unsatisfactory, to cancel the policy and receive a full refund of any premiums they had paid. According to Bodway's affidavit, the Smiths did not cancel their policies during the 30-day inspection period.
The Smiths renewed their policies for a number of years.[2] On June 1, 2001, the Smiths, individually and as members of a putative class, sued HICA, alleging breach of contract, fraud, suppression, negligent misrepresentation, civil conspiracy to defraud, and breach of fiduciary duty.[3]
*1104 In response to the complaint, HICA moved to compel arbitration and to stay the court proceedings pending arbitration. In support of its motion, HICA submitted two affidavits, a specimen copy of the insurance policy the Smiths purchased, and copies of the Smiths' insurance applications. The Smiths filed a response, but offered no evidence. After hearing oral argument, the trial court denied HICA's motion to compel arbitration. The trial court found that the insurance contract does not involve instrumentalities of interstate commerce, see Selma Medical Center, Inc. v. Fontenot, 824 So.2d 668 (Ala. 2001) (plurality opinion), and it found that when considered in light of the factors set out in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), "the contract does not substantially effect [(sic) ] or involve interstate commerce." HICA appeals.
Section 2 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), provides, in pertinent part:
"A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
Section 2 "has the effect of preempting conflicting Alabama law, in particular Ala. Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce." Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000)(footnote omitted).
"This Court reviews de novo a trial court's denial of a motion to compel arbitration." Homes of Legend, 776 So.2d at 745. "A `party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce.'" Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001)(quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)). The party moving for arbitration must "`produce some evidence which tends to establish its claim.'" Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995)(opinion on application for rehearing)(quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). An analysis of whether a transaction affects interstate commerce "`is necessarily fact-intensive and in making that analysis we are limited to the facts contained in the record.'" Alternative Fin. Solutions, LLC v. Colburn, 821 So.2d 981, 984 (Ala.2001)(quoting Brown v. Dewitt, Inc., 808 So.2d 11, 12 (Ala.2001)).
HICA argues on appeal that the trial court misapplied the factors enunciated in Sisters of the Visitation, and that, because those factors are not a "perfect fit" to the facts of this transaction, this Court should analyze this transaction under the "within the `flow' of commerce" test articulated in Selma Medical Center, 824 So.2d at 674 *1105 (plurality opinion). HICA argues that the arbitration clause in the Medicare supplement policy is governed by the FAA and that the insurance policy substantially affects or is in the flow of interstate commerce.
The Smiths agree that "the factors enumerated in Sisters [of the Visitation] may not be a `perfect fit' to the insurance transaction at issue" (Smiths' brief at 11), but they argue that this Court must rely on the Sisters of the Visitation factors because the facts in Selma Medical Center are wholly inapposite to the present case.
The Smiths are correct that this case does not directly involve "the instrumentalities of interstate commerce, or persons or things in interstate commerce." Selma Med. Ctr., 824 So.2d at 674. The Smiths purchased insurance policies in Alabama from an Alabama company. As this Court, however, stated in General Motors Corp. v. Stokes, 850 So.2d 1239, 1244 (Ala.2002):
"Both parties apparently assume that a case that involved a construction contract setting forth factors to be considered in determining whether the transaction had a substantial effect on interstate commerce must routinely be applied to complex commercial transactions arising in a totally different context. We can determine whether the transaction has a substantial effect on interstate commerce without substantial reliance upon, or disavowal of, the test set forth in Sisters of the Visitation [v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000) ]."
HICA argues that its insurance transaction with the Smiths substantially affected interstate commerce. HICA faxed and mailed the Smiths' policy applications to Olympic in Washington. Olympic, and not HICA, made the actual decision to issue the insurance policies to the Smiths. Olympic, not HICA, mailed the Smiths' insurance policies from Washington to the Smiths in Alabama. Olympic, in Washington, maintained all records concerning the Smiths' insurance coverage. Olympic handled all customer service from Washington. Olympic paid claims either from Washington or through a subcontractor in Texas. While HICA is an Alabama company, and while it sold the insurance policies to the Smiths in Alabama, all administrative activity subsequent to the initial solicitation and purchase took place in Washington.[4]
This Court stated in Southern United Fire Insurance Co. v. Knight, 736 So.2d 582, 586 (Ala.1999):
"[E]ven an intrastate transaction `involves' interstate commerce if it has a substantial effect on the generation of goods or services for interstate markets and their distribution to the consumer. Unquestionably, insurance transactions that stretch across state lines or intrastate *1106 insurance transactions that otherwise have the requisite (substantial) effect on interstate commerce constitute `Commerce among the several States' ...."
(Citations omitted.) The Smiths cite Southern United and Henderson v. Superior Insurance Co., 628 So.2d 365 (Ala. 1993), in support of the proposition that the sale of a single insurance policy does not substantially affect interstate commerce. Henderson is no longer good law. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)("we accept the `commerce in fact' interpretation ... even if the parties did not contemplate an interstate commerce connection"); Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249, 1251 (1997)("In Allied-Bruce Terminix, the United States Supreme Court rejected the `contemplation of the parties' test that this Court had adopted in Ex parte Warren, 548 So.2d 157 (Ala.1989)....").[5]
In Southern United, this Court held that Southern United did not prove that its sale in Alabama of an automobile insurance policy affected interstate commerce. 736 So.2d at 586-87. Southern United is distinguishable from the present case on the facts, and the reasoning in Southern United supports the proposition that the Smiths' insurance policies substantially affect interstate commerce. In Southern United, the insurance company sought to compel arbitration in a dispute with a policyholder over the terms of coverage in the policy. Southern United argued that the policy affected interstate commerce "solely on the basis that the policy provides for the coverage of Knight if he travels outside the State of Alabama." Southern United, 736 So.2d at 587 (See, J., concurring specially).
Southern United was an Alabama corporation that sold automobile insurance in Alabama. Southern United issued and administered its insurance policies from an office in Mobile, Alabama. Southern United never argued that its activities could in any way substantially affect interstate commerce. The only argument Southern United made that the transaction at issue in that case affected interstate commerce was that on the slight chance that the insured were to drive outside Alabama, and that while driving outside Alabama the insured were to damage his car, Southern United would provide coverage for that out-of-state accident. Southern United did not attempt to demonstrate that its insured even contemplated driving outside Alabama. Consequently, this Court held that Southern United did not prove sufficient facts to support its claim that the sale of the insurance policy at issue substantially affected interstate commerce. 736 So.2d at 586-87.
"If interstate characteristics had been demonstrated, such as an out-of-state insurance company ..., that, in the aggregate, could have a substantial effect on interstate commerce, then Southern United would have satisfied its burden. See United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 541, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944)."
Southern United, 736 So.2d at 587 n. 4 (See, J., concurring specially).
Although HICA makes an argument similar to Southern United'sthat the Smiths have insurance coverage under their HICA policy anywhere they may travel in the United Statesthat is where the similarity between the arguments *1107 made in this case and those made in Southern United ends. Unlike Southern United, HICA also argues that the entire transaction with the Smiths substantially affects interstate commerce because the bulk of the transaction took place with Olympic in the state of Washington.
HICA's argument is analogous to AmSouth's argument in Chesser v. AmSouth Bank, 846 So.2d 1082 (Ala.2002). In Chesser, AmSouth sought to compel Chesser to submit a dispute regarding a credit-life insurance policy to arbitration pursuant to arbitration clauses contained in a buyer's order, retail installment contract, and the certificate of insurance. This Court held that AmSouth "met its burden of proving that the transaction had a substantial effect on interstate commerce," 846 So.2d at 1085, because the
"purchase of credit-life and credit-disability insurance was effectuated by Premier Chevrolet's forwarding a check to [an insurance company] in California. Similarly, the purchase of the extended service contract was effectuated by Premier Chevrolet's forwarding a check to `MS Dealer Service Corporation,' which is headquartered in Florida. Finally, Chesser obtained insurance providing comprehensive and collision coverage from State Farm Insurance Company, which is headquartered in Illinois."
846 So.2d at 1085-86. By analogy, HICA demonstrates that an entirely different company, Olympic, located in Washington, made the decision to issue the Smiths' insurance policies. Olympic mailed the Smiths' insurance policies from Washington to the Smiths in Alabama. Olympic, in Washington, then administered the Smiths' insurance policies. Olympic maintained the records relating to the Smiths' insurance in Washington. Olympic would have processed any claims on the Smiths' policies in Washington or in Texas. Other than the initial solicitation, the entire transaction took place and was given effect in Washington or Texas.
The Smiths, relying on Alternative Financial Solutions, supra, argue that the Smiths' contact with Olympic was insubstantial and that HICA transmitted too little information to Olympic for the transaction to have affected interstate commerce. In Colburn, out-of-state companies ran payday-loan operations in Alabama. Customers filled out applications in Alabama offices, received loan checks in Alabama, and cashed the loan checks in Alabama. The payday lenders lent small amounts of money obtained from local sources. The payday lenders entered customer information into computers located in Alabama and accessed the Internet through those computers. This Court held:
"Assuming, without deciding, that the movement of information in the manner presented here could substantially affect interstate commerce, we conclude that, in this case, the single Internet access involved in each of the payday-loan transactions does not rise to the level of a `substantial effect on interstate commerce' ...."
Colburn, 821 So.2d at 985.
Colburn does not say that the movement of information across state lines does not substantially affect interstate commerce. In this case, once the Smiths completed their insurance applications in Alabama, they initiated not just a single transaction, but a series of transactions with Olympic in Washington. Olympic made the actual decision to issue the insurance policies in Washington. Olympic maintained in Washington all of the records HICA accessed by computer. Olympic, in Washington, handled all subsequent administrative matters relating to the Smiths' policies.
*1108 The Smiths argue that this Court should focus its analysis only on the facts surrounding the Smiths' purchase of the insurance policiesthat the Smiths filled out their insurance applications in Alabama, that their policies were delivered in Alabama, that their policies list HICA's Alabama address, that they paid their premiums in Alabama, and that HICA is an Alabama company with an Alabama address doing business in Alabama. In Green Tree Financial Corp. v. Lewis, 813 So.2d 820, 823 (Ala.2001), the Lewises argued that the sale of their mobile home "took place entirely in Alabama and was between Alabama consumers and an Alabama dealer and, therefore, ... as of the time of the sale nothing had occurred that would trigger the application of the [FAA]." 813 So.2d at 823. This Court stated in response to that argument: "We cannot employ an unrealistically narrow construction of the `transaction' concept so as to limit our scrutiny to the events transpiring at the time of the sale." 813 So.2d at 824. In Lewis, this Court found it inconsequential that the loan documents listed Green Tree's name and a Montgomery address and that the Lewises did not contemplate all of the corporate relationships involved in the transaction. Id. Similarly, in this case we cannot ignore the "corporate relationships" and the "complex interstate commercial activity" surrounding the Smiths' purchase of the insurance policies. Id. While the Smiths completed their applications in Alabama and the policies listed HICA as the issuing company and showed an Alabama address, all of the administrative work necessary to complete the transaction took place in Washington. The insurance transaction in this case gives rise to a substantial effect on interstate commerce.
The Smiths also argue that the arbitration clause in each of their insurance policies is inapplicable to this litigation because, they say, the language in the arbitration clause is permissive and the scope of the clause is limited. HICA argues that the arbitration clause requires that all disputes shall be arbitrated if any of the parties elects to compel arbitration, and that the arbitration clause covers the Smiths' action.
The insurance policy reads, in pertinent part:
"All disputes and controversies arising under Medicare SELECT policy and all disputes and controversies relating to benefits available shall be resolved pursuant to the Grievance Procedure as set forth herein...."
"ARBITRATION. In the event the policyholder is dissatisfied with the findings and rulings of HICA's Board of Directors or HICA is dissatisfied with the decision of the Grievance Committee or the Board of Directors, either the policyholder or HICA shall have the right to have the dispute submitted to binding arbitration before an arbiter under the commercial arbitration rules then in effect adopted and applied by the American Arbitration Association."
(Bold typeface and capitalization original.) The clause requires that "all" disputes be resolved according to the grievance procedure. It further requires that the insured first submit any dispute to HICA's grievance committee before turning to an outside remedy. If either HICA or the insured is dissatisfied with the results of HICA's internal grievance procedure, either party may submit the dispute to binding arbitration. The clause is permissive only to the extent that it stipulates that either party may choose to compel the other to arbitrate a dispute. If neither party exercises its right to compel arbitration, the parties are free to use other means to settle a dispute. The arbitration *1109 clause requires, however, that if either party chooses to exercise its right, then the parties shall submit the dispute to binding arbitration.
The Smiths cite United Wisconsin Life Insurance Co. v. Beaty, 775 So.2d 191 (Ala.2000), to support the proposition that their action falls beyond the scope of the arbitration clause in their insurance policies. United Wisconsin Life is inapposite, however, because it concerned the retroactive application of an arbitration clause contained in a rider to an insurance policy to compel arbitration concerning events that took place before the policy rider was issued, and it concerned the application of a requirement that an insured arbitrate disputes arising from the insurer's review process for denied claims. HICA argues that the present case differs from United Wisconsin Life because the arbitration clause in this case applies to all disputes, not merely disputes regarding denied insurance claims. HICA also argues that the specific language of the arbitration clausethat the clause reaches "all disputes and controversies relating to benefits available"certainly reaches the Smiths' claim that the Medicare supplement insurance policies offered them no benefits. HICA argues finally that the fact that the arbitration clause uses the phrases "arising under [the policies] ... and all disputes and controversies relating to benefits" indicates that the clause has a broad reach. In Green Tree Financial Corp. v. Shoemaker, 775 So.2d 149, 151 (Ala.2000), this Court noted that "where a contract signed by the parties contains a valid arbitration clause that applies to claims `arising out of or relating to' the contract, that clause has a broader application than an arbitration clause that refers only to claims `arising from' the agreement." HICA argues that because the arbitration clause in the Smiths' insurance policies use the "arising under ... and ... relating to" language, the clause has a broad application. The Smiths' only response is that "arbitration under the Smiths' policies was only intended to come into play when the other remedies provided for within the grievance procedure had been exhausted, and when dissatisfaction remained with a decision concerning the administration, claims practices or services of the issuer." (Smiths' brief at 14.) The Smiths' claim that HICA sold them policies that would pay them no benefits. Such claims fall within the ambit of the arbitration clause.
We reverse the trial court's order denying HICA's motion to compel arbitration, and we remand the case for the trial court to stay the proceedings and to order the parties to arbitrate their dispute under the terms of the arbitration clause contained in the insurance policies.
REVERSED AND REMANDED.
HOUSTON, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.
MOORE, C.J., and JOHNSTONE, J., dissent.
NOTES
[1] The policy language reads, in pertinent part:
"All disputes and controversies arising under Medicare SELECT policy and all disputes and controversies relating to benefits available shall be resolved pursuant to the Grievance Procedure as set forth herein...."
"ARBITRATION. In the event the policyholder is dissatisfied with the findings and rulings of HICA's Board of Directors or HICA is dissatisfied with the the decision of the Grievance Committee or the Board of Directors, either the policyholder or HICA shall have the right to have the dispute submitted to binding arbitration before an arbiter under the commercial arbitration rules then in effect adopted and applied by the American Arbitration Association. The arbiter shall be selected by mutual agreement of HICA and the policyholder. The cost and expense of arbitration shall be paid by the party initiating the demand of arbitration. The decision of the arbiter shall be binding upon the policyholder and HICA, and the arbiter's ruling shall be enforceable pursuant to state law.
"Grievance Procedure Limitation. At the time that this policy is sold, the policyholder agrees to be bound by the grievance procedure outlined above."
(Bold typeface and capitalization original.)
[2] Nothing in the record indicates exactly why or when the Smiths canceled their policies. They may have canceled their policies sometime after 2000, because paragraph 11 of the Smiths' complaint alleges:
"Defendants intentionally concealed their fraudulent scheme from Edward Smith and Bernice Smith and from Plaintiffs [members of putative class] through 2000 so as to toll all pertinent statutes of limitations."
[3] The substance of the Smiths' complaint is unclear. In the Smiths' answer to HICA's motion to compel arbitration, they indicate that in addition to being eligible for Medicare benefits, they both were eligible for Medicaid at the time they purchased their policies from HICA. The Smiths argue in their answer to HICA's motion to compel arbitration:
"The principal alleged wrongful conduct was the concealment on the part of the defendants, at the time of the initial purchase and subsequently when the coverage was renewed, of the material fact that, if the Smiths were eligible for Medicaid benefits, they did not need Medicare supplement coverage and that the subject policy would pay no benefits because they were Medicaid-eligible."
It is worth noting, however, that "Acknowledgment # 7" in a list of "Acknowledgments" on the insurance applications signed by the Smiths reads:
"The Applicant understands there is no need for more than one Medicare supplement policy. As of age 65, he/she may be eligible for benefits under Medicaid and therefore not need a Medicare supplement. Benefits and premiums under the Medicare supplement policy will be suspended during entitlement to benefits under Medicaid for 24 months, as long as suspension is requested within 90 days of becoming eligible for Medicaid. When you are no longer entitled to Medicaid, your policy will be reinstituted if requested within 90 days of losing Medicaid eligibility."
The insurance application asked whether the applicant was covered by Medicaid, and the Smiths indicated that they were not covered by Medicaid. The application did not ask the applicant to list his or her income. The application asked the applicant to describe where he or she lives, and the Smiths checked a box next to the words "Own Home." The application asked whether the applicant had an existing Medicare supplement policy, and Edward Smith, then age 70, checked the box marked "yes," and wrote the name "Humana" on the line next to the word "Company." Bernice Smith, who turned 65 on the date the HICA application was completed, indicated that she did not have an existing Medicare supplement policy. The Smiths also selected the "automated payment" option, pursuant to which HICA deducted premiums for the policies directly from the Smiths' checking account.
[4] The record does not indicate clearly how HICA handled the monthly premium payments. The Smiths' policy applications, which are properly in the record, indicate that the Smiths initially instructed HICA to debit premium payments from their checking account in Alabama. Nothing in the record indicates whether the Smiths relied on the automatic debit for the entire time the policies remained in force. The statement of facts in the Smiths' brief to this Court states that HICA continued to accept premium payments from the Smiths for years, but the statement does not offer any other information about the payment process. Even if the Smiths' brief was more clear, "This Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court." Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). The Smiths have introduced no evidence showing where the premiums went. The record is silent as to whether Olympic or HICA, or some other party, received and processed the Smiths' premium payments.
[5] Henderson, 628 So.2d at 367, applied the "contemplation of the parties" test articulated in Ex parte Warren. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029603/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4813
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESSIE RUTH NELSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cr-00451-DKC-1)
Submitted: July 6, 2009 Decided: July 28, 2009
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland, for Appellant. Jonathan
Biran, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dessie Ruth Nelson pled guilty pursuant to a written
plea agreement to bribery and income tax evasion, in violation
of 18 U.S.C. § 201 (2006) and 26 U.S.C. § 7201 (2006). The
district court sentenced Nelson to sixty months in prison.
Nelson appealed. Nelson’s counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal.
Although advised of her right to file a supplemental pro se
brief, Nelson has not done so. Finding no reversible error, we
affirm.
In the absence of a motion to withdraw a guilty plea
in the district court, we review for plain error the adequacy of
the guilty plea proceeding under Fed. R. Crim. P. 11. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our
examination of the record shows that the district court fully
complied with the requirements of Rule 11. Further, Nelson’s
plea was knowingly, voluntarily, and intelligently entered, and
supported by a factual basis.
A review of the sentencing transcript and the
presentence investigation report reveals no error in sentencing.
When determining a sentence, the district court must calculate
the appropriate advisory guidelines range and consider it in
conjunction with the factors set forth in 18 U.S.C. § 3553(a)
2
(2006). Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 596
(2007). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion. Id.
at 591. The district court followed the necessary procedural
steps in sentencing Nelson, appropriately treating the
sentencing guidelines as advisory, properly calculating and
considering the applicable guidelines range, performing an
“individualized assessment” of the § 3553(a) factors to the
facts of the case, and stating in open court the reasons for the
sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). Thus, the district court did not abuse its discretion in
imposing the chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Nelson’s conviction and sentence. This
court requires that counsel inform Nelson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Nelson requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Nelson.
3
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029604/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5074
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS MCARTHUR ALDRIDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00036-JPB-DJJ-1)
Submitted: July 14, 2009 Decided: July 28, 2009
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis McArthur Aldridge 1 pleaded guilty to
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)
(2006). The district court sentenced Aldridge to 135 months of
imprisonment. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising one issue but
stating that there are no meritorious issues for appeal.
Aldridge filed a pro se supplemental brief raising additional
issues. 2 We affirm.
In the Anders brief, counsel questions whether the
district court erred in accepting Aldridge’s guilty plea. Prior
to accepting a guilty plea, a trial court, through colloquy with
the defendant, must inform the defendant of, and determine that
he understands, the nature of the charges to which the plea is
offered, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b). The court also must
determine whether there is a factual basis for the plea. Id.;
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).
The purpose of the Rule 11 colloquy is to ensure that the plea
1
The Appellant’s true name is Jerron Lamont Cephas.
2
We have considered the claims raised in Aldridge’s pro se
brief and conclude the claims lack merit.
2
of guilt is entered into knowingly and voluntarily. See United
States v. Vonn, 535 U.S. 55, 58 (2002).
Because Aldridge did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Aldridge]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Aldridge satisfies these requirements, “correction of the error
remains within our discretion, which we should not exercise
. . . unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
Our review of the transcript reveals full compliance with the
requirements of Rule 11, and we conclude that Aldridge pleaded
guilty knowingly and voluntarily.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We therefore affirm the judgment of the district
court. This court requires that counsel inform Aldridge, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Aldridge requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
3
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Aldridge. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029616/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4927
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLEVELAND D. DRUMWRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00429-JAB-2)
Submitted: July 15, 2009 Decided: July 27, 2009
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant. David Paul Folmar, Jr.,
Angela Hewlett Miller, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland Drumwright pled guilty to conspiracy to
distribute 50 grams or more of a substance containing a
detectable amount of cocaine base in violation of 21 U.S.C.
§ 846 (2006), and was sentenced to 196 months’ imprisonment. On
appeal, counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), noting no meritorious issues for appeal,
but questioning whether the sentence imposed was reasonable.
Finding no error, we affirm.
We have reviewed the record and conclude that the
district court complied with the requirements of Fed. R. Crim.
P. 11. We further find that the district court did not abuse
its discretion in sentencing Drumwright as a career offender,
and imposed a sentence that is procedurally and substantively
reasonable. See Gall v. United States, 552 U.S. 38, 128 S. Ct.
586, 597 (2007) (review of sentence is for abuse of discretion).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be
filed, but counsel believes that such filing would be frivolous,
then counsel may move in this court for leave to withdraw from
2
representation. Counsel’s motion must state that a copy thereof
was served on the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
3 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1035775/ | Case: 12-12535 Date Filed: 07/30/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12535
Non-Argument Calendar
________________________
D.C. Docket No. 1:08-cr-00205-VEH-TMP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC TRAMMELL,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Northern District of Alabama
____________________________
(July 30, 2013)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Cedric Trammell, proceeding pro se, appeals the district court’s denial of his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Mr. Trammell
contends that the district court should have reduced his 120-month sentence
Case: 12-12535 Date Filed: 07/30/2013 Page: 2 of 5
because it was incorrect when it was imposed, as the government failed to give him
notice at his original sentencing that he was subject to an enhancement under 21
U.S.C. § 851. He also argues that he is eligible for a sentence reduction under both
Amendment 750 to the Sentencing Guidelines and the Fair Sentencing Act of 2010
(FSA). Having considered the parties’ briefs and the record, we affirm.
I.
Mr. Trammell pled guilty in 2008 to one count of knowingly possessing five
grams or more of crack cocaine with the intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B). Because he had a prior felony drug conviction,
he was subject to an increased penalty under 21 U.S.C. § 851. At his plea hearing,
the district court asked Mr. Trammell if he understood the § 851 enhancement filed
by the government because of his earlier drug crime. The court also asked Mr.
Trammell if he understood that he could receive, among other penalties, “not less
than ten years imprisonment.” After both questions, Mr. Trammell acknowledged
that he understood.
At sentencing, the district court determined that Mr. Trammell’s base
offense level was 26 and that he was due a 3-level reduction for acceptance of
responsibility, making his total offense level 23. The court also determined that,
because of the § 851 enhancement, Mr. Trammell’s statutory mandatory minimum
of 120 months became his advisory guidelines range. The court then sentenced Mr.
2
Case: 12-12535 Date Filed: 07/30/2013 Page: 3 of 5
Trammell to 120 months’ imprisonment, specifically noting that it had imposed the
statutory mandatory minimum sentence. 1
In 2011, Mr. Trammell filed a pro se §3582(c)(2) motion based on
Amendment 750. The district court denied the motion because Amendment 750
did not lower Mr. Trammell’s advisory guidelines range, and Mr. Trammell
appealed that denial to us.
II.
We review de novo a district court’s conclusion that a defendant is not
eligible for a sentence reduction under § 3582(c)(2). United States v. Glover, 686
F.3d 1203, 1206 (11th Cir. 2012).
A.
Mr. Trammell’s first argument on appeal—that his sentence was incorrect as
imposed because he was not given notice of the § 851 enhancement—is both
refuted by the record and outside the scope of a § 3582(c)(2) motion. Indeed, the
record reflects that the government electronically filed an information alerting Mr.
Trammell to the § 851 enhancement more than four weeks before his plea hearing.
During the plea hearing, Mr. Trammell acknowledged that he understood the
1
Mr. Trammell’s total offense level of 23 and criminal history category of III produced an
advisory range of 57 to 71 months under the 2008 guidelines. Because his statutory mandatory
minimum (after the § 851 enhancement) was 120 months, see 21 U.S.C. § 841(b)(1), that figure
became his advisory guidelines range. See U.S.S.G. § 5G1.1(b). Although the court did not lay
out these calculations step-by-step at the sentencing hearing, it did explain them when it denied
Mr. Trammell’s § 3582(c)(2) motion in 2012.
3
Case: 12-12535 Date Filed: 07/30/2013 Page: 4 of 5
enhancement. And, after the district court specifically explained that his possible
maximum penalty included imprisonment of not less than ten years or more than
life, Mr. Trammell once again indicated that he understood. Put simply, the record
does not support Mr. Trammell’s contention that he received no notice of the § 851
enhancement.
But, even if Mr. Trammell were correct that the government failed to notify
him of the § 851 enhancement and that he therefore should not have been subject
to a 120-month statutory mandatory minimum, he would not be due the relief he
seeks. We have recognized that § 3582(c)(2) proceedings are not full resentencings
and do not allow district courts to revisit rulings made at the original sentencing
hearing. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). An
alleged flaw, like the one Mr. Trammell argues exists here, in such a ruling does
not permit a sentence reduction under § 3582(c)(2). See id.
B.
Mr. Trammell also argues that the district court was authorized to consider
his § 3582(c)(2) motion because Amendment 750 lowered his advisory guidelines
range. But, as the district court noted when it denied relief, Mr. Trammell was
subject (and sentenced) to a 120-month statutory mandatory minimum. We have
held that a sentencing court lacks jurisdiction to consider a § 3582(c)(2) motion,
even when an amendment would lower a defendant’s otherwise-applicable
4
Case: 12-12535 Date Filed: 07/30/2013 Page: 5 of 5
advisory guidelines range, when the defendant was sentenced based on a statutory
mandatory minimum. See United States v. Mills, 613 F.3d 1070, 1078 (11th Cir.
2010). Because Mr. Trammell was sentenced based on a statutory mandatory
minimum, the district court had no authority to reduce his sentence under §
3582(c)(2). See Glover, 686 F.3d at 1207.
C.
Mr. Trammel’s final argument is that he is eligible for a sentence reduction
under the FSA, which reduced the statutory mandatory minimums for crack
cocaine offenses in § 841(b) and eliminated the statutory mandatory minimum
sentence for § 841(a) crack cocaine offenses involving fewer than 28 grams. While
the FSA would apply to Mr. Trammell if he were being sentenced today (because
he was held responsible for 21.2 grams), we recently reiterated that the Act does
not apply to defendants who were sentenced before it took effect in 2010. See
United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir. 2013). Because Mr.
Trammel was sentenced in 2008, the FSA does not entitle him to a sentence
reduction. See id.
IV.
The district court’s denial of Mr. Trammell’s motion for a sentence
reduction under § 3582(c)(2) is affirmed.
AFFIRMED.
5 | 01-03-2023 | 07-31-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601896/ | 1 So. 3d 173 (2008)
SERRANO
v.
STATE.
No. SC08-2416.
Supreme Court of Florida.
December 24, 2008.
Decision without published opinion. Rev.Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601962/ | 476 N.W.2d 369 (1991)
Kurtis L. BRADHAM, Appellee,
v.
STATE of Iowa, Appellant.
No. 90-714.
Court of Appeals of Iowa.
July 26, 1991.
*370 Bonnie J. Campbell, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and R. Andrew Humphrey, Asst. Atty. Gen., for appellant.
Philip B. Mears of Mears, Zimmerman & Mears, Iowa City, for appellee.
Heard by OXBERGER, C.J., and SACKETT and HABHAB, JJ.
OXBERGER, Chief Judge.
Reformatory inmate Kurtis Bradham had an encounter with reformatory Warden, John Thalacker, concerning a pack of cigarettes. Bradham later told another inmate, LuGrain, the Warden put his hands into Bradham's pocket and removed the pack of cigarettes. LuGrain allegedly responded "If the Warden put his hand in my pocket I'd break it." A guard overheard LuGrain's comment, and LuGrain was subsequently disciplined for making a threat.
During the course of the disciplinary action against LuGrain, Warden Thalacker reviewed Bradham's alleged comment that Thalacker had put his hand into Bradham's pocket to remove the pack of cigarettes. Thalacker deemed Bradham's comment to be false and filed a disciplinary report against Bradham for making a false statement. After a hearing, a disciplinary committee found Bradham had made a false statement. The punishment imposed on Bradham included solitary confinement and loss of four days of good conduct time.
Bradham challenged the disciplinary action by appealing to the warden and later to the department of corrections. The disciplinary action was upheld by both reviewing authorities.
Bradham later sought postconviction relief to challenge the disciplinary action. After a hearing, the district court granted Bradham postconviction relief, vacated the disciplinary action, and directed a new disciplinary hearing.
The State has appealed the trial court order granting Bradham postconviction relief.
The State first contends Bradham did not adequately preserve error on most of his issues. The State acknowledges Bradham made the two required administrative appeals. However, the State argues Bradham failed to raise several of his issues in one or both of these appeals. The State argues the district court erred by concluding Bradham had good cause, including his pro se status and his lack of legal sophistication, for failing to raise some of the issues during the administrative hearing.
The State also contends the trial court erred by holding the disciplinary committee was not impartial because two of its three members were prison employees under the direct or indirect supervision of the warden, who had filed the disciplinary report and whose credibility was in issue.
*371 Additionally, the State contends the trial court erred by holding Bradham was denied due process when Warden Thalacker had an ex parte communication with one of the disciplinary committee members concerning the facts giving rise to the disciplinary report.
Finally, the State contends the district court erred by holding Bradham was entitled to present an evidentiary statement from a certain witness, Dale Viers. The State argues the decision whether to call Viers should have been left to the discretion of the administrative law judge.
SCOPE OF REVIEW. Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts violation of constitutional safeguards we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id.
The State claims Bradham failed to exhaust all administrative remedies, prior to seeking judicial review, on several of the issues decided by the district court and therefore, those issues were not properly preserved for appeal to the district court. Iowa Code section 903A.3(2) requires prisoners to appeal to the warden and then the director of the Iowa department of corrections before seeking postconviction relief in district court. See Aschan v. State, 446 N.W.2d 791, 792 (Iowa 1989). Failure to do so deprives the court of jurisdiction of the case. Id. at 792. We will address the State's various "exhaustion" or preservation arguments in conjunction with our discussion of the specific issues.
IMPARTIAL HEARING. The State first contends Bradham failed to show good cause for not raising the issue of the impartiality of the disciplinary committee in his appeal to the Warden. Bradham asserts the committee members were not sufficiently impartial to evaluate a situation which involved almost exclusively his truthfulness versus the truthfulness of the Warden. Bradham contends the impartiality, or at least the likelihood or appearance of bias, with respect to the panel arises from the working relationship between the the committee members and the Warden.
We find Bradham has shown good cause for not raising this issue in his appeal to the Warden. The appeal would have essentially implied the Warden's influence caused the committee to not be impartial. Since the Warden brought the charge before the committee and essentially prosecuted the charge, such an appeal to the Warden would have been futile. Additionally, we do not find it significant that the Assistant Warden rather than the Warden decided Bradham's appeal. Bradham was required by law to appeal to the Warden and he had no knowledge the Warden would not hear the appeal.
The committee consisted of an independent administrative law judge (ALJ) who chaired the committee and ordered the disciplinary action, the security director of the prison, and a correctional officer at the prison. The State argues that because an independent ALJ held this primary role, Bradham was not prejudiced by the committee's composition under Williams v. State, 421 N.W.2d 890, 894 (Iowa 1988). The State urges that since only an independent ALJ may order forfeiture of an inmate's good conduct time, according to Iowa Code section 903A.3(1) (1989), only the ALJ's partiality is important. The State further asserts there is no requirement the decision-maker in prison disciplinary hearing be uninvolved with the institution.
In Williams, the supreme court discussed the composition of a prison disciplinary committee. Williams found that the presence of individuals in addition to an independent hearing officer such as an ALJ was unnecessary under Iowa Code section 903A.1. Id. at 895. Further, the Williams court stated "[w]hen the legislature reposed the decision-making duty on an independent hearing officer, we assume it withdrew that duty from all other persons." Id. at 894. Williams stated "[t]he independence required of the hearing officer is that the officer not be personally involved in the incident for which discipline is *372 sought or in prior disciplinary actions against the inmate." Id. at 895.
Although the Williams decision found the two members of the discipline committee, in addition to the ALJ, served in advisory capacities only and their votes in favor of disciplining the inmate were superfluous, the court also held that without a showing of prejudice, the additional committee members did not taint the result reached by an independent hearing officer. Id. In addition, Williams also determined there is no absolute constitutional requirement in prison disciplinary cases that the decision-maker be uninvolved with the prison. Id. (citations omitted).
Upon our review of the record, we find no reversible error resulting from the fact that the two additional committee members were directly or indirectly under the supervision of the Warden who brought the disciplinary action against Bradham. The ALJ in Bradham's case met the independence requirements set out in Williams, therefore the composition of the committee did not create reversible error in and of itself.
EX PARTE COMMUNICATION. The Warden did not appear at the disciplinary hearing. Prior to the hearing, the Warden talked to one of the committee members, Russell Behrends, about the case. The statements made by the Warden to Behrends were used as evidence at the hearing. Further, the Warden demonstrated to Behrends why the other witnesses, because of their positions in relation to the Warden and Bradham at the time of the incident, may have believed they saw the Warden place his hand into Bradham's pocket even though he did not do so. Bradham asserts this ex parte communication violated due process and violated his right to a hearing, since the evidence was presented prior to the time of the hearing.
The State contends Bradham failed to exhaust his administrative remedies by not arguing the issue of the Warden's ex parte communication with a committee member in his administrative appeals. The trial court found the good cause for not raising this issue during the administrative appeal was that Bradham was not aware of the communication during the time he sought relief via the administrative system. Bradham was not allowed to be present throughout the hearing, therefore, he would have had no way to know how the Warden's evidence was presented. We agree.
The trial court also found "[a]bsent other defects in the hearing procedure, the fact [the Warden's] statement was taken by one member may not have justified a new hearing." We do not agree.
In disciplinary hearings, prisoners do not possess an unlimited right to confront opposing witnesses. Fichtner v. Iowa State Penitentiary, 285 N.W.2d 751, 759 (Iowa 1979). "On the other hand, occupants of penal institutions, although prisoners, are persons, and they are not beyond the pale of the Constitution. Prison officials must not permit a disciplinary proceeding against such a person to be a mere gesture or a sham." Id. at 756. Additionally, in Williams, 421 N.W.2d at 894, the court stated "the issue of prejudice has always played a fundamental role in our postconviction jurisprudence."
The State argues the comments made by the Warden during the ex parte conversation were merely cumulative to other evidence. Therefore, the State argues, under the relaxed due process standards applicable to prison disciplinary proceedings, Bradham was not prejudiced by the ex parte conversation.
Although we found earlier in this opinion that the committee members in addition to the ALJ were superfluous with respect to the issue of the committee's impartiality, the fact one of those committee members served in an advisory capacity on the committee as well as essentially investigating the incident which was the action giving rise to the disciplinary hearing puts into issue the fundamental fairness of the hearing. Behrends went beyond his advisory capacity and by presenting the Warden's version of the facts to the committee, presented the majority of the facts which *373 were adverse to Bradham to the committee and the ALJ.
We find Behrends' dual functions of investigator and advisor impermissibly tainted the validity of the proceedings such that the decision must be vacated and a new hearing held on the matter in conformity with this opinion.
DENIAL OF WITNESSES. Bradham requested the presence of three witnesses during the hearing. Two of the witnesses' written statements were presented to the committee, but the committee determined the third witness had no relevant testimony. The third witness, Viers, had been present during the incident which occurred between the Warden and Bradham, but was no longer in the prison facility because he had been transferred to a work-release program in Des Moines. The individual who investigated the matter had the telephone number to contact Viers at the work-release program, but did not do so.
On appeal, Bradham contended he should have been allowed to have all three of his witnesses testify in person before the committee. The trial court found that the investigating officer failed to state in writing (the procedure set out in the Department of Corrections manual for not pursuing the statement of a named witness) why Viers was not called to testify. Further, the trial court found the failure to allow the other two witnesses to appear in person to demonstrate what they saw violated Bradham's right to call witnesses. The trial court appeared to feel that demonstrative evidence was highly important in this situation where the issue was what action actually did occur, and the Warden had stated that the other witnesses view was obstructed such that they did not know what actually did happen.
We do not agree with the trial court that Bradham's rights were violated by the fact his witnesses did not testify in person in front of the committee. We are not prepared to dictate the exact form of testimony a prisoner in a disciplinary hearing must be permitted to present. This type of decision must be made after considering the potential for undue hazards to the institutional safety and correctional goals. See Fichtner, 285 N.W.2d at 757 (authority omitted). We emphasize though, that the hearing should be conducted in such a manner as to maximally ensure the fundamental fairness of the proceeding as well as protecting the safety and goals of the institution.
We refuse to require the committee to hear live testimony from Viers, but the investigating officer should at least, contact Viers and if the officer then feels Viers' testimony will not add to the evidence, the officer should make a written statement giving the reasons for his or her decision. The ALJ then may determine whether Viers should be called to testify. In this respect, we modify the trial court's order.
CONCLUSION. We affirm the trial court's ruling ordering the decision and sanctions imposed by the Adjustment Committee vacated and remanding for a new hearing. We do not affirm the trial court's ruling that on remand, Bradham's case must be heard by individuals from outside of the reformatory staff. We modify the trial court's order requiring the Warden and Bradham's three witnesses to testify live in front of the committee, and instead leave these decisions to the committee's discretion. In light of our findings that Bradham showed cause for failing to raise various issues during his administrative appeals, other than his pro se status or lack of legal sophistication, we need not address the trial court's findings in these respects. See Anderson v. Yearous, 249 N.W.2d 855, 863 (Iowa 1977).
The costs of this appeal are taxed against the State.
AFFIRMED IN PART; MODIFIED IN PART AND REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455897/ | 673 S.W.2d 705 (1984)
Lester NEELY, Appellant,
v.
John JACOBS d/b/a Aamco Automatic Transmissions, Appellee.
No. 2-83-213-CV.
Court of Appeals of Texas, Fort Worth.
August 2, 1984.
*706 Dillon & Giesenschlag, P.C., Bryan, Dennis W. McGill, Bryan (on appeal only), for appellant.
John Narsutis, Denton, for appellee.
Before FENDER, C.J., and HUGHES and JOE SPURLOCK, II, JJ.
OPINION
FENDER, Chief Justice.
This suit began as an injunctive action by the appellant, Lester Neely, against the appellee, John Jacobs, to prevent Jacobs from removing six hydraulic lifts from a building which Jacobs leased from Neely. *707 Jacobs counterclaimed, seeking damages for conversion of the lifts and prejudgment interest on those damages. From a judgment denying the injunctive relief and awarding Jacobs damages and prejudgment interest, Neely appeals.
We affirm the judgment, but order a partial remittitur as to damages.
In 1968, appellee Jacobs entered into an agreement with a John W. Porter to lease a building suitable for use as a transmission shop. Shortly after signing the lease, Jacobs installed six hydraulic lifts on the property. Each lift was installed by placing its base in an excavation approximately nine feet deep and pouring concrete around the base. No concrete was poured under the base of the lifts however, so that it was possible to remove them for repair.
Jacobs renewed his lease agreement with John Porter in 1979. In November, 1980, appellant Lester Neely attempted to purchase the transmission franchise from Jacobs. When Jacobs refused to sell, Neely purchased the building occupied by Jacobs from John Porter. Because Jacobs was in arrears in rent payments, Neely ordered Jacobs to vacate the premises.
At the time Neely gave Jacobs notice to vacate, a dispute arose as to the ownership of the lifts. Neely claimed that he owned them pursuant to the warranty deed conveyed to him by John Porter. Jacobs, however, claimed that the lifts were trade fixtures which he was entitled to remove. When Jacobs left the premises, therefore, he took with him various controls and above ground pipes which rendered the lifts inoperable.
Neely responded to Jacobs' action by filing suit to enjoin Jacobs from removing the lifts from the building. Jacobs counterclaimed, seeking damages from Neely for conversion of the lifts and prejudgment interest on those damages. Trial was to the court, which found that Neely had converted the lifts. The trial court further determined that the value of the lifts to Neely at the time of conversion as well as their cash market value on that date was $20,000.
Neely alleges thirteen points of error, which will be set out as they are addressed in this opinion. In points of error one through four, Neely argues that there is no evidence, or alternatively insufficient evidence, that the lifts in question were trade fixtures which Jacobs was entitled to remove. He claims that the evidence clearly shows that the lifts were permanently affixed to the property, and that therefore title to them passed to him when he purchased the property. We find no merit to these arguments.
In reviewing legal insufficiency on "no evidence" points of error, this court may consider only the evidence tending to support the trial court findings. We must give effect to all reasonable inferences that may be drawn from the evidence favorable to the finding, and disregard all contrary or conflicting evidence. Precipitair Pollution Control v. Green, 626 S.W.2d 909 (Tex.App.Tyler 1981, writ ref'd n.r.e.). In deciding a factual "insufficiency" point, however, we must consider and weigh all of the evidence in the case and decide whether the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Having set forth the proper evidence standards of review, we must now apply these standards in order to determine whether the evidence supports the conclusion that the lifts were trade fixtures. In general, a trade fixture is an article which (1) is annexed to the realty by the tenant to enable him properly or efficiently to carry on the trade, profession or enterprise contemplated by the tenancy contract or in which he is engaged while he is occupying the premises, and (2) can be removed without material injury to the freehold. Jim Walter Window v. Turnpike Distribution, 642 S.W.2d 3 (Tex.App.Dallas 1982, no writ). The general rule is that in the absence of a contract between the landlord and tenant to the contrary, a tenant may remove and take away trade fixtures at the *708 end of his lease. Eckstine v. Webb Walker Jewelry Co., 178 S.W.2d 532 (Tex.Civ.App. Fort Worth 1944, writ ref'd w.o.m.). The reason for the rule is that improvements made by a vendor, mortgagor, or ancestor are made to enhance the value of the estate, and to be permanent, while those made by the tenant are temporary and made for the purposes of his trade. Jim Walter Window, supra. Thus, the law presumes that a tenant who erects improvements on leased land did not intend to contribute toward enhancement of the property. Eckstine, supra.
In reviewing the record in the case at bar, we find evidence which supports the trial court's conclusion that the lifts were trade fixtures which Jacobs was entitled to remove. The evidence clearly shows that the lifts met the first prong of the trade fixture test; it was undisputed that they were originally affixed to the building by the tenant, Jacobs, in order for him to properly carry on his transmission business. Further, it was Jacobs' undisputed testimony that the lifts were tools of the trade and that they were the type normally used in the transmission business.
There is also evidence in the record which supports the conclusion that the lifts were removable without material injury to the freehold, and thus met the second requirement of the trade fixture test. The evidence shows that in order to remove a lift, the concrete collar around its base must be broken. A hole is then dug around the base of the lift, and the lift is pulled out with a two truck. Although the process is somewhat expensive and time consuming, it does not affect the structure of the building but only results in the removal of a small amount of concrete around the base of each lift. In fact, Neely testified that if the job is done properly, very little concrete is required to return the lifts to their original place.
The expense and time required to take the lifts out of the building did not prevent them from being periodically removed for maintenance work. During the operation of his transmission franchise, Jacobs removed the lifts and had them repaired and replaced at least once. Further, when Neely purchased the building he also pulled out the lifts for repairs and later returned them.
We conclude that the evidence is sufficient to support the trial court's determination that the lifts are trade fixtures. Thus, in the absence of a contract to the contrary, Jacobs was entitled to remove the lifts when he vacated the premises. Eckstine, supra. Since we find no evidence of any contract requiring Jacobs to leave the lifts attached to the freehold, we hold that the trial court properly concluded that Jacobs was entitled to take out the lifts when he left the building. Points of error one through four are overruled.
In points of error nine and ten, Neely argues that the trial court erred in awarding $20,000 damages to Jacobs because there is no evidence, or factually insufficient evidence, to support the court's finding that the lifts had a cash market value of $20,000 at the time of conversion. In the alternative, Neely argues in points of error five through eight that even if there was evidence to support such a finding, the court nevertheless erred in concluding that the lifts had a value to Jacobs of $20,000. The court so erred, Neely claims, because it failed to account for the expenses Jacobs would have incurred in removing the lifts from the premises.
Before proceeding to a discussion of Neely's alternative argument, we must initially address his legal and factual sufficiency of the evidence challenges to the trial court's finding of a $20,000 cash market value for the lifts. At trial, Jacobs testified that the value of the lifts at the time of conversion was between $20,000-$25,000. He further testified that at about the conversion date, the lifts would have cost approximately $48,000 to completely replace, exclusive of installation expenses. Although Neely presented a witness who *709 testified that the replacement cost of the lifts would be approximately $13,800, we cannot say that the trial court's finding was against the great weight and preponderance of the evidence. Thus, we hold that the trial court properly concluded that the cash market value of the lifts was $20,000. Points of error nine and ten are overruled.
We now turn to a consideration of Neely's alternative point, in which he claims that the court erred in failing to reduce the damage award by the amount of expenses required to remove the lifts from the ground. Neely points out that both Jacobs and Jacobs' own witness, John Hall, admitted at trial that it would cost $1,700 per unit to remove the lifts from the ground. Thus, Neely claims, the $20,000 damage award should have been reduced by $10,200. We agree.
In general, the damages in an action for conversion are measured by the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant's wrong. Groves v. Hanks, 546 S.W.2d 638 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n.r.e.). Thus, compensation for the injury is the result to be obtained, and while the wrongdoer is not allowed to profit from his own wrongdoing, the same rule should apply to the aggrieved party. Kennann v. Deats, 258 S.W.2d 145 (Tex.Civ.App.Amarillo 1953, writ ref'd n.r.e.). In the instant case, Jacobs is entitled to damages which would place him in the position he would have been in had Neely not converted the lifts. If the lifts had never been converted, Jacobs would have had to pay $10,200 to have them removed from the building. Thus, the amount of damages sustained by Jacobs as a result of the conversion by Neely was $20,000, less the $10,200 removal cost, or $9,800. If Jacobs were to be awarded the full $20,000, he would be making an unjust profit from the conversion. Thus, we sustain Neely's points of error five through eight and reduce the amount of damages awarded to Jacobs to $9,800.
In points of error eleven and twelve, Neely argues that the trial court erred in finding that Jacobs had no duty to Neely for any obligations to be performed or avoided. Neely claims that Jacobs was a holdover tenant who had the duty to properly preserve the premises and to pay rent for utilization of the building after it was purchased by Neely. However, Neely has argued these points only generally in his brief and has cited no supporting authority. Therefore, he has failed to meet the minimum briefing rules with regard to points eleven and twelve and we consider them to be waived. TEX.R.CIV.P. 418; Estate of Blardone v. McConnico, 604 S.W.2d 278 (Tex.Civ.App.Corpus Christi 1980), writ ref'd n.r.e. per curiam 608 S.W.2d 618 (Tex.1980).
In point of error thirteen, Neely argues that the trial court erred in awarding prejudgment interest on Jacob's damages because Jacobs failed to specifically plead for such interest. Neely further claims that a prejudgment interest award was improper because the date of conversion could not be established at a specific date, and because the amount of damages was disputed. We disagree.
It is a well-settled rule in Texas that prejudgment interest may only be awarded when the petition contains pleadings which support such an award. Pickett v. J.J. Willis Trucking Co., 624 S.W.2d 664 (Tex.App.Houston [14th Dist.] 1981, writ ref'd n.r.e.). Further, prejudgment interest may only be awarded when damages are established as of a definite time and the amount of the damages is definitely determinable by fixed rules of evidence and known standards of value. Maxey v. Texas Commerce Bank of Lubbock, 571 S.W.2d 39 (Tex.Civ.App.Amarillo 1978), writ ref'd n.r.e. per curiam, 580 S.W.2d 340 (Tex.1979). In the case at bar, Jacobs specifically pled in his Second Amended Counterclaim *710 for "actual damages in the sum of $40,000, plus interest from the date of the taking by Neely" (emphasis added). In addition, the specific date of the conversion was proved at trial, and the amount of damages was established by proving the cash market value of the lifts at the date of conversion. Thus, all of the requirements for the award of prejudgment interest have been met, and the trial court properly allowed such interest. Point of error thirteen is overruled.
The judgment is affirmed. In addition, we order a remittitur of $10,200 on the judgment and reduce the prejudgment interest award to interest on $9,800 from the date of conversion, April 13, 1981, to the date of judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441262/ | 968 N.E.2d 224 (2008)
383 Ill. App. 3d 1159
360 Ill. Dec. 145
PEOPLE
v.
HARDIMON.
No. 4-07-0247.
Appellate Court of Illinois, Fourth District.
August 28, 2008.
Aff'd as mod. & rem. with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551640/ | 315 B.R. 750 (2004)
In re SILICON VALLEY TELECOM EXCHANGE, LLC, Debtor.
No. 01-55137-ASW.
United States Bankruptcy Court, N.D. California.
October 8, 2004.
Scott L. Goodsell, Campeau, Goodsell and Diemer, San Jose, CA, for Debtor.
MEMORANDUM DECISION DETEMINING VALUE OF DEBTOR'S LEASEHOLD INTEREST
ARTHUR S. WEISSBRODT, Bankruptcy Judge.
Silicon Valley Telecom Exchange, LLC ("Debtor") is the Debtor in Possession in *751 this Chapter 11[1] case, and Corporate Builders, Inc. ("CBI") is a creditor in the case. The Debtor is represented by Marc L. Pinckney, Esq. of Campeau Goodsell Smith, LC; CBI is represented by David A. Tilem, Esq. and Leslie M. Baker, Esq. of the Law Offices of David A. Tilem.
Debtor and CBI have each filed a plan of reorganization. The Debtor's plan proposes to pay all creditors in full over time, with shareholders retaining their interests in the Debtor. CBFs plan proposes to pay creditors only 75% of their claims, with nothing paid to or retained by the Debtor's shareholders. Each party has filed objections to confirmation of the other's plan on various grounds.
One of the objections to CBI's plan that has been raised by the Debtor is failure to comply with § 1129(a)(7)(A)(ii), which requires that a plan provide all creditors and interest holders with at least as much as they would receive if the bankruptcy estate's assets were liquidated under Chapter 7. The Debtor contends that its estate is solvent, with the value of its assets exceeding its total liabilitiesaccordingly, if the estate were liquidated in Chapter 7, creditors would be paid in full and a surplus would remain for distribution to shareholders. However, CBI's plan offers only 75% to unsecured creditors and nothing to shareholders.
It is undisputed that the Debtor's primary asset is its leasehold interest in real property, but the parties disagree about the value of that interest. An evidentiary hearing has therefore been conducted to determine the value on the stipulated date of December 15, 2003 ("Valuation Date"), and the matter has been submitted for decision. This Memorandum Decision constitutes the Court's findings of fact and conclusions of law, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
I.
FACTS
The facts are largely undisputed.
The Debtor is a limited liability company with Fernando Don Rubio II ("Rubio") as its Managing Member. Rubio is also the Managing Member of Silicon Valley Telecom & Internet Exchange ("SVTIX"), and the Chief Executive Officer of Rubio & Associates ("RA"). All three entities filed Chapter 11 petitions on October 22, 2001.
On May 1, 1999, RA leased a building at 250 Stockton Avenue in San Jose ("Building") from the San Jose Unified School District under a lease ("Master Lease") that runs to March 2024, and assigned the Master Lease to Debtor. The Building consists of approximately 93,256 square feet, with 47,920 square feet on the ground floor and 45,336 square feet in the basement. The Building was built in 1947 but renovated in 1999 and 2000 for use by the telecommunications industry.
The Debtor's business operations consist of subleasing space in the Building. On the Valuation Date, 53,651 square feet were vacant (17,809 on the ground floor and 35,848 in the basement), and the Debtor had three subtenants: Veriowith 25,-399 square fee (17,111 on the ground floor and 8,288 in the basement); NTTwith 11,012 square feet (all on the ground floor); and SVTIXwith 3,188 square feet[2] (1,988 on the ground floor and 1,200 in the basement). The Debtor previously *752 had a fourth tenant, Enron, which subleased 18,253 square feet (17,809 on the ground floor and 444 in the basement) Rubio testified that Enron vacated sometime during the summer of 2002 and "abandoned" its lease in early 2003.
Rubio testified that he has offered space in the Building by publicizing it to brokers and prospective tenants, and has received several responses during the past four yearsnone of them has materialized, sometimes because the tenants wanted improvements made at an expense that Rubio could not or would not incur. At time of trial, Rubio said that he was negotiating two transactions that included both ground floor and basement space totaling 40,000 square feet. The asking price for both ground floor and basement space is a blended rate of $6.00 per square foot, but Rubio was prepared to make various concessions that would yield an "effective" rate of approximately $2.00 per square foot.
The bankruptcy schedules and monthly operating reports filed by the Debtor value the Building at $2,000,000. Rubio testified that he no longer believes that to be the value, but did not change the figure because the United States Trustee told him it should remain constant. At trial, each party offered an expert witness to opine as to the value of the Building on the Valuation Date. Debtor's witness Chris Carneghi ("Carneghi") is an appraiser of commercial real estate who was qualified to testify as an expert concerning the value of commercial properties in the San Francisco Bay area, including but not limited to those used for telecommunications purposes. CBFs witness Eric Ham ("Ham") is a commercial real estate broker who was qualified to testify as an expert concerning fair rental rates for properties used as "data centers", and as to whether the Building is suitable for industrial use.[3]
A. Carneghi Opinion
Carneghi testified that he believed the fair market value of the Debtor's leasehold interest under the Master Lease on the Valuation Date was $5,610,000.[4] He based that conclusion upon a discounted cash flow analysis that considered revenues and expenses projected for the Building during the twenty years that remain for the term of the Master Lease.
The actual rents being received from existing tenants are known, but over half of the Building was vacant at time of trial and Carneghi did not believe that the existing leases were all likely to be renewed when they expired during the term of the Master Lease. It was therefore necessary to determine the fair rental value of the existing and future vacant space in order to estimate revenues that could be collected from new tenants. Carneghi concluded that the monthly rental rate was $1.80 per *753 square foot for the ground floor space and $1.15 per square foot for the basement space, on the "triple net" basis that he testified was typical in the industry.[5]
Based on rents being paid for comparable space in other buildings, Carneghi considered the existing lease rates for Verio ($1.96 per square foot) and NTT ($2.32 per square foot) to exceed current market rates, although that was not the case with SVTIX' rate of $4.80 per square foot SVTIX differs in that Verio and NTT each have a triple net lease, whereas SVTIX has a "gross" lease that does not require the tenant to pay any of the property's expenses in addition to rent. To determine market rates, Carneghi evaluated leases at six other similar properties in the area and found one on Bassett Street in Santa Clara ("Bassett Property") to be the most comparable to the Building. The Bassett Property was leased by ATT Wireless in July 2003 for telecommunications use, and offered 33,000 square feet of the same kind of space that is available at the Building, charging $1.80 per square foot on a triple net basis. Carneghi noted that market conditions on the Valuation Date and in July 2003 were "substantially lower, some might say depressed from what it was several years ago", such that three of the other properties were less comparable than the Bassett Property because they were leased in late 2000 when market rates were much higher. Carneghi found the fifth property less comparable than the Bassett Property because it had not yet been leased and was merely listed for lease at $2.25, whereas asking prices are "invariably" negotiated downward. Carneghi considered the sixth property to be less comparable than the Bassett Property because it represented an asking price of $1.00 rather than an actual lease rate, and only half of it was designed for telecommunications use, with the other half offered for use as a research and development facility.
With respect to the basement space in the Building, Carneghi testified that such space is "inherently" less valuable than ground floor space, and noted that a 34% "differential" existed between what Verio's lease at the Building charges for its ground floor space ($1.98) and its basement space ($1.31). He found an even greater differential (49%) in an office building where both kinds of space are usedhowever, he pointed out that, while a basement's lack of windows is a drawback for an office, it is actually an advantage for a telecommunications tenant concerned about security. Therefore, Carneghi applied a differential of 35% to reduce the $1.80 rate for ground floor space, and thereby arrived at a rate of $1.15 for the basement space.
To account for the fact that the Master Lease has a remaining term of twenty years, Carneghi applied an "escalation" factor for future rents. With respect to existing leases, he applied the rate increases called for by the leases, assumed that Verio would not renew its lease because it has vacated the Building prior to the end of its lease term, and assumed that NTT and SVTIX were likely to renew because they had invested in their spaces and were operating businesses there.[6] As to future *754 rents for new tenants, Carneghi estimated a 50% rate of renewal and assumed a 3% annual rent increase, which he testified is an industry standard reflecting general inflation within the economy.
Carneghi used the foregoing rental rates and assumptions[7] to calculate the potential gross income from the Building for each year through March 2024. He then reduced those figures to account for "lease up costs" and a 5% "vacancy/collection" factor. He testified that the latter is standard because experience shows that it is rare for any income property to be fully occupied at all times, and to achieve 100% debt collection, so use of this factor is "a way of reducing it to a normalized operation" and "95% is often felt to be equilibrium in the marketplace". As for "lease up costs", the term refers to losses or reductions rather than actual expenses. They include lack of rent for the two year period that is typical of the time required to find new tenants when vacant space becomes available in the telecommunications industry; 20% of the first year's rent as an average brokerage commission within "market parameters" not limited to telecommunications properties, for finding new tenants as necessary during the twenty year remaining term of the Master Lease; and an "entrepreneurial profit" of $2,500,000. Carneghi explained the last term as a deduction in value spread over the remaining term of the Master Lease to provide an incentive for investors to acquire a property that is partially vacant and incur the risks entailed in attempting to achieve and maintain full occupancy. The figure represents 50% of the other lease up costs plus fixed expenses & leasing commissions, which Carneghi testified is "a judgment, a consensus of the reasonable thing to do with a partly vacant building; if not a standard it's a fairly common judgment of how to handle that issue".
As for expenses, Carneghi relied on the Debtor's actual expenses reflected by the Master Lease, property tax records, and information supplied by Rubio. He provided for a 3% annual escalation rate, based on the industry standard to reflect general inflation. Carneghi noted that, since most operating expenses are reimbursed by tenants, expenses do not have "a real big impact" on his analysis.
Carneghi calculated net cash flow by adjusting income through the foregoing reductions, then deducting expenses. He applied a discount rate of 11% to the net cash flow and arrived at $5,610,000 as the fair market value of the Debtor's leasehold interest. Carneghi explained that the 11% discount rate represents his opinion of the rate of return that an investor would want to achievehe noted that his opinion was confirmed by a "real world test" in the form of the Bassett Property where the discount rate was 10.8%, and he "rounded up" to account for a greater risk posed by the partially vacant Building. Carneghi said that he would not characterize his analysis as either conservative or aggressive, but simply accurate, because it is based on actual data and standard assumptions, and has been born out by the Bassett Property.
Carneghi testified that he expects the Building can be fully leased within two years due to increasing demand for space, but it is the demand that controls rather than measures such as offering reduced *755 rents. He believes that demand for telecommunications space in the area is "probably starting to increase a little bit" after having dropped "dramatically from the peak" in 2000.
B. Ham Opinion
Ham testified that there are currently three buildings in the San Jose area that are designed for use as a telecommunications facility, and some fifteen or twenty that could be changed to permit such use depending on a tenant's criteria. The Building is one of the three, and the other two are located on South Market Street ("Market Property") and Spacepark Drive ("Spacepark Property"). The Market Property has approximately 100,000 square feet available for telecommunications use, of which 20,000 is vacantthe Spacepark Property has approximately 180,000 square feet available for telecommunications use, of which 140,000 is vacantthere are "several hundred thousand square feet" available in the fifteen or twenty other buildings that might be made suitable depending on a tenant's criteria. Ham characterized the local market for telecommunications space as "extremely soft", with demand having "definitely tailed off starting in mid-2001 when the market changed "very, very drastically" prior to that time, tenants wanted space immediately without regard to price.
Ham testified about four criteria used by brokers to evaluate telecommunications facilities: connectivity, infrastructure, power provider, and the landlord's financial strength. Connectivity refers to the number of "carriers", or service providers, available in a building, "the more carriers the better"the Building has six or seven, the Market Property has over twenty, the Spacepark Property has fifteen; the sole tenant of the Bassett Property is ATT Wireless, which is owned by ATT, and ATT itself is a carrier. Infrastructure refers to physical attributes such as space and suitability for necessary equipment; it is ranked under a tier system. Tier IV is designed to perform almost continuously with an absolute minimum amount of "downtime", capable of operating without interruption 99.99% of the time, i.e., all but seven minutes per year; Tier III is designed for 99.82% performance, or all but 1.6 hours per year; Tier II is designed to function for all but 22 hours per year; Tier I is designed without a "backup system" that can assure operation 24 hours a day. Ham said there is no Tier IV facility available in the San Jose area, although "money in unlimited sums can fix anything" the Building is Tier III or Tier II, as are the majority of properties; the Spacepark Property is Tier III and Ham did not know the Tier level of the Bassett Property. Power refers to provision of electricity, which is "critical" for telecommunications facilities because their tenants are among the highest power users of any industry. There are two local providers, Pacific Gas & Electric ("PG & E") serving San Jose (and the Building), and Silicon Valley Power serving Santa Clara (and the Bassett Property)the latter charges approximately 30% to 40% less than the former, which can save a tenant under a triple net lease as much as $1.50 per square foot per month. The landlord's financial strength is important because telecommunications tenants make "significant" investments to install equipment and therefore "don't like to move", and also want to be assured that the property will be operated efficiently and securely. With respect to this factor, Ham considers the Market Property "excellent" and the Building "at the lowest level".
Ham testified that other important factors in comparing properties include a neighborhood's safety, proximity to desirable residential areas, and "ingress and *756 egress" by freeway. He said that the Building is in "kind of a heavy industrial area", which is not widely regarded as "one of the safest or nicest neighborhoods around" and generally considered to be a "lower level industrial area". A "very important" factor is proximity to "connectivity rings", or fiber networks laid by service providers, and the Building ranks "very good if not excellent" on that score.
Ham also considered "in one way or another" at least fifteen or twenty other properties, "every potential space that could work for a telecom or data center user looking at the entire market", although he did not rely on leases executed within the past year. He did not include the Bassett Property in his review because he believed it had been built specifically to suit its tenant and would therefore not be comparable to the Building, where tenants would have to take what is available or have changes made.[8]
Based on all of these factors, Ham concluded that the rental rate for the ground floor space is $1.50 per square foot, on a triple net basis. He acknowledged that to be an "imprecise calculation", after "a fair amount of guessing" based on what landlords are willing to do and what a tenant is likely to do.
With respect to the basement space, Ham considered it unsuitable for telecommunications use, for a "long list of reasons", the "predominate" one being that it is a basement, with inadequate ceiling height and a lack of raised floors to accommodate the necessary equipment and cooling systems. However, he agreed that there are "engineering solutions" to such physical limitations, which have been successfully applied in the Market Property and even in parts of the Building. Nevertheless, Ham did not believe there would be any demand for the basement space as telecommunications space, given the amount of other available space in the current market, and thought that it was not suited for any use other than possibly storage by existing tenants. He said that, assuming a tenant could be found who wanted it for telecommunications use, its rental value would be "difficult" to fix because there is no comparable space, but he estimated a range of 25c to 50c per square foot, possibly 40c.[9] Ham acknowledged that tenants do make concessions if a property has "appealing" aspects, and agreed that the Building's location within a mile of the Market Property is advantageous because the MAE (Metropolitan Area Exchange) West is located there. That is a primary internet interconnection point for the western United States, and charges for connecting to it are not incurred within a one mile distance.
Ham disagreed with Carneghi's use of a 20% brokerage commission as part of lease up costs, saying that he had found it typical in his fifteen years' experience for brokers handling telecommunications properties to be paid a "full commission", or a "commission and a half. He said that a full commission applied to transactions where only one broker was involved, ie., the sole broker customarily received from 5% to 6% of rent for the first five years, plus half that amount for the next five years. The commission and a half applied to transactions with two brokers. In those situations the landlord's listing broker received the full commission and the tenant's *757 broker received half of that amount. However, Ham did not have an opinion as to what commission rates would be customary in the future.[10]
Ham was not qualified to perform a discounted cash flow analysis, so the parties stipulated that Carneghi would prepare one based on Ham's figures. Carneghi prepared two versions: CBI's Exhibit 24 uses Ham's rental rates for both floors, Ham's commission rates, and Carneghi's expenses, and yields a total value for the Building of $2,240,000; CBI's Exhibit 25 uses Ham's rental rates for both floors, Carneghi's commission rates, and Carneghi's expenses, and yields a total value for the Building of $3,000,000.
II
ANALYSIS
Carneghi and Ham are each knowledgeable in their fields, but the Court is more persuaded by Carneghi's opinion. He is a well-qualified appraiser of commercial real estate, including telecommunications facilities. His analysis is straightforward and sound, applying standard assumptions that are objectively reasonable, and which are confirmed to some extent by actual circumstances such as the Bassett Property (and to a lesser extent by Rubio's pending negotiations for space in the Building). Ham's experience is as a broker, which is not entirely dissimilar to the experience of an appraiser but is more limited, and his analysis is not as comprehensive or wellsupported as Carneghi's appraisal.
For example, Ham admits that his conclusion of a $1.15 per square foot rental rate for the ground floor space involved "a fair amount of guessing" about what landlords and tenants would want, rather than analysis of actual recent transactions. With respect to the basement space, Ham believes that it would not attract a telecommunications tenant because it lacks ceiling height and raised floors. Yet Verio, Enron, and SVTIX all leased basement space for telecommunications uses, and Rubio has been negotiating with two potential tenants interested in basement space for that purpose. Ham concedes that the basement's shortcomings could be overcome by engineering, as has been done at the Market Property. He also acknowledges that the Building is at a Tier III or II level (which is on a par with most other properties) and that its proximity to the MAE West at the Market Property is an advantage. And Ham does not contest Carneghi's belief that the market for telecommunications space is gradually improving. These facts do not support Ham's conclusion that the basement space is so ill-suited for telecommunications use as to render its value only 40c per square foot, a figure that Carneghi testified without contradiction is not available anywhere in San Jose, and which he credibly found to be "just not plausible".
Another weakness in Ham's analysis is the high brokerage commission rate that he assumes. Ham has found the rates of full commission or commission and a half to be typical in his fifteen years of experience, but he readily admits that the market changed "very, very drastically" in 2001, and he has no opinion about what commissions will be in future. Carneghi notes without contradiction that commissions would not be paid on renewed leases, and are always negotiable depending on *758 the market. Ham did not contest Carneghi's estimate that 50% of leases would be renewed so, over the twenty year term that remains under the Master Lease, it is likely that no commissions would be paid on many of the transactions that occur. Under such circumstances, Carneghi's average of a 20% commission is a more realistic estimate of what this expense would total for the twenty year term.
CBI found fault with a number of points in Carneghi's analysis, but they were adequately explained. For example, CBI argued that the rent charged for the Bassett Property is not $1.80 per square foot as Carneghi stated, but only $1.62 per square foot, plus a management fee of 18c per square foot. Carneghi explained that landlords sometimes reflect their charges that way for "psychological" reasons, but the amount received for the property remains a total of $1.80 per square foot no matter what it is called. CBI scoffs at the notion of a tenant such as ATT Wireless being influenced by psychology, but the fact is that Carneghi is correct that the total received by the landlord is $1.80, regardless of whatever reason the landlord may have had for breaking it down under two different names. In the case of the Building, Carneghi's analysis reflects a rent charge to new tenants of $1.80, with no additional charge for a management fee, yielding the same result to the landlord as for the Bassett Property. CBI also argued that Carneghi's 3% rent escalation should not be applied to the first two year lease up period, during which no rents would be received. The Debtor pointed out that the increase for the first two years is not reflected as income, but merely serves to raise the rent by a total of 6% at commencement of the third year, so that a new tenant arriving then would pay $1.80 plus 6% rather than $1.80. CBI also complained that Carneghi did not verify the Building's expenses that were used in his analysis and merely accepted the figures provided by Rubio, but CBI offered no evidence that the expenses were inaccurate.
Finally, the Court notes a point raised by the Debtor, concerning Ham's credibility. Ham testified that he is not being paid for his testimony, but hopes that CBI will retain him as its leasing agent if CBI gains control of the Building by having its plan confirmed. As the Debtor puts it, Ham's ability to be paid for the services he has rendered to CBI so far is contingent upon his ability to convince the court that his opinion of value is correct. The Debtor's point is a legitimate one. Ham clearly has a vested personal interest in the outcome of this evidentiary hearing. However, the Court did not find Ham to lack credibility. Ham appeared to be making an effort to form an honest opinion based on the data available to him and given the scope of his experience.
CONCLUSION
For the foregoing reasons, the Court finds the fair market value of the Debtor's leasehold interest in the Building to be $5,610,000.00. Counsel for the Debtor shall submit a form of order so providing, after review by counsel for CBI.
The issue of how that value affects confirmation of CBI's plan was not tried and this Court makes no findings or rulings on that issue at this time.
NOTES
[1] Unless otherwise noted, all statutory references are to Title 11, United States Code, as applicable to cases commenced on October 22, 2001.
[2] SVTIX operates a "meet me room", in which it subleases space to users of telecommunications services available in the Building.
[3] Ham was also originally offered as an expert concerning customary brokerage commissions, but he was rejected upon the Debtor's objection that CBI had not disclosed him as an expert on that subject. After further discovery, Ham testified about brokerage commissions that he had received and those that he believed were typical. CBI did not renew its request to have Ham qualified as an expert on commissions, and the Court did not so qualify him, but the Debtor did not object to his opinion testimony about that subject.
[4] Carneghi's written appraisal report filed by the Debtor states the value as $5,770,000. However, it was discovered during trial that the report reflected revenues in the final calendar year of the Master Lease for a twelve month period, but should have reflected only a three month period because the term expired at the end of March. Carneghi therefore calculated the present value of nine months' rent in the final calendar year and reduced his original valuation by the amount of that overstatement to arrive at an adjusted value of $5,610,000.
[5] Under a triple net lease, the tenant reimburses the landlord for the expense of the property's taxes, insurance and maintenance.
[6] CBI argues that SVTIX' sublease may not be enforceable as an oral contract, so that its rent should be excluded from the value analysis. Carneghi testified that his calculations are based only on whether space is vacant or occupied and, if SVTIX were not the tenant, he would expect another one to "step in almost immediately" and take over SVTIX' operation, because the business appears to be "viable" with positive cash flow, and "infrastructure" in place.
[7] He also added a management fee of 2% that is called for by the current leases of Verio and NTT, but testified that such fees are "no longer obtainable in the marketplace" so they have not been factored into future rents for space that is currently vacant.
[8] Carneghi disagreed that the Bassett Property was built to suit the tenant, because the public records show that the construction permits were issued before the lease was executed.
[9] Carneghi testified that he was unaware of anything that could be rented in San Jose for 40c per square foot and said that "it's just not a rent that's plausible in the market".
[10] Carneghi noted that such commissions were unlikely to apply to every transaction that occurred during the remaining twenty year term of the Master Lease, because lease renewals would not generate new commissions, and commissions are always negotiable depending on the market at the time. He believed that his 20% figure represented a reasonable estimate of what commissions would average over the relevant period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601948/ | 869 So.2d 694 (2004)
AMERICAN EXPRESS CO., Appellant,
v.
Scott HICKEY, Appellee.
No. 5D02-3221.
District Court of Appeal of Florida, Fifth District.
April 2, 2004.
Justin D. Jacobson of Jacobson, Sobo & Moselle, Plantation, for Appellant.
Howard S. Marks and Jessica K. Hew of Graham, Builder, Jones Pratt & Marks, LLP, Winter Park, for Appellee.
ORFINGER, J.
American Express Co. appeals the trial court's order dismissing its amended complaint with prejudice. Although we sympathize with the trial judge, who was understandably frustrated with the conduct of American Express's attorney, Justin D. Jacobson, we reverse the order dismissing the amended complaint with prejudice.
Following a series of missed deadlines and the failure of American Express's attorney to appear at a scheduled hearing, the trial court dismissed American Express's amended complaint with prejudice.[1] Nonetheless, while we recognize that the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment or a party fails to meet some other filing deadline, that power must be used cautiously because "to dismiss [a] case based solely on the attorney's neglect unduly punishes the litigant ...." Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993).
To assist the trial court in determining whether dismissal with prejudice is warranted, *695 the supreme court has mandated consideration of the following factors: 1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has previously been sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay created signifficant problems of judicial administration. "Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative." Id. at 818.
Because dismissal is the ultimate sanction, it should be reserved for those aggravated cases in which a lesser sanction would fail to achieve a just result. Our review of the record suggests that dismissal with prejudice was too severe a response to the transgressions of American Express's attorney. The trial court has many options available to it in fashioning an appropriate sanction, including imposing fines, awarding attorney's fees under section 57.105, Florida Statutes (2004), finding counsel in contempt, or referring the matter to the Florida Bar. While it is essential that attorneys adhere to filing deadlines and procedural requirements, sanctions other than dismissal are appropriate in those situations when the attorney, and not the client, is responsible for the error. For the foregoing reasons, the order of dismissal is reversed.
GRIFFIN and PLEUS, JJ., concur.
NOTES
[1] We too have experienced Mr. Jacobson's lack of diligence, as is evidenced by our difficulty in obtaining the record on appeal, which was furnished to us in an untimely fashion only after several orders from this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601955/ | 869 So.2d 114 (2004)
Katherine RAMEY (Individually and on Behalf of the Estate of David F. Ramey, M.D., and on Behalf of her Minor Children, Kristen Ramey and Brad Ramey) and Renee Ramey
v.
Michael DeCAIRE (Administrative Director, Physicians' Health Foundation of Louisiana), Martha Brown, (Medical Director, Physicians' Health Foundation of Louisiana), Physicians' Health Foundation of Louisiana (PHFL), Physicians' Health Program (PHP), Physicians' Health Committee (PHC).
No. 2003-CC-1299.
Supreme Court of Louisiana.
March 19, 2004.
*115 Angela W. Adolph, Baton Rouge, Roselyn B. Koretzky, New Orleans, George M. Papale, Milling, Benson, Woodward, Counsel for Applicant.
Sean D. Fagan, Baton Rouge, Counsel for Respondent.
KIMBALL, Justice.
In this case, plaintiffs, decedent's survivors, allege defendants' negligence caused decedent to commit suicide. The sole issue presented is whether plaintiffs' amended petition states a cause of action against defendants. For the following reasons, we find that plaintiffs' petition does not contain sufficient well-pleaded facts to state a cause of action in negligence. The judgment of the district court to the contrary is reversed; however, plaintiffs will be allowed time within which to amend their petition pursuant to the provisions of La. C.C.P. art. 934.
Facts and Procedural History
This case arises from a petition for damages filed on January 23, 2002 by Katherine Ramey (individually and on behalf of the Estate of David F. Ramey, M.D. and on behalf of her minor children, Kristen Ramey and Brad Ramey) and Renee Ramey ("plaintiffs") and naming as defendants Michael DeCaire (Administrative Director of Physicians' Health Foundation of Louisiana), Martha Brown (Medical Director of the Physicians' Health Foundation of Louisiana), Physicians' Health Foundation of Louisiana ("PHFL"), Physicians' Health Program ("PHP"), Physicians' Health Committee ("PHC"), and Louisiana State Board of Medical Examiners.[1] The original petition filed by plaintiffs alleges the following in pertinent part:
2.
*116 Plaintiffs specifically show that defendants failed to have in force procedures that ensured twenty-four (24) hour turn around time for test results relating to random drug sampling done of physicians under their direction, supervision and control, which procedure would have minimized the emotional distress and turmoil of a physician tested, and further would have ensured immediate intervention to protect the physician under defendants['] direction, supervision and control.
3.
Plaintiffs further show that defendants failed to have in force procedures that ensured immediate face to face intervention of physicians under their direction, supervision and control, which procedure would have minimized the emotional distress and turmoil of a physician tested, and further would have ensured immediate intervention to protect the physician under defendants['] direction, supervision and control if a positive drug test is made.
4.
Petitioners show that said defendants, through the above negligent acts and omissions, improperly supervised and provided care to David F. Ramey for his addiction and illness in the specific following respects:
a. After random testing of Dr. Ramey, defendants failed to take steps to ensure a twenty-four (24) hour turn around analysis of the sample;
b. Defendant, Martha Brown, after learning of the positive drug test, instructed defendant, Michael DeCaire, to contact Dr. Ramey by telephone, not face to face and advise of the results;
c. Defendants, Martha Brown and Michael DeCaire, took no steps at all to ensure immediate face to face intervention took place with Dr. Ramey to protect him from his illness and to ensure his safety.
5.
As a result of the above negligent acts and omissions of said defendants, David F. Ramey, M.D. committed suicide at approximately 5:30 o'clock p.m., the same day after receiving a telephone call from defendant, Michael DeCaire, advising Dr. Ramey of the positive drug test.
6.
Plaintiffs show had defendants exercised the standard of care and degree of skill ordinarily employed, under similar circumstances, by members of their profession in good standing in their community and locality, and had defendants used reasonable care and diligence, along with their best judgment, David F. Ramey would not have committed suicide.
7.
Specifically, had defendants acted within the standard of care by implementing procedures to ensure proper notification, intervention and treatment of David F. Ramey, he would not have committed suicide.
Defendants responded by filing a peremptory exception of no cause of action, asserting that the allegations made by plaintiffs in the petition did not disclose any actionable negligence by defendants and failed to set forth any theory of liability upon which relief could be granted. Specifically, defendants contended that the petition failed to allege a legal or factual relationship between defendants and the decedent from which a legal duty to act or not to act could have arisen. Additionally, defendants alleged that the petition failed to specify the professions or purposes of defendants. Finally, defendants argued that even if all the allegations of plaintiffs' *117 petition are true, the petition fails to state how the defendants' behavior caused the decedent's suicide.
After a hearing on defendants' peremptory exception of no cause of action, the district court granted the exception, concluding that plaintiffs' petition failed to state an actionable claim under Louisiana law. The district court allowed plaintiffs thirty days within which to supplement and amend their petition to state a cause of action.
Subsequently, plaintiffs filed an amending and supplemental petition in which they alleged that defendants had knowledge of decedent's history of substance abuse and treatment, and should have known that decedent was at an increased risk of committing suicide. Specifically, plaintiffs' amended petition supplemented the original petition with the following pertinent allegations:
15.
At all times pertinent to this litigation, defendants were aware that prior to May 8, 2001[,] the decedent, David Ramey, had been the subject of two separate substance abuse "interventions."
16.
Prior to May 8, 2001, defendants knew that David Ramey had completed the twelve steps of Alcoholics Anonymous on three separate occasions.
17.
Prior to May 8, 2001, defendants knew that David Ramey had received inpatient therapy for substance abuse on two separate occasions.
18.
Prior to May 8, 2001, defendants know that David Ramey was actively involved in the outpatient counseling of other substance abusers.
19.
Given David Ramey's extensive involvement with the impaired physicians program, defendants knew or should have known on May 8, 2001 that, upon notification of the failed drug screen, Ramey was actually aware that he would lose his license to practice medicine.
20.
Given that David Ramey was a diagnosed substance abuser, defendants knew or should have known that a relapse placed him at increased risk for committing suicide.
21.
Defendants knew that prior to May 8, 2001 it was standard practice to "intervene" in person when confronting relapsing physicians (i.e. those who had already been diagnosed as substance abusers).
22.
Defendants knew or should have known that personal intervention under such circumstances was done, in part, to guard against the increased risk of suicide.
23.
Upon receiving the results of David Ramey's drug screen, Michael DeCaire notified Martha Brown.
24.
Both Martha Brown's and Michael DeCaire's involvement (vis[-]a[-]vis the notification of David Ramey) was within the course and scope of their employment by the Physicians['] Health Foundation of Louisiana.
25.
Martha Brown instructed Michael DeCaire to advise David Ramey of the failed drug screen.
26.
On May 8, 2001, Ramey received a telephone call from defendants' agent, Michael DeCaire, advising him that he *118 had failed a drug screen that had been administered approximately two weeks earlier.
27.
Following that telephone call, Dr. Ramey finished seeing patients over the next few hours and then took his own life at his office.
In response to this amending and supplemental petition, defendants again filed a peremptory exception of no cause of action. Defendants' second exception of no cause of action raised essentially the same objections that had been sustained by the district court in its earlier ruling regarding the original petition for damages.
After a hearing, the district court denied defendants' exception of no cause of action, finding that plaintiffs' petition, as amended, states an actionable claim under Louisiana Law.[2] Defendants applied for supervisory writs from this ruling. The court of appeal, with one judge dissenting, denied the writ without comment. Ramey v. DeCaire, 02-2674 (La.App. 1 Cir. 4/7/03).
At defendants' request, we granted certiorari to review the correctness of the district court's judgment denying the peremptory exception of no cause of action. Ramey v. DeCaire, 03-1299 (La.10/10/03), 855 So.2d 355.
Discussion
The narrow issue presented in this case is whether plaintiffs' amended petition states a cause of action against defendants such that their suit should be allowed to proceed.
A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La. 1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.
*119 The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com'rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253.
Accepting all of the allegations in plaintiffs' amended petition as true and applying the legal principles set forth above, we find plaintiffs' petition fails to allege facts sufficient to state a cause of action in negligence. Generally, there is an almost universal legal duty on the part of persons to conform to the standard of conduct of a reasonable person in like circumstances. Davis v. Witt, 02-3102, p. 13 (La.7/2/03), 851 So.2d 1119, 1128. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case and the relationship of the parties. Id. In the instant case, plaintiffs' allegations of facts do not show the circumstances giving rise to a duty on the parts of these particular defendants to prevent decedent's suicide. Plaintiffs' petition fails to articulate the relationship between decedent and defendants which could give rise to a finding that defendants' negligence was a substantial factor in causing decedent's suicide.[3] The lack of particular facts alleging a relationship between defendants and decedent that could give rise to a duty on the parts of defendants to prevent decedent's suicide prevent this court from determining from the petition what duty defendants are alleged to have breached. Consequently, we cannot find at this time that the law affords a remedy to plaintiffs. We therefore conclude that defendants' peremptory exception of no cause of action should have been sustained and the district court erred in denying the exception.
Article 934 of the Code of Civil Procedure states that "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." The article further provides, however, that if the grounds of the objection cannot be removed by amendment, the action shall be dismissed. In the instant case, the district court found plaintiffs' amended petition set forth a cause of action, and the court of appeal denied defendants' request for supervisory writs. Consequently, because we conclude defendants' peremptory exception should be sustained, we are the first court to consider the applicability of La. C.C.P. art. 934 as it relates to plaintiffs' amended petition. The language of La. C.C.P. art. 934 does not limit a plaintiff to a single amendment of his petition. We therefore conclude that additional opportunities for amendment of a petition pursuant to the provisions of La. C.C.P. art. 934 may be allowed in the discretion of the court. In this case, we are not prepared to find as a matter of law that *120 the basis for defendants' objection to plaintiffs' amended petition cannot be removed by amendment of the petition. Therefore, out of an abundance of caution, we will allow amendment of the plaintiffs' petition in accordance with La. C.C.P. art. 934. Thus, while we recognize that plaintiffs in this case have already been afforded one opportunity to amend their petition to remove the grounds of defendants' objections, we find it advisable and in the interests of justice to allow plaintiffs another opportunity to amend their petition.
Decree
For the foregoing reasons, the judgment of the district court is reversed and defendants' peremptory exception of no cause of action is sustained. The case is remanded to the district court with instructions to permit an amendment of plaintiffs' petition in accordance with the views expressed herein. Plaintiffs are given thirty days from the date of the finality of this judgment to amend their petition. If plaintiffs fail to amend their petition within the prescribed time, the district court shall dismiss their suit.
REVERSED AND REMANDED.
VICTORY, KNOLL and WEIMER, JJ., concurs in part and dissents in part and assigns reasons.
VICTORY, J. concurring in part and dissenting in part.
I concur with most of the majority opinion, but dissent from that part of the opinion allowing the plaintiff to again amend the petition. In my view, the grounds for the defendant's objection to the petition cannot be removed by amendment.
KNOLL, Justice, dissenting in part.
I respectfully disagree with the majority's ruling remanding this matter to the district court with instructions to give plaintiffs the opportunity to amend their petition.
As the majority correctly stated, Article 934 of the Code of Civil Procedure provides "when the grounds of the objection pleaded by the peremptory exception may be removed by an amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." However, "if the grounds of the objection raised through the exception cannot be so removed,... the action ... shall be dismissed." La.Code Civ. Proc. art. 934. While the majority correctly sustained defendants' exception of no cause of action, I do not find the plaintiffs can successfully remove the grounds of the objection.
In this case, the pleadings do not allege a physician/patient relationship or hospital/patient relationship nor do they articulate any legally recognized standard of care or any legal duty, the breach of which would create liability. Moreover, given the strong policy considerations against assigning delictual responsibility for the suicidal acts of another, and the great reluctance of our courts to extend such liability, especially in non-custodial circumstances, I find based upon what plaintiffs have alleged they will not be able to amend their petition to allege such a relationship or duty of care imposing liability for Dr. Ramey's suicide.
Moreover, the theories of the plaintiffs' allegations are based upon pure speculation that had defendants employed a face-to-face notification as opposed to notice by telephone of Dr. Ramey's test results, he would not have committed suicide. The notice by defendant to Dr. Ramey via telephone certainly was not unknown to Dr. Ramey, because he would have had to know he had taken the drugs. A legal duty is not owed by crafting creative speculation. Pleadings which establish only possibility, speculation, or unsupported probability do not suffice to establish a *121 cause of action. See Todd v. State Through Dept. of Social Services, Office of Community Services, 96-3090 (La.9/9/97), 699 So.2d 35. For these reasons, I would not remand this matter for further amendment, and dissent from the majority only as to this issue.
WEIMER, J., concurring in part and dissenting in part.
I concur in that portion of the majority decision that concludes the petition does not state a cause of action.
I dissent from that portion of the decision which allows the plaintiffs to once again amend the petition. The amended petition stated that after being advised by telephone of the failed drug screen administered two weeks earlier, "Dr. Ramey finished seeing patients over the next few hours and then took his own life at his office." Further, the defendants merely informed Dr. Ramey of what he had to have already knownthat he had abused drugs. Based on the facts alleged in the original and amended petitions, these defendants are not responsible for Dr. Ramey's tragic death. See Todd v. State, Department of Social Services, Office of Community Services, 96-3090 (La.9/9/97), 699 So.2d 35.
NOTES
[1] The claims against the Louisiana State Board of Medical Examiners were dismissed without prejudice in a separate judgment of the trial court that is not at issue in the instant case.
[2] In their second peremptory exception of no cause of action, defendants asserted that plaintiffs' allegations also failed to state a cause of action in light of the qualified immunity provided by La. R.S. 37:1287(D), (E) and (F). The judgment of the district court contains no mention of this statute; however, because the exception was denied, we assume the district court had insufficient evidence before it at that stage of the case to dismiss the matter on the basis of La. R.S. 37:1287. Defendants did not mention this statute in their writ application or brief to this court and did not raise the issue of immunity in this court. Consequently, we express no opinion regarding the applicability of La. R.S. 37:1287 in this case.
[3] We do not find that a defendant's negligence can never be a substantial factor in causing a person's suicide. This court has previously held that an emergency room doctor's negligence was a substantial factor in causing a patient's suicide. See Tabor v. Doctors Memorial Hosp., 563 So.2d 233 (La. 1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602112/ | 164 Wis.2d 489 (1991)
476 N.W.2d 575
MCI TELECOMMUNICATIONS CORPORATION, Petitioner-Appellant,
v.
PUBLIC SERVICE COMMISSION OF WISCONSIN. Respondent.
Nos. 90-0828, 90-1640.
Court of Appeals of Wisconsin.
Oral argument March 7, 1991.
Decided August 22, 1991.
*491 For the petitioner-appellant the cause was submitted on the briefs of Joyce Gothelf of Chicago, Illinois and Niles Berman of Wheeler, Van Sickle & Anderson, S.C., of Madison and orally argued by Niles Berman.
For the respondent the cause was submitted on the briefs of Steven M. Schur, Steven A. Levine, and Natalie Smith of Public Service Commission of Wisconsin of Madison and orally argued by Steven A. Levine.
Brief of amicus curiae was filed by Larry J. Martin and Erica Eisinger of Quarles & Brady of Milwaukee and Rick D. Bailey, O. Carey Epps, Larry J. Salustro of AT&T of Chicago, Illinois on behalf of AT&T Communications of Wisconsin, Inc. and orally argued by Erica Eisinger and Rick D. Bailey.
Briefs of Michael I. Paulson of Milwaukee on behalf of Wisconsin Bell, Inc. and orally argued by Michael I. Paulson.
Brief of David E. Hightower of Sun Prairie on behalf of GTE North Incorporated and orally argued by David E. Hightower.
Before Eich, C.J., Dykman and Sundby, JJ.
*492 DYKMAN, J.
This is a consolidation of four judicial reviews of decisions of the Public Service Commission. Three of the reviews were consolidated in the trial court before Judge Moria Krueger, and one was heard by Judge Mark Frankel. Two issues are presented. First, whether MCI Telecommunications Corporation has standing to contest the PSC's denial of its request for a hearing on three tariffs submitted by Wisconsin Bell, Inc., and one tariff submitted by GTE North, Incorporated. Second, whether MCI has standing to object to PSC decisions approving the four tariffs. Because we conclude that MCI lacks standing in both respects, we affirm.
BACKGROUND
As a result of the federal government's antitrust action against American Telephone and Telegraph Company, AT&T was required to divest its Bell operating companies, including Wisconsin Bell. The United States was then divided into 161 local access and transport areas. (LATAs). The Bell operating companies, including Wisconsin Bell, were restricted to providing local service and long distance service within a single LATA. Long distance service between LATAs was restricted to interexchange carriers. MCI and AT&T are interexchange carriers. Competition between interexchange carriers was intended and has occurred.
In 1986, the Wisconsin Legislature enacted secs. 196.194 and 196.195, Stats., which partially deregulated telecommunications services, and permitted telecommunication utilities to enter into individual contracts with individual customers. See secs. 34 and 35, 1985 Wis. Act 297.
*493 Though in theory the operating companies and the interexchange carriers would not compete, the Public Service Commission determined that interexchange services do affect intralata long distance services. Thus, after three interexchange carriers which operated in Wisconsin Bell's territory were given PSC approval to provide services in competition with Wisconsin Bell's intralata long distance services, Wisconsin Bell and GTE North applied for tariffs giving them authority in their territory to enter into contracts in competition with those offered by the three interexchange carriers. MCI asked that the PSC hold a hearing on the applications, and that it reject the proposed tariffs.
The PSC denied MCI's request that it hold a hearing on Wisconsin Bell and GTE North's proposed tariffs, and then approved those tariffs. MCI filed petitions for judicial review of the four orders approving the proposed tariffs. Both circuit courts to which the reviews were assigned concluded that MCI did not have standing to challenge the PSC action, and therefore dismissed the petitions for review. These appeals followed.
STANDING
[1, 2]
The supreme court discussed standing to contest an administrative decision in Waste Management of Wisconsin, Inc. v. DNR, 144 Wis. 2d 499, 424 N.W.2d 685 (1988). Wisconsin uses a two-step test. First, the petitioner must demonstrate that it sustained an injury directly caused by the agency decision. Second, the injury must be to an interest protected or regulated by the law in question. Waste Management, 144 Wis. 2d at 505, 424 N.W.2d at 687. Thus, we examine a specific statute to determine standing rather than consider all interests of the petitioner. We conduct this inquiry with *494 no deference to the decision of the circuit court. Davis v. Psychology Examining Bd., 146 Wis. 2d 595, 599, 431 N.W.2d 730, 732 (Ct. App. 1988).
DECISION
MCI challenges both the PSC's refusal to hold hearings on the four applications, and the lawfulness of the PSC's approval of the tariffs. It asserts that the trial courts did not consider its challenge to the hearing denials and decided the cases on MCI's attack on the lawfulness of the tariffs approvals. In applying the two-part test for standing, we will consider both of MCI's assertions. MCI is a customer of both GTE North and Wisconsin Bell. It predicates standing on this basis, arguing that because Wisconsin Bell was involved in an experimental program which permitted it to share with ratepayers its excess earnings, the excess earnings would be depressed because Wisconsin Bell would enter noncompensatory contracts with large telephone users. Thus, the rebate to which MCI would have been entitled would be reduced. MCI makes a similar argument with respect to GTE North, though GTE North did not have an experimental program.
The PSC's failure to hold a hearing on MCI's request would only injure MCI if two things occurred. First, we must assume that as a result of a hearing, the PSC would have denied Wisconsin Bell's request to file its tariffs. There is no evidence that this would have occurred. Second, there is no evidence that Wisconsin Bell has used its new tariffs to enter into any contracts, let alone any noncompensatory contracts.
[3]
Nor is MCI's interest as a customer within the interests to be protected by sec. 196.194, Stats., at least *495 at the stage where the PSC has approved the filing of a tariff. That statute sets out the procedure for entry of individual contracts, and nowhere does it suggest that a hearing be had at this initial stage. The suggestion is just the opposite. An investigation is had only after a contract is entered, and interested persons such as MCI are notified of the contract's entry.[1] The PSC then determines whether the contract is compensatory. MCI's alleged interest is not arguably within the zone of interests to be protected by sec. 196.194, Stats. We conclude that MCI's status as a customer of Wisconsin Bell does not give it standing to complain of the PSC's failure to hold a hearing on Wisconsin Bell and GTE North's applications for tariffs.
[41]
MCI's attack on the PSC's approval of Wisconsin Bell and GTE North's tariffs fares no better. Again, MCI would be injured only if it showed that contracts had been entered under the new tariffs, and it has made no such showing. Also, as we have discussed, sec. 196.194, Stats., does not put MCI in the zone of risk of a wrongful approval of a tariff. No one is in that zone of risk *496 because that statute contemplates inquiry into contracts after they are entered, not after they have been authorized.
MCI also asserts that it has standing to challenge the tariff approvals and failure to hold hearings because it is a competitor of Wisconsin Bell and GTE North.
[5]
There is no property right to engage in a business free of competitors. State ex rel. First Nat'l Bank of Wisconsin Rapids v. M&I Peoples Bank of Coloma, 95 Wis. 2d 303, 310-11, 290 N.W.2d 321, 326-27 (1980). However, if a statute indicates an intent to protect a competitive interest, an injured competitor has standing to seek to require compliance with the statute. Id. at 311, 290 N.W.2d at 327. Thus, we must consider whether sec. 196.194, Stats., shows an intent to protect competitors. Section 1 of 1985 Wis. Act 297, enacting sec. 196.194, declares the legislative intent of that act:
The legislature finds that the telecommunications industry is in a state of transition, providing opportunities for new sources of competition, and that changes in technology, public policy and federal regulatory and judicial initiatives are revolutionizing the industry. It is the intent of the legislature that:
(1) Universal telecommunications services continue to be available to the people of this state at just and reasonable rates and be of sufficient quantity, quality and reliability to meet the public interest.
(2) The public service commission have flexibility to deal with the current period of transition in the industry, while keeping as its main purpose the protection of the interests of ratepayers of public utilities offering regulated telecommunications services.
(3) The public service commission shall, when consistent with the protection of ratepayers and with *497 other public interest goals established by the legislature, rely on competition rather than regulation to determine the variety, quality and price of telecommunications services.
(4) The public service commission ensure that, in general, users of regulated telecommunications services and facilities pay only reasonable and just charges for such services and facilities and that such charges do not include costs associated with the competitive activities of telecommunications utilities.
(5) Partial deregulation be a regulatory system to facilitate competition where it may exist. When the market for a telecommunications service is fully competitive, the level of regulation imposed by the public service commission upon all similarly situated providers of that service shall be equal.
[6]
This statement of legislative intent shows a legislative concern with protecting ratepayers, not competitors. Though MCI focuses on the portion of sec. 1, 1985 Wis. Act 297, which states: "It is the intent of the legislature that . . . [p]artial deregulation be a regulatory system to facilitate competition where it may exist," this language does not evince an intent to protect competitors. This language recognizes only that less governmental regulation promotes competition. Total competition offers no protection to competitors, and in fact assumes that those who compete less efficiently will fail. Nor does an examination of sec. 196.194, Stats., suggest an intent to protect competitors. Indeed, as we have previously noted, that statute provides for contracts to be entered as a result of filed tariffs, with inquiry occurring only after the contracts are entered. Thus, regardless of whether MCI has sustained an injury by the PSC's actions, the assumed injury is not to an interest protected or regulated by sec. 196.194.
*498 Under Waste Management, MCI lacks standing to contest the PSC's decisions to deny MCI a hearing and to approve Wisconsin Bell and GTE North's tariffs. Because of MCI's lack of standing, we affirm the trial courts' orders.
By the Court.Orders affirmed.
NOTES
[1] Section 196.194, Stats., provides in part:
Within 20 days after a contract authorized under this section or an amendment to such a contract has been executed, the telecommunications utility shall submit the contract to the commission. The commission shall give notice to any person, upon request, that a contract authorized under this section has been received by the commission. The notice shall identify the telecommunications utility that has entered into the contract. Within 6 months after receiving substantial evidence that a contract may be noncompensatory, or upon its own motion, the commission shall investigate and determine whether the contract is compensatory. If the commission determines that the contract is noncompensatory, the commission may make appropriate adjustments in the rates or tariffs of the telecommunications utility that has entered into the contract, in addition to other remedies under this chapter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349765/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
The defendant filed a motion to strike based on the following grounds: 1) the plaintiff's action is barred by the statute of limitation; 2) a necessary party is absent from the plaintiff's action; or 3) the Employee Retirement Income Security Act preempts the plaintiff's cause of action.
The court denies the motion to strike.
On September 4, 1997, the pro se plaintiff, Thomas Tyndall filed a complaint sounding in breach of contract against the defendant, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677 ("Union"). The following facts are alleged in the complaint: In 1951, 1952, and 1954, the plaintiff was a driver for Trudon and Platt Motor Lines, Inc. ("Trudon"). During these years, the plaintiff was a member of the defendant Union and was covered by the collective bargaining agreement between the Union and Trudon.
In 1958 the Union entered into a new collective bargaining agreement with the trucking industry employers in the Union's local jurisdiction. As part of this agreement, the Union negotiated a pension benefit for its members "by an employer who CT Page 2524 became or would have become a contributing employer to the fund." (Plaintiff's complaint, ¶ 8). The pension benefit was made retroactive prior to 1951 for those members who were employed for at least 135 days for each year the benefit was claimed. At the time this agreement was signed, Trudon was not a party to the agreement. At some later point, however, Trudon signed the agreement. (Plaintiff's complaint, ¶ 11).
The plaintiff qualified for the pension benefit because he worked more than 135 days during 1951, 1952, and 1954 and he was a Union member when the agreement was signed. Then, in 1965 the secretary of the Union assured the plaintiff that he was entitled to pension credits for the years 1951, 1952 and 1954.
When the defendant retired in February 1995, he applied for the pension benefits he believed he was entitled to receive. In April 1995, he was notified that he would not receive pension credits for the years 1951, 1952 and 1954. The plaintiff's complaint sounds in breach of contract against the Union for failing to protect the plaintiff's pension credits.
On October 20, 1997, the defendant filed a motion to strike the plaintiff's complaint.1 In the introduction, the defendant argues that "the plaintiff's lawsuit must fail" for three reasons. First, the plaintiff's lawsuit is untimely. Second, the plaintiff's complaint admits that pension benefits were owed by a non-party. Third, the court lacks subject matter jurisdiction because all state law remedies are pre-empted by the Employee Retirement Income Security Act (ERISA).
The plaintiff filed a memorandum in opposition to the defendant's motion to strike on October 31, 1997. Then on November 12, 1997, the defendant filed a reply brief in support of its motion to strike. On December 4, 1997, the plaintiff filed a response to the defendant's reply brief.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted; citations omitted.) Faulkner v. UnitedTechnologies Corp. , 240 Conn. 576, 580, 693 A.2d 293 (1997).
Practice Book § 154 provides, "[e]ach motion to strike raising any of the claims of legal insufficiency . . . shall distinctly specify the reason or reasons for each such claimed CT Page 2525 insufficiency." Practice Book § 155 states, "[e]ach motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Therefore, the moving party must file a motion to strike and a supporting memorandum of law. A motion to strike that fails to comply with Practice Book § 154 is "`fatally defective' . . . notwithstanding the defendant's inclusion of such reasons in its supporting memorandum." Bouchard v. People's Bank, 219 Conn. 465,468 n. 4, 594 A.2d 1 (1991).
The defendant in the present case failed to file a motion to strike. Instead, the defendant filed a memorandum of law in support of a motion to strike and entitled it "Motion to Strike." The court may still give consideration to the defendant's motion despite its improper form if no objection is raised by the opposing party. Bouchard v. People's Bank, supra, 219 Conn. 468
n. 4.
The pro se plaintiff in this matter did not object to the form of the defendant's motion to strike. However, some degree of leniency towards pro se parties is permitted. Swenson v. Dittner,183 Conn. 289, 295 n. 3, 439 A.2d 334 (1981).
1. Statute of Limitations
The defendant moves to strike the plaintiff's complaint on the ground that the action is barred by the applicable statute of limitations.2 The plaintiff counters that pursuant to General Statute § 52-595, the statute of limitation did not begin to run until 1995, when the plaintiff discovered that he would not receive pension credits.3 The defendant responds in his reply brief that the plaintiff failed to allege sufficient facts to support a claim of fraudulent concealment pursuant to §52-595. The plaintiff argues that the complaint sufficiently alleges the elements of fraudulent concealment.
Pursuant to Practice Book § 164, a statute of limitations defense must be raised as a special defense, and not a motion to strike. Forbes v. Ballaro, 31 Conn. App. 235, 239, 624 A.2d 389
(1993). A motion to strike may raise the defense of the statute of limitations when, "[t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the statute of limitations and that therefore, it is proper to raise that question by [a motion to strike] instead of by answer. . . . [or] a statute gives a right of action which did CT Page 2526 not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone. . . ." (Citation omitted; internal quotation marks omitted.) Id.
Neither exception applies to the present case. The parties in the present matter do not agree that the complaint sets forth all the necessary facts to determine whether the plaintiff's action is barred by the statute of limitations. (Defendant's October 20, 1997 memorandum of law, p. 2 n. 1.) The second exception clearly is inapplicable to this matter.
Further, the plaintiff is not required to plead facts in anticipation of the defense of the statute of limitations. Forbesv. Ballaro, supra, 31 Conn. App. 241 n. 9. "The purpose of the general rule prohibiting the use of a motion to strike to raise a statute of limitations defense is to give the plaintiff an opportunity to plead fraudulent concealment in avoidance of the statute of [limitations]." Cassidento v. Mathis, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 537124 (January 24, 1996, Aurigemma, J.).
The defendant's motion to strike on the ground that the plaintiff's cause of action is barred by the statute of limitations is denied.
The defendant moves in the alternative to strike the plaintiff's complaint on the ground that the plaintiff's action fails to join a necessary party, New England Teamsters Trucking Industry Pension Fund ("New England Teamsters"). The defendant argues in its memorandum of law that New England Teamsters is a necessary party because New England Teamsters denied the plaintiff payment. The plaintiff responds that New England Teamsters is not a necessary party to the present matter because New England Teamsters pays out pension benefits that reflect the amount of credit provided to it by the defendant Union.
Practice Book § 152 provides in relevant part, "[a] motion to strike on the ground of nonjoinder of a necessary party must give the name and residence of the missing party or such information as the moving party has as to his identity and residence and must state his interest in the cause of action." The defendant in this matter failed to provide in its memorandum of law or in its reply brief in support of its motion what CT Page 2527 interest New England Teamsters has in the plaintiff's cause of action.
Furthermore, it is unclear from the plaintiff's complaint what interest New England Teamster would have in this action. The plaintiff alleges in the complaint that the defendant union breached a contract with the plaintiff by failing to protect his pension benefits and by failing to compensate him for the value of his pension credits. See, e.g., Casa Builders, Inc. v. Siegel, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 312128 (June 30, 1994, Damiani, J.). The plaintiff does not allege that he contracted with New England Teamsters. Finally, the plaintiff seeks damages from the defendant union, not New England Teamsters.
The defendant has not complied with Practice Book § 152 and the court is unable to determine what New England Teamsters interest is in the present matter. Therefore, the defendant's motion to strike on the ground that a necessary party is absent from the present action is denied.
Lastly, the defendant moved to strike the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over the plaintiff's lawsuit because it is preempted by The Employee Retirement Income Security Act of 1974 (ERISA),29 U.S.C. § 1001, et seq.
A challenge to the court's subject matter jurisdiction is properly raised by a motion to dismiss, not a motion to strike. Practice Book § 143. "Once an issue of subject matter jurisdiction is raised, the court must dispose of this legal question as a threshold matter." Kinney v. State, 213 Conn. 54,58, 566 A.2d 670, cert. denied, 498 U.S. 251 (1989).
The defendant's claim that the plaintiff has an ERISA cause of action impart facts that are outside the record. "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion [to strike] should be denied." Liljedahl Bros.,Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). The court has insufficient evidence at this point to determine whether ERISA preempts the plaintiff's cause of action.
Furthermore, the defendant failed to cite a single case to CT Page 2528 support his claim that the plaintiff's lawsuit is pre-empted by ERISA. Pursuant to Practice Book § 155, "[e]ach motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." The purpose of Practice Book § 155 is "to enable movement beyond the allegations in the pleadings, and to assist the court in its analysis of the evidence so as to ascertain whether an actual need for trial exists." Hughes v. Bemer, 200 Conn. 400, 402,538 A.2d 703 (1986). See Rebound Physical Therapy SportsRehabilitation v. Jackman, Superior Court, judicial district of Waterbury, Docket No. 132940 (December 12, 1996, Murray, J.) (The defendant failed to refer the court to legal authority in support of their motion to strike a CUTPA claim. The court refused to accept the CUTPA issue as submitted to the court because of its procedural infirmity.)
The court denies the defendant's motion to strike on the ground that the court lacks subject matter jurisdiction over the plaintiff's cause of action, because the defendant's motion and supporting memorandum of law are procedurally infirm and are improperly before the court.
The defendant's motion to strike the plaintiff's complaint is denied on all three grounds.
KULAWIZ, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3349766/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This appeal challenges the decision of the defendant Town of Wethersfield Board of Appeals granting defendant Douglas Blake's application for a variance permitting him to improve and enlarge a building he intends to use as a general automobile repair shop.
The property in question is located on the Berlin Turnpike in the Town of Wethersfield. It was purchased by defendant Blake for the purpose of operating his car repair business from that location. Blake's property abuts the property of the plaintiff who operates a financial services business1. Beginning in 1954 and continuing at least through 1982, Blake's property was the site of a gasoline station on which the former proprietors also conducted an automobile repair business. As reflected in the record, the Board, on various occasions during the 1954-1982 period, approved the use of the property for the sale of gasoline and automotive repairs.
The property is located in an IP, or Industrial Park, zone. Because of the property's relatively small size, it does not satisfy the minimum two acre lot size required in an IP zone, and therefore, absent a variance, cannot be used for any IP approved project. In his application to the Board, the defendant Blake sought approval for a general repairers license, and a variance to enlarge an existing repair garage and to park over the building line. The principal dispute in this appeal is whether use of the property as the site for general automotive repairs constitutes a valid non-conforming use. The plaintiff claims that because an automobile repair shop does not constitute a valid non-conforming use, the Board erred in granting Blake's application for a variance because, under the Board's regulations, general auto repairs are expressly prohibited in an CT Page 3461-A IP zone.
I.
The legal standards governing this appeal are well established. A local zoning board has the power to grant a variance under General Statutes § 8-6 (3) when two basic conditions are met: "(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." Smith v. Zoning Board of Appeals,174 Conn. 323, 326 (1978).
The granting of a variance must be reserved for unusual or exceptional circumstances. Ward v. Zoning Board of Appeals,153 Conn. 141, 145 (1965). Proof of hardship is a condition precedent to granting a variance. Point O'Woods, Inc. v. Zoning Board ofAppeals, 178 Conn. 364, 365 (1979). The hardship must "arise from circumstances or conditions beyond the control of the property owner." Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39
(1982). "Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance . . . The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances beyond the control of the party involved." Id. A hardship that is self-created is not the basis for approving a variance. Id.
"Upon an appeal from the granting of a variance . . . the court may not substitute its own discretion for that of the board. It may interfere only if the board acted arbitrarily or illegally or so unreasonably as to have abused its discretion."Culinary Institute of America, Inc. v. Board of Zoning Appeals,143 Conn. 257, 262 (1956). The credibility of witnesses and the determination of factual issues are matters within the province of the board of appeals. Stankiewicz v. Zoning Board of Appealsof Town of Montville, 15 Conn. App. 729 (1988). If the reasons assigned by the Board are reasonably supported by the record and are pertinent considerations for granting a variance, the decision must be upheld. Iannucci v. Zoning Board of Appeals,25 Conn. App. 85 (1991). A reviewing court may not substitute its judgment for that of the board as long as an honest judgment has been reasonably made. Stankiewicz v. Zoning Board of Appeals,
CT Page 3461-B supra.
II.
The defendant's property is located in an Industrial Park (IP) zone. The Town of Wethersfield Zoning Regulations § 167-63 expressly prohibits property in an IP zone from being used as "public garages, filling stations and establishments for the sale, service or repair of motor vehicles." Relying on this prohibition, the plaintiff argues that it was error for the defendant Appeals Board to approve the variance. Specifically, the plaintiff argues that because establishments for the repair of automobiles are prohibited in an IP zone, the only basis upon which the variance could have been granted would have been the determination by the Appeals Board that the use of the property as a repair station is a valid non-conforming use. The plaintiff insists, however, that such a finding would be erroneous because the property's status as nonconforming has been abandoned.
Preliminarily, plaintiff's argument apparently assumes that in fact the property or building was a valid nonconforming use as an automobile repair station.2 This assumption is correct. The Wethersfield Zoning Regulations § 167-1 defines nonconforming use as: "Any land being lawfully used or any building or part thereof being lawfully used, constructed, moved or altered in a manner or for a purpose which does not conform to the requirements of this chapter or any amendment thereto upon the effective date of enactment of such chapter or amendment." The test of whether a use is nonconforming, therefore, is whether, at the time of the effective date of the zoning regulations, the property or building was being used in a manner that does not conform to the regulations. "[A] nonconforming use is merely an existing use established prior to zoning regulations the continuation of which is authorized by statute or by zoning regulations." Connecticut Practice Series, Fuller, Land Use Lawand Practice § 52.2, 840-841. Adolphson v. Zoning Board ofAppeals of Fairfield, 205 Conn. 362 (1988).
The Wethersfield Zoning Regulations prohibiting automotive repair businesses in an IP zone were adopted in 1972. The parties agree and the record demonstrates that as early as 1954 the property in question was being used as a gasoline and automotive repair station. Unquestionably, the plaintiff's property qualifies as a nonconforming use. CT Page 3461-C
The plaintiff nevertheless argues that since the property isnot presently being used as a repair station, its status as a nonconforming use has been abandoned. "It is a well established rule that before a nonconforming use can be found to have been abandoned, there must be an intention on the part of the owner to relinquish permanently the nonconforming use . . . Abandonment in this jurisdiction is a question of fact. It implies a voluntary and intentional renunciation but the intent may be inferred as a fact from the surrounding circumstances. Since, however, the conclusion of intention is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181-82
(1977) (internal quotations and citations omitted); Caserta v.Zoning Board of Appeals, 41 Conn. App. 77 (1996).
A review of the record indicates that there is ample evidence from which the Board could conclude that the nonconforming use has not been abandoned. While it is true that the property in question has been vacant for a number of years, that fact, by itself, does not compel the conclusion that it was the prior owner's intention to abandon its use as a site for automotive repairs. Id. The record reveals that for at least 28 years the property in question had been used continuously as a gasoline and repair station. The property is still owned by a petroleum company.
This case is different than those in which courts have found an intent to abandon based on a clear departure from the previous use. See, e.g., Blum v. Lisbon Leasing, supra, converting gasoline and repair station to tire recapping, tire repair and truck leasing facility; and Point O'Woods Association Inc. v.Zoning Board of Appeals of the Town of Old Lyme, supra. In those cases there was affirmative evidence, based on a change in use, of the owner's intent to abandon the previous nonconforming use. There is no such evidence in this case. The most that can be said is that the property has not been used for any purpose for an extended period of time. Abandonment is a question of fact, the determination of which is entrusted to the sound discretion of the administrative agency. Based on the record before the Board, its finding that the owner of the property has not abandoned its nonconforming use is not clearly erroneous. Stankiewicz v. ZoningBoard of Appeals of Town of Montville, supra.3
The plaintiff also argues that the Board erred in approving CT Page 3461-D the variance because the defendant Blake failed to demonstrate the necessary hardship. Under General Statutes § 8-6 (3) an applicant for a variance must demonstrate that adherence to the strict letter of the zoning regulation will cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Smith v. Zoning Board of Appeals, 174 Conn. 323
(1978). The hardship must "arise from circumstances or conditions beyond the control of the property owner . . . Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance . . . The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arise directly out of the application of the ordinance to circumstances beyond the control of the party involved." Pollard v. Zoning Board of Appeals, 186 Conn. 32,39-40 (1979) (internal quotations and citations omitted).
The plaintiff argues that because the claimed hardship was both voluntarily incurred and economic in nature, the variance should not have been approved. Specifically, plaintiff argues that the defendant purchased the property knowing that its location in an IP zone would prohibit its use as an automotive repair shop, and that any hardship that flows from that prohibition is merely economic.
In Adolphson v. Zoning Board of Appeals, 205 Conn. 703 (1988) an almost identical argument was rejected by the the Supreme Court. In Adolphson, the property in question was formerly used as a foundry which was deemed to be a valid nonconforming use. The new owner purchased the property with the specific intention of converting it to an automobile repair shop even though the existing zoning regulations specifically prohibited automobile repair shops in an industrial zone. The approval of the variance was upheld by the Supreme Court over the objection of a neighbor who argued, as the plaintiff does in this case, that the hardship was voluntarily incurred and economic in nature. In rejecting the neighbor's claim the Supreme Court stated:
We have stated that [t]here has always existed a distinction between circumstances such as those . . . where the applicant or his predecessor in interest creates a hardship such as an undersized lot, and a situation where the hardship which would justify the grant of a variance originates in the zoning CT Page 3461-E ordinance itself. Where a nonconformity exists, it is a vested right which adheres to the land itself. And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use. Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. But if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance. Otherwise the zoning ordinance could be unjust and confiscatory.
Adolphson v. Zoning Board of Appeals, supra, 712-13.
This case is plainly governed by Adolphson. As in Adolphson,
the defendant purchased the property subject to the nonconforming use, a right which runs with the land. Also, as in Adolphson, Mr. Blake seeks to change the established nonconforming use to a less offensive nonconforming use by elimination of the sale of gasoline. And, just as in Adolphson, the defendant Blake did not create the nonconformity and his "purchase of the [gas station], a nonconforming use, with knowledge that an automobile repair shop is prohibited in an industrial district zone does not militate against [Blake's] use variance application." Id.
Finally, pursuant to Wethersfield Zoning Regulations § 167-75 the minimum lot size required in the Industrial Park zone is two acres. Because plaintiff's property is far less than 2 acres, any authorized use of it would necessarily require a variance, supporting the conclusion that the hardship arises out of the regulations themselves. For all of these reasons there was a substantial basis for the Board concluding that the hardship was not voluntarily created or economic in nature. Accordingly, the Board did not err by granting the defendant Blake's application for a variance.
Finally, the plaintiff contends that the Board's decision constitutes illegal spot zoning. An identical argument was considered and rejected in Adolphson v. Zoning Board of Appeals,
supra. CT Page 3461-F
For the foregoing reasons the plaintiff's appeal is dismissed.
Robert L. Holzberg, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1601980/ | 869 So. 2d 1013 (2004)
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES
v.
Carolyn K. McNEEL.
No. 2002-CC-01948-SCT.
Supreme Court of Mississippi.
April 8, 2004.
Julia Ann Townsend, Cassandra S. Walter, Gloria Green, Jackson, attorneys for appellant.
Jim Waide, Tupelo, attorney for appellee.
*1014 Before SMITH, C.J., COBB, P.J., and CARLSON, J.
SMITH, Chief Justice, for the Court.
¶ 1. On November 5, 1999, the Mississippi Department of Human Services (MDHS) notified Carolyn K. McNeel that she was terminated from her position of employment with the Winston County Department of Human Services. McNeel was charged with two offenses. The first charge was that McNeel "approached the birth mother of a child that she had previously investigated for allegations of abuse and offered her home as a permanent home for the child;" MDHS claims this act would have violated Group III, Number 16 offense for willfully violating State Personnel Board policies, which prohibit employees from subjecting themselves to possible conflicts of interest. The second charge was that she used her position to adopt a child; this charge would amount to a violation of a Group III, Number 11 offense by her conduct in violation of MDHS policy Volume IV, Section F, page 4501 which prohibited McNeel from making an independent adoption placement of a child known to her through her position with the agency.
¶ 2. McNeel appealed her termination to the Mississippi Employee Appeals Board. On October 3, 2000, Hearing Officer Falton O. Mason, Jr., heard the case, and he found that the action taken by the MDHS was against the overwhelming weight of the evidence, noting the significant difference between one being appointed a guardian of a child and one adopting a child as one's own. Hearing Officer Mason further found that neither McNeel nor her husband, Billy Gene McNeel, ever approached the natural mother about adopting the child, A.B.,[1] and that the natural mother considers the guardianship to be temporary. Therefore, Hearing Officer Mason concluded that McNeel should be reinstated to her position with back pay and benefits as of the date of termination, subject to any sum received from other sources.
¶ 3. On April 23, 2001, the Mississippi Employees Appeals Board (EAB) sitting en banc affirmed Hearing Officer Mason's order.
¶ 4. Next, the MDHS petitioned the Hinds County Circuit Court for writ of certiorari to review the decision of the EAB. The Circuit Court of the First Judicial District of Hinds County found that "the decision of the Mississippi Employee Appeals Board that appellee be reinstated is supported by substantial evidence."
¶ 5. MDHS appeals from the order of the circuit court on the following issues:
I. WHETHER THE DECISION TO TERMINATE McNEEL WAS SUPPORTED BY AN OVERWHELMING WEIGHT OF EVIDENCE OR WAS ARBITRARY AND CAPRICIOUS.
II. WHETHER THE FINDING THAT "THE ACTION OF. McNEEL WAS NOT A WILLFUL VIOLATION OF STATE PERSONNEL POLICIES, THAT HER ACTIONS WERE NOT A CONFLICT OF INTEREST AND THAT SHE DID NOT VIOLATE POLICIES OF THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES" WAS RELEVANT TO A CHARGE OF GROUP III, NUMBER 11, "ACTS OF CONDUCT ..."
III. WHETHER THE EAB HAS THE AUTHORITY TO ALTER THE ACTION BY MDHS IN LIGHT OF RULE 24(B) OF THE EAB'S ADMINISTRATIVE RULES.
*1015 FACTS
¶ 6. On October 27, 1997, A.B. was brought into the office of the Winston County Department of Human Services by relatives who reported that she was being neglected and abused. McNeel was both the intake worker and the investigator assigned to A.B.'s case. Reports are conflicting as to when the case was terminated and how much involvement McNeel had with the case because MDHS has been unable to produce the child's file. MDHS claims that A.B.'s case was initially terminated on December 29, 1998. During this fourteen-month period, McNeel's co-worker reported that McNeel expressed to her co-workers that she loved A.B. and would love to raise A.B. as part of her family. The hearing officer found that McNeel's official contact was limited to a brief time in 1997.
¶ 7. In February of 1999, when A.B.'s case was again brought to the attention of the Winston County DHS, a co-worker, Jo Anne Clark, telephoned McNeel, who was at home recuperating from surgery, to tell McNeel of A.B.'s case. Clark states that shortly thereafter in March of 1999, McNeel said she was going to talk to A.B.'s mother and aunts about letting her raise the child. MDHS alleges that on March 16, 1999, McNeel approached A.B.'s birth mother to offer her home to the child in order to keep A.B. out of the foster care system; however, the hearing officer, the EAB, and the circuit court judge all found no supporting evidence for this claim. Additionally, A.B.'s mother wrote a letter stating that McNeel had nothing to do with her desire to place A.B. in Billy Gene McNeel's care.
¶ 8. The hearing officer's found:
The testimony reflected that the husband of the Appealing Party knew the family and of the child since 1995, and knew of the child's problem since sometime in 1998. The child's father was killed in an automobile accident. That he was contacted about custody of the child by an employee of the Department of Human Services, who encouraged him to get involved with the said child, and pointed out to him that certain problems might occur. That he made the decision to become the guardian of the child that the Appealing Party was not a part of that decision, but that she concurred with him. That he was granted the guardianship of the child.
¶ 9. McNeel worked for MDHS for nineteen years, the last ten in Winston County. Her husband Billy is a certified public accountant. They have been married since 1983 and have one teenage son. Billy has known A.B. since her father was killed in a truck accident, and he knew A.B.'s mother when she was a teenager.
¶ 10. Webb O'Bryant, McNeel's supervisor at MDHS, called Billy about the first week in March of 1999 and asked him if he would take A.B. into his home. No mention was made of the consequences that might face McNeel if the child was taken into their home. On June 16, 1999, Billy was made guardian of A.B. and awarded physical and legal custody.
¶ 11. MDHS's claim of wrongdoing by McNeel is based upon co-workers stating that McNeel had said she wanted this "beautiful child." Those co-workers admit they did not tell her there was anything wrong with this or that the child should not be going to her home.
¶ 12. MDHS never produced any file on the child at the hearing. Elaine Cooper, a clerk in the Winston county office claimed that she gave the file to O'Bryant, who had given it to "Program Integrity." Program Integrity claims to have returned the file by mail to the Winston County DHS.
¶ 13. McNeel argues that the real reason for her firing may have been to keep *1016 her from receiving a promotion to head of the Winston County Department of Human Services. O'Bryant was promoted from his position in early 1999, and his slot became open. McNeel could have applied for this promotion if she had not been fired and she claims she was the most experienced local applicant. According to McNeel, the person who did get the promotion was Tabatha Stewart, who testified against McNeel at the EAB hearing.
STANDARD OF REVIEW
¶ 14. The MDHS fails to assert or recognize the standard of review this Court imposes in an administrative agency case.
¶ 15. This Court, as well as the circuit court, reviews a decision of an administrative agency for substantial evidence supporting that agency's finding, and the scope of review is limited to the findings of the agency. Walters v. Miss. Dep't of Economic & Community Dev., 768 So. 2d 893, 895 (Miss.2000) (citing Holloway v. Prassell Enters., Inc., 348 So. 2d 771, 773 (Miss.1977) and Miss. Employment Sec. Comm'n v. Pulphus, 538 So. 2d 770, 772 (Miss.1989)). However, the rule permits the appellate court "to examine the record as a whole and where such record reveals that the order of the [agency] is based on a mere scintilla of evidence, and is against the overwhelming weight of the credible evidence the court will not hesitate to reverse." Walters, 768 So.2d at 895 (quoting Johnson v. Ferguson, 435 So. 2d 1191, 1194-95 (Miss.1983)).
ANALYSIS
I. WHETHER THE DECISION TO TERMINATE McNEEL WAS SUPPORTED BY AN OVERWHELMING WEIGHT OF EVIDENCE OR WAS ARBITRARY AND CAPRICIOUS.
¶ 16. MDHS argues that the circuit court's decision to uphold McNeel's reinstatement goes against the overwhelming weight of evidence indicating that McNeel did entertain a conflict of interest and that a per se breach of MDHS policy occurred. In support of its argument, MDHS claims that social workers should not "be allowed to adopt a [child] they become attached to through their professional endeavors [because] ... No natural parent would ever regain custody once an MDHS social worker decided they would prefer to have the child. [A.B.'s] mother certainly will not." This argument fails to recognize that McNeel's husband, Billy, did not adopt A.B. but was merely appointed as her guardian, which is not a permanent situation and does not prevent A.B.'s mother from regaining custody.
¶ 17. Next, MDHS argues that it presented overwhelming evidence supporting its decision to terminate McNeel's employment. To examine the EAB's role and the burden of proof required in an appeal of this nature, it is helpful to begin with the applicable laws and then consider the resulting administrative regulations and guidelines.
¶ 18. In pertinent part, Miss.Code Ann. § 25-9-131(1) (Rev.2003) states:
Any employee in the state service may appeal his dismissal or other action adversely affecting his employment status to the employee appeals board created herein. The proceedings before the employee appeals board shall be de novo, and the employee shall be afforded all applicable safeguards of procedural due process.
Additionally, Miss.Code Ann. § 25-9-132 (Rev.2003) outlines the procedure for review of a state agency's dismissal of an employee:
Any employee aggrieved by a final decision of the employee appeals board shall *1017 be entitled to judicial review thereof in the manner provided in this section.
(1) An appeal may be taken by such employee to the circuit court of the principal county of the employee's employment or the Circuit Court of the First Judicial District of Hinds County, by filing a petition with the clerk of such court and executing and filing bond payable to the state of Mississippi with sufficient sureties to be approved by the clerk of the court, in the penalty of five hundred dollars ($500.00), conditioned upon the payment of all costs of appeal, including the cost of preparing the transcript of the hearing before the employee appeals board. The petition and bond shall be filed within thirty (30) days of the receipt of the final decision of the employee appeals board. Upon approval of the bond, the clerk of the court shall notify the employee appeals board, which shall prepare its record in the matter and transmit it to the circuit court.
(2) The scope of review of the circuit court in such cases shall be limited to a review of the record made before the employee appeals board or hearing officer to determine if the action of the employee appeals board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.
(3) No relief shall be granted based upon the court's finding of harmless error by the board in complying with the procedural requirements of sections 25-9-127 through 25-9-129; provided, however, in the event that there is a finding of prejudicial error in the proceedings, the cause may be remanded for a rehearing consistent with the findings of the court.
(4) Any party aggrieved by action of the circuit court may appeal to the supreme court in the manner provided by law.
(5) In each controversy in which the employee appeals board assumes jurisdiction, the state personnel board shall assess the respondent state agency a reasonable fee to defray the cost of recording the hearing. The state personnel board is hereby authorized to contract with certified court reporters to record hearings before the employee appeals board.
This Court has ruled that the de novo review of the EAB is tempered by the EAB's own rules. In Johnson v. Mississippi Department of Corrections, 682 So. 2d 367, 370 (Miss.1996), this Court held that under then Rule 20(b), "the EAB shall not alter the action taken by the agency, if the agency has acted in accordance with the published rule and if the personnel action taken by the agency is allowed under the guidelines." With the 1999 revisions, this rule is now State Personnel Board Rule 10.40.22(B), allowing:
The Employee Appeals Board may modify an action of a responding agency but may not increase the severity of such action on the appealing party. If the responding agency has acted in accordance with the published policies, rules and regulations of the State Personnel Board, and if the personnel action taken by the responding agency is allowed under said policies, rules and regulations, the Employee Appeals Board shall not alter the action, including but not limited to the compensation paid to the employee, taken by the agency.
This rule must be considered along with the other rules, including SPB Rule 10.40.19 (Rev.1999), defining the burden of proof: "B. The appealing party shall have *1018 the burden of proving that the action taken against the employee is arbitrary, capricious, against the overwhelming weight of the evidence and merits the relief requested." However, the rules are not at odds with one another as it is reasonable to note that had the agency correctly followed it rules, policies and procedure, it would likely not have taken action against the overwhelming weight of evidence or in an arbitrary or capricious manner.
¶ 19. This Court has defined substantial evidence:
Substantial evidence, though not easily defined, means something more than a "mere scintilla" of evidence, Johnson v. Ferguson, 435 So. 2d 1191 (Miss.1983) and that it does not rise to the level of "a preponderance of the evidence." Babcock & Wilcox Co. v. McClain, 149 So. 2d 523 (Miss.1963). It may be said that it "means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred." State Oil & Gas Bd. v. Mississippi Min. & Roy. Own. Ass'n, 258 So. 2d 767 (Miss. 1971). United States v. Harper, 450 F.2d 1032 (5th Cir.1971).
Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss.1991).
¶ 20. When an administrative agency's decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious and
[a]n administrative agency's decision is arbitrary when it is not done according to reason and judgment, but depending on the will alone. An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.
Miss. State Dep't of Health v. Natchez, 743 So. 2d 973, 977 (Miss.1999); See also Burks v. Amite County Sch. Dist., 708 So.2d 1366,1370 (Miss.1998).
¶ 21. This Court must review the decision of the hearing officer that was affirmed by the full EAB and the circuit court. After extensive testimony, the hearing officer found that MDHS's termination of McNeel was not supported by the overwhelming weight of the evidence. The hearing officer observed the testimony of witnesses and their demeanor and found that McNeel was not professionally involved with A.B. at the time her husband was appointed guardian. The hearing officer further found that McNeel did not discuss the child's home situation with the natural mother until after another MDHS employee contacted Billy about taking A.B. and that adopting the child, or taking her permanently from the natural mother, was never discussed.
¶ 22. The hearing officer emphasized his finding that there is a major difference between guardianship and adoption. He cited the Black's Law Dictionary definitions of the two terms following:
Adoption is the taking and receiving as one's own that to which he bore no prior relation, colorable or otherwise.... The act of one who take's another's child into his own family, treating him as his own, and giving him all the rights and duties of his own child.... A juridical act creating between two persons certain relations, purely civil, of paternity and filiation.... The relationship created statutory status, not a contractual relation.
A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property rights of another *1019 person, who for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs.
¶ 23. Though the MDHS avers that its termination decision should not be reversed because MDHS rules and regulations were followed in the process, the record does not indicate substantial evidence to support its allegations. The record consists of letters from various members in the community, testimony from Billy and Carolyn McNeel, testimony from McNeel's co-workers and supervisors, and a few documents from A.B.'s file. The record clearly supports the hearing officer's findings that MDHS's allegations are not supported by substantial evidence. Therefore, he was correct in ordering McNeel to be reinstated with back pay. Two appellate forums reviewed the hearing officer's decision and affirmed it. On this record this Court can only affirm.
II. WHETHER THE FINDING THAT "THE ACTION OF CAROLYN K. McNEEL WAS NOT A WILLFUL VIOLATION OF STATE PERSONNEL POLICIES, THAT HER ACTIONS WERE NOT A CONFLICT OF INTEREST AND THAT SHE DID NOT VIOLATE POLICIES OF THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES" WAS RELEVANT TO A CHARGE OF GROUP III, NUMBER 11, "ACTS OF CONDUCT..."
¶ 24. MDHS clarifies that the SPB defines a Group III, Number 11 offense as:
Acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency's duties to the public or to other state employees.
Mississippi State Employees Handbook 62-63 (Rev.2001). The conduct MDHS calls a breach of this regulation the allegation that McNeel approached the birth mother and offered her home to a child known to her through her professional involvement with the child's family. However, after hearing the evidence presented, Hearing Officer Mason found that the allegation was not supported by the evidence. The evidence included a letter written by the birth mother denying the allegation that McNeel approached her and also included were letters from members of the community detailing Billy's acquaintance with the child prior to and beyond McNeel's contact with A.B. as a social worker for the Winston County DHS.
¶ 25. This issue is a sub part of the first issue discussed above. We find that this issue is without merit.
III. WHETHER THE EAB HAS THE AUTHORITY TO ALTER THE ACTION BY MDHS IN LIGHT OF RULE 24(B) OF THE EAB'S ADMINISTRATIVE RULES.
¶ 26. The MDHS meant to appeal this issue in light of SPB Rule 10.40.22(B), which is discussed above. SPB Rule 10.40.24(B) (Rev.1999) states, "the request must be filed within ten (10) calendar days after the date of the final order is filed." MDHS fails in its brief to provide a more precise citation or to quote the language of the rule or even to cite any applicable case law on the subject. This Court finds no merit in this issue as stated or argued.
CONCLUSION
¶ 27. MDHS claims that the EAB hearing officer, the full EAB, and the circuit court all erred in finding that McNeel *1020 should be reinstated to her position with the Winston County DHS with back pay because her termination was not supported by substantial evidence and she showed substantial evidence to support her position. This Court finds no error in the record or in the hearing officer's order to reinstate with back pay. This Court finds that the decision of the Mississippi Employee Appeals Board was supported by the evidence, was not arbitrary or capricious, and does not violate any statutory or constitutional right. Therefore, this Court affirms the circuit court judgment affirming the decision of the Mississippi Employee Appeals Board.
¶ 28. AFFIRMED.
WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
NOTES
[1] We will refer to the child using the fictitious initials A.B. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922280/ | 897 A.2d 1113 (2006)
385 N.J. Super. 534
Joseph S. FRANKLIN, Plaintiff-Respondent,
v.
Joanna SLOSKEY, Defendant-Appellant.
Joanna Sloskey, Plaintiff-Respondent,
v.
Joseph S. Franklin, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted April 25, 2006.
Decided May 23, 2006.
*1114 The Camden Center for Law and Social Justice, attorneys for Joanna Sloskey, appellant in A-2777-04T1 and respondent in A-2685-04T1 (Denise Higgins, on the brief).
Louis Cappelli, Jr., attorney for Joseph Franklin, respondent in A-2777-04T1 and appellant in A-2685-04T1.
Before Judges SKILLMAN, AXELRAD and PAYNE.
The opinion of the court was delivered by
AXELRAD, J.T.C. (temporarily assigned).
Joseph Franklin and Joanna Sloskey, who were involved in a two-and-one-half year dating relationship, each appeal from final restraining orders (FROs) entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -25(DVA). The orders were entered following a final hearing on a temporary restraining order (TRO) issued against Sloskey pursuant to a domestic violence complaint filed by Franklin alleging harassment. Both parties were unrepresented and, in essence, consented to the issuance of the restraining orders, in the absence of any findings by the court, and in Franklin's case, in the absence of a prior domestic violence complaint having been filed against him by Sloskey. We calendared the appeals back-to-back and now dispose of both appeals in this single opinion.
On appeal, Franklin contends the FRO was entered against him in violation of his *1115 due process rights and without a finding that he committed an act of domestic violence. Sloskey contends she was denied her right to cross-examine Franklin or his witness, and the judge failed to make any credibility findings and failed to find that an act of domestic violence occurred. We agree that the judge erred in all of these respects and reverse both FROs.
On December 14, 2004 Franklin was issued a TRO in the Haddon Heights Municipal Court against Sloskey based on an allegation that after their relationship ended in August, she continually harassed him by telephone, drove by his home and followed him. On the December 23, 2004 return date of the FRO, the Family Part judge conducted an informal and unorganized hearing. Although he appropriately began with Franklin's testimony, rather than allowing the complainant to complete his testimony and then permitting Sloskey to cross-examine him, part way through Franklin's testimony, the judge began to direct questions at Sloskey. The judge then returned to Franklin and continued to alternate direct examination of the parties and their witnesses, a few questions at a time, depending on the topic the judge wished to pursue.
Franklin testified that after he ended their relationship in August, Sloskey continuously called him all hours of the night, i.e. "80 phone calls from 2:00 a.m. `til 6:00 a.m,'" camped outside his house, approached and fought with people who were at his house, and harassed the person he was currently dating. Franklin claimed he had two cell phones with him with thirty different threatening messages that Sloskey had left over a period of a week. He began playing the voice messages, the content of which was not transcribed, but based on his commentary in the record, the calls were not from her. Franklin further testified that after Thanksgiving, Sloskey left him a note that she was pregnant. On December 2 he called her mother to confirm that fact, and he then called Sloskey to inquire what she intended to do about the baby.
Franklin's current girlfriend, Kathleen Beal, testified to being present at Franklin's house on December 14 when Sloskey called numerous times from 3:00 to 5:30 a.m., and that afternoon Sloskey stopped by the house and confronted her. Franklin interjected that Sloskey called "forty times [as] he had caller ID."
Sloskey testified their relationship ended on October 26, when she told Franklin she was pregnant, and he threw her out of the house and changed the locks. She explained she went back to the house to talk to him on October 30 because she was "pregnant" and "scared" and had to move back home and pay rent to her parents. Sloskey testified that she did not hear from Franklin until December 2. She then testified Franklin took her to lunch on December 9 and they then "called each other back and forth." During those calls, Franklin continued to express feelings for her and denied he was dating anyone. Sloskey called him on December 14 to discuss issues regarding her pregnancy and stopped by that day to continue the discussions. She was surprised to see another woman pulling up in front of Franklin's house to check the mail. A physical confrontation ensued, which Sloskey contended was initiated by Beal and during which she claimed she was bruised, necessitating medical treatment.
Sloskey's mother corroborated her daughter's testimony about the date and circumstances in which the parties' relationship ended. She also testified about Franklin's phone calls to her and her daughter on December 2.
During the course of Franklin's testimony, he made the comment, "Your Honor, give her a Restraining Order against me, *1116 give me a Restraining Order against her. I never want to see her again, I never want to call her. I'm not goin' back and forth tit for tat. I'm embarrassed to be here." Rather than ignore the comment, as one clearly made out of frustration, the judge entered an FRO against both Franklin and Sloskey based on the following colloquy:
Q Are you asking for a Restraining Order?
MS. SLOSKEY: No.
....
MS. SLOSKEY: [The police] said since he filed one they won't give me one.
....
THE COURT: Do you want a Rest he said he didn't object to you getting a Restraining Order.
MS. SLOSKEY: I don't think that's I think that's all silliness and it's childishness.
THE COURT: Well, he just ... doesn't want to have anymore contact with you.
MS. SLOSKEY: And that's fine.
....
MS. SLOSKEY: He won't see his son be born, he won't pick out a name, he won't see any of it.
THE COURT: Okay, but hedo you understand you are required to pay child support?
MR. FRANKLIN: Whatever.
THE COURT: Okay. I'm going to grant the Restraining Order.
MR. FRANKLIN: Thank you, thank you.
THE COURT: I mean he doesn't want to be harassed. There may be harassment
MS. SLOSKEY: But the
THE COURT: There may be harassment on both parts and quite frankly would I give you a Restraining Order, absolutely.
MS. SLOSKEY: No, but you would give me one instead of him?
THE COURT: No, but I'll give you both Restraining Orders.
MS. SLOSKEY: Oh, okay.
THE COURT: You don't object?
MR. FRANKLIN: I could care less.
THE COURT: Give you both restraining orders.
MR. FRANKLIN: Cool.
THE COURT: You want one?
MR. FRANKLIN: Thank you.
MS. SLOSKEY: Sure.
THE COURT: All right.
MR. FRANKLIN: Give her one.
THE COURT: Give her one.
MR. FRANKLIN: Give her two.
THE COURT: Relax.
MOTHER: Can we get one against his brother too?
THE COURT: No, no, no. Going to do a Restraining order against the two of them....
Franklin's FRO against Sloskey extended protection to Beal (incorrectly designated as "Bean") and Franklin's family. Sloskey's FRO applied only against Franklin.
I.
We deal first with Franklin's appeal. Franklin appeared at the hearing on December 23 as the purported victim of domestic violence, intending to proceed on his complaint for an FRO against his former girlfriend. As Sloskey had never filed a domestic violence complaint nor applied for a TRO against him, he had no expectation he was facing adverse consequences and he did not retain counsel. It is clear from the record the trial judge issued an FRO against Franklin solely because he consented to one during the stress of the *1117 hearing, without there ever having been a complaint filed, or charges of domestic violence asserted against him. This was clearly improper and a fundamental violation of Franklin's constitutional right to due process and a fair trial. See H.E.S. v. J.C.S., 175 N.J. 309, 324-25, 815 A.2d 405 (2003) (it violates due process to require a defendant to go forward with a final hearing twenty-four hours after he was served with a domestic violence complaint; it also violates his due process rights to grant an FRO based on allegations not contained in the complaint); see also J.F. v. B.K., 308 N.J.Super. 387, 391-92, 706 A.2d 203 (App. Div.1998) (trial court's finding that defendant committed an act of domestic violence based not on an act alleged in the complaint, but rather on a course of prior conduct not mentioned in the complaint, deprived defendant of due process, where defendant was not told of the charges until the day of the hearing).
The record does not support Sloskey's argument that the trial judge was "careful in his questioning of [Franklin] to ensure that he understood his right to object" and that Franklin was given ample opportunity to request a postponement and seek counsel and waived his right to do so. On the contrary, the trial judge never informed Franklin of the serious consequences associated with the entry of a domestic violence restraining order. Nor did the judge give him any indication that he had a right to an adjournment of the trial or even suggest he consult with an attorney. We have consistently recognized that the issuance of an FRO "has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as `a serious crime against society.'" Bresocnik v. Gallegos, 367 N.J.Super. 178, 181, 842 A.2d 276 (App.Div.2004) (quoting N.J.S.A. 2C:25-18). We elaborated:
Once a final restraining order is entered, a defendant is subjected to fingerprinting, N.J.S.A. 53:1-15, and the Administrative Office of the Courts maintains a central registry of all persons who have had domestic violence restraining orders entered against them, N.J.S.A. 2C:25-34. Violation of a restraining order constitutes contempt, and a second or subsequent nonindictable domestic violence contempt offense requires a minimum term of thirty days imprisonment. N.J.S.A. 2C:25-30. The issuing court may also impose a number of other wide-reaching sanctions impairing a defendant's interests in liberty and freedom in order "to prevent further abuse." N.J.S.A. 2C:29(b).
[Peterson v. Peterson, 374 N.J.Super. 116, 124, 863 A.2d 1059 (App.Div.2005).]
"Furthermore, familial relationships may be fundamentally altered when a restraining order is in effect." Chernesky v. Fedorczyk, 346 N.J.Super. 34, 40, 786 A.2d 881 (App.Div.2001). We note that there may be a child involved in this case. We also note that Franklin is a retired police officer, and he may be adversely affected by the prohibition against possession of weapons. See N.J.S.A. 2C:25-29(16).
Moreover, because of the serious consequences of a domestic violence restraining order, such order may be issued "only after a finding or an admission is made that an act of domestic violence was committed by that person." N.J.S.A. 2C:25-29a. See also R. 5:7A; Domestic Violence Procedures Manual-Revised Edition, Section IV Court Procedures 4.13.2 Dispositions ("The court only has jurisdiction to enter restraints against a defendant after a finding by the court or an admission by the defendant that the defendant has committed an act(s) of domestic violence ... the defendant must provide a factual basis for the admission that an act of domestic violence has occurred"). A defendant may not "consent" *1118 to the entry of an order, and a court may not enter one unless there is a finding of domestic violence by the court. Chernesky, supra, 346 N.J.Super. at 39, 786 A.2d 881.
To compound the error in this case, the trial judge did not even inform Franklin as to the act of domestic violence to which he was tacitly consenting by agreeing to the entry of the FRO. The issue is made even more confusing by the fact that although the judge referenced "harassment" when he issued the FRO, following the hearing the judge drafted the domestic violence complaint and signed the TRO, based on the predicate offense of "terroristic threats."[1] Regardless, Franklin neither admitted that any act of domestic violence occurred nor provided a factual basis to support such a finding. In fact, the judge did not even make a pretense of a finding that Franklin committed an act of domestic violence against Sloskey but rather, in violation of statute, case law and the Domestic Violence Manual, entered an FRO against him solely based on his consent. That order clearly must be vacated.
II.
We turn now to Sloskey's appeal of the FRO entered against her. To subject a defendant to an FRO, a plaintiff must first prove that the defendant committed an act of domestic violence, as defined by the statute, N.J.S.A. 2C:25-19a. Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390 (1998). In this instance, it was necessary for Franklin to have proven, by a preponderance of the credible evidence, that Sloskey committed one of the three "freestanding offenses" enumerated in the harassment statute, with the requisite intent. N.J.S.A. 2C:33-4; State v. Hoffman, 149 N.J. 564, 576, 695 A.2d 236 (1997). N.J.S.A. 2C:33-4 provides that a person commits the petty disorderly persons offense of harassment if, with purpose to harass another, he or she:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or in any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The parties testified as to how their relationship ended, when it ended and why it ended. They further testified as to their contact after the relationship terminated, particularly in December 2004. Franklin testified that Sloskey phoned him numerous times during the day and night, "camped" outside his house, and harassed Beal. Sloskey denied this, stating that she only contacted Franklin on a few occasions, that Franklin initiated several of their conversations and gave her mixed signals about their relationship, and that she was upset about her pregnancy and their ensuing discussions. The trial judge found the relationship had indeed ended and that the parties no longer wished to have contact. He did not, however, make *1119 a finding of credibility or find that Sloskey committed the predicate act of harassment or, for that matter, any other act of domestic violence. The sole finding on which the trial judge entered an FRO against Sloskey was "there may be harassment." The unstated basis was Sloskey's tacit consent to the restraints. That is clearly insufficient under the law.
Moreover, the procedure resorted to by the trial court did not afford Sloskey an opportunity to attempt to cross-examine Franklin, and it is clear she was unaware of her right to do so. This was also a deficiency in the process. Peterson v. Peterson, 374 N.J.Super. 116, 863 A.2d 1059 (App.Div.2005). We understand that in a pro se trial a judge often has to focus the testimony and take over the questioning of the parties and witnesses. That should be done in an orderly and predictable fashion however, and not at the expense of the parties' due process rights.
We are satisfied the record does not establish any more than a dispute between a couple in the midst of a breakup, disagreeing over the future of their unborn child. The facts do not reveal that Sloskey did or said anything with a purpose to harass, annoy or alarm Franklin, which finding is integral to a determination of harassment. Hoffman, supra, 149 N.J. at 576-77, 695 A.2d 236. There is no past history of domestic violence. Cesare, supra, 154 N.J. at 405, 713 A.2d 390. Accordingly, we vacate the FRO against Sloskey.
Reversed on both appeals.
NOTES
[1] The appendix contains a domestic violence complaint/TRO in the matter of Sloskey v. Franklin, incorrectly captioned Municipal Court of Haddon Heights Borough. The complaint contains a paraphrase of an offhanded comment made by Sloskey during trial of unidentified date, which was attributed to October 14, 2004 and was designated as the criminal offense of "terroristic threats," signed "per [the Family Part judge]" dated December 23, 2004, and the TRO is signed by the Family Part judge on January 3, 2005. The FRO signed by the Family Part judge following the hearing on December 23, 2004 states that it considered Sloskey's complaint dated January 4, 2005. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601967/ | 361 F. Supp. 1123 (1973)
Rosemary Oelrich BOTTCHER, etc., Plaintiff,
v.
STATE OF FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES et al., Defendants.
Civ. A. No. 1848.
United States District Court, N. D. Florida, Tallahassee Division.
August 6, 1973.
*1124 Jon D. Caminez, Tallahassee, Fla., for plaintiff.
Robert A. Chastain, Gen. Counsel, State of Fla. Dept. of Agriculture and Consumer Services, Tallahassee, Fla., for defendant.
OPINION-ORDER
MIDDLEBROOKS, District Judge.
PRELIMINARY STATEMENT OF ACTION
In this action for injunctive relief, plaintiff, a female employee of the State of Florida, seeks to enjoin defendants, her employer and immediate supervisors, from certain alleged retaliatory conduct against her as the result of plaintiff's exercise of a fundamental civil right during the course of her employment, the exercise of this right which is alleged to find protection within the First and Fourteenth Amendments of the United States Constitution. It is thereafter alleged in the complaint and amended complaint that by assigning plaintiff to other duties within the defendant department without first providing her with opportunity for a hearing to contest defendant's administrative action she has suffered diminution of a substantial property right at the hands of defendants and has thus been deprived of substantive and procedural due process. This action was commenced under Title 42, United States Code, Section 1983 and jurisdiction is invoked pursuant to Title 28, United States Code, Sections 1331 and 1343(3); in this proceeding plaintiff seeks back pay, expunction of certain documents in her personnel file, restoration to a non-conditional personnel rating and an award of a full merit increase of 5% in lieu of the 2½% increase given her by defendants.
Having considered pleadings, affidavits, exhibits and the pre-trial stipulation entered into by the parties and submitted *1125 to this Court in this cause, having considered the demeanor of the witnesses who have testified and having resolved the credibility choices to be made, this Court makes the following findings of fact and conclusions of law as may be required by Rule 52(a), Federal Rules of Civil Procedure:
FINDINGS OF FACT
Plaintiff, a Florida resident, was employed by the State of Florida Department of Agriculture as a Chemist I in its Pesticide Residue Laboratory (PRL) in Tallahassee, Florida, at the time this cause of action arose. Plaintiff commenced her duties with the Division of Chemistry on September 2, 1969. In November, 1969, she was assigned to PRL where she continued to be employed until June 5, 1972, at which time she was assigned to the fertilizer laboratory. In the course of her employment as a chemist, plaintiff tested and analyzed agricultural products for the presence of pesticides.
Defendant Department of Agriculture and Consumer Services, hereinafter referred to as the Department, is a duly designated agency of the State of Florida. As authorized by statutes and laws of Florida, it employs personnel to examine foodstuffs and products and to conduct chemical tests at the PRL to determine if these products, to be ultimately used by the public consumer, are contaminated beyond safe levels with residues of certain toxic pesticides. The other individually named defendants administer and formulate the policies and practices of the defendant Department and supervise the personnel hired by the Department to implement these programs promulgated and established by the laws of Florida.
Testimony discloses that beginning in 1968, it was defendants' policy to evaluate annually the performance of each of its employees and to determine and rate his or her level of performance.
Prior to August 28, 1972, this plaintiff had received satisfactory performance ratings from defendants and had been given 5% merit increases as authorized by Florida law.
EVENTS PRIOR TO MAY 11, 1972
In the latter part of March, 1972, or the first part of April, 1972, an interdepartmental rift between the defendant Department and Department of Pollution Control began to surface relative to the aerial application of Mirex, a chlorinated hydrocarbon pesticide, used in the control of fire ants.
During this period of controversy and continuing to present, plaintiff's husband was employed as an attorney for the Department of Pollution Control.
On April 14, 1972, the Pollution Control Board (PCB) informed the defendant Department that it should thereafter apply for a permit to make aerial application of Mirex for fire ant control. Disenchanted with this administrative edict the Department filed suit against PCB in the Circuit Court in and for Leon County, Florida, for declaratory decree challenging that body's authority to require the defendant Department to apply for a permit to make aerial application of Mirex for fire ant control. Necessarily involved in that litigation was whether the aerial application of Mirex constituted a potential source of pollution.
Prior to commencement of the action in state court, plaintiff lunched with her husband and another attorney employed by PCB, at which meeting Mirex became a topic of discussion. During the discussion plaintiff explained that the Department had adequate screening procedures for the detection of toxic substances at or above tolerance levels.
After the commencement of the foregoing declaratory action, the defendant Golden asked an employee (other than plaintiff) in the PRL to prepare chromatographs of two standard pesticide solutions containing Mirex. These *1126 results were turned over to defendant Golden later that same day. About this same time and perhaps shortly prior thereto, plaintiff initiated independent research to determine whether the presence of Mirex could be detected under normal screening procedures. The first of plaintiff's chromatographs was prepared on April 21, 1972, and a subsequent set was prepared on May 1, 1972.
Plaintiff stated that she did not begin her own tests until she had first observed the results that her co-worker had obtained on those solutions tested at the instruction of defendant Golden. It was her testimony that upon observing her co-worker she noticed that it was necessary to adjust the sensitivity of the gas chromatograph so that it was twice as sensitive as it was during the normal course of operating procedures. She then decided to conduct her own tests in order to confirm her suspicions, viz., that defendants' detection devices could not find Mirex at normal tolerance levels. It is this portion of plaintiff's testimony which is hotly contested by defendants. This much is undisputed however: during one of the tests run by plaintiff one of her co-workers assisted her to some degree in her endeavors and from the result of the tests run on May 1, 1972, plaintiff's suspicions were verified. It was not until May 11, 1972, during the taking of his deposition by attorneys for PCB in the state court litigation that defendant Golden learned that there were some possible deficiencies in the testing procedures in his Department. This revelation occurred as a result of plaintiff making known her findings to her immediate supervisor.
During this same time period, but prior to the taking of the defendant Golden's deposition, plaintiff surrendered the chromatographs which she had prepared, to her husband who in turn revealed their content to the attorney representing the PCB in the state court proceedings. On or about this same time this attorney visited the PRL and plaintiff, among others, explained the operating procedures in the laboratory. This visitor was also permitted to observe operation of the gas chromatograph. Additionally, plaintiff advised this attorney during this interval that an earlier statement relative to detection in the PRL of toxic substances was not totally correct in light of her most recent findings with respect to Mirex.
EVENTS OF MAY 11, 1972
On the morning of May 11, 1972, the PCB attorney deposed the defendant Golden in preparation for the state court proceedings instituted by the defendant Department.
Defendant Golden, unaware at that time of plaintiff's findings and the fact that these had been communicated to the PCB attorney, testified upon examination that Mirex could be detected by the equipment in use at the PRL under normal operating procedures. During the lunch break on that date the PCB attorney encountered plaintiff and confronted her with the question whether she had represented to him that Mirex could not be detected by the equipment at defendants' laboratory. Upon being informed as to what had transpired during the taking of defendant Golden's deposition, plaintiff replied that defendant Golden must have been "mistaken."
Upon returning to PRL, plaintiff informed some of her co-workers of the results of the tests she had made and that the statements of defendant Golden made at the deposition hearing were in error. One of the co-workers to whom these remarks were made was plaintiff's immediate supervisor who in turn made certain that defendant Golden was apprised of these revelations. Later that same afternoon when the taking of depositions resumed, defendant Golden explained to counsel that some of his testimony given earlier that day may have been in error.
When queried at trial as to why she had not informed her superiors sooner or before May 11, 1972, as to *1127 possible deficiencies in the screening procedures at PRL, plaintiff stated she had been under the mistaken belief that her superiors knew or were aware of the insensitivity of the chromatograph machine. Plaintiff also stated that in the aftermath of subsequent events she realized that she had exercised "poor judgment" in not revealing to her superiors her findings sooner.
Following the deposition hearing the PCB attorney was asked by the defendant Golden and his attorney the source of his information relative to the shortcomings in the detection equipment at PRL and he replied that the plaintiff Bottcher had supplied him with this information.
The defendant Department did not have at the time of the incident which forms the subject matter of this action any rule or regulation which specifically dealt with and governed the release to third parties of technical information of the nature of the matter in suit. The defendant Department, however, had issued to all supervisory personnel and employees a written statement of policy governing disclosure of information, which is recited in pertinent part as follows:
"Your work in the Department may quite often give you access to information * * * which, by its nature should be treated as confidential and not discussed outside or inside the office. We hope your personal discretion will enable you to judge which information should be considered as confidential. It is wise also not to repeat items which though not confidential, could be considered as gossip. It should be remembered, however, that we are a State Agency, and our records are open to the public."
* * * * * *
"Request for information generally should be referred to your Division Director or personnel designated by him to handle such matters."
It is undisputed that this policy was in force and effect at the time the disclosures were made by plaintiff and that she and the recipient of same had not followed the suggested administrative channels in disseminating this information. It is also undisputed that the findings of plaintiff had not been verified by her superiors prior to the release of these findings to PCB. It is also not clear from the evidence if the findings have since been verified.
EVENTS AFTER MAY 11, 1972
Subsequent to the happenings previously described, plaintiff was moved on June 12, 1972, to the fertilizer laboratory as a Chemist I, retaining the same rate of pay she had previously enjoyed while at PRL.
On that same date by letter to defendant Conner, plaintiff voiced her disapproval of being relocated. At the same time she made a similar protestation to defendant Golden. At trial the defendant Golden testified that he thought that plaintiff's disclosures influenced him in requesting that she be transferred to the fertilizer laboratory even though there were other factors which allegedly necessitated reshuffling of personnel at PRL.
Thereafter, plaintiff appealed to the Florida Career Service Commission, complaining to this body that her transfer and "demotion" were prompted by her disclosures relative to Mirex and that she was entitled to be restored to her former location. At trial it was developed that this appeal was denied on a jurisdictional bases since it was determined that under state law plaintiff was not entitled to appeal defendants' decision to move her to the fertilizer laboratory. Section 22A-10.05(a), Personnel Rules and Regulations, provides in part as follows:
"A. An employee who has earned permanent status in the Career Service in accordance with the provisions of Section 22A-7.08 shall have the right to appeal to the Career Service Commission any suspension, reduction in pay, transfer, layoff, demotion, or dismissal by the agency or officer by whom he is employed . . . ." *1128 It was explained that the complained of action did not fit into any of the enumerated review categories.
This action ensued in this Court on July 27, 1972. A short time thereafter, plaintiff was given a conditional rating which was signed by defendants Golden and Stewart. Annexed to this document was a letter of defendant Stewart used as a documented account of specific acts of misconduct on part of plaintiff which ostensibly warranted her conditional rating. No mention was made of the incidents involving Mirex. Prior to this time, i. e., in her preceding years of employment with defendants, plaintiff had never received a conditional rating.
While this conditional rating was in force and effect, plaintiff was not eligible and did not receive any merit increases. Thereafter, the conditional rating was lifted and plaintiff was given a satisfactory rating.
At the time plaintiff's rating was changed to satisfactory, plaintiff was given a merit increase of 2½%, although other employees who worked with her at PRL received the maximum 5% merit increases. In previous years plaintiff had been awarded a full 5% merit increase as had the other chemists.
The Court is dissatisfied that there is factual basis for plaintiff's conditional rating as alleged in the reports and letters of defendants recommending this course of action. The precipitating cause of defendants' actions clearly was plaintiff's disclosure of technical information to third parties before she had apprised defendants themselves of such matter. Any references in reports or letters of defendants to specific acts of misconduct on part of plaintiff in the performance of her duties are not borne out by this record. The only truly actionable conduct of plaintiff while employed at PRL was her impolitic disclosure of technical data, which conduct was not cited by defendants as the basis for their action.
The transfer of plaintiff to the fertilizer laboratory did not result in the diminution of vocational duties and responsibilities or entail performance of lesser duties which were not commensurate with her professional training and background. Although her current position at the fertilizer laboratory may not be as intellectually stimulating as her former position at PRL, it is by no means a position which offers no hope for occupational advancement. Thus, this Court need not decide whether this reassignment standing singularly deprived plaintiff of any due process rights.
This Court finds it unnecessary to determine whether plaintiff's ill-advised disclosure of information would have constituted grounds for the conditional rating as this was not cited as a reason for the rating.
The letters of defendant Stewart previously referred to as being unsupported by any substantial factual basis, in their present form constitute an impediment on plaintiff's road to future success and advancement and to her professional reputation and these should be removed through legal engineering techniques.
CONCLUSIONS OF LAW
This Court has jurisdiction over the subject matter of and the parties to this action. Title 28, United States Code, Sections 1343(3) and 1331; Title 42, United States Code, Section 1983.
The primary issue for determination as framed by plaintiff's amended complaint is whether defendants' collective conduct has deprived her of adequate procedural safeguards. Inextricably entwined with this issue is the subsidiary issue whether defendants in reliance upon state rules and regulations governing employee conduct have impinged upon plaintiff's right to expression guaranteed under the First and Fourteenth Amendments of the United States Constitution.
It has long been a rule of constitutional law not to consider the constitutionality *1129 of state legislation or state agency regulation unless it is imperatively required. Bush v. Texas, 372 U.S. 586, 83 S. Ct. 922, 9 L. Ed. 2d 958 (1963). More pertinent to this cause is the general rule that courts will not pass on the constitutionality of an act of a state legislature or rule of a state agency if the merits of the case may be fairly determined otherwise. Thus, if the case may be decided on either of two grounds and one does not involve constitutional construction of a statute, then the Court will ordinarily decide it on that ground. See Benton-Volvo-Metairie, Inc., et al v. Volvo Southwest, Inc. et al, 479 F.2d 135 at 137, 5th Cir. 1973. Consequently, this Court because of the form of the relief requested and the decision to be rendered, need not decide the First Amendment issue posited by plaintiff's amended complaint although necessarily the Court may approach at times the periphery of this issue.
Relative to plaintiff's procedural due process contentions, defendants counter with the recent authority of Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). The Court finds this authority persuasive, if not controlling, but not in the context urged on this Court by defendants.
As previously noted, plaintiff was denied an appeal since under Florida law her reassignment did not fall within any particular review category. The mere fact that state law may not have designated defendants' action resulting in plaintiff's reassignment in the case sub judice as a recognizable appealable form of agency action, does not end this Court's inquiry here.
Roth, supra, concluded that requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. In determining the form of hearing, if any, required by due process standards, the courts have been required to look at the nature of the interest at stake. Roth, supra, 408 U.S. at 571, 92 S. Ct. 2701. In this vein Roth, supra, made clear that "`property interests' subject to procedural due process protection are not limited by a few rigid technical forms." Perry v. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699. In examining the petitioner Roth's claims in light of those principles of law fashioned by the Court, the writer observed that in that case "there is no suggestion whatever that the respondent's interest in his `good name, reputation, honor, or integrity' is at stake." Roth, supra, 408 U.S. at 573, 92 S. Ct. 2701. In the case sub judice there are specific allegations made by plaintiff to this effect. Additionally, in Roth the writer found that "there is no suggestion that the State * * * imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Ibid. Plaintiff's very argument in the instant action is that the letters of defendant Stewart placed in her personnel file have foreclosed or diminished her opportunities for occupational advancement and as such constitute a distinct threat to a protected property interest to which the protections of due process apply. Compare also, Thompson et al v. Madison County Board of Education, 476 F.2d 676, 5th Cir. 1973 [March 13, 1973]. By the same token, the mere relocation of plaintiff within the defendant Department, without more, would not amount to a showing of a loss of liberty or loss of a property right. See e. g. Perry v. Sindermann, supra, 408 U.S. at 599, 92 S. Ct. 2694.
In light of the recent formidable authority referred to, this Court can only conclude that plaintiff was not afforded full and adequate procedural safeguards by defendants. This conclusion does not necessarily mandate remand to the administrative agency for a plenary hearing since plaintiff has been accorded a de novo hearing in this Court in which all pertinent historical fact has been fully developed; thus, the possible procedural deficiencies which existed in *1130 the prior administrative proceedings are mooted. Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).
Plaintiff's constitutional dilemma is not eased by this conclusion. Some affirmative action is required by this Court in order to undo any injustices done to her in the process of her reassignment to the fertilizer laboratory and during events which thereafter followed. Ordinarily, findings and decisions of administrative bodies are to be upheld by the courts when reached by correct procedures and supported by substantial evidence. Green v. Board of Regents of Texas Tech University, 474 F.2d 594, 5th Cir. 1973. Necessarily, this rule of law presupposes that the aggrieved party was afforded some semblance of a hearing before action was taken against him or her. Because of the de novo hearing in this Court the initial phase of that rule is satisfied; it is the latter portion of that rule to which the Court must now inquire.
The Court has found that the precipitating cause of plaintiff's reassignment to the fertilizer laboratory was her unapproved, voluntary disclosure of technical information to the PCB attorney; this conduct was not cited in plaintiff's personnel record as the primary cause for the action taken. Rather, defendants sought to recite in support of their action to place her on a conditional rating and to give her a 2½% merit increase, specific instances of poor or sub-par performances by plaintiff while on the job as well as other incidents where it was alleged that plaintiff had caused disruption at the jobsite. These incidents allegedly stretched back to 1969, when plaintiff first began work with defendants. These allegations were easily refuted through testimony of plaintiff's co-workers and could not be convincingly established by defendants' witnesses. The record is thus barren of any substantial evidence which would support the conditional rating given plaintiff. The Court must conclude that this action of defendants was retaliatory in nature and constituted arbitrary action on their part which denied plaintiff substantive due process as well as procedural due process of law.
Relative to the merit increase given plaintiff, defendants argue that plaintiff suffered no impingement upon her rights to due process since the award of an annual merit increase was a permissive gesture on part of the state employer and state employees had no certain expectancy to receipt of same. This argument approaches the central issue involved in Perry v. Sindermann, supra, wherein the Supreme Court disapproved of the Fifth Circuit's notion that a "subjective expectancy" of employment or promotion would invoke the protections of due process; however, the Supreme Court noted that this claim of such entitlement could be legitimized in light of the policies and practices of the particular employer institution.
It was shown at trial that plaintiff as well as her other co-workers had customarily received full 5% annual merit increases upon their receipt of a satisfactory performance rating. In the year 1972, her co-workers who had not otherwise received a promotion and pay increase, received the customary 5% merit increase; that is, all except plaintiff who received only a 2½% increase even though her conditional rating had been transformed to a satisfactory rating.
This Court finds that under the circumstances present in this case, especially the poor judgment of plaintiff in disseminating unverified information, that the defendants were justified in not awarding plaintiff the maximum merit increase and this action of defendants shall not be disturbed.
At this point the Court deems it necessary to digress momentarily from the mainstream of decision in this cause and to consider the argument of defendants, which although unaccepted by the Court, is nonetheless deemed plausible in light of circumstances found present.
Simply explained, defendants' position is that their action taken against plaintiff following her untimely *1131 disclosure of technical data to third parties, constituted nothing more than disciplinary action against a disobedient or disloyal employee and in this manner was a valid exercise of their right to police their employees; therefore, plaintiff's conduct, albeit approaching a symbolic First Amendment activity, would not be transformed into protected free speech, the exercise of which would override the defendants' paramount interest in maintaining order and discipline among its numerous employees and vouchsafing the sanctity of confidential information assembled by them. In this respect defendants seek to avail themselves of the balancing of rights test suggested in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). See also Duke v. North Texas State University, 469 F.2d 829, 5th Cir. 1972.
On occasion this Court has recognized the clear need of a public employer to maintain order and discipline among its employees in order to promote orderly performance of services rendered to the public. See e. g. Parker v. Graves, 340 F. Supp. 586 (N.D.Fla.1972); aff'd 479 F.2d 335, 5th Cir. 1973; London v. Florida Department of Health and Rehabilitative Services, etc., 313 F. Supp. 591 (N.D.Fla.1970), aff'd 448 F.2d 655 (5th Cir. 1971). If this were a case where vital state interests were imperilled by the conduct of the plaintiff employee and the necessary action taken against her were borne out and supported by a substantial factual basis, then the Court's rendering in this cause might be altogether different; but the record here presented simply does not absolve defendants of the action taken against plaintiff insofar as the conditional rating is concerned. Compare London, supra., 448 F.2d at 658.
CAVEAT PUBLICAE
In order that this decision not be misconstrued this Court is constrained to include the following remarks. The basis of decision does not rest upon enlargement of First Amendment principles. The fact that plaintiff was exercising a claimed First Amendment right does not cloak her conduct in a veil of absolute privilege. It is true that public employees do not shed their right to freedom of expression once they enter the domain of public service; it is equally true that not all forms of expression by public servants are protected free speech.
In the case, sub judice, plaintiff through her scientific inquisitiveness may have made a discovery of no little magnitude and of vital importance to citizens of Florida when she uncovered the shortcomings in the testing procedures in the laboratory where she was employed. Be that as it may plaintiff cannot be excused for her failure to report promptly her findings to her superiors. Her dilatory conduct, whether as the result of intentional connivance or as the result of exercise of poor judgment, should not have been condoned. The results of plaintiff's unverified scientific endeavors could have been a source of great public embarrassment to defendants. Due to the sensitive nature of the operations of defendants' laboratories, the Court can understand defendants' contentions of strict adherence to their written rules governing disclosure of information. Without hesitation or reservation this Court can perceive the obvious reasons for such necessary measures. Thus, so long as these rules are reasonably applied, no constitutional encroachment on the rights of employees should result. The sum and substance of this discourse is to make clear that public employees and individuals should not use today's decision as a springboard for tomorrow's assertion that they are provided carte blanche rights to speak out on whatever they may choose and wherever they choose.[1] This decision is not intended to provide any public employee with the unbridled license to express himself on matters of internal operations *1132 committed initially to the discretion of his superiors. Such an argument would be unavailing.
Continuing further into the issues, however, the Court finds that the exercise of plaintiff's First Amendment rights does not collide headlong with defendants' actions taken against her and it is thus unnecessary to meet this issue squarely and to reconcile the rights of the parties in light of the First Amendment.
Accordingly, it is
Ordered and adjudged;
The defendants shall forthwith expunge from records pertaining to plaintiff the conditional rating awarded plaintiff together with the letters accompanying the conditional rating.
The request for mandatory relief with respect to the merit increase is denied.
Each party shall bear each party's own costs and fees incurred herein.
NOTES
[1] Compare Moore v. Winfield City Board of Education, 452 F.2d 726, 728 (5th Cir. 1971); Murray v. West Baton Rouge Parish School Board, 472 F.2d 438. 5th Cir. 1973. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601992/ | 869 So. 2d 1269 (2004)
Donald GRAINGER, Appellant,
v.
INDIAN RIVER TRANSPORT/ZURICH U.S., Appellees.
No. 1D02-4776.
District Court of Appeal of Florida, First District.
April 19, 2004.
*1270 Gary Boynton, Orlando and Bill McCabe, Longwood, for Appellant.
H. George Kagan of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Appellees.
PER CURIAM.
The claimant appeals an order denying his request for a neurological examination and his related motion for attorney fees. We reverse. The judge of compensation claims should have granted the requested examination and, because the claimant should have prevailed on that point, he is also entitled to attorney fees. In January of 2000, the claimant was diagnosed with right carpal tunnel syndrome, which the employer and carrier accepted as compensable. He underwent surgery for carpal tunnel release on his right hand on March 31, 2000. In May of 2000, he began treating with orthopedist Dr. Brian Barnard for complaints of migraine headaches, paracervical muscle pain, numbness in his right arm, burning pain in the right forearm and hands, and tenderness in his right palm at the operative site of the carpal tunnel surgery. He continued treating with Dr. Barnard for a little more than a year.
In his notes from the claimant's final visit in September of 2001, Dr. Barnard expressed the opinion that the claimant's symptoms did not seem to be due to carpal tunnel syndrome. However, he recommended that the claimant have a neurological evaluation to determine whether there was such a relationship. Dr. Barnard stated that he "would like to see the [claimant] back if there is any indication of the symptoms being related to carpal tunnel syndrome."
The claimant then filed a petition for benefits on January 15, 2002, seeking evaluation by a neurologist. Dr. Barnard was deposed in connection with the claim. He testified that he could not say within a reasonable degree of medical certainty that the claimant's need for treatment by a neurologist was directly related to the compensable accident. He explained that he did not know the reason for the claimant's symptoms and that a neurologist would be needed to make that determination.
On October 22, 2002, following the hearing on the petition for benefits, the judge of compensation claims entered an order denying the claim for a neurological evaluation and also denying attorney fees and costs. The judge found Dr. Barnard credible and accepted his opinions. However, *1271 he went on to find that the doctor's referral to a neurologist was based on speculation alone, noting that there was no indication in the record to support the contention that the industrial injury was the major contributing cause of the need for the suggested evaluation.
The claimant correctly contends that he needed to show only that an evaluation was reasonably required by the nature of his injury to obtain an evaluation as to the etiology of his condition. He argues that the undisputed facts establish that a neurological evaluation was reasonably required by the nature of his injury. Because the purpose of the recommended neurological evaluation was to determine whether his ongoing symptoms were related to his carpal tunnel syndrome, the claimant maintains that he was entitled to the evaluation.
This argument is based primarily on our decision in Sumner v. Gardinier, Inc., 526 So. 2d 1068 (Fla. 1st DCA 1988), which stands for the principle that the employer should be ordered to pay for a diagnostic test, when the purpose of the test "is to determine the cause of a claimant's symptoms, which symptoms may be related to a compensable accident." Sumner, 526 So.2d at 1070; see also Green v. Chromalloy-Turbocumbustor, 540 So. 2d 874 (Fla. 1st DCA 1989). The correctness of an order refusing a medical evaluation "must be tested by whether the claimant adequately demonstrated that [the evaluation was] reasonably required by the `... nature of the injury....'" Sumner, 526 So.2d at 1070. If the claimant meets this burden, then the evaluation should be ordered. Id.; see also Green, 540 So.2d at 876; Prince v. Prince Ins. Servs., 556 So. 2d 1195 (Fla. 1st DCA 1990).
On the evidence presented here, the judge should have granted the request for a neurological evaluation. Even if it is ultimately determined that the claimant's symptoms were not caused by his carpal tunnel syndrome, the employer and carrier should have been ordered to pay for the evaluation to determine the etiology of his medical problem. It is the purpose of the diagnostic testing and evaluation, not the results thereof, that determines the compensability of such services. See Prince, 556 So.2d at 1196; Martinez v. Assoc. of Poinciana, 642 So. 2d 118, 119 (Fla. 1st DCA 1994).
The employer and carrier attempt to distinguish the Sumner case by pointing out that the version of the workers' compensation statute in effect at the time of Sumner made no formal provision for an independent medical examination. Therefore, the employer and carrier contend, it was proper for the court to award an evaluation by a urologist in Sumner, but only a request for an independent medical examination under the current statute was proper in the present case. This analysis, however, places form over substance. The reasoning behind the Sumner opinion remains valid, whether the claimant formally requests an independent medical examination or phrases his request as an "evaluation" with a given type of physician. The judge applied an incorrect standard when he ruled that the record did not show that the carpal tunnel was the major contributing cause of the need for the suggested evaluation. A claimant must establish a causal relationship between his injury and the compensable accident in order to secure treatment, but not to be entitled to diagnostic testing to determine the cause of his symptoms. See Kohout v. Benefit Administrators, 781 So. 2d 1164, 1165 (Fla. 1st DCA 2001); Kentucky Fried Chicken v. Tyler, 716 So. 2d 295 (Fla. 1st DCA 1998).
*1272 The claimant in the present case established through the testimony and medical records that the nature of his injury made the requested evaluation reasonably necessary to determine whether the industrial accident was the cause of his symptoms. See Sumner, 526 So.2d at 1070. Because this was demonstrably the purpose of the evaluation, the claimant was entitled to a diagnostic neurological examination.
For these reasons we reverse the order of the judge of compensation claims with instructions to grant the neurological examination and to award attorney fees on the petition for benefits.
Reversed.
WOLF, C.J., ERVIN and PADOVANO, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601984/ | 869 So. 2d 676 (2004)
SERETTA CONSTRUCTION, INC., Appellant,
v.
GREAT AMERICAN INSURANCE CO., et al., Appellee.
No. 5D03-1562.
District Court of Appeal of Florida, Fifth District.
April 2, 2004.
*677 Rosemary Hanna Hayes, Hayes & Associates, Orlando, for Appellant.
Donald E. Karraker of DeRenzo and Karraker, P. A., Altamonte Springs, for Appellees, Pertree Constructors, Inc. and Great American Ins. Co.
H. Gregory McNeill and Kevin K. Ross of Lowndes, Drosdick, Doster, Kantor & Reed, P. A., Orlando, for Appellee, Five Arrows, Inc.
ORFINGER, J.
Seretta Construction, Inc. appeals an order of the circuit court requiring its construction arbitration claim against Pertree Constructors, Inc. to be consolidated with a separate, but related, construction arbitration proceeding between Pertree and Five Arrows Inc. Seretta also appeals the court's order requiring arbitration of Five Arrows's indemnity claim against it despite the lack of any contractual agreement between Seretta and Five Arrows. For the reasons that follow, we reverse.
Pertree Constructors was the general contractor on the I-4 Commerce Park Project. Pertree subcontracted with Seretta to erect concrete tilt-up walls. Pertree also subcontracted with Five Arrows to prepare and paint the surfaces of the tilt-up walls. After the work was completed, Seretta filed suit against Pertree for breach of contract, claiming that it had not been fully paid.[1] The Pertree-Seretta and *678 the Pertree-Five Arrows subcontracts included identical arbitration provisions:
XII. CLAIMS-DISPUTES
...
(d) Any claim, dispute or other matter in question between the Contractor and the Subcontractor relating to this Agreement shall be subject to arbitration upon the written demand of either party. Such arbitration shall be in accordance with the construction industry arbitration rules of the American Arbitration Association then obtaining. This Agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law, and the award rendered by the arbitrator shall be final, and judgment may be entered upon it in any court having jurisdiction thereof.
Subsequent to filing suit, Seretta filed a demand for arbitration, as required by its subcontract with Pertree. Pertree denied Seretta's claim, raising various defenses, filed a counterclaim in the arbitration proceedings, and initiated a third party arbitration claim against Five Arrows, claiming that Seretta and/or Five Arrows performed defective construction work regarding the tilt-up walls, which resulted in damages to Pertree. Pertree then sought to consolidate the separate, but related, arbitration proceedings. While Seretta objected to Pertree's effort to consolidate the arbitration proceedings, Five Arrows did not. The arbitrator, acting under the Construction Industry Arbitration Rules of the American Arbitration Association, granted Pertree's motion for consolidation.[2] Five Arrows then filed an indemnity cross-claim in the arbitration proceedings against Seretta. Seretta objected to Five Arrows's indemnity claim being included in the arbitration proceedings, contending that as there was no contractual relationship between Seretta and Five Arrows, any dispute between them was not arbitrable. Seretta asked the trial court to order that the Pertree-Seretta dispute be arbitrated separately from the Pertree-Five Arrows dispute and that the Five Arrows indemnity claim against Seretta be excluded from arbitration. The trial court denied Seretta's request and this appeal followed.
The authority of a trial court to consolidate arbitration proceedings must be based on a statute, judicial policy or contract. Higley South, Inc. v. Park Shore Dev. Co., Inc., 494 So. 2d 227, 229 (Fla. 2d DCA 1986). We find no statutory support for consolidation. The Florida Arbitration Code, Chapter 682, Florida Statutes (2003), does not serve as a predicate for the consolidation of the arbitration proceedings as it contains no provision authorizing a trial court to consolidate pending arbitration cases. Nor are we able to find any Florida case law that would allow compulsory consolidation. See id. at 229.[3]
*679 Looking outside of Florida, the case law is confused. Some state courts adopt the view that the statutorily conferred power to enforce arbitration agreements includes the power to direct that the agreed arbitration be conducted in conjunction with a sufficiently related arbitration. These courts emphasize that such a procedure avoids the danger of inconsistent results which can arise if the common subject matter is arbitrated sequentially before different arbitrators. This line of cases relies heavily on the convenience and economy to parties and witnesses in resolving in one proceeding disputes, which arise out of common facts and circumstances. See e.g., Litton Bionetics, Inc. v. Glen Constr. Co., 292 Md. 34, 437 A.2d 208, 213 (Md. 1981); Exber, Inc. v. Sletten Constr. Co., 92 Nev. 721, 558 P.2d 517 (1976); William Blanchard Co. v. Beach Concrete Co., 150 N.J.Super. 277, 375 A.2d 675 (1977); Sullivan County v. Edward L. Nezelek, Inc., 42 N.Y.2d 123, 397 N.Y.S.2d 371, 366 N.E.2d 72 (1977); Vigo Steamship Corp. v. Marship Corp. of Monrovia, 26 N.Y.2d 157, 309 N.Y.S.2d 165, 257 N.E.2d 624 (1970); Sch. Dist. of Phila. v. Livingston-Rosenwinkel, P.C., 690 A.2d 1321 (Pa. Commw.Ct.1997); Children's Hosp. of Phila. v. Am. Arbitration Ass'n, 231 Pa.Super. 230, 331 A.2d 848 (1974).
The federal courts and several other state courts have held there is no power under their arbitration codes to compel consolidation, and stress that a court cannot rewrite the agreement of the parties. These courts reason that because the agreement is silent on consolidation, a court can do no more than enforce what the parties have expressed, or necessarily implied, in their agreement. They also reason that "rewriting" the agreement as to allow consolidation procedurally may conflict with the rights of one or more of the parties under their contracts. Litton Bionetics, Inc., 437 A.2d at 213; see, e.g., Baesler v. Cont'l Grain Co., 900 F.2d 1193, 1195 (8th Cir.1990); Protective Life Ins. Corp. v. Lincoln Nat'l Life Ins. Corp., 873 F.2d 281, 282 (11th Cir.1989) (per curiam); Weyerhaeuser Co. v. Western Seas Shipping Co., 743 F.2d 635, 636-37 (9th Cir. 1984); Bateman Constr., Inc. v. Haitsuka Bros., Ltd., 77 Hawai'i 481, 889 P.2d 58 (1995); Consol. Pac. Eng'g, Inc. v. Greater Anchorage, 563 P.2d 252 (Alaska 1977); La. Stadium & Exposition Dist. v. Huber, Hunt & Nichols, Inc., 349 So. 2d 491 (La. Ct.App.1977); Bay County Bldg. Auth. v. Spence Bros., 140 Mich.App. 182, 362 N.W.2d 739 (1984); Pueblo of Laguna v. Cillessen & Son, Inc., 101 N.M. 341, 682 P.2d 197 (1984); Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431 (N.D.1969); Bd. of Educ. of the City Sch. Dist. v. Midwest Elec. Co., 439 N.E.2d 425, 1 Ohio App.3d 37(1980); Balfour, Guthrie & Co. v. Commercial Metals Co., 93 Wash.2d 199, 607 P.2d 856 (1980).
While both approaches have appeal, we believe the better approach is to follow the federal courts and the states that have held that a court cannot order consolidation of arbitration proceedings arising from separate agreements to arbitrate, absent the parties agreement to allow such consolidation. See Gov't of the U.K. of Gr. Brit. & N. Ir. Through U.K. Def. Procurement Office, Ministry of Def. v. Boeing Co., 998 F.2d 68, 69 (2d Cir. *680 1993). Indeed, the United States Supreme Court in numerous interpretations of the Federal Arbitration Act, on which Florida's arbitration act is modeled, has concluded that the Federal Arbitration Act was intended only to assure the enforcement of privately negotiated arbitration agreements, despite possible inefficiencies created by such enforcement. See Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985); Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). In words applicable to the case at hand, the Supreme Court said: "Under the [Federal Arbitration Act] an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement." Moses H. Cone Mem'l Hosp., 460 U.S. at 20, 103 S. Ct. 927.
While we agree that a consolidated arbitration proceeding would be more expeditious and economical, "a court is not permitted to interfere with private arbitration arrangements in order to impose its own view of speed and economy ... even where the result would be the possibly inefficient maintenance of separate proceedings." Am. Centennial Ins. Co. v. Nat'l Cas. Co., 951 F.2d 107, 108 (6th Cir.1991). The sole question for the circuit court is whether there is a written agreement among the parties providing for consolidated arbitration. Here, the answer is no.
Pertree argues that having separate arbitrations is inefficient and may lead to inconsistent determinations. While these are valid concerns, they do not provide us with the authority to reform the private contracts that underlie this dispute. "If contracting parties wish to have all disputes that arise from the same factual situation arbitrated in a single proceeding, they can simply provide for consolidated arbitration in the arbitration clauses to which they are a party." Gov't of the U.K. of Gr. Brit., 998 F.2d at 74. "Arbitration... is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate ... so too may they specify by contract the rules under which the arbitration will be conducted." Volt Info. Scis., Inc., 489 U.S. at 479, 109 S. Ct. 1248.
Finally, we must determine whether Five Arrows's indemnity claim against Seretta is an arbitrable dispute. The parties agree that there is no contractual relationship between Five Arrows and Seretta. Consequently, ordering that dispute to arbitration in the absence of an authorizing contractual provision was error.
We also conclude the trial court erred in denying fees to Seretta with regard to its construction lien claim against Pertree and its surety. On remand, Seretta may be entitled to an award of attorney's fees depending on the outcome of its claim against Pertree.
REVERSED AND REMANDED.
GRIFFIN and PLEUS, JJ., concur.
NOTES
[1] Seretta also sued Great American Insurance Company based on its claimed construction liens that had been transferred to bond.
[2] The only AAA rule which addresses consolidation provides:
R-7. Consolidation or Joinder
If the parties' agreement or the law provides for consolidation or joinder of related arbitrations, all involved parties will endeavor to agree on a process to effectuate the consolidation or joinder. If they are unable to agree, the Association shall directly appoint a single arbitrator for the limited purpose of deciding whether related arbitrations should be consolidated or joined and, if so, establishing a fair and appropriate process for consolidation or joinder. The AAA may take reasonable administrative action to accomplish the consolidation or joinder as directed by the arbitrator.
[3] Florida Rule of Civil Procedure 1.270 does not reflect a judicial policy authorizing consolidation of separate arbitration proceedings. Rule 1.270 provides, in pertinent part, that "[w]hen actions involving a common question of law or fact are pending before the court... it may order all the actions consolidated..." This rule does not offer anything upon which to sustain consolidation. Higley South, Inc., 494 So.2d at 229. It is only the judicial proceedings under the arbitration act that are subject to the rules. The civil rules of procedure do not govern the procedure in the hearings before the arbitrators. Although a circuit judge considering petitions to compel related arbitration proceedings can have all of the petitions heard at once pursuant to rule 1.270, the court could not use that rule to order that the underlying arbitrations, once compelled, be conducted together. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601988/ | 869 So. 2d 276 (2004)
STATE of Louisiana, Appellee,
v.
Nathaniel MITCHELL, Appellant.
No. 37,916-KA.
Court of Appeal of Louisiana, Second Circuit.
March 3, 2004.
*279 Louisiana Appellate Project by Margaret S. Sollars, for Appellant.
*280 John Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sherburne Sentell III, Assistant District Attorneys, for Appellee.
Before STEWART, PEATROSS and DREW, JJ.
DREW, J.
Nathaniel Mitchell was tried by a jury and convicted of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and two counts of conspiracy to commit the aforementioned crimes.
The defendant now appeals. We affirm the two convictions for possession of cocaine and marijuana with intent to distribute, reverse the two criminal conspiracy convictions, and remand for resentencing.
FACTS
On June 26, 2000, around 9:00 p.m., the defendant was driving east on Interstate 20 in Webster Parish, in his red and black customized 1993 GMC van with Arizona license plates. The defendant was heading to Georgia to attend his brother's funeral, accompanied by three passengers: Adrienne Peevy, a friend; Louella Mitchell, the defendant's daughter; and the defendant's two-year-old grandchild.
The witnesses gave conflicting testimony. The defendant testified that:
While driving, he passed (on the side of the road) four police units, apparently engaged in a traffic stop.
He was traveling approximately 70 miles per hour when he attempted to pass a truck located in the right lane.
He began to move into the left lane, but the truck driver suddenly moved into the left lane as well, causing Mitchell to run off the shoulder of the road.
After the truck passed, he again drove back onto the roadway.
A Webster Parish deputy got behind him and subsequently pulled him over.
Webster Parish Deputy John Morton testified that:
He was driving in the inside lane, en route to assist another deputy at another traffic stop when he saw the defendant's vehicle quickly pull in front of him.
The defendant then changed lanes back into his original lane of travel.
No turn signal was given at either lane change.
He concluded that the defendant had committed the traffic violation of improper lane usage, and suspected he might be impaired.
He then radioed the officer he was en route to assist that he had encountered a possibly intoxicated subject whom he was going to check out.
He followed the defendant for another two to three hundred yards before activating his lights to stop the vehicle.
The defendant further testified that:
After he got out of his van, Deputy Morton informed him that he illegally changed lanes.
He (the defendant) had his right signal on before changing lanes.
Another officer pulled over to assist Deputy Morton.
Deputy Morton told the defendant, "We need to look inside your van."
He (the defendant) told Deputy Morton that both Ms. Peevy and Miss Mitchell were partially unclothed because of the heat in the van.
*281 He further advised Deputy Morton that if he would allow him to tell the women to get dressed, he would allow Deputy Morton to look in the van.
Deputy Morton refused to allow the defendant to go back to the van.
When asked if weapons were in the van, the defendant replied, "Yes," advising Deputy Morton of a pistol along the driver's seat and another gun in the back.
About this time, another police unit pulled up, carrying two more officers, making a total of four officers at the traffic stop location.
During the traffic stop, Deputy Morton told him that they needed to search his van and stated, "Now we can do it the easy way or we can do it the hard way."
Deputy Morton walked off to speak to the other officers and came back with a clipboard in his hand and handed it to one of the other officers and told him to "get him to sign it."
When Deputy Morton went to retrieve the passengers from the van, there was audible "fussing" between Deputy Morton and Ms. Peevy.
Deputy Morton called Peevy a "little n... r bitch," and he was pushing her from the right side of the van toward the back.
He (the defendant) felt intimidated and threatened, so he signed the consent form to allow the officers to search his van.
Had it not been for the number of officers on the scene and Deputy Morton's name-calling and pushing of Ms. Peevy, he would not have signed the consent form.
Deputy Morton's testimony differs greatly from the defendant's:
He pulled the defendant over for improper lane usage and issued a citation for this violation.
He never saw the defendant's van get run off the road by an 18-wheeler.
The defendant initially appeared very nervous and then, as their conversation continued, the defendant began sweating excessively from his brow.
The defendant stuttered at times and repeatedly kept looking back over his shoulder at his van.
The defendant never mentioned anything to him about the women in the van being partially undressed or the air conditioner in his van not working properly.
After he ran the defendant's license and criminal history, he learned of several weapons charges against the defendant. At the motion to suppress hearing, it was determined that these charges actually belonged to a different Nathaniel Mitchell.
He read the defendant his rights prior to him signing the consent to search form.
He went over the form with the defendant prior to the defendant signing the form, and that he did not coerce the defendant in any way to sign the consent form.
He never used a racial slur against Ms. Peevy.
The defendant asked what would happen if he didn't sign, and he (Deputy Morton) informed the defendant that if he didn't want to sign the form, then a K-9 officer would be called to walk around the defendant's vehicle.
*282 At that point, the defendant decided that he would sign the consent form.
A police search of the van recovered:
One fanny pack;
Thirty-six bags of suspected crack cocaine (three more bags were subsequently found in the van during a later search);
Six Baggies of suspected marijuana;
Six suspected marijuana blunts in a Royal Blunt package;
One Thousand One Hundred Thirty-Five and No/100 Dollars ($1,135.00) in currency;
One Intretec 9-millimeter Luger;
One full clip containing 31 rounds of 9-millimeter ammunition;
One .40 caliber Ruger;
Two clips containing 20 rounds of .40 caliber ammunition; and
Three bags of coffee beans.
The defendant was arrested and charged with possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and two counts of conspiracy to commit the aforementioned crimes. After a trial by jury, the defendant was found guilty as charged on all four counts. The trial court sentenced him to serve 15 years at hard labor for the possession of cocaine with intent, with the first two years to be served without the benefit of parole, probation, or suspension of sentence; and five years for conspiracy to commit possession of cocaine with intent, to run concurrently with each other. The court further sentenced the defendant to serve ten years at hard labor for his conviction of possession of marijuana with intent, and five years for conspiracy to commit possession of marijuana with intent. These latter two sentences were also ordered to be served concurrently with each other but consecutive to the two previously-imposed sentences, making a total of a 25-year hard labor sentence. The defendant appeals his conviction and sentence.
DISCUSSION
I. Validity of Stop, Search, and Seizure
The defendant argues that:
The stop was based on a mere hunch, which is never enough for an officer to make a stop of a motorist.
The stop was pretextual.
The search was based solely on the nervous appearance of the defendant, and mere nervousness alone is not enough reason to allow an officer to search.
The trial court erred in finding that no coercion was utilized to gain his consent to search.
The defendant relies heavily upon the testimony of Ms. Peevy, who stated that Deputy Morton called her a racial slur and snatched her out of the van, and the alleged fact that his right signal light was in proper working order and was still blinking at the time of the traffic stop. The defendant asserts that:
Nothing occurred to legally justify extending his detainment past the issuance of the citation.
No legal justification existed for searching the van.
No other crime was witnessed other than the minor traffic matter.
A generalized hunch or mere suspicion that a person is involved in criminal activity is not sufficient to detain an individual and pursue an investigation.
The state argues that:
The stop of an automobile is reasonable when the police have probable cause to believe a traffic violation has occurred.
*283 Both the traffic stop and subsequent seizure of evidence from defendant's van are legally justified.
A search conducted with a subject's consent is a specifically established exception to both the warrant and probable cause requirements.
The defendant's consent was voluntarily and freely given.
To assess the constitutionality of allegedly pretextual searches, the United States Fifth Circuit adopted an objective test in U.S. v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987): "[S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry." See, also, Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), and State v. McVan, 32,434 (La.App.2d Cir.3/11/99) 744 So. 2d 641.
Since 1968, the requirement for making a stop on less than probable cause has been that the officer must be able to articulate factors leading to a favorable conclusion as to the existence of reasonable suspicion of criminal activity. See, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Several recent cases speak of traffic stops requiring probable cause. See, for example, Whren, supra. At the time of this stop, this alert officer possessed both reasonable suspicion of the crime of DWI, because of the erratic driving, as well as probable cause that a traffic infraction had occurred, specifically because of the improper lane usage. Vehicular stops have been approved after minimal violations. See, State v. Waters, 00-0356 (La.3/12/01), 780 So. 2d 1053.
It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States constitutions. State v. Bostic, 26,000 (La.App.2d Cir.5/4/94), 637 So. 2d 591, writ denied, 94-1476 (La.10/14/94), 643 So. 2d 159, citing, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
Consent is valid when it is freely and voluntarily given by a person with common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Bodley, 394 So. 2d 584 (La.1981); State v. Owens, 480 So. 2d 826 (La.App. 2d Cir.1985), writ denied, 486 So. 2d 748 (La.1986), cert. denied, 479 U.S. 840, 107 S. Ct. 145, 93 L. Ed. 2d 87 (1986). While a valid consent search is a recognized exception to the warrant requirement, the burden is on the state to prove the consent was freely and voluntarily given. Voluntariness is a question for the trier of fact to be determined by the totality of the circumstances. State v. Edwards, 434 So. 2d 395 (La.1983); State v. Brown, 478 So. 2d 600 (La.App. 2d Cir. 1985).
The issue of consent turns on the credibility of the witnesses giving contradictory testimony as well as the circumstances surrounding the consent. State v. Yarbrough, 418 So. 2d 503 (La.1982). The state presented the testimony of Officer Baker, Deputy Jackson, and Louella Mitchell, who stated they did not hear or observe any threats made to the defendant or any racial name-calling by Deputy Morton. Although Adrienne Peevy testified that Deputy Morton called her a "black bitch" or a "n ... r bitch," she also testified that she did not observe any threats by police officers against the defendant.
In this instance, the trial court at the motion to suppress hearing obviously chose to believe the testimony of the state witnesses in concluding that the defendant's consent to search his vehicle was voluntary and freely given. A finding by *284 the trier of fact on the question of voluntariness is to be given great weight upon appellate review. State v. Bostic, supra. We will not disturb this finding here.
Furthermore, the record illustrates that Deputy Morton closely observed the defendant's behavior and reaction to the traffic stop. As a result of his observations and the surrounding circumstances, he requested to search the defendant's vehicle. He diligently pursued a means of investigation likely to quickly confirm or dispel his particular suspicion about the contents in the defendant's vehicle, in accordance with U.S. v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). We find the consent and subsequent search to be voluntary, and thus legal, and the evidence obtained therefrom to be admissible.
II. Sufficiency of the Evidence
The defendant argues the evidence did not establish any agreement to commit a crime on the part of the charged conspirators. He further argues that the state failed to present evidence showing an overt act by any of the alleged conspirators in furtherance of a plot, thus failing to prove that two or more of them had specific intent to distribute the cocaine and marijuana.
The state counters that it presented sufficient evidence that a conspiracy existed between the defendant and his two passengers to transport illegal narcotics through Webster Parish and to resell the drugs for profit. The state also argues that the evidence was sufficient to support the conviction for possession of marijuana with intent to distribute, particularly emphasizing the testimony of Sgt. Evans, along with the absence of smoking paraphernalia, which arguably proved that the defendant possessed the marijuana with intent to distribute.
Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So. 2d 1273.
Possession with Intent to Distribute
Our law on questions of sufficiency of the evidence is well settled. See, generally, State v. Cooks, 36,613 (La. App.2d Cir.12/4/02), 833 So. 2d 1034. To prove the crime of possession with intent to distribute, the state must prove beyond a reasonable doubt (1) the defendant knowingly or intentionally (2) unlawfully possessed a controlled substance (3) with intent to distribute. See, State v. Coleman, 552 So. 2d 513 (La.App. 2d Cir.1989). Mere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. State v. Coleman, supra, citing, State v. Greenway, 422 So. 2d 1146 (La.1982).
The defendant here possessed a large amount of cocaine and a much lesser amount of marijuana. The jury convicted him for possession with intent to distribute both drugs. The marijuana case is a much closer question.
Testimony of street value and dosage of the drug is relevant to the issue of intent. State v. Tornabene, 337 So. 2d 214 (La.1976); State v. Gladney, 29,791 (La. App.2d Cir.9/24/97), 700 So. 2d 575.
Factors useful in determining whether circumstantial evidence is sufficient to prove an intent to distribute a controlled dangerous substance include:
Whether the defendant ever distributed or attempted to distribute any marijuana.
*285 Whether there was marijuana in a form usually associated with marijuana possessed for distribution to others.
Whether the amount was such as to create a presumption of an intent to distribute.
Expert or other testimony that such an amount as found in the defendant's possession is inconsistent with personal use only.
Evidence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute.
State v. Coleman, supra, citing, State v. House, 325 So. 2d 222 (La.1975); State v. Green, 524 So. 2d 927 (La.App. 2d Cir. 1988); State v. Green, 508 So. 2d 602 (La. App. 2d Cir.1987).
As to the defendant's conviction for possession of marijuana with intent to distribute, four of the five factors to be considered in evaluating the existence of intent to distribute are present in this case.
The marijuana found in the defendant's fanny pack was packaged in seven individual Baggies, which, according to the expert testimony of Sgt. Evans, is consistent with intent to resell or distribute, not for personal use. This packaging, coupled with the fact that there was no smoking paraphernalia found in the vehicle while there were extra Baggies in the fanny pack that were usable for the packaging of more drugs, supports the conclusion that the defendant intended to distribute the marijuana. Admittedly, the defendant does not have any prior convictions for drug distribution.
Sgt. Evans further testified that:
The bag in which the drugs were contained was easy to conceal and to distance oneself from, should the need arise.
There was a relatively large amount of money in small denominations, a sign of the sale of illegal narcotics.
The business cards with Casper and the pager or phone number on them were a good way for a drug dealer to be reached without identifying himself.
Considering the evidence under the Jackson standard, a rational trier of fact could have found that the state proved the elements of possession of marijuana with intent to distribute beyond a reasonable doubt. The conviction of possession of cocaine with the intent to distribute is not challenged on appeal.
Criminal Conspiracy
La. R.S. 14:26 states in pertinent part:
Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
In a conspiracy, it is the combination of at least two minds for an unlawful purpose which is the foundation of the offense. A criminal conspiracy presupposes a corrupt agreement between not less than two people with guilty knowledge on the part of each. The clear purpose of La. R.S. 14:26 is to criminalize the conduct of two or more persons who intend a criminal act, and as a result of that intention manifested as an agreement or combinationone of these does something in furtherance of the intended criminal act. State v. Joles, 485 So. 2d 212 (La.App. 2d Cir.1986).
The elements of conspiracy may be proven by direct or circumstantial evidence. *286 State v. Perez, 569 So. 2d 609 (La. App. 2d Cir.1990), writ denied, 575 So. 2d 365 (La.1991). It is essential to a conspiracy that there be a joining of the minds to accomplish a concerted action which has an unlawful purpose. State v. D'Ingianni, 217 La. 945, 47 So. 2d 731 (1950). Criminal intent to commit a conspiracy must exist in at least two minds. State v. Joles, supra.
The record fails to prove any such conspiracy. Not until closing argument did the prosecutor seek to "tie in" the conspiracy element. The state looks to the fact that "someone" packaged the drugs in the individual Baggies for resale and that the defendant and "someone else" would distribute the drugs. The state then made the leap that the amount of drugs found in the defendant's vehicle showed a conspiracy to distribute later.
During trial, the state never questioned Peevy or Louella Mitchell about their knowledge of the crack cocaine and/or marijuana and what the defendant planned to do with the drugs. The state did establish that the black fanny pack containing drugs was tossed from the defendant to the back of the vehicle, where Louella Mitchell was sitting, with no instructions given to her other than to hold the bag. The evidence did not reflect that either of the two passengers hid the bag.
In this instance, the evidence was insufficient to support the jury's conclusion that a conspiracy existed. There was no evidence offered of specific acts with the cocaine and marijuana as part of a joint venture or enterprise between the defendant and his two passengers. Therefore, the evidence, even when viewed in a light most favorable to the prosecution, is insufficient to prove beyond a reasonable doubt that the defendant was engaged in a conspiracy to distribute any of these drugs.
III. Ineffective Assistance of Counsel
The defendant argues he was denied his Sixth Amendment right of effective assistance of counsel when trial counsel failed to object to Sgt. Evans' qualification as an expert in narcotics investigations, as the sergeant lacked scientific credentials justifying his alleged expertise. The defendant complains that the prejudicial effect of this testimony influenced the jury to give more weight to the state's case than was justified. Furthermore, the defendant claims ineffective assistance of counsel for trial counsel's failure to object to or file any post-trial motions challenging the imposition of consecutive sentences. He states that the record does not support consecutive sentences, and the imposition of them violates the Eighth Amendment's prohibition against excessive punishment.
The state counters that trial counsel made a strategic decision not to object to Sgt. Evans as an expert witness in narcotics investigation because of his extensive schooling and training. Evans' testimony was helpful to a clear understanding of whether the illegal narcotics were consistent or inconsistent with personal use. He gave no opinion as to the ultimate issue of guilt. The state contends that the ineffective assistance of counsel claim fails to meet the requirements set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Lastly, the state claims that the consecutive sentences were justified under the facts of this case.
As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR") in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So. 2d 570 (La.1982); State v. *287 Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So. 2d 1164. A motion for new trial is also an accepted vehicle to raise such a claim. Id.
However, when the record is sufficient, we may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So. 2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So. 2d 673; State v. Smith, 25,841 (La.App.2d Cir.2/23/94), 632 So. 2d 887.
A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, supra.
To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
The relevant inquiry is whether counsel's representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So. 2d 738; State v. Moore, 575 So. 2d 928 (La.App. 2d Cir.1991). The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Roland, supra; State v. Moore, supra.
Second, the defendant must show that counsel's deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So. 2d 174, writ denied, 95-1398 (La.11/3/95), 662 So. 2d 9.
A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So. 2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So. 2d 1067.
Sergeant Evans' Acceptance as an Expert
The test of the competency of an expert is his knowledge of the subject upon which he is called to express an opinion. State v. Sherer, 411 So. 2d 1050 (La.1982); State v. Honeyman, 565 So. 2d 961 (La.App. 2d Cir.1990). A combination of specialized training, work experience, and practical application of the expert's knowledge can combine to demonstrate that a person is an expert. See, State v. Smith, 448 So. 2d 778 (La.App. 2d Cir. 1984), and State v. Breckenridge, 506 So. 2d 799 (La.App. 1st Cir.1987). A person may qualify as an expert based on experience alone. State v. Smith, supra. Extensive training, years of experience, and the taking of specialized courses can qualify a police officer as an expert. State v. Daniels, 614 So. 2d 97 (La.App. 2d Cir.1993).
La. C.E. art. 702 states:
*288 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.
The record shows that Sgt. Evans completed an eight-week course of basic academy training for law enforcement, the Drug Narcotics Interdiction and Investigation for Patrol Officers Course, and the Raid Planning and High Risk Warrants Preparation Course. He obtained annual training with the Louisiana Narcotics Officers Association and the Louisiana Sheriffs' Association for Narcotics Investigation Techniques. Sgt. Evans also attended forfeiture schools, a DEA clandestine methamphetamine lab certification school, and the Interview and Interrogation school. At the time of trial, Evans also possessed over six years of law enforcement experience, with three years in the narcotics division for Webster Parish. He had investigated several hundred narcotics cases, issued hundreds of reports, and testified in 40-50 court cases.
In the instant case, counsel recognized the credentials presented through the testimony of Sgt. Evans and made a professional judgment not to object to Sgt. Evans testifying as an expert. This court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Roland, supra; State v. Moore, supra.
The defendant argues that his trial counsel's failure to object to Evans' testimony as an expert, as well as his trial counsel's statement that an "objection would not make any difference because he had the schooling," prevented the trial court from determining whether there was any scientific basis for Sgt. Evans' proposed testimony. This argument is misplaced. The record supports a finding that trial counsel's acquiescence in Sgt. Evans' expertise fails to approach the ineffective assistance standard enunciated in Strickland v. Washington, supra.
Objection to Consecutive Sentencing
When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. It is within a trial court's discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So. 2d 868.
Concurrent sentences arising out of a single course of conduct are not mandatory, State v. Pickett, 628 So. 2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 (La.5/20/94), 637 So. 2d 476; State v. Nelson, 467 So. 2d 1159 (La.App. 2d Cir. 1985), and consecutive sentences under those circumstances are not necessarily excessive. State v. Williams, 445 So. 2d 1171 (La.1984); State v. Ortego, 382 So. 2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S. Ct. 135, 66 L. Ed. 2d 58 (1980); State v. Mills, 505 So. 2d 933 (La.App. 2d Cir.1987), writ denied, 508 So. 2d 65 (La.1987).
When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Green, 614 So. 2d 758 (La.App. 2d Cir.1993). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So. 2d 891 (La.App. 2d Cir. 1992).
*289 The sentencing transcript is woefully thin in this regard. However, as we are remanding anyway, perhaps the trial court will at this resentencing better explain its decision on whether to run the remaining two sentences consecutively or concurrently.
Trial counsel's decision not to object to the imposition of the consecutive sentences, even if error, was not so serious that he was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Moreover, the defendant has also not shown that if trial counsel had objected to the imposition of consecutive sentences, there is a reasonable probability the outcome of the sentencing would have been different.
IV. Pro Se Argument Further Alleging Ineffective Assistance of Counsel
The defendant further proposes that trial counsel was ineffective because he: (1) failed to move for a continuance during sentencing, (2) failed to present a meaningful argument attacking the stop, (3) tried the case without viewing the evidence, (4) failed to investigate, (5) failed to assist the defendant through professional advice, (6) failed to prevent the state from eliciting testimony from various witnesses, (7) failed to advise defendant of important decisions, (8) failed to keep defendant aware of court proceedings, and (9) failed to make statements on behalf of the defendant during sentencing proceedings.
The defendant's pro se arguments are no more than generalized statements and conclusory charges, which do not remotely approach the Strickland burden. The defendant has failed to show that counsel's many alleged errors so prejudiced him so as to brand trial counsel's conduct as falling below the standards of reasonableness and competency required by prevailing professional standards demanded of attorneys in criminal cases. He has not demonstrated that, but for trial counsel's errors, his trial outcome would have been different. Strickland, supra.
V. Pro Se Argument of Speedy Trial Violation
The Louisiana Supreme Court discussed the constitutional right to a speedy trial in State v. Harris, 297 So. 2d 431 (La.1974). The court stated:
The speedy trial guarantee of the Sixth Amendment to the United States Constitution applies to prosecutions in state courts. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In determining whether this constitutional right has been offended, the fixed-time period provided by statute or court rule is not determinative. 92 S.Ct. [at] 2188-2191. Rather, the issue is determined by "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." [At] 2191-2192. Four of the factors to be assessed by the courts in determining, in each instance, whether a defendant has been denied a speedy trial are: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 92 S.Ct. [at] 2192.
Id., 297 So.2d at 432.
In the instant case, the defendant's claim under La. C. Cr. P. art. 701 D(1) is moot. The remedy under the Louisiana statute is release from custody without bail or release from a bail obligation if the defendant is not in custody. Mitchell has already been convicted, so the remedy under this article would be futile.
A chronology of events sheds light on defendant's oral speedy trial motion:
The original oral motion was made on January 29, 2001.
*290 No affidavit (certificate of preparation for trial within 120 days) of counsel was ever filed, in violation of C. Cr. P. art. 701.
No contradictory hearing was ever held, much less within 30 days.
The defense either filed for continuances or otherwise acquiesced to numerous time delays.
On March 11, 2002, the defendant's motion for speedy trial was denied, and his motion to quash on grounds for lack of speedy trial was denied.
On September 30, 2002, defendant's trial began.
As the defendant has been convicted, there is no relief that this court could give the defendant. The record does not indicate that any delays or continuances were granted without just cause. Some of the reasons for time delays were pretrial motions filed on behalf of the defendant, appointment of a new defense attorney, and the illness of the defense attorney. Actions of both prosecution and the defense in this case were exemplary. The defendant has failed to show how the delay in bringing his case to trial has prejudiced him in any way.
CONCLUSION
The defendant's conviction for possession of cocaine with intent to distribute and his conviction for possession of marijuana with intent to distribute are affirmed. The two criminal conspiracy convictions are reversed. Accordingly, we vacate the two five-year sentences for these conspiracy convictions.
We also vacate the sentences for possession of cocaine with intent to distribute and for possession of marijuana with intent to distribute, and remand these two remaining charges to the trial court for resentencing, noting:
A conviction of possession of cocaine with intent to distribute requires that the defendant serve the first five years without benefits rather than the first two. La. C. Cr. P. arts. 920(2) and 882 (even though recent jurisprudence holds the mandatory terms as being self-correcting by the Department of Public Safety and Corrections).
There is a mandatory fine of "not more than $50,000.00" for the conviction of possession of marijuana with intent to distribute, as per La. R.S. 40:966 B(2).
The trial court may want to reconsider the length and consecutive nature of the sentences, and better explain its decision on these issues, since there are only two remaining convictions, instead of the original four.
DECREE
Both conspiracy convictions are REVERSED, and the sentences for each offense are VACATED.
The convictions for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute are AFFIRMED.
Both sentences for these two remaining convictions are VACATED, and the matters are REMANDED to the trial court for resentencing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2304675/ | 44 Cal. Rptr. 3d 788 (2006)
140 Cal. App. 4th 805
The PEOPLE, Plaintiff and Respondent,
v.
Mark JENKINS, Defendant and Appellant.
No. B181966.
Court of Appeal, Second District, Division Eight.
June 20, 2006.
*790 Richard A. Levy, under appointment by the Court of Appeal, Torrance, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.
*789 BOLAND, J.
INTRODUCTION
Appellant Mark Jenkins challenges his murder conviction on the grounds the trial court erred by concluding that his prior Utah convictions for aggravated robbery constituted serious or violent felonies under California law, refusing his request to instruct on second degree murder as a lesser included offense, doubling his life without possibility of parole term under the Three Strikes Law, and imposing a parole revocation fine.
We conclude the record is insufficient to prove that appellant's Utah priors constitute serious or violent felonies under California law. Appellant was not entitled to instructions on second degree murder, as no evidence was presented that would have absolved him of felony murder but not second degree murder based upon malice. The trial court erred by doubling appellant's term of life without possibility of parole and by imposing a parole revocation fine.
BACKGROUND AND PROCEDURAL HISTORY
Appellant entered a liquor store, placed a white plastic bag on the counter, and pointed a gun at the stores' proprietor, Chan Hoeung. Words were exchanged, and Hoeung drew his own gun. Appellant fired at Hoeung, who fired back. As a result of the gunfire, Hoeung died and appellant was injured.
A jury convicted appellant of first degree murder and found true a robbery-murder special circumstance allegation. It also found he had personally and intentionally fired a gun, causing death, and personally used a gun. The court found appellant had suffered two prior serious or violent felony convictions and served two prior prison terms within the scope of Penal Code section 667.5, subdivision (b). It sentenced appellant to life in prison without possibility of parole, and doubled *791 the term under the Three Strikes Law. The court enhanced appellant's sentence by 25 years to life under Penal Code section 12022.53, subdivision (d) and ten years under Penal Code section 667, subdivision (a)(1).
DISCUSSION
1. Appellant's prior Utah robbery convictions do not constitute serious or violent felonies under California law.
The information alleged appellant had suffered two prior serious and/or violent felony convictions within the scope of the Three Strikes Law and Penal Code section 667, subdivision (a)(1). To prove these allegations, the prosecutor introduced the following: (1) a judgment of conviction dated October 30, 1997 reflecting a guilty plea to one count of aggravated robbery in Weber County, Utah; (2) a sentencing worksheet dated August 11, 1997 reflecting a conviction of one count of aggravated robbery in Davis County, Utah; (3) two copies of apparently the same Utah State Prison fingerprint card; and (4) photocopies of photographs of appellant. None of these documents indicate the facts underlying either of appellant's aggravated robbery convictions.
Appellant contends the evidence was insufficient to show that his Utah aggravated robbery convictions constituted strikes or prior serious felonies for purposes of enhancement under Penal Code section 667, subdivision (a)(1). In particular, he argues robbery may be committed in Utah with a different intent than is required in California. He further argues that, whereas California law requires that force or fear be used against the person in possession of the property taken in a robbery, force or fear may be used against any person in Utah. Therefore, he argues, application of the Three Strikes Law and Penal Code section 667, subdivision (a)(1) violated due process.
Penal Code section 667, subdivision (a)(1) provides for a sentence enhancement for each prior conviction for "any offense committed in another jurisdiction which includes all of the elements of any serious felony" under California law. Under the Three Strikes Law, a prior conviction from another jurisdiction constitutes a strike if it is "for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (Pen.Code, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, the prior foreign conviction "must involve conduct that would qualify as a serious [or violent] felony in California." (People v. Avery (2002) 27 Cal. 4th 49, 53, 115 Cal. Rptr. 2d 403, 38 P.3d 1.) "To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime." (Ibid.) If the record insufficiently reveals the facts of the prior offense, the court must presume the prior conviction was for the least offense punishable under the foreign law. (People v. Rodriguez (1998) 17 Cal. 4th 253, 262, 70 Cal. Rptr. 2d 334, 949 P.2d 31; People v. Guerrero (1988) 44 Cal. 3d 343, 352, 243 Cal. Rptr. 688, 748 P.2d 1150.) Robbery constitutes both a serious and violent felony. (Pen.Code, §§ 667.5, subd. (c)(9); 1192.7, subd. (c)(19).)
The proof of appellant's Utah offenses consisted of records that established only the existence, date, and statutory authority of his convictions. Because this evidence did not establish any of the facts underlying the charges or convictions, the determination of whether these offenses would constitute serious or violent felonies if committed in California must be made from an analysis of the elements of aggravated *792 robbery under Utah law and a comparison of Utah and California law.
a. Target of force or fear
In 1997, a person committed aggravated robbery in Utah "if, in the course of committing robbery, he: [¶] (a) uses or threatens to use a dangerous weapon as defined in Section 76-1-601; [¶] (b) causes serious bodily injury upon another; or [¶] (c) takes an operable motor vehicle." (Utah Code Ann. (1953) § 76-6-302, subd. (1).)
In 1997, the Utah robbery statute provided that "[a] person commits robbery if: [¶] (a) the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person, or immediate presence, against his will, by means of force or fear; or [¶] (b) the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft." (Utah Code Ann. (1953) § 76-6-301, subd. (1).)[1]
Appellant contends that under subdivision (1)(b) of section 76-6-301, a defendant could be convicted of robbery if he stole the property of one person without the use of force or fear, but used force or fear against a second person without any possessory interest in the property during his flight from the scene of the theft.
Under California law, a theft accomplished without the use of force or fear becomes robbery if force or fear is used during asportation. (People v. Estes (1983) 147 Cal. App. 3d 23, 28, 194 Cal. Rptr. 909.) However, the force or fear must be used against a person who has a possessory interest in the stolen property in order to transform the theft into a robbery. (People v. Nguyen (2000) 24 Cal. 4th 756, 764, 102 Cal. Rptr. 2d 548, 14 P.3d 221.) This distinguishes California law from that of many other states. (Id. at pp. 763-764, 102 Cal. Rptr. 2d 548, 14 P.3d 221.)
Subdivision (1)(b) of Utah's robbery statute does not appear to require that the object of a defendant's application of force or fear have any possessory interest in the property taken. Although the "take personal property in the possession of another ... by means of force or fear" language of subdivision (1)(a) includes a possessory interest requirement, the language of subdivision (1)(b) is radically dissimilar. Subdivision (1)(b) simply requires the use of force or fear "against another in the course of committing a theft." Subdivision (1)(b) does not require that the force or fear be used against the person from whom the property was stolen or otherwise specify any limitation on the use of force or fear to qualify the crime as robbery, except that the force or fear must be applied "in the course of committing a theft." Subdivision (2) defines "in the course of committing a theft" to mean acts during "an attempt to commit theft, commission of theft, or . . . the immediate flight after the attempt or commission." Accordingly, the statute clearly encompasses the scenario posed by appellant: the use of force or fear against a bystander or good Samaritan during flight after commission of a theft against another person. Under California law, such an scenario results in the commission of a theft and an assault or battery, but no robbery. Under Utah law, however, it appears that the offense committed would be robbery.
Respondent argues that subdivision (1)(b) refers to "the situation where a defendant does not use force or fear at the exact time he takes the victim's property *793 from the victim." Although subdivision (1)(b) would certainly apply to the scenario suggested by respondent, nothing in its language restricts it to such application. Had the Utah legislature intended to so limit subdivision (1)(b), they could, and no doubt would, have so specified. They could, for example, have phrased the subdivision as follows: "the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft from that person."
Respondent relies upon a single Utah case, State in Interest of D.B. (Utah Ct. App.1996) 925 P.2d 178 (D.B.). There, the court interpreted a version of section 76-6-301 in effect in 1995. That statute defined robbery as "`the unlawful and intentional taking of personal property in the possession of another from his person or immediate presence, against his will, accomplished by means of force or fear.'" (Id. at p. 180.) The statute in issue in D.B. was thus equivalent to subdivision (1)(a) of the version of section 76-6-301 in effect in 1997. Amendments in 1996 created the version of the statute applicable at the time of appellant's offenses in 1997. Accordingly, D.B. did not apply or interpret subdivision (1)(b), which is the subject of appellant's contention. Moreover, the facts in D.B. are distinguishable from the scenario posed by appellant, as the person from whom property was taken was the same person against whom force was applied. (D.B., supra, 925 P.2d at p. 179.) The issue in D.B. concerned the timing of the application of force, as the defendant originally gained possession of the victim's property by asking to see it. (Id. at p. 180.) The victim willingly handed it over, the defendant failed to return it upon request, a face-slapping altercation ensued, and the defendant punched the victim in the eye. (Id. at p. 179.) As the victim owned and physically possessed the property stolen by the defendant, the court did not consider whether force or fear must be used against a person with a possessory interest in the stolen property. Accordingly, for numerous reasons, D.B. does not support respondent's interpretation of subdivision (1)(b).
Our research has revealed no interpretations of the Utah robbery statute supporting respondent's position. The plain language of subdivision (1)(b) supports appellant's contention that Utah, like the other states to which the California Supreme Court referred in People v. Nguyen, supra, 24 Cal.4th at pp. 763-764, 102 Cal. Rptr. 2d 548, 14 P.3d 221, does not require that the person against whom force or fear is used have a possessory interest in the property taken. Given the absence of precedent reading such a requirement into section (1)(b), we must give effect to the plain language of the statute, and conclude that, as in several states other than California, one may be convicted of robbery for employing force or fear against a person who lacks any possessory interest in the property taken in the course of a theft.
It therefore cannot be said that appellant's Utah robbery convictions include all of the elements of robbery under California law. This conclusion is not altered by the fact that they were aggravated robberies, as the aggravation statute does not supply the potentially missing possessory interest requirement.
Respondent argues that appellant's Utah offenses constitute serious and violent felonies because they were punishable by a term of five years to life, and he received an indeterminate sentence of five years to life for each offense. However, Penal Code section 667, subdivisions (a)(1), (d)(2), and section 1170.12, subd. (b)(2) provide that offenses committed in other jurisdictions must include all of the elements *794 of a serious or violent felony under California law in order to trigger application of the Three Strikes Law or the five-year enhancement provided by Penal Code section 667, subdivision (a)(1). Accordingly, only offenses committed in California may qualify as serious or violent felonies simply because they carry an indeterminate term as a potential penalty.
b. Permissibility of retrial
The parties differ regarding the appropriate remedy for our finding that the record was insufficient to establish that appellant's Utah convictions constituted serious or violent felonies. Respondent argues for remand to allow the prosecutor to retry the strike and enhancement allegations, whereas appellant contends retrial would not be permissible, as the error was one of insufficiency of the evidence. Appellant recognizes that retrial is generally permissible pursuant to People v. Barragan (2004) 32 Cal. 4th 236, 9 Cal. Rptr. 3d 76, 83 P.3d 480, and People v. Monge (1997) 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121, but argues that these decisions are inapplicable to foreign convictions in the wake of Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435. He bases this claim on the theory that "proof of a strike based on a foreign conviction involves additional facts beyond the fact of the conviction itself, namely, that the record of the foreign conviction shows conduct equivalent to violation of a qualifying California statute."
In People v. Monge, supra, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121, the California Supreme Court held that neither the federal nor state constitutional double jeopardy prohibition bars retrial of a prior conviction allegation where insufficient evidence was produced at trial. (Id. at p. 843, 66 Cal. Rptr. 2d 853, 941 P.2d 1121.) The court distinguished sentencing proceedings in which the truth of a prior conviction allegation is determined from the trial of the charged offense or the guilt phase in a capital trial. It noted that such a proceeding is not a "prosecution of an additional criminal offense carrying the stigma associated with a criminal charge; rather it is merely a determination, for purposes of punishment, of the defendant's status, which, like age or gender, is readily determinable from the public record. Moreover, when, as here, the court has bifurcated the prior conviction issue, the defendant begins the prior conviction trial having already suffered the embarrassment of the present conviction. The marginal increase in embarrassment attributable to the prior conviction trial is not comparable to the embarrassment of an unproved criminal charge. Finally, a prior conviction trial is simple and straightforward as compared to the guilt phase of a criminal trial. Often it involves only the presentation of a certified copy of the prior conviction along with the defendant's photograph and fingerprints. In many cases, defendants offer no evidence at all, and the outcome is relatively predictable." (Id. at p. 838, 66 Cal. Rptr. 2d 853, 941 P.2d 1121.)
People v. Monge, supra, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121, further noted that even if the determination of a prior conviction allegation presents a factual issue, it differs from the trial of the charged offense because the prosecutor "may only present evidence from the record of the prior conviction. [Citations.] The defendant, and any member of the public, can review that record before the prior conviction trial and accurately forecast the trial's outcome. When a trial, even a very important trial, is short and readily predictable in this way, the defendant suffers correspondingly less embarrassment, expense, and anxiety. Significantly, the defendant does not need to sit *795 for weeks or months while witnesses describe in detail to a jury and the public the specifics of his alleged unlawful activities. For these reasons, we conclude the financial and emotional burden of a prior conviction trial is minor as compared to a guilt trial." (Id. at p. 839, 66 Cal. Rptr. 2d 853, 941 P.2d 1121.) In addition, proceedings to determine the truth of a prior conviction allegation involve "factual determinations [that] are generally divorced from the facts of the present offense, and the evidence does not overlap" as the evidence in the penalty phase overlaps the evidence in the guilt phase of a capital trial. (Ibid.) Finally, proceedings to determine the truth of a prior conviction allegation "merely determine[ ] a question of the defendant's continuing status, irrespective of the present offense, and the prosecution may reallege and retry that status in as many successive cases as it is relevant [citations], even if a prior jury has rejected the allegation [citations]. If a jury rejects the allegation, it has not acquitted the defendant of his prior conviction status. [Citation.] `A defendant cannot be "acquitted" of that status any more than he can be "acquitted" of being a certain age or sex or any other inherent fact.' [Citation.]" (Ibid.)
In Monge v. California (1998) 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615, the United States Supreme Court affirmed People v. Monge, supra, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121, and held that the double jeopardy clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context, even after a reversal based on insufficient evidence and even if the sentencing proceeding possessed the "hallmarks of a trial on guilt or innocence." (Monge v. California, supra, 524 U.S. at pp. 729-734, 118 S. Ct. 2246, citations omitted.)
People v. Barragan, supra, 32 Cal. 4th 236, 9 Cal. Rptr. 3d 76, 83 P.3d 480, rejected an attempt to invoke double jeopardy protections in the guise of a due process claim where double jeopardy was inapplicable. (Id. at p. 244, 9 Cal. Rptr. 3d 76, 83 P.3d 480.) "Defendant, who cannot, after Monge I and Monge II, invoke the protection of the double jeopardy clause to bar retrial, invites us to achieve the same end via the due process clause. We decline his invitation because, as the high court told us in Dowling [v. United States (1990) 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708]: `Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.'" (Ibid.)
Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (Apprendi), dealt with a sentencing determination hinging on a factual finding arising from the commission of the charged crime. At issue was a New Jersey hate crime statute which provided for a greater term of imprisonment if the trial judge found, by a preponderance of the evidence, that, in the commission of the charged offense, the defendant acted with the intent to intimidate a person or group because of race, color, gender, handicap, religion, sexual orientation or ethnicity. (Id. at pp. 468-469, 120 S. Ct. 2348.) The Court noted that "[b]y its very terms, this statute mandates an examination of the defendant's state of minda concept known well to the criminal law as the defendant's mens rea." (Id. at p. 492, 120 S. Ct. 2348, fn. omitted.) The Court concluded that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490, 120 S. Ct. 2348.) The court thus expressly distinguished the determination of sentencing factors based upon "the fact of a prior conviction" from determinations involving factual findings arising from the commission of the current crime. The Court expressly *796 noted that Monge v. California, supra, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615, was a "recidivism case in which the question presented and the bulk of the Court's analysis related to the scope of double jeopardy protections in sentencing." (Apprendi, supra, 530 U.S. at p. 489, fn. 14, 120 S. Ct. 2348.) The Court further commented that "[m]ost telling of Monge's distance from the issue at stake in this case is that the double jeopardy question in Monge arose because the State had failed to satisfy its own statutory burden of proving beyond a reasonable doubt that the defendant had committed a prior offense (and was therefore subject to an enhanced, recidivism-based sentence)." (Ibid.)
Thus, Apprendi did not, as appellant claims, hold that all "federal constitutional protections apply to every fact that increases the penalty beyond the statutory maximum, except for `the fact of a prior conviction.'" Instead, it required any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490, 120 S. Ct. 2348.) Assuming, for the sake of argument, that Apprendi applied to the prior conviction allegations against appellant, he would be entitled to retrial by a jury, not immunity from retrial.
Moreover, neither People v. Barragan, supra, 32 Cal. 4th 236, 9 Cal. Rptr. 3d 76, 83 P.3d 480, nor People v. Monge, supra, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121, was based upon the theory that only the "fact of the conviction itself" had to be proved. Both cases were based, essentially, on the inapplicability of double jeopardy given the nature and attributes of the proceeding to determine the truth of prior conviction allegations. Accordingly, the fact that a prior conviction was suffered outside of California does not negate application of People v. Barragan, supra, 32 Cal. 4th 236, 9 Cal. Rptr. 3d 76, 83 P.3d 480, or People v. Monge, supra, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121.
Finally, we note that while Apprendi may indeed require a jury determination of factual issues pertaining to foreign prior convictions, where, as here, the prosecutor introduces barebones evidence of the fact of the foreign conviction and its general nature, the issue of whether the foreign jurisdiction's law contains the same elements as California law is a legal one, to be decided by the judge, not the jury. Accordingly, there is no merit to appellant's claim that Apprendi precludes application of People v. Barragan, supra, 32 Cal. 4th 236, 9 Cal. Rptr. 3d 76, 83 P.3d 480, and People v. Monge, supra, 16 Cal. 4th 826, 66 Cal. Rptr. 2d 853, 941 P.2d 1121, because additional factual determinations were required. An additional legal determination was required, but the only factual determination was that expressly excepted from the scope of Apprendi, i.e., whether appellant had suffered the Utah convictions alleged in the information.
The trial court's findings on the strike and Penal Code section 667, subdivision (a)(1) allegations must be reversed for insufficiency of evidence. However, these allegations may be retried if the prosecutor obtains additional evidence regarding the Utah robberies to establish that appellant used force or fear against a person with a possessory interest in the property taken.
Our ruling on this issue moots appellant's claim that the court erred by doubling his term of life in prison without possibility of parole pursuant to the Three Strikes Law.
*797 2. The trial court was not required to instruct upon second degree murder as a necessarily included offense.
The Information charged appellant with murder with malice aforethought. However, the prosecutor tried the case solely upon a felony murder theory. Although appellant requested instructions on manslaughter and second degree murder, the court instructed the jury only upon the theory of first degree felony murder.
Appellant contends the court erred by failing to instruct upon second degree murder based upon express malice. He argues it was a necessarily included offense under the accusatory pleading test and the jury may have had reasonable doubt whether he was engaged in an attempt to rob Hoeung.
A trial court must instruct on lesser included offenses whenever substantial evidence raises a question as to whether all of the elements of the charged offense are present. (People v. Cunningham (2001) 25 Cal. 4th 926, 1008, 108 Cal. Rptr. 2d 291, 25 P.3d 519.) Substantial evidence is evidence sufficient to deserve consideration by the jury, i.e., evidence a reasonable jury could find persuasive. Absent substantial evidence, a court need not give a requested instruction regarding a lesser included offense. (Ibid.)
An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (People v. Sanchez (2001) 24 Cal. 4th 983, 988, 103 Cal. Rptr. 2d 698, 16 P.3d 118.)
Under the accusatory pleading test, second degree murder based upon malice, rather than upon commission of a felony, was a necessarily included offense of the charged offense. However, the trial court was required to instruct upon second degree murder only if substantial evidence raised a question as to whether all of the elements of felony murder were established. In other words, it was required to instruct only if there was evidence that, if believed by the trier of fact, would absolve the defendant of the greater offense, but not of the lesser. (People v. Memro (1995) 11 Cal. 4th 786, 871, 47 Cal. Rptr. 2d 219, 905 P.2d 1305.)
The crime was recorded on the liquor store's surveillance video, which was played at least three times during trial. During one playing, the prosecutor described for the record what was visible on the tape:
"To the right side of the video footage is the store counter; a cash register; behind the counter is Nhean who testified first this morning; her husband, the named victim in this case, standing to her left and the bottom right portion of the screen; to the upper left portion of the screen is the entrance to the store where an individual wearing at least what can be seen on this videotape a dark colored hooded sweatshirt, hood over the head, dark colored pants, white shoes, what appear to be gloves or at least dark hands. [¶] If you look, the person in the sweatshirt is seen removing a white object with his left hand and placing it onto the counter and removing what appears to be a handgun with his right hand; both items coming from the front pocket area of the sweatshirt. [¶] There are words exchanged, and subsequently we see two gunshots. The first coming from the person in the sweatshirt. The second subsequently coming from the victim in this case. [¶] And certainly words, I think [defense counsel], we both agree what we do hear are *798 `I'll shoot you.' At least those words. And also the words, `Oh, shit.' [¶] So for the record I just want to have at least that description that we can both agree upon, and I'll continue to play the tape."
Defense counsel agreed with the prosecutor's description of the tape contents, but added that she could "also hear other things earlier" on the tape and that "at the time that the perpetrator pulls out his own gun, at the same time as the bag comes out, Mr. Chan, the victim, has also pulled then his gun out. [¶] So the first gun that appears to be the perpetrator's gun. The second gun that appears is the victim's gun. And the victim has his gun out before any shots are fired, and then it appears the perpetrator fires first and then the victim fires."
Hoeung's wife was present in the store during the robbery and testified at trial. She did not, however, testify regarding what happened or was said during the course of the offense.
Pita Mounga identified appellant's voice on the videotape and testified that appellant, who was his wife's nephew, arrived at Mounga's home on the date of the liquor store shooting and said he had been shot in a store. Appellant was bleeding. Against appellant's will, Mounga's wife called 911. Mounga placed appellant's gun in a trash can outside the house, from which the police later recovered the gun and ammunition. Mounga also testified that the dark blue gloves recovered from his living room by police belonged to appellant. Mounga's house was located about one-half mile from Hoeung's liquor store.
Appellant argues the jury may have doubted that he was engaged in a robbery attempt, as he did not declare it to be a robbery or demand money. He further argues the jury might have concluded that appellant became involved in a dispute with Hoeung and shot him in anger. However, neither appellant nor any other witness testified regarding a dispute or anger. Appellant's claims are all based upon speculation. The facts described by the prosecutor and defense counsel, particularly appellant's conduct in placing a plastic bag on the store's counter and more or less simultaneously pointing a gun at Hoeung, strongly suggest a robbery attempt, i.e., appellant brought a bag with him and placed it before Hoeung while threatening him with the gun in order to persuade Hoeung to place property inside the bag so appellant could carry it away without paying for it. While it is certainly possible that appellant had some intent other than, or in addition to, robbery, nothing in the record diminishes or negates the strong inference of an intent to rob established by appellant's conduct in carrying and presenting the bag. Accordingly, there was no substantial evidence that, if believed by the jury, would have absolved appellant of felony murder, but not of second degree murder based upon express malice. The trial court did not err by refusing to instruct upon second degree murder.
3. The trial court erred by imposing a parole revocation fine.
Appellant contends the trial court erred by imposing a parole revocation fine, as his sentence of life in prison without possibility of parole does not include a term of parole. The reporter's transcript of the sentencing hearing does not indicate that the court imposed a parole revocation fine, though it did impose a restitution fine under Penal Code section 1202.4, subdivision (b). The clerk's transcript and the abstract of judgment, however, indicate a $10,000 parole revocation fine was imposed under Penal Code section 1202.45.
Penal Code section 1202.45 provides, in pertinent part, that "In every case where a *799 person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person's parole is revoked."
A parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole. (People v. Oganesyan (1999) 70 Cal. App. 4th 1178, 1183, 83 Cal. Rptr. 2d 157.)
Respondent argues that a parole revocation fine was proper with respect to the portion of appellant's sentence providing for a term of 35 years to life. People v. Oganesyan, supra, 70 Cal. App. 4th 1178, 83 Cal. Rptr. 2d 157, rejected an identical contention. (Id. at pp. 1183-1186, 83 Cal. Rptr. 2d 157.) For the reasons stated in that opinion, we conclude the statute is inapplicable to appellant, whose sentence does not include a period of parole. Upon resentencing, the court may not impose a Penal Code section 1202.45 fine.
DISPOSITION
Appellant's sentence is vacated. The prior serious or violent felony findings under Penal Code section 667, subdivision (a)(1) and the Three Strikes Law are reversed and the cause is remanded for further proceedings in accordance with this opinion. In all other respects, the judgment is affirmed.
COOPER., P.J., and RUBIN, J., concur.
NOTES
[1] Further statutory references in this section of the opinion refer to Utah Code Ann. (1953) section 76-6-301, as it existed in 1997. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602196/ | 181 So.2d 426 (1965)
Hardy N. GOFF, Individually, etc., Plaintiff-Appellant,
v.
Catherine CARLINO et al., Defendants-Appellees.
No. 1564.
Court of Appeal of Louisiana, Third Circuit.
November 30, 1965.
Rehearing Denied January 18, 1966.
Writ Refused March 11, 1966.
*427 Garrett & Farrier, by Donald M. Garrett, Alexandria, for plaintiff-appellant.
Gold, Hall & Skye, by George B. Hall, Alexandria, for defendant-appellee.
Gravel, Sheffield & D'Angelo, by A. M. D'Angelo, Alexandria, for defendant-appellee.
Gist, Gist, Methvin & Trimble, by Howard Gist, Alexandria, for defendant-appellee.
Before TATE, FRUGE, and HOOD, JJ.
TATE, Judge.
Jim Goff, aged 9, was struck by a car driven by Mrs. Catherine Carlino one July afternoon. Jim had just purchased some ice cream from a vending truck parked across the street from his home. He was running back home when Mrs. Carlino's car hit him as he emerged from around the front of the ice cream truck.
By the present suit, his father seeks to recover for young Jim's personal injuries. Mrs. Carlino and Harold Soileau, the operator of the ice cream truck, are made defendants, as well as are others allegedly liable for any negligence of Mrs. Carlino or Soileau under the circumstances (Mrs. Carlino's husband, Soileau's employer, insurers of the vehicles). The trial court held that neither Mrs. Carlino nor Soileau were negligent.
The plaintiff appeals the dismissal of his suit for his son's injuries, contending: (1) that Mrs. Carlino's speed, lookout, and control were deficient in view of the anticipatable presence of children around the ice cream truck; and (2) that Soileau's parking of the ice cream truck attracting children to cross the street created an unreasonable hazard to their safety.
1. Mrs. Carlino's negligence.
We find no error in the trial court's factual evaluation of the evidence as showing the following:
The ice cream truck was parked immediately next to the curb in a residential area. Mrs. Carlino approached the truck from its rear. At that time, the young Goff boy was at a curbside vending-window. He was not visible to her. There were no other children in the area at the time.
Mrs. Carlino approached the truck at a slow speed of about 10-15 mph, veering her car towards the center of the street because of the parked truck. After young Jim Goff purchased his ice cream, he ran back towards home, first alongside the truck, then around the truck's front end, all this time hidden from Mrs. Carlino's view. He ran into the roadway from behind the front end of the parked ice cream truck just as Mrs. Carlino drew past it.
Jim was immediately struck by the right front of the Carlino car (or else ran into it). He fell to the ground 2-3 feet frontwards of the truck. Mrs. Carlino brought her vehicle to an immediate stop about 20-25 feet past the child.
Under these facts, the trial court correctly held that Mrs. Carlino was free of negligence contributing to the accident. Slowed to a speed of 10-15 mph and able *428 to bring her vehicle to a stop quickly (as she in fact did), she could not reasonably have foreseen that a till-then invisible child would come from behind the parked vehicle dashing at a run into her path at a time when she could not avoid striking him. See e. g.: Winzer v. Stonewall Insurance Co., La.App. 2 Cir., 175 So.2d 926; Williams v. Charles, La.App. 4 Cir., 171 So.2d 831; Miller v. State Farm Mut. Auto. Ins. Co., La.App. 3 Cir., 169 So.2d 743.
The plaintiff-appellant relies upon decisions such as Guillory v. Lemoine, La.App. 2 Cir., 87 So.2d 798 and Stamps v. Henderson, La.App. 2 Cir., 25 So.2d 305. They concern facts distinguishable from the present. In them, the oncoming motorist should have observed or anticipated the injured child in or near the road and could have avoided the accident by more adequate observation, slackening speed, or sounding the horn. Here, the present oncoming motorist was approaching at a very slow speed with adequate lookout and control, but could not reasonably have anticipated or avoided the accident caused when the child suddenly ran into her path from behind the parked vehicle.
2. Howard Soileau's negligence.
Howard Soileau parked his ice cream truck alongside the curb in a residential area"as close to the curb" as he could get, Tr. 111. While so parked, he sold ice cream to youngsters and others from a vending window in the center of the right (or curb) side of the truck. There were no other vehicles in the area, and he could not observe traffic or children in the street coming to and from his truck. He was not aware of the accident until after it happened. He violated no law or regulation by parking his truck as he did.
Nevertheless, the plaintiff-appellant contends that Soileau was negligent in parking his ice cream truck so as to attract child-purchasers to cross the street, and in failing to take adequate precautions to guide the child-customers so attracted safely back across the street, since Soileau allegedly was required to anticipate the playfulness and impulsiveness of children in crossing the street in a residential area.
Negligence is conduct which creates an unreasonable risk of foreseeable harm to others. Brown v. Liberty Mutual Ins. Co., 234 La. 860, 101 So.2d 696; Fontana v. State Farm Mutual Auto. Ins. Co., La.App. 3 Cir., 173 So.2d 284; Larned v. Wallace, La.App. 3 Cir., 146 So.2d 434; Restatement of Torts Second (1965), Section 284. The risk of foreseeable harm to others is unreasonable so as to be negligence, if the magnitude of the risk created outweighs the utility or social value of the conduct creating it; in this respect consideration is given, inter alia, to the probability or extent of the harm to others threatened by the risk. Restatement of Torts Second (1965), Sections 291-293. "As the extent of the chance of harm increases, the utility required to justify the risk increases proportionately," Comment b., Restatement Section 293. (Italics ours.) See also Prosser on Torts, Section 31 (3d ed., 1964).
In the present case, Soileau's parking the ice cream truck in the residential area undoubtedly created the foreseeable hazard that a careless child might be injured crossing the street. But selling ice cream from mobile trucks in residential areas is a lawful business with social value; it would be virtually impossible to engage in this business if the ice cream peddler could not park or if he were required to watch out for and to guide children across the streets to and from the truck. Since statistically the chances are very small that harm will thereby be occasioned to children old enough to cross the street to buy ice cream, the utility of the conduct of parking the ice cream trucknecessary to carry on the lawful economic activity of selling in the residential areathus outweighs the risk of harm to others created by so doing. Under present social conditions, therefore, such parking does not create an unreasonable risk of harm to others so as by itself to be considered negligent conduct.
*429 Thus, the courts have consistently refused to characterize as negligent the operation of peddling trucks simply because they attract children to cross the street or to subject themselves to normal street hazards, providing that the operation or parking of such trucks does not violate any law or regulation and is not negligent as to the children in any other respect. Molliere v. American Insurance Group., La.App. 1 Cir., 158 So.2d 279, certiorari denied; Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 18 A.2d 592 (1948); Sidders v. Mobile Softee, Inc., Ohio App., 184 N.E.2d 115 (1961); Mead v. Parker, E.D.Tenn., 221 F.Supp. 601 (1963). See also: Coffey v. Oscar Mayer & Co., 252 Wis. 473, 32 N.W.2d 235, 3 A.L.R.2d 753 (1948); Baker-Evans Ice Cream Co. v. Tedesco, 114 Ohio St. 170, 150 N.E. 745, 44 A.L.R. 430 (1926). However, when an attracted child is injured and the risk of the child's injury was foreseeably increased by illegal or unnecessarily hazardous parking, then the operator of the peddling or delivery truck may be held negligent as having created an unreasonable hazard to the children foreseeably attracted and endangered. Landers v. French's Ice Cream Co., 98 Ga.App. 317, 106 S.E.2d 325, 74 A.L.R.2d 1050 (1958); McKay v. Hedger, 139 Cal.App. 266, 34 P.2d 221 (1934). See also Annotation, Child in StreetHucksters, 74 A.L.R.2d 1056.
In the present case, Soileau's parking of his ice cream vending truck was lawful and created no unnecessary hazard. As noted above, the parking did not create an unreasonable hazard to children. The trial court therefore correctly concluded that no negligence on Soileau's part contributed to young Jim Goff's unfortunate accident for which recovery is sought by this suit.
Decree.
For the foregoing reasons, we affirm the trial court's dismissal of the plaintiff Goff's suit against Mrs. Carlino and Soileau and their co-defendants sought to be held liable because of their alleged negligence. The plaintiff-appellant is to pay the costs of this appeal.
Affirmed.
On Application for Rehearing.
En Banc. Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602031/ | 869 So.2d 754 (2004)
STATE of Florida, Appellant,
v.
Earl MARSHALL, Appellee.
No. 5D03-1258.
District Court of Appeal of Florida, Fifth District.
April 8, 2004.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
*755 MONACO, J.
The State of Florida appeals the sentence meted out to the appellee, Earl Marshall, after Mr. Marshall violated his probation. Because the trial court used an erroneous scoresheet and awarded a downward departure without valid written or transcribed reasons for doing so, we remand for resentencing.
In accordance with a plea agreement, Mr. Marshall pled nolo contendere to two of three drug offenses, in exchange for an agreed concurrent sentence of 51 weeks in county jail, with credit for time served, plus one year of probation, which included a special condition requiring completion of a residential drug treatment program. The sentence was a small downward departure, founded on the uncoerced negotiated plea agreement. See State v. Williams, 667 So.2d 191 (Fla.1996). After serving the incarcerative portion of the sentence, Mr. Marshall absconded from supervision. He was eventually taken into custody, and admitted the violation of probation. In making the admission, however, he was apparently unaware that the State would seek to correct the scoresheet upon which he was originally sentenced.
At sentencing for the violation of probation, the State pointed out to the trial court that a number of prior convictions had not been scored on Mr. Marshall's Criminal Punishment Code scoresheet that had been submitted at the time of his original sentencing. The revised scoresheet, with the additional points from the violation of probation, reflected a lowest permissible sentence of 17.925 months in state prison. The defense argued for 13.05 months, based on the original incorrect scoresheet. The trial judge, who expressed concern because Mr. Marshall was induced to plead initially by use of an incorrect scoresheet, sentenced Mr. Marshall to serve 51 weeks and 48 days in state prison (he had been in custody for 48 days on the violation of probation), with credit for time served. The State appeals. We reverse.
The issue presented was answered by the Florida Supreme Court in Roberts v. State, 644 So.2d 81 (Fla.1994). There, the court held that in resentencing a defendant after a revocation of probation, a court has the authority to correct a sentencing guideline scoresheet to include prior convictions that were mistakenly omitted from the original scoresheet, even though the error was made through no fault of defendant. See also Scherwitz v. State, 618 So.2d 793 (Fla. 5th DCA 1993), approved, 644 So.2d 85 (Fla.1994).
The defendant in Roberts was the beneficiary of a mistake in his original guidelines scoresheet, just as Mr. Marshall is here. The Florida Supreme Court concluded that since the defendant had committed a new crime and, thus, violated his probation, they saw no reason to perpetuate the error. "Justice is not served by awarding a defendant something to which he is not entitled." Citing with approval the Third District's opinion in Roberts v. State, 611 So.2d 58 (Fla. 3d DCA 1992), the Florida Supreme Court said further:
The defendant cites to Graham v. State, 559 So.2d 343 (Fla. 4th DCA 1990) for the proposition that a trial court is without power to consider a new scoresheet, over objection, containing prior convictions completely omitted from the original. The contention then is that the defendant be sentenced under a scoresheet that is simply not based upon the truth. Consequently, we do not agree with Graham because to follow it literally, the defendant receives the benefit of being sentenced under a scoresheet which mistakenly omits prior convictions. Neither the rules nor the substantive law requires a defendant receiving *756 the largesse of a judicial error. Since only one guideline scoresheet may be used for each defendant covering all offenses pending before the court at sentencing, Fla. R.Crim. Proc. 3.701(d)(1); accord Lambert v. State, 545 So.2d 838, 841 (Fla.1989), following the defendant's argument permits him to escape the punishment meted out by the law.
Furthermore, since the defendant's violation of probation triggered the resentencing, the defendant is not being sentenced for "precisely the same conduct".... [Cites omitted].
Roberts, 644 So.2d at 82. See also Aponte v. State, 810 So.2d 1008 (Fla. 4th DCA 2002); Atkins v. State, 787 So.2d 57 (Fla. 2d DCA 2001); Hernandez v. State, 776 So.2d 356 (Fla. 3d DCA 2001).
In the present case the trial court awarded Mr. Marshall a downward departure sentence after the violation of probation without giving valid reasons for doing so. See § 921.00265(2), Fla. Stat. (2000). The statutory reasons for a downward departure are specified in section 921.0026, Florida Statutes (2000). No written reasons for the departure were filed, and the transcript of the proceedings indicates that the trial court did not list any appropriate reasons in downwardly departing in Mr. Marshall's case.
We conclude, therefore, that Mr. Marshall should be given an opportunity to withdraw his admission of violation of probation in light of this opinion. If he decides to admit the violations, or should the trial court find that he violated his probation, Mr. Marshall is to be resentenced using a corrected scoresheet. If the trial court wishes to depart downwardly from the indicated guidelines sentence, it must announce or write its valid reasons for doing so. We note collaterally that if Mr. Marshall disputes the validity of the additional offenses to be scored, the State is required to corroborate those convictions as is required by law. See Jackson v. State, 588 So.2d 1085 (Fla. 5th DCA 1991); Vandeneynden v. State, 478 So.2d 429 (Fla. 5th DCA 1985); see also Eutsey v. State, 383 So.2d 219 (Fla.1980).
REVERSED and REMANDED for resentencing.
PETERSON and THOMPSON, JJ, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645301/ | 994 So.2d 305 (2008)
LANDY
v.
STATE.
No. SC08-1873.
Supreme Court of Florida.
October 3, 2008.
Decision without published opinion. Rev.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602010/ | 1 So. 3d 181 (2009)
McLEROY
v.
STATE.
No. 1D07-1681.
District Court of Appeal of Florida, First District.
January 28, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601998/ | 1 So. 3d 753 (2008)
The PARAGON LOFTS CONDOMINIUM OWNERS ASSOCIATION, INC.
v.
The PARAGON LOFTS, L.L.C., Ekistics, Inc., Edifice Construction Company, The Roof Doctors and Minerit, Inc.
No. 2008-CA-0965.
Court of Appeal of Louisiana, Fourth Circuit.
December 17, 2008.
*754 Andrew A. Braun, Daniel G. Rauh, Gieger, Laborde & Laperouse, LLC, New Orleans, LA, for Royal Commerical Construction, Inc.
Roger C. Linde, Stephens & Grace, Metairie, LA, for Edifice Construction Company.
Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD.
EDWIN A. LOMBARD, Judge.
This appeal filed by Edifice Construction Company ("the appellant-contractor"), is from summary judgment granted in favor of third-party defendant, Royal Commercial Construction, Inc. ("the appellee-subcontractor"), dismissing the appellant's Third-Party Demand. After de novo review, we affirm the judgment of the trial court.
Relevant Facts and Procedural History
On March 11, 2002, Paragon Lofts Condominium Association, Inc. ("the condo association") filed suit against the developers of the condominium project (The Paragon Lofts, LLC and Ekistics, Inc.) and the appellant-contractor (the general contractor of the condominium project), as well as the The Roof Doctors, Inc., and Minerits, Inc., for breach of warranty, redhibition, and negligence based on alleged structural defects affecting the roof and exterior walls of the condominiums. In turn, the appellant-contractor filed a Third-Party Demand on November 4, 2005, against the appellee-subcontractor, as well as some product manufacturers and distributors. On motion for summary judgment, the trial court dismissed the appellee-subcontractor as a third-party defendant and that dismissal is now before this court on appeal.
Law and Discussion
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 06-363 p. 3 (La.11/29/06), 950 So. 2d 544, 546; see also La.Code Civ. Proc. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 06-1181, p. 17 (La.3/9/07), 951 So. 2d 1058, 1070.
The pertinent parameters of a motion for summary judgment are as follows: A motion for summary judgment will be granted "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 material fact, and that mover is entitled to judgment as a matter of law." La.Code Civ. Proc. art. 966(B) As amended in 1996, this article specifically provides that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends." La.Code Civ. Proc. art. 966(A)(2). Further, the legislature enacted La.Code Civ. Proc. art. 966(C)(2) which further clarifies the burden of proof in summary judgment proceedings as follows
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements *755 of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (generally, as in this defendant), who ordinarily meets that burden by submitting affidavits or by pointing out the lack of factual support for an essential element of the opponent's case. At that point, the party who bears the burden of persuasion at trial (generally, as in this case, the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates an ability to meet that burden at trial. Accordingly, once a motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Wright, 06-1181 at p. 16, 951 So.2d at 1069-70 (citations omitted).
The motion for summary judgment at issue here arose in the context of a third-party demand for indemnity. The obligation to indemnify may be express, as in a contractual provision, or may be implied in law. Nassif v. Sunrise Homes, Inc., 98-3193 p. 3 (La.6/29/99), 739 So. 2d 183, 185 (citation omitted). In Louisiana, a party not actually at fault whose liability results from the fault of others may recover in the absence of an express contract provision, as in the case of a contractor recovering from his subcontractor, but only if the exclusive fault producing the liability is that of the subcontractor. Nassif, 98-3193 at p. 4, 739 So.2d at 186.
In this case, no written contract has been produced and, thus, it is undisputed that there is no express indemnity obligation at issue. It is also undisputed that the appellant-contractor purchased the materials used by the appellee-subcontractor and supervised all of the appellee-subcontractor's work. Specifically, the appellant-contractor supplied the Minerit board and associated fasteners, the rubber gasket sealing strips used around the Minerit board panels, and the wood battens used to attach the Mineret boards to the penthouse walls. The appellant-contractor instructed the appellee-subcontractor as to the installation of the Mineret panels, the rubber sealing gaskets, and other associated items in the installation. Moreover, the appellee-subcontractor acted as directed by the appellant-contractor and had no role in its decisions to deviate from the plans which required installation of felt behind the Minerit board, to substitute gypsum for plywood to sheath the exterior of the penthouse, and not to seal the gypsum in any manner to prevent water from penetrating. Because an implied contract of indemnity arises only when the person or entity seeking indemnification bears no fault producing liability, there is no genuine issue of material fact, and the appellee-subcontractor is entitled to judgment as a matter of law.
Conclusion
After de novo review, we affirm the judgment of the trial court.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601999/ | 476 N.W.2d 86 (1991)
STATE of Iowa, Appellee,
v.
Brenda Faye SMITH, Appellant.
No. 89-1787.
Court of Appeals of Iowa.
June 25, 1991.
*87 Linda Del Gallo, State Appellate Defender, and Andi S. Lipman, Asst. State Appellate Defender, for appellant.
Bonnie J. Campbell, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., Thomas J. Ferguson, County Atty., and Ray Walton, Asst. County Atty., for appellee.
Heard by DONIELSON, P.J., and SCHLEGEL and HAYDEN, JJ.
SCHLEGEL, Judge.
Defendant Brenda F. Smith appeals her convictions of conspiring to manufacture, deliver, or possess a controlled substance, Iowa Code § 204.401(1)(c) (class "C" felony), and of possession of a controlled substance, Iowa Code § 204.401(3) (serious misdemeanor). She contends that the trial court erred in refusing to suppress the fruits of two allegedly unreasonable searches. Smith also appeals her sentence and an order which denies her request to merge the conspiracy (felony) offense into the possession (misdemeanor) offense. We affirm.
(1)
On June 9, 1989, the Special Enforcement Unit of the Waterloo Police learned that suspicious and possibly illegal activities were taking place in room 206 of a hotel called the Conway Inne. Police sought and obtained a search warrant for the hotel room. Upon executing the search warrant, police seized cocaine, paraphernalia to use and manufacture cocaine, and other miscellaneous items. When Smith arrived at the room, police searched her and her purse. Smith's purse contained a small amount of money, notes, and a piece of wire which, as a police officer later testified, were consistent with items found in the room and the manufacture and use of cocaine.
Smith was charged with (1) possession of cocaine with intent to manufacture or deliver, Iowa Code § 204.401(1)(a) (class "C" felony); (2) conspiracy to manufacture, deliver, or possess cocaine with intent to manufacture or deliver, Iowa Code § 204.401(1)(a) (class "C" felony); and (3) possession of heroin, Iowa Code § 204.401(3) (serious misdemeanor). Smith sought unsuccessfully to suppress all evidence obtained in the searches of the hotel room and her purse. A jury convicted Smith on the first count of the lesser-included offense of possession of cocaine (serious misdemeanor) and on the second count of conspiracy (class "C" felony). Smith challenges her convictions on grounds that the trial court erred in permitting evidence obtained in the searches into evidence.
The trial court sentenced Smith to one year in prison for the count I serious misdemeanor and to ten years in prison for the count II class "C" felony. The court ordered that the terms be served concurrently. Smith moved for resentencing, urging that her class "C" felony should be treated as a serious misdemeanor under Iowa Code section 706.3. The trial court rejected that contention; however, the court retracted the serious misdemeanor sentence and resentenced Smith to ten years for the felony offense only. Smith appeals her sentence *88 arguing that the trial court should have merged the felony offense into the misdemeanor offense for a one-year sentence rather than having merged the misdemeanor offense into the felony offense for a ten-year sentence.
(2)
Because the constitutionality of the procedure used in obtaining the search warrant is at issue, we evaluate the totality of the circumstances, which is equivalent to a de novo review. State v. Niehaus, 452 N.W.2d 184, 187 (Iowa 1990). We consider only that information, reduced to writing, which was actually presented to the judge or magistrate at the time the application for a warrant was made. State v. Weir, 414 N.W.2d 327, 329 (Iowa 1987). We give substantial deference to the issuing judge's or magistrate's probable cause determination, especially when that determination rests on witness credibility, because warrants are favored. Id. at 330; State v. Swaim, 412 N.W.2d 568, 571 (Iowa 1987). Our duty is to ensure that the judge or magistrate had a substantial basis for concluding that probable cause existed. Weir, 414 N.W.2d at 329-30 (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332-33, 76 L. Ed. 2d 527 (1983)).
Defendant Smith contends that officers obtained their search warrant by supplying information they knew was false or which recklessly disregarded the truth. The State has not briefed or challenged defendant's expectation of privacy in the hotel room. Although we have doubts about whether defendant has made the requisite showing, see State v. Henderson, 313 N.W.2d 564, 565 (Iowa 1981); State v. Baker, 441 N.W.2d 388, 390 (Iowa App.1989), we will assume that the trial court found that she had a reasonable expectation of privacy in the room. Defendant bears the burden to show that the search warrant application contained information which officers knew was false or by which officers showed reckless disregard for the truth. Niehaus, 452 N.W.2d at 186-87; State v. Groff, 323 N.W.2d 204, 208 (Iowa 1982). To prove any recklessness, the defendant must show that the deputy "in fact entertained serious doubts" about the truth of his statements to the issuing magistrate. Niehaus, 452 N.W.2d at 187.
In relevant part, the warrant application stated that officers had received an anonymous call. The caller informed police that defendant was staying in room 206 at the Conway Inne and was selling cocaine. The caller also stated that defendant had stolen a fur coat and had driven to Rockford, Illinois, to sell the coat to a person named Woods. Police learned that hotel management had noticed a lot of short-term traffic to room 206 and that the room was registered in the names of Barb Burks and Shelly Marquette.
The warrant application goes on to state that the Tennessee license plate number given by Burks and Marquette to the hotel was nonexistent. A check with Rockford police revealed that Woods was a known cocaine dealer and that the Rockford address given to the hotel was not registered in the name of Burks, Marquette, or defendant. Police also learned that one of the women had been seen with a known cocaine dealer named Bailey, that a number of calls had been received by room 206, and that at least one outgoing call was made to the home of two known cocaine users. Later, police learned that Marquette had re-registered the room in her name, giving a Cedar Rapids address on "N" Street. Checking with Cedar Rapids police, the warrant application states that officers learned that Marquette lived at the same house number on "M" Street.
The warrant application also states that an officer investigating heard statements made by men from within the room. The statements were: "See, I told you they would pay $30," and, "You will get yours out of the next batch." Throughout the application the affiant-officer interjects conclusions drawn from experience as to the meaning of the various facts and asserts that they are consistent with the use, manufacture, and distribution of cocaine. Based upon this information, the judge granted the search warrant and cited several of the salient facts as reliable and consistent with drug dealing.
*89 Defendant first complains about four conclusions drawn by Judge Roger Peterson, who issued the warrant. In his endorsement Judge Peterson implies that Woods had purchased a stolen coat in the room. In fact, police had been unable to verify that a fur coat had been stolen. Also, Woods had never been in Waterloo; however, the warrant application alleged that defendant had gone to Rockford to sell the coat. Defendant also complains that Judge Peterson made inaccurate conclusions about Marquette giving a false address, about being seen with known drug dealer Bailey, and making a phone call to known drug users.
Defendant here asserts that the issuing judge made false conclusions, not that the police affiant provided false or reckless information. The doctrine of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), upon which defendant rests her argument has no application here. As adopted in State v. Groff, 323 N.W.2d 204, 206-08 (Iowa 1982), and explained in State v. Niehaus, "The inquiry adopted by Franks is limited to a determination of whether the affiant was purposely untruthful with regard to a material fact in his or her application for the warrant, or acted with reckless disregard for the truth." 452 N.W.2d 184, 186 (Iowa 1990) (emphasis added) (citing Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85). In the present case, the issuing judge made one erroneous conclusion about Woods being in the hotel room, contrary to the affiant's allegations. The other conclusions complained of may or may not be false, but here too the affidavit clearly sets out the facts and can in no way be seen as misleading.
Defendant in no way argues that the Franks and Groff tests should be applied to magistrates; rather, she simply misapplies the law. Nevertheless, we find nothing in this case to persuade us that the test should be applied. The underlying theory in Franks, that information "be `truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true," 438 U.S. at 165, is not advanced by unsupported accusations that the judge or magistrate made false conclusions from "truthful" information. Instead, the issue logically becomes whether the issuing judge or magistrate, given alleged inaccuracies in his or her endorsement, properly concluded that probable cause existed to issue a warrant.
Our de novo review, based upon the information contained in the warrant application, leads us to the conclusion that there was probable cause to issue the search warrant. Information gathered from citizen informants and hotel management brought to police attention the movements of a number of known cocaine traffickers who were occupying a hotel room. This information, observed movements, and overheard conversations lead them to believe that criminal activity was afoot. As the Franks court noted, "[P]robable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily." 438 U.S. at 165, 98 S.Ct. at 2681. Defendant provides no direct or inferential showing that the affiant had reason to doubt the veracity of his allegations. Niehaus, 452 N.W.2d at 187.
The Waterloo police made two omissions, however, which might be somewhat troubling. They did not reveal the fact that they could not verify that a fur coat had been stolen. The affiant also did not mention that, during a stake-out of the hotel room, police had not observed "heavy" short-term traffic. "All that is required," however, "is that the circumstances surrounding the story, when taken together, are sufficient to support a determination of probable cause." Id. at 191. Evaluating the information in a common sense manner, id. at 190, we conclude that the warrant was properly issued, and therefore, the trial court did not err in refusing to suppress the evidence obtained thereby.
(3)
Defendant also complains that the trial court erred in refusing to suppress the evidence obtained by a search of her purse. The sequence of events is not entirely *90 clear. It appears that the police stopped defendant and her companions (a man and Marquette) as they were about to enter room 206 an hour after the room was searched. Police escorted the three into the room, where they read the warrant. Whether police seized and searched defendant's purse before her arrest is unclear. Defendant argues that there was no probable cause to search her purse and that the search was not incident to the arrest.
We note, as an initial matter, that a search warrant does not necessarily expire after a search is made. Each case, of course, must be decided on its own facts. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 158, 75 L. Ed. 374 (1931). A number of the federal circuits have upheld the use of evidence obtained in a second search several hours after a warrant was initially served and executed. United States v. Kaplan, 895 F.2d 618, 623 (9th Cir.1990); United States v. Carter, 854 F.2d 1102, 1107 (8th Cir. 1988); United States v. Bowling, 351 F.2d 236 (6th Cir.1965), cert. denied, 383 U.S. 908, 86 S. Ct. 888, 15 L. Ed. 2d 663 (1966). This situation is patently different than that in our recent decision in State v. Derifield, 467 N.W.2d 297, 300-01 (Iowa App. 1991), in which we rejected a second warrantless search of an automobile because officers lacked probable cause to conduct a second search and because no exigency existed.
The State contends that the search was permitted under section 808.7, which states:
In the execution of a search warrant the person executing the same may reasonably detain and search any person or thing in the place at the time for any of the following reasons:
1. To protect the searcher from attack.
2. To prevent the disposal or concealment of any property subject to seizure described in the warrant.
3. To remove any item which is capable of causing bodily harm that the person may use to resist arrest or effect escape.
Assuming that the warrant to search the room had not expired, it would be disingenuous to argue that officers in fact were searching the room. As defendant notes in her motion to suppress, however, the warrant named the person of Shelly Marquette to be searched along with room 206. Defendant arrived in the company of Marquette and was present while the police read and executed the warrant. Given that defendant was identified as one whom police knew was associated with the subjects of the search warrant and was accompanying a subject of the search warrant, it was reasonable for the police to detain and to search her for the reasons indicated in Iowa Code section 808.7.
Defendant also contends that section 808.7 is unconstitutional under the United States Supreme Court's decision in Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). She notes in particular the court's statement that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id. at 91, 100 S.Ct. at 342. Certainly defendant's nearness to the subjects of the search warranta room in which police had already seized an array of paraphernalia for the use, manufacture, and distribution of cocaine and the person in whose name the room had been rented contributed to the reasonableness of the search. As we have already noted, however, this was not simply a matter of propinquity. At the time she was searched, police had associated her with the activities in room 206 and with the people conducting those illicit activities. Police had received information from a citizen informant about her activities. Nevertheless, this presents a situation less like the bar room in Ybarra, 444 U.S. at 89-90, 100 S.Ct. at 341-42, and more like the protective search in Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3480-81, 77 L. Ed. 2d 1201 (1983). We hold that the district court did not err in refusing to suppress evidence obtained from the search of defendant's purse.
(4)
Defendant contends that the district court erred in merging her substantive possession *91 conviction into her conspiracy conviction. She asserts that Iowa Code section 706.4 requires that the converse merging of the conspiracy into the possession conviction should have occurred. Iowa Code section 706.4 states:
Multiple convictions.
A conspiracy to commit a public offense is an offense separate and distinct from any public offense which might be committed pursuant to such conspiracy. A person may not be convicted and sentenced for both the conspiracy and for the public offense.
We conclude that this statute is inapposite. Smith was convicted on count I of a lesser-included offense, misdemeanor possession of a controlled substance. Smith was convicted on count II of the charged offense, felony conspiracy to manufacture, deliver, or possess with intent to manufacture or deliver cocaine. The added intent element in the latter public offense makes it entirely different than the former. Had Smith been convicted under count II of conspiracy as defined in section 706.1 to possess cocaine in violation of section 204.401(3) (for which she was convicted in count I), then section 706.4 would apply to merge the conspiracy into the substantive offense. See generally State v. Waterbury, 307 N.W.2d 45, 51-52 (Iowa 1981). In enacting section 706.4, the legislature at least implicitly assumed that the public offense of which the defendant was convicted would be the same public offense of which the defendant had been convicted of conspiring to commit.
(5)
We hold that the trial court did not err in refusing to suppress evidence obtained through the search of the hotel room or defendant's purse. In obtaining the warrant for the room, police did not supply false or reckless information and did show probable cause. As for the search of the purse, police reasonably detained and searched defendant in the execution of a valid search warrant. We further hold that the trial court did not err in refusing to merge defendant's felony conspiracy conviction into her misdemeanor possession conviction because the substantive public offense she conspired to commit was not identical to the substantive public offense of which she was convicted.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602081/ | 361 F. Supp. 1110 (1973)
Elma SMITH, Individually and as Administratrix of the Estate of George E. Smith, Deceased, Plaintiff,
v.
AMERICAN MAIL LINE LTD., a corporation, Defendant.
No. 293-71C2.
United States District Court, W. D. Washington, Seattle Division.
July 10, 1973.
*1111 Levinson, Friedman, Vhugen, Duggan & Bland, Harold F. Vhugen, Seattle, Wash., for plaintiff.
Bogle, Gates, Dobrin, Wakefield & Long, Robert V. Holland, Seattle, Wash., for defendant.
OPINION
BEEKS, Senior Judge.
On the evening of July 31, 1971 the SS AMERICAN MAIL was at sea, returning to the United States from the Orient. George Smith, a messman on the crew of the vessel, had been in the crew's lounge with several other seamen who were playing cards. He left the lounge, bunked down in his quarters on a starboard alleyway, and fell asleep while listening to stereo music from his tape recorder with a headset. During the evening watch someone quietly took a fire ax from its case some distance aft of Smith's room on the same alleyway. He proceeded to Smith's quarters, entered, and killed him instantly with a single blow from the ax which virtually severed his neck.
Smith's body was discovered at 0555, August 1, 1971, during the regular call to work. The fire ax lay on the bunk next to him. There was no sign of a struggle. The headset was askew but still worn by Smith, and the tape recorder had automatically shut off when the tape terminated. Rigor mortis had set in. The master, chief officer, purser and chief steward inspected the room carefully without disturbing its contents, took pictures, and locked and sealed the room. A search of the ship and interview of the crew produced no clues.
The vessel was diverted to Adak, Alaska, where the Federal Bureau of Investigation interviewed the master, the other crew members and the twelve passengers. The murderer was never identified, and no charges have been filed in connection with the crime.
Smith's widow brought this lawsuit against his employer, the owner and operator of the SS AMERICAN MAIL. She claims damages under the Jones Act, the Death on the High Seas Act, and general maritime law. Her theory is that the vessel had on board a member of the crew who had vicious and homicidal propensities, and that this crew member struck Smith as he lay asleep in his bunk.
The case was tried to the court on oral testimony and depositions. Plaintiff sought to establish three facts: (1) that Smith was killed by a brutal and unprovoked attack; (2) that the passengers were mainly elderly retired persons or women, and that none had the motive or capability to commit the crime; and (3) that one or more of the crew had a motive and capability to murder Smith. Defendant maintains that plaintiff has failed to meet her burden of proof because she has failed to identify the murderer.
There is no evidence whatsoever to support the claim of negligence. Plaintiff's claim must stand, if at all, on proof by a preponderance of the evidence that unseaworthiness of the vessel proximately caused Smith's death.[1]
The owner of a vessel warrants to its crew that each seaman shall be equal in disposition and seamanship to ordinary men in the calling.[2] It is no *1112 defense that a shipowner had no knowledge of the vicious character of a crewman.[3] An analogy has often been drawn between a latent defect in the ship's equipment and a hidden propensity to violence in a crew member.[4]
A seaman with a proclivity for assaulting people may indeed, be a more deadly risk than a rope with a weak strand or a hull with a latent defect. . . . The problem, as with many aspects of the law, is one of degree. Was the assault within the usual and customary standards of the calling? Or is it a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature? If it is the former, it is one of the risks of the sea that every crew takes. If the seaman has a savage and vicious nature, then the ship becomes a perilous place.[5]
Smith's primary duty as messman was to act as waiter for passengers and the ship's officers. He was 27 years old at time of death, had an honorable discharge from the United States Army, and claimed to have had some experience in the boxing ring. He had been married two and a half years. Although quiet and somewhat aloof in the performance of his duties on board, Smith was generally liked by passengers and fellow crew members alike. In port he was a flashy dresser, and enjoyed touring the night spots, where he was well known by the ladies there employed. He had no criminal record. He professed to be a member of the Black Panthers and an avid reader of Mao Tse Tung. Among the crew his closest acquaintance appears to have been a white messman by the name of Patrick Pappen, a confirmed alcoholic who often appeared shaky and nervous to the passengers and crew, and who did not hesitate to plead on occasion for a drink. Pappen is now deceased. Among the unescorted female passengers, Smith was on friendly terms with at least one. He also befriended a small but athletic white man by the name of Stuart Delaney, whose friendship with the same lady was terminated for reasons unknown to the Court. Smith and Delaney were close enough to exchange confidences. Among other things, Smith told Delaney that he smoked marihuana. Delaney arranged to meet Smith at a hotel in Keelung, Taiwan. Smith arrived with a female companion whose name appears from the record to have been "Super Star." Delaney visited Smith in his room on a number of occasions. This fraternization between a messman and a passenger was unusual, and struck crewmen and passengers alike as rather odd.
The only known friction between Smith and anyone else on the vessel was with a black saloon pantryman, Willie Sims. Sims was over six feet tall and weighed more than 200 pounds. He had a record of criminal convictions for crimes which include second and third degree assault; the last such conviction was in 1948. Sims was prone to exaggerate, and Smith was prone to call a bluff. They bickered frequently, and on occasion swore vigorously at each other. During one very heated argument, Smith drew an open pocket knife, whereupon Sims took a french knife from the pantry. This event was the closest to violence between Sims and Smith that any witness has admitted observing.
1. Was the Assailant Vicious?
Defendant maintains that, since the identity of the murderer is unknown, *1113 the court may not conclude that he had a violent temperament. The key in assault cases is that the disposition of the assailant must be unequal to that of ordinary men in the same calling.[6]
The nature of the fight itself does not establish a violation of the warranty of unseaworthiness. Therefore, a violation exists only if it can be shown that [the assailant] was an especially bellicose or pugnacious person.[7]
Mere failure to introduce any evidence on the assailant's past, however, is not necessarily fatal to plaintiff's case. Unseaworthiness is a species of strict liability. If a seaman is injured by a winch which becomes faulty, he need not show that on a number of other occasions the same winch nearly injured other members of the crew. The defective nature of gear is often demonstrated only by the circumstances surrounding the injury itself; the same may be said of the assault cases.
Defendant is correct in pointing out that, in some circumstances, even a deadly assault does not establish unseaworthiness. For example, the Court of Appeals for the Fifth Circuit has held that a seaman who stabbed his captain did not render the vessel unseaworthy.[8] The evidence supported a finding that the attack was provoked by a cruel and abusive officer who carried a gun, cursed the crew, made false accusations, withheld pay wrongfully, stranded several members of the crew in foreign ports, and had some seamen arrested in port without cause. Immediately after the assault in question, the captain pulled his gun and fired several times at the assailant, who survived only by jumping overboard and swimming ashore. And in Connolly v. Farrell Lines, Inc.,[9] plaintiff was hit over the head with a large "board" by a man who had earlier threatened to kill him. The assailant, who had never before been involved in a fight, struck plaintiff who was armed and advancing on him. Not all violent assaults, therefore, are committed by persons with a vicious nature.
True, there are a number of cases in which a judgment for plaintiff was precluded by a lack of evidence of a savage or vicious nature.[10] In none of these cases, however, was the assault patently brutal or deadly. It is also true that a number of cases holding for plaintiff rely heavily if not exclusively on evidence of the assailant's prior acts of violence.[11] But these are, by and large cases in which the assault does not by itself suggest the assailant's disposition, or there is evidence that he merely was *1114 provoked by plaintiff or that the injury was the accidental result of a scuffle.
The confusion in the case law on this matter is directly traceable to the language chosen by the Supreme Court in its decision of Boudoin v. Lykes Brothers Steamship Co.[12] A narrow reading of that case suggests that every assault must fall into only one of two distinct and mutually exclusive categories: Either the assault is "within the usual and customary standards of the calling," such as a fistfight or sailors' brawl, or it involves "a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature."[13] Yet surely there is occasionally a fight within the usual standards in which one of the combatants has a savage nature; and just as surely some of those assaults which exceed the customary standards of the calling must be committed by seamen who are not wicked or vicious.
In all of the caselaw there is a common denominator which is consistent with the spirit of Boudoin: the warranty of seaworthiness is breached unless the assailant was equal in disposition to ordinary men in the calling.[14] Proof of violent disposition may be established by
. . . either an assault with a dangerous weapon or independent evidence of the assailant's exceptionally quarrelsome nature, his habitual drunkenness, his severe personality disorder, or other similar factors.[15]
The gravamen of the cause of action in assault cases is viciousness of the actor, not viciousness of the act.[16] Yet at some point in the scale of brutality the assault, in and of itself, may provide a sufficiently strong inference to show the viciousness of the assailant.[17] At that point, the burden of persuasion shifts to defendant. The more vicious the attack, the greater the inference of viciousness in the character of the assailant, and the greater defendant's burden becomes to show good character, or provocation or misconduct by the person assaulted. The facts here present a classic case of proof of character by the assault itself.
No more vicious crime can well be imagined. Nor was it one executed on the spur of the moment, but by plan and premeditation. To say that a man who was willing to do this was but of the character of the usual seaman is indeed a slander upon all who go to sea. . . . [F]isticuffs differ as widely as the sea itself from a planned murder. . . .[18]
2. Was the Assailant a Crew Member?
Plaintiff argues that liability is established merely by the presence of Sims; but plaintiff has failed to convince the court that Sims murdered Smith. The court specifically finds that plaintiff has failed to establish by a preponderance of the evidence that Sims or any other crew member killed Smith. Perhaps it indeed was Sims, or Pappen, or even a member of the crew who has never been a prime suspect. The court holds merely that plaintiff has not met her burden on this point.
*1115 Plaintiff has argued alternatively that since no passenger was shown to have a motive, and since Smith's closest contacts were with crewmen, the murderer must have been a member of the crew. Yet the nature of Smith's job brought him into contact with passengers several times a day. While these associations appear to have been casual, they were on the whole more substantial than Smith's contacts with the great majority of the crew. At least one passenger had on a number of occasions visited Smith in his room. Plaintiff has not persuaded the court that the assailant was a crew member.
3. If the Murderer was a Crew Member, Was Unseaworthiness the Cause of the Assault?
Even if plaintiff had proved that Smith was killed by a crew member, the court would rule for defendant. On the issue of causation plaintiff refers to two types of cases: (1) those involving the disappearance of a vessel, and (2) cases in which the circumstances justify a modest amount of speculation by the trier of fact.
Courts will sometimes apply liberalized rules of proof of causation when a vessel is lost at sea. Thus, where a tug was manned only by the master and a seventeen year old high school student with no seagoing experience, an accident was held properly inferred from the mere fact of disappearance, and the trier of fact was allowed to further infer that the accident was caused by utilization of an incompetent crew.[19] Similarly, a trial court was allowed to infer that a ship overloaded with molten sulphur was unseaworthy when it suddenly disappeared with not even a distress signal, and that the unseaworthiness caused the deaths of the crew.[20]
In the second category there are a few cases in which the finder of fact is specifically authorized to engage in a degree of speculation. In Lavender v. Kurn,[21] a railroad employee was killed on the job by a blow to the head. There were no witnesses, and the evidence conflicted as to whether the blow came from some object protruding from a train, from one of the numerous hobos camping near the switchyard, or from some other cause. Judgment for plaintiff was reversed in the state appellate court, but on certiorari the United States Supreme Court reinstated the judgment of the trial court, stating:
Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.[22]
Thus, plaintiff urges the court to solve the puzzle of Smith's death by indulging in a modest amount of speculation. The court has obliged, but has not drawn the inferences suggested by plaintiff.
It is most important to note that the murderer did not come raging into Smith's cabin and strike him with whatever was close at hand. He chose his time and place carefully. He was seen or heard by no one. He selected his weapon with forethought, and left no fingerprints. He struck savagely and efficiently, and after he committed his crime he left as stealthily as he had entered. *1116 When he was interviewed (as he must have been) by investigators, he betrayed no sign of guiltno shame or remorse, no sorrow, not even fear of discovery. The injury here was not the result of a mere grudge or altercation. The motive for such a crime must have run in the deepest of human emotions. The reason for such emotion is unknown to the court, but the circumstances strongly indicate that the motive was related to some secret, highly personal affair unrelated to the business of the ship. There can be no recovery in such a case.[23]
Plaintiff cites a very unusual case to illustrate the rule that a brutal assault can by itself establish that the assailant had a violent character. This court believes that it can also be used to illustrate the rule on wrongful conduct. In Thompson v. Coastal Oil Co.,[24] plaintiff Thompson accidentally witnessed a homosexual act of a fellow crew member by the name of Medina. After Thompson had told other crewmen about the incident, but before it was reported to the Coast Guard, Medina determined to kill Thompson. He waited on a dark part of the deck for Thompson to pass alone, and then leaped out and struck him from behind on the head three times with a meat cleaver. The evidence clearly negated any reference of wrongdoing on Thompson's part. There was evidence corroborating the allegation of Medina's homosexuality. His motives were apparently revenge for exposure, and fear of subsequent testimony before the Coast Guard. Surely the court would not have allowed Thompson to recover had his injury been caused by his own wrongdoingfor example, if he had been blackmailing Medina.
Assault cases are distinguishable from gear cases in at least this respect: A seaman cannot incite a winch to strike him; a winch never injures a man because of greed, revenge, hate, or fear. A defective winch is a danger to anyone who uses it, even though the defect may not be discovered until the injury occurs. A man, on the other hand, may be eminently qualified in all respects as a crew member, and yet be provoked to assault by the wrongful conduct of his victim.
4. Conclusion.
Inferences are strong that Smith's murderer had a vicious nature; yet inferences are also strong that Smith was killed for some unspecified misdeed of his own. Moreover, the court has not been persuaded that the murderer was a crewman. In sum, the court has a substantial doubt as to defendant's liability.
Plaintiff's cause of action is dismissed. Counsel for defendant shall prepare and submit an order and judgment accordingly. This opinion shall serve as the court's findings of fact and conclusions of law pursuant to Civ.R. 52(a).
NOTES
[1] In Re Marine Sulphur Queen, 460 F.2d 89 (2d Cir. 1972) cert. den. sub. nom. Marine Sulphur Transport Corp. v. Heard, 409 U.S. 982, 93 S. Ct. 326, 34 L. Ed. 2d 246 (1972), on remand 312 F. Supp. 1081; Lieberman v. Matson Navigation Company, 300 F.2d 661 (9th Cir. 1962); and Reynolds v. Royal Mail Lines, 254 F.2d 55 (9th Cir. 1958) cert. den. 358 U.S. 818, 79 S. Ct. 28, 3 L. Ed. 2d 59.
[2] Keen v. Overseas Tankship Corp., 194 F.2d 515 (2d Cir. 1952), cert. den. 343 U.S. 966, 72 S. Ct. 1061, 96 L. Ed. 1363 (1952).
[3] Ibid.
[4] Ibid. See also Thompson v. Coastal Oil Co., 119 F. Supp. 838 (D.N.J.1954), rev'd on other grds. 221 F.2d 559 (3d Cir. 1955), aff'd. 350 U.S. 956, 76 S. Ct. 345, 100 L. Ed. 832, reh. and reversal [reinstating judgment of the trial court] 352 U.S. 862, 77 S. Ct. 90, 1 L. Ed. 2d 73 (1956); Kirsch v. United States, 450 F.2d 326 (9th Cir. 1971); Stechcon v. United States, 439 F.2d 792 (9th Cir. 1971); and Walters v. Moore-McCormack Lines, Inc., 309 F.2d 191 (2d Cir. 1962), reh. en banc den. 312 F.2d 893.
[5] Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336 at 339-340, 75 S. Ct. 382 at 385, 99 L. Ed. 354 (1954), 1955 A.M.C. 488 (Vol. I).
[6] Keen v. Overseas Tankship Corp., supra n. 2.
[7] Gulledge v. United States, 337 F. Supp. 1108 at 1111 (E.D.Pa.1972), 1972 A.M. C. 1187, citing Walters v. Moore-McCormack Lines, Inc., supra n. 4.
[8] Robinson v. S. S. Atlantic Starling, 369 F.2d 69 (5th Cir. 1966), cert. den. 386 U.S. 993, 87 S. Ct. 1309, 18 L. Ed. 2d 339 (1967).
[9] Connolly v. Farrell Lines, Inc., 268 F.2d 653 (1st Cir. 1959), cert. den. 361 U.S. 902, 4 L. Ed. 2d 158, 80 S. Ct. 208 (1959).
[10] See, e. g., Boorus v. West Coast Trans-Oceanic Steamship Line, 299 F.2d 893 (9th Cir. 1962); McConville v. Florida Towing Corporation, 321 F.2d 162 (5th Cir. 1963); Kirsch v. United States, 450 F.2d 326 (9th Cir. 1971); Robinson v. S. S. Atlantic Starling, supra n. 8; Stankiewicz v. United Fruit Steamship Corporation, 229 F.2d 580 (2d Cir. 1956); Walters v. Moore-McCormack Lines, Inc., supra n. 4; Jones v. Lykes Bros. Steamship Co., 204 F.2d 815 (2d Cir. 1953), cert. den. 346 U.S. 857, 74 S. Ct. 72, 98 L. Ed. 370 (1953), reh. den. 348 U.S. 960, 75 S. Ct. 447, 99 L. Ed. 749 (1953); Connolly v. Farrell Lines, Inc., supra n. 9; and Walker v. Sinclair Refining Co., 331 F. Supp. 408 (E.D.Pa.1971), appeal dism'd 405 F.2d 885 (3d Cir. 1969).
[11] See, e. g., Horton v. Moore-McCormack Lines, Inc., 326 F.2d 104 (2d Cir. 1964); Handley v. United States, 157 F. Supp. 616 (S.D.N.Y.1958); and Bartholemew v. Universe Tankships, Inc., 168 F. Supp. 153 (S.D.N.Y.1957), aff'd 263 F.2d 437 (2d Cir. 1959), cert. den. 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030 (1959).
[12] Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354 (1954), 1955 A.M.C. 488 (Vol. I).
[13] See, e. g., Stechcon v. United States, 439 F.2d 792 (9th Cir. 1971).
[14] See, e. g., Keen v. Overseas Tankship Corp., supra n. 2; Walters v. Moore-McCormack Lines, Inc., supra n. 4; Clevenger v. Star Fish & Oyster Company, 325 F.2d 397 at 402 (5th Cir. 1963); Smith v. Lauritzen, 356 F.2d 171 (3d Cir. 1966); and Hildebrand v. S. S. Commander, 247 F. Supp. 625 at 627-628 (E. D.Va.1965).
[15] Walters v. Moore-McCormack Lines, Inc., supra n. 4, 309 F.2d at 193.
[16] Gulledge v. United States, 337 F. Supp. 1108 (E.D.Pa.1972), 1972 A.M.C. 1187; and Walters v. Moore-McCormack Lines, Inc., supra n. 4. Cf. Kirsch v. United States, 450 F.2d 326 (9th Cir. 1971).
[17] Walters v. Moore-McCormack Lines, Inc., supra n. 4; and Clevenger v. Star Fish & Oyster Company, 325 F.2d 397 (5th Cir. 1963).
[18] Thompson v. Coastal Oil Co., supra n. 4, 119 F.Supp. at 843.
[19] Admiral Towing Company v. Woolen, 290 F.2d 641 (9th Cir. 1961).
[20] In re Marine Sulphur Queen, supra n. 1.
[21] Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916 (1945).
[22] Ibid. at 653, 66 S.Ct. at 744, 90 L.Ed. at 923. See also McDonough v. Buckeye S. S. Co., 103 F. Supp. 473 (N.D.Ohio 1951), aff'd 200 F.2d 558 (6th Cir. 1952), cert. den. 345 U.S. 926, 73 S. Ct. 785, 97 L. Ed. 1357; and Olson Towboat v. Dutra, 300 F.2d 883 (9th Cir. 1962). Compare Barrios v. Waterman Steamship Corporation, 290 F.2d 310 (5th Cir. 1961); Kiesel v. American Trading and Production Corporation, 347 F. Supp. 673 (D.Maryland 1972); and Tsangarakis v. Panama Steamship Co., 397 F.2d 806 (3d Cir. 1968).
[23] McConville v. Florida Towing Corporation, 321 F.2d 162 (5th Cir. 1963); Robinson v. S.S. Atlantic Starling, supra n. 8; Brock v. Standard Oil Co. of New Jersey, 33 F. Supp. 353 (E.D.Pa.1940); Watson v. Joshua Hendy Corporation, 245 F.2d 463 (2d Cir. 1957); Condon v. Grace Line, 97 F. Supp. 197 (N.D. Cal.1951); Kuhl v. Manhattan Tankers Co., Inc., 1972 A.M.C. 238 (E.D.Va. 1971); and Holmes v. Mississippi Shipping Company, Inc., 301 F.2d 474 (5th Cir. 1962), cert. dism'd. 371 U.S. 802, 83 S. Ct. 13, 9 L. Ed. 2d 46. Cf. Donovan v. Esso Shipping Company, 259 F.2d 65 (3d Cir. 1958), cert. den. 359 U.S. 907, 79 S. Ct. 583, 3 L. Ed. 2d 572; and Jackson v. Pittsburgh S.S. Co., 131 F.2d 668 (6th Cir. 1942). See also Admiral Towing Company v. Woolen, 290 F.2d 641 at 653 (9th Cir. 1961) [dissent].
[24] Thompson v. Coastal Oil Co., supra n. 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602054/ | 1 So. 3d 545 (2008)
STATE of Louisiana
v.
Quinten MORAN.
No. 08-KA-462.
Court of Appeal of Louisiana, Fifth Circuit.
November 12, 2008.
*546 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MADELINE JASMINE.
MADELINE JASMINE, Judge Pro Tempore.
The defendant, Quinten Moran, pled guilty to armed robbery and attempted armed robbery. For the reasons that follow, we affirm his conviction and sentence.
The only argument raised by defendant on appeal, is that the trial judge failed to inform him of the time delays for filing for post-conviction relief. Although the commitment reflects that defendant was properly advised of the prescriptive period for seeking post-conviction relief, according to the transcript the trial judge's advisal was incomplete. During the plea colloquy after defendant was properly advised of his rights and the trial judge accepted his plea, defendant was verbally advised that he had "two years from the date the judgment of conviction becomes final to seek post-conviction relief." The failure of the trial judge to advise a defendant that the prescriptive period for seeking post conviction relief runs from the time his conviction and sentence become final renders the advisal incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So. 2d 596, 598 (emphasis as found in original). According to State v. Lynch, 441 So. 2d 732, 734 (La.1983), the transcript prevails over the minute entry or commitment where there is a discrepancy.
However, even though we find defendant received an incomplete verbal advisal of the prescriptive period for filing post-conviction relief, defendant was properly advised of the prescriptive period in writing as reflected in defendant's waiver of rights form. The form advised defendant he had two years from the day his judgment of conviction and sentence becomes final to seek post-conviction relief. According to LSA-C.Cr.P. art. 930.8(C),
At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. If a written waiver of rights form is used *547 during the acceptance of a guilty plea, the notice required by this Paragraph may be included in the written waiver of rights.
LSA-C.Cr.P. art. 930.8(C) (emphasis added).
Thus, we find no merit to defendant's argument.
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). This review indicates there are no errors patent that require corrective action.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602092/ | 869 So. 2d 1233 (2004)
OFFICE OF FIRE CODE OFFICIAL OF COLLIER COUNTY FIRE CONTROL AND RESCUE DISTRICTS, Appellant,
v.
FLORIDA DEPARTMENT OF FINANCIAL SERVICES and District School Board of Collier County, Appellees.
No. 2D03-1869.
District Court of Appeal of Florida, Second District.
March 31, 2004.
*1234 Melville G. Brinson, III, Smoot Adams Edwards Doragh & Brinson, P.A., Fort Myers, for Appellant.
Gabriel Mazzeo, Tallahassee, for Appellee Department of Financial Services.
Jon D. Fishbane and Ashley D. Lupo of Roetzel & Andress, Naples, for Appellee District School Board of Collier County.
CANADY, Judge.
The Office of the Fire Code Official of Collier County (FCO) appeals an order of the Department of Financial Services (DFS) dismissing a petition for declaratory statement concerning firesafety inspection requirements for new educational facilities. Because the DFS erred in concluding that it has no jurisdiction with respect to firesafety inspection requirements for new educational facilities, we reverse the order dismissing the petition for declaratory statement.
I. BACKGROUND
This case turns on the proper interpretation of several statutory provisions in chapter 633 (Fire Prevention and Control) and chapter 1013 (Educational Facilities), Florida Statutes (2003), relating to firesafety standards for educational facilities. The DFS determined that the "proper agenc[ies] to render a declaratory statement on new construction of educational and ancillary plants and facilities are the local [school] boards or the Department of Education." The District School Board of Collier County supports the DFS's position. The FCO argues that the statutes should be understood as giving the DFS jurisdiction over firesafety requirements for new educational facilities. The parties all agree that the DFS has jurisdiction with respect to firesafety requirements for existing educational facilities. The dispute relates solely to authority regarding new educational facilities. In brief, the FCO relies on the pertinent provisions of chapter 633 (Fire Prevention and Control), while the DFS relies on certain provisions of chapter 1013 (Educational Facilities). The DFS's position that it has no regulatory authority with respect to inspections of new educational facilities is reflected in rules it has adopted governing firesafety inspections for educational facilities. See Fla. Admin. Code R. 69A-58.004(2)(d) (providing that rules for inspection of educational facilities "[a]re not applicable to new construction or new buildings") (formerly 4A-58.004(2)(d)).
II. ANALYSIS
Various provisions of chapter 633 are pertinent to the issue before us. We conclude that these provisions support the FCO's argument and are dispositive. At the outset we note that under chapter 633 the responsibilities of the State Fire Marshal are carried out through the DFS. "The head of the [DFS] is the Chief Financial Officer." § 20.121(1), Fla. Stat. (2003). The Chief Financial Officer is designated as the State Fire Marshal, § 633.01, and the Division of State Fire Marshal is a part of the DFS, § 20.121(2)(b). The State Fire Marshal thus acts through the DFS, and the DFS has the authority to adopt the Florida Fire Prevention Code. § 633.01(1).
Section 633.01(6), (7) provides:
*1235 (6) Only the State Fire Marshal may issue, and, when requested in writing by any substantially affected person or a local enforcing agency, the State Fire Marshall shall issue declaratory statements pursuant to s. 120.565 relating to the Florida Fire Prevention Code and the Life Safety Code.
(7) The State Fire Marshal shall adopt and administer rules prescribing standards for the safety and health of occupants of educational and ancillary facilities pursuant to ss. 633.022, 1013.12, 1013.37, and 1013.371. In addition, in any county that does not employ or appoint a local fire official, the State Fire Marshal shall assume the duties of the local fire official with respect to firesafety inspections of educational property required under s. 1013.12(2)(b), and the State Fire Marshal may take necessary corrective action as authorized under s. 1013.12(5).
(Emphasis added).
Section 633.022 provides in pertinent part:
(1) The [DFS] shall establish uniform firesafety standards that apply to:
....
(b) All new, existing, and proposed... public schools ... of which standards the State Fire Marshal is the final administrative interpreting authority.
(Emphasis added).
The cited provisions of chapter 633 make clear beyond any doubt the authority of the DFS with respect to firesafety standards for new public school facilities. They not only expressly provide for the adoption of such standards by the State Fire Marshal and the DFS but also expressly grant the State Fire Marshal the specific authority to issue declaratory statements relating to the State Fire Code and final administrative interpreting authority regarding the firesafety standards that apply to new public schools. The language of the statutory text is direct and unambiguous. On the issue before us, it is subject to only one reasonable interpretation.
None of the provisions of chapter 1013 relied on by the appellees are inconsistent with the relevant provisions of chapter 633. Indeed, the pertinent provisions of chapter 1013 reinforce the conclusion that the DFS has jurisdiction with respect to firesafety standards for new educational facilities. The appellees argue that the "more specific" provisions of chapter 1013 relating to firesafety take precedence over the general provisions of chapter 633 and that those provisions of chapter 1013 have implicitly repealed the authority granted by chapter 633 to the DFS with respect to firesafety for new educational facilities. These arguments find no support in the text of chapter 1013. Although chapter 1013 clearly places responsibilities related to compliance with firesafety standards for new educational facilities on the Department of Education and local school boards, it recognizes the regulatory authority of the DFS to establish the applicable standards.
Section 1013.37 provides in pertinent part:
(1) UNIFORM BUILDING CODE.... It is also the responsibility of the [D]epartment [of Education] to develop, as a part of the uniform building code, standards relating to:
....
(c) The safety of occupants of educational and ancillary plants as provided in s. 1013.12, except that the firesafety criteria shall be established by the State Fire Marshal in cooperation with the Florida Building Commission and the department and such firesafety requirements *1236 must be incorporated into the Florida Fire Prevention Code.
....
(2) APPROVAL.
(a) Before a contract has been let for the construction, the department, the district school board, ... or its authorized review agent must approve the phase III construction documents. A district school board ... may reuse prototype plans on another site, provided the facilities list and phase III construction documents have been updated for the new site and for compliance with the Florida Building Code and the Florida Fire Prevention Code and any laws relating to firesafety ... which are in effect at the time a construction contract is to be awarded.
(b) In reviewing plans for approval, the department, the district school board, ... or its review agent as authorized in s. 1013.38, shall take into consideration:
....
17. Conformity with the Florida Fire Prevention Code.
(Emphasis added).
Section 1013.371 provides, in pertinent part:
(2) ENFORCEMENT BY BOARD. It is the responsibility of each board to ensure that all plans and educational and ancillary plants meet the standards of the Florida Building Code and the Florida Fire Prevention Code and to provide for the enforcement of these codes in the areas of its jurisdiction.... Plans or facilities that fail to meet the standards of the Florida Building Code or the Florida Fire Prevention Code may not be approved....
(3) ENFORCEMENT BY DEPARTMENT.As a further means of ensuring that all educational and ancillary facilities constructed or materially altered or added to conform to the Florida Building Code standards or Florida Fire Prevention Code standards, each board that undertakes the construction, renovation, remodeling, purchasing, or lease-purchase of any educational plant or ancillary facility, the cost of which exceeds $200,000, may submit plans to the [D]epartment [of Education] for approval.
(Emphasis added).
Section 1013.38 provides in pertinent part:
(1) Boards shall ensure that all new construction, renovation, remodeling, day labor, and maintenance projects conform to the appropriate sections of the Florida Building Code, Florida Fire Prevention Code, or, where applicable as authorized in other sections of law, other building codes, and life safety codes.
(2) Boards may provide compliance as follows:
(a) Boards or consortia may individually or cooperatively provide review services under the insurance risk management oversight through the use of board employees or consortia employees, registered pursuant to chapter 471, chapter 481, or part XII of chapter 468.
(b) Boards may elect to review construction documents using their own employees registered pursuant to chapter 471, chapter 481, or part XII of chapter 468.
(c) Boards may submit phase III construction documents for review to the department.
(d) Boards or consortia may contract for plan review services directly with engineers and architects registered pursuant to chapter 471 or chapter 481.
(Emphasis added).
These provisions of chapter 1013 can only reasonably be understood as requiring *1237 that in planning for the construction of new educational facilities the Department of Education and the district school boards follow the firesafety standards established by the DFS in the Florida Fire Prevention Code. The references to "enforcement" by the Department of Education and the district school boards do not establish that the regulatory authority of the DFS has been displaced or superceded. On the contrary, the Department of Education and the district school boards are expressly directed to conform their building construction plans to the standards developed pursuant to the regulatory authority of the DFS. The fact that the Department of Education and the district school boards are required to ensure that the construction plans for new educational facilities meet the applicable firesafety requirements does not mean that the regulatory authority with respect to those standards has been vested in them. Section 1013.37(1)(c), relating to the construction of educational facilities, specifically acknowledges that the "firesafety criteria" related to the "safety of occupants of educational and ancillary plants" are to "be established by the State Fire Marshal in cooperation with the Florida Building Commission and the [D]epartment of Education," and "must be incorporated into the Florida Fire Prevention Code." (Emphasis added).
Chapter 633 unambiguously grants the DFS authority to establish firesafety standards for new educational facilities. Chapter 1013 acknowledges that authority of the DFS and requires the Department of Education and district school boards to develop construction plans for new educational facilities that comply with the firesafety standards established by the DFS. There is no inconsistency between chapter 633 and chapter 1013. The statutory provisions consistently reflect the eminently sensible policy judgment that the regulatory authority for determining firesafety standards for new educational facilities should be the same as the authority for determining such standards for existing educational facilities. It would indeed be anomalous to divide the standard-setting authority for new facilities from the standard-setting authority for existing facilities. Under such a scheme, a new facility could be determined to be safe under the standards of the Department of Education, while an identical existing facility was determined to be unsafe under the standards of the DFS. And a facility that was determined to be safe as new construction by the Department of Education could shortly thereafter and with no degradation in the facility be determined to be unsafe by the DFS. The relevant statutory texts make clear that the legislature has not chosen to establish such an anomalous arrangement of regulatory authority for firesafety standards.
We recognize that "an administrative agency is afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer," and that an agency's interpretation of such a statute "will not be overturned on appeal unless it is clearly erroneous." Republic Media, Inc. v. Dep't of Transp., 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998). This deferential standard of review requires that we uphold an agency's statutory interpretation if it "is within the range of possible and reasonable" interpretations. Id.; see also Fla. Dep't of Educ. v. Cooper, 858 So. 2d 394 (Fla. 1st DCA 2003). It does not require that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency. D.T. v. Harter, 844 So. 2d 717 (Fla. 2d DCA 2003). Here, as the foregoing analysis demonstrates, the DFS's interpretation of the pertinent statutory provisions is clearly erroneous.
*1238 III. CONCLUSION
The order dismissing the petition for declaratory statement therefore is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
ALTENBERND, C.J., and COVINGTON, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602083/ | 869 So. 2d 913 (2004)
June CENANCE
v.
Lynette TASSIN, Paul Tassin, Dollar Rent a Car Systems, Inc. and Ace Insurance Company.
No. 2003-CA-1379.
Court of Appeal of Louisiana, Fourth Circuit.
March 3, 2004.
*914 Lionel J. Favret, III, Warren A. Forstall, Jr., Rhett M. Powers, New Orleans, LA, for Plaintiff/Appellant.
*915 Susan G. Guidry, Sandra D. Guidry, Law Offices of Susan G. Guidry, New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
TERRI F. LOVE, Judge.
Plaintiff, June Cenance, filed suit against defendants, Lynette Tassin, Paul Tassin, Dollar Rent A Car Systems, Inc., and Ace Indemnity Insurance Company asserting a vehicle owned and operated by the defendants negligently backed into her car damaging her vehicle and causing serious bodily injuries. The trial court granted defendants' motion for summary judgment finding that there was no genuine issue of material fact and that Dollar Rent A Car Systems and Ace Insurance Company, as a matter of law, are not liable to the plaintiff. Subsequently, this appeal was lodged asserting one assignment of error. For the following reasons we affirm the trial court's decision.
FACTS AND PROCEDURAL HISTORY
On August 18, 2002, June Cenance ("Cenance") was driving in the Lakeside Shopping Center parking lot when the defendant's vehicle backed into her car. The vehicle was driven by Paul Tassin ("Tassin") and owned by the rental agency, Dollar Rent A Car Systems ("Dollar"). Ace Indemnity Insurance Company ("Ace") is alleged to have provided insurance for the Dollar vehicle and Lynette Tassin. Lynette Tassin leased the car from Dollar and allowed Paul Tassin to drive the vehicle. As a result of the accident, Cenance accrued extensive injuries to her person and damage to her car. She filed suit against the Tassins, Dollar, and Ace alleging negligence.
In Dollar's motion for summary judgment, Dollar claimed that as lessor they were not obligated by law to provide liability insurance coverage; therefore under the terms of the rental contract they did not provide such. Ace claimed they did not have a duty nor did they provide liability coverage to the lessee, Lynette Tassin, for the term of the rental. The trial court granted Dollar and Ace's joint motion for summary judgment. Cenance instituted this appeal against Dollar urging one assignment of error; Dollar had a duty to determine whether a lessee has the requisite liability insurance under Louisiana law. Cenance did not appeal the trial court's decision to grant Ace's motion for summary judgment.
Standard of Review
The Louisiana Supreme Court discussed the standard of review of a summary judgment in Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So. 2d 226. They found in pertinent part:
Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So. 2d 342 (La.1991). A motion for summary judgment will be granted "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 material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The *916 burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." La. C.C.P. art. 966(C)(2).
Id. at p. 7, 755 So.2d at 230-31.
Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubts must be resolved in the opponent's favor. Willis v. Medders, 00-2507, p. 1 (La.12/08/00), 775 So. 2d 1049, 1050. This court reasoned in Coto v. J. Ray McDermott S.A., 99-1866, p. 4 (La.App. 4 Cir. 10/25/00), 772 So. 2d 828, 830 that determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.
Based on the foregoing, in the instant case, this Court must conduct a de nov o review to determine whether the trial court committed error in granting defendant's motion for summary judgment in favor of Dollar.
ANALYSIS
Cenance does not contend Dollar must provide automobile liability insurance as a vehicle owner, but that Dollar has a duty to ascertain whether or not its lessee has automobile liability insurance. Plaintiff argues that Dollar, operating as a vehicle owner, should determine whether the lessee has insurance as required by La. R.S. 32:861. Cenance further argues that Dollar negligently entrusted its vehicle to an uninsured motorist by failing to determine whether or not the lessee had insurance to protect third party motorists.
Dollar maintains the Louisiana Motor Vehicle Safety Responsibility Law ("LMVSRL") does not create a cause of action against a rental agency based upon the fact that the lessee was uninsured because a lessor does not have the duty to investigate whether its lessees are properly insured.
Duty to Verify Insurance
It is well entrenched in Louisiana law that the negligence of a lessee in the exclusive physical control of the object of the lease cannot be imputed to the lessor. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962).
The argument urged by Cenance was addressed by the First Circuit in Washington v. Stephens Leasing, Inc., 540 So. 2d 433 (La.App. 1st Cir.1989). In Washington, the First Circuit reasoned the legislature intended the duty to provide insurance was delegable pertaining to rental companies. Throughout the statute, the terms "owner or lessee," "applicant," "owner or owner's lessee" indicate that the duty of obtaining and maintaining liability insurance falls upon the appropriate person in a given situation. Washington, 540 So.2d at 435. Relying on Friday v. Mutz, 483 So. 2d 1269 (La.App. 4th Cir.1986), the First Circuit refused to extend a duty to verify that its lessee had insured the vehicle under the provisions of La. R.S. 32:861 et seq.
We held in Friday v. Mutz that the Louisiana's Compulsory Motor Vehicle Liability Security Law does not provide a basis for civil liability of the owner of an uninsured vehicle to an injured third party. Friday, 483 So.2d at 1271. In Friday, the plaintiff filed suit against the driver and the registered owner, Mutz, of a vehicle involved in an automobile accident. Friday argued as registered owner, Mutz was required to procure liability insurance and therefore was liable for the minimum amount of insurance required by the law.
*917 We reasoned the LMVSRL establishes penalties against those who do not insure their vehicle, but does not include liability to victims of accidents caused by uninsured vehicles. Had the Legislature intended to create such a liability, we believe it would have been specifically provided for in the statute. Id. at 1271.
In enacting the LMVSRL the legislature, apparently recognizing the unique nature of rental car agencies, specifically stated in La. R.S. 32:1041 that vehicle owners "engaged in the business of renting or leasing motor vehicles" are not required to furnish proof of financial responsibility to satisfy any judgment entered against their lessees. Hearty v. Harris, 574 So. 2d 1234, 1242 (La.1991). The legislature did not intend rental agencies to bear the financial responsibility for the negligent actions of a lessee operating the leased vehicle in accordance with the terms of the lease. Id.
In the case sub judice, Dollar is a rental agency that leased a car to Tassin. Tassin did not purchase liability insurance to cover the vehicle. Tassin was involved in an accident causing injury to Cenance. Under La. R.S. 32:1041, Dollar does not have a duty to provide insurance, nor must Dollar verify whether its lessees have insurance. Under the LMVSRL, the lessee has the duty to provide insurance for the leased vehicle, not the lessor. The legislature did not intend rental agencies to bear the financial responsibility for the negligent actions of a lessee operating the leased vehicle in accordance with the terms of the lease. Therefore, we find Dollar did not have a duty to verify whether its lessee had liability insurance.
Negligent Entrustment
To prove a claim of negligent entrustment, a plaintiff must show that a lessor had actual or constructive knowledge that the lessee was incompetent or had an apparent disability at the time of the lease. Francis v. Crawford, 31,840 (La.App. 2 Cir. 5/5/99), 732 So. 2d 152, 155.
The plaintiff does not allege the lessee was incompetent or had an apparent disability. Cenance claims Dollar was negligent for entrusting their car to a lessee without verifying whether or not the lessee maintained the requisite liability insurance. The Third Circuit discussed this matter in a similar case, Collette v. Ledet, 93-1581 (La.App. 3 Cir. 6/1/94), 640 So. 2d 757.
In Collette, a jury found a rental company was negligent for entrusting a lessee with a vehicle who did not have liability insurance. The Third Circuit reversed the jury's decision reasoning the rental company's failure to inquire whether the lessee was insured did not constitute a legal cause of the accident. They concluded lack of insurance was not a basis for denial of a rental. Collette v. Ledet, 93-1581, p. 3 (La.App. 3 Cir. 6/1/94), 640 So. 2d 757, 760. See, Joseph v. Dickerson, 99-1046, 99-1188 (La.1/19/00), 754 So. 2d 912. (Lender cannot be found liable for loaning the car to a competent driver simply for the reason that she knew or should have known that her own liability insurance policy, by its terms, would not cover the driver's liability for negligently causing injury).
In the case before us, Dollar did not have a duty to provide or investigate whether Tassin had insurance before leasing her the car. We agree with the Third Circuit's reasoning that failure to inquire whether the lessee was insured did not constitute a legal cause of the accident. We will not extend this duty to a rental car company that is not legislated to provide liability insurance to its lessees. We find there is no duty to verify whether the lessee has the requisite liability insurance *918 and Dollar did not negligently entrust the vehicle to Tassin. Therefore, we affirm the trial court's decision to grant defendant's motion for summary judgment.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602096/ | 869 So.2d 1179 (2003)
Timmy E. ADAMS
v.
NAPHCARE, INC., et al.
2020312.
Court of Civil Appeals of Alabama.
July 18, 2003.
*1180 Timmy E. Adams, pro se.
James S. Ward of Corley, Moncus & Ward, P.C., Birmingham, for appellees.
PER CURIAM.
Timmy E. Adams, a prisoner proceeding pro se, on February 11, 2002, sued NaphCare, Inc.,[1] and the wardens of the following correctional facilities: Kilby Correctional Facility, St. Clair Correctional Facility, Easterling Correctional Facility, Donaldson Correctional Facility, and Staten Correctional Facility (the correctional facilities are hereinafter collectively referred to as "the department defendants"). Adams alleged in his complaint that, from the time of his incarceration until the filing of his complaint, he had been forced to shave his facial hair and that, as a result, he suffers from a medical condition known as pseudofolliculitis barbae ("the condition"). Adams contends that the condition is an incurable disease that primarily affects black men after they shave. He states that the condition results when recently shaved facial hairs grow inward and penetrate the skin causing an inflammatory reaction. Adams alleged that the Department of Corrections' "clean shave" policy discriminates against him because of his race; that the implementation of the policy has caused him to suffer from the condition, resulting in painful pustules and abscesses; that the policy is abusive and that the implementation of the policy causes him mental and physical harm; and that the policy reflects a deliberately indifferent attitude on the part of the policy-makers and that implementation of the policy results in the wanton infliction of pain, excessive punishment, the denial of equal protection, and dehumanization. Adams also, on May 23, 2002, moved the court for a preliminary injunction prohibiting the defendants from forcing him to shave.
The department defendants, on June 3, 2002, moved the court to dismiss the complaint, or, in the alternative, for a summary judgment. On July 19, 2002, NaphCare moved the court to dismiss the complaint, or, in the alternative, for a summary judgment. On September 10, 2002, Adams moved the court for a summary judgment. The court entered an order setting all pending motions for a hearing on October 16, 2002. Following a hearing, the trial court, on November 8, 2002, entered an order denying Adams's motion for a summary judgment and granting NaphCare's motion for a summary judgment. The court did not address the department defendants' motion for a summary judgment. Adams filed his notice of appeal on December 23, 2002. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.
NaphCare argues on appeal that the notice of appeal filed by Adams is untimely and also that the judgment appealed *1181 from was not a final judgment that would support an appeal. Because we conclude that the judgment appealed from was a nonfinal judgment, we will not address NaphCare's argument that the appeal is untimely. See T.B. v. A.J., 812 So.2d 1287 (Ala.Civ.App.2001). "`It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.' " Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:
"A final judgment is one that completely adjudicates all matters in controversy between all the parties.
"... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had `only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' See Rule 54(b), Ala. R. Civ. P."
Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (citations omitted).
The judgment entered by the trial court in this case does not dispose of the claims brought by Adams against the department defendants, nor does it certify the judgment entered in favor of Naph-Care as final pursuant to Rule 54(b), Ala. R. Civ. P. Therefore, this court must dismiss the appeal as being from a nonfinal judgment.
APPEAL DISMISSED.
All the judges concur.
NOTES
[1] NaphCare provides medical services for the state prison system. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602087/ | 1 So. 3d 77 (2008)
ArvinMERITOR, INC.
v.
Curtis Dale JOHNSON.
2061104.
Court of Civil Appeals of Alabama.
July 18, 2008.
*79 J. Richard Carrigan, Timothy A. Palmer, James A. Patton, Jr., and J. Carin Pendergraft of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for appellant.
Charles E. Harrison and Jennifer D. Jackson of Junkin, Pearson, Harrison & Junkin, L.L.C., Tuscaloosa; and Charles E. Pearson and John A. Fulmer II of The Pearson Law Firm, PC, Tuscaloosa, for appellee.
THOMAS, Judge.
ArvinMeritor, Inc. ("Arvin"), appeals from a judgment of the Fayette Circuit Court determining that Curtis Dale Johnson is permanently and totally disabled as a consequence of an occupational disease and awarding him workers' compensation benefits accordingly. We reverse.
Procedural History
On November 17, 2003, Johnson, along with several hundred other plaintiffs, filed a complaint in the Fayette Circuit Court against Arvin, several individually named former managers of Arvin, and a number of fictitiously named defendants. In their complaint, the plaintiffs alleged that they had each been employed by Arvin and that, as a result of that employment, they had sustained injury by way of exposure to toxic and dangerous chemicals. The plaintiffs asserted claims based on workers' compensation, co-employee liability, misrepresentation, suppression, and deceit. Arvin removed the case to the United States District Court for the Northern District of Alabama on December 19, 2003. The United States District Court remanded the case to the Fayette Circuit Court on January 9, 2004.
On May 5, 2005, the plaintiffs filed an amended complaint, adding additional plaintiffs and additional counts against a number of third-party defendants who allegedly had designed, manufactured, and distributed the chemicals that caused the plaintiffs' alleged injuries. The additional counts alleged negligence and wantonness, violations of the Alabama Extended Manufacturers Liability Doctrine ("AEMLD"), civil conspiracy, and the tort of outrage. Arvin answered the complaint on June 1, 2005.
Arvin and a number of the other defendants filed motions to dismiss or, in the alternative, motions for a summary judgment; Arvin's motion was filed on November 30, 2005. Those motions were denied by order of the circuit court on March 27, 2006. On May 19, 2006, the circuit court granted the plaintiffs' and the third-party defendants' joint motion for separate trials of the workers' compensation claims and the third-party claims.
On June 12, 2006, Johnson moved for an expedited trial, alleging that his condition "had deteriorated to a grave and alarming degree." On June 29, 2006, the circuit court set Johnson's claim for trial on April 20, 2007. Following a bench trial, the circuit court entered a judgment on July 13, 2007, finding that Johnson was permanently and totally disabled as a result of a compensable occupational disease and awarding him benefits accordingly. On August 24, 2007, Arvin timely appealed. *80 On November 30, 2007, the circuit court entered an order certifying its July 13, 2007, judgment as final pursuant to Ala. R. Civ. P. 54(b).
Factual Background
Arvin is a manufacturer of mufflers and other automotive exhaust systems whose Fayette, Alabama, plant ceased production in May 2002. Johnson, who was 61 years old at the time of trial, had worked at the Arvin plant in Fayette for nearly 34 years, from July 1968 until April 2002, when he volunteered to take an early layoff because he was having breathing problems. In July 2002, three months after Johnson left the plant, Dr. Charles Nolen diagnosed Johnson as suffering from emphysema, a type of chronic obstructive pulmonary disease ("COPD").
During his 34 years at Arvin, Johnson held a number of jobs at the plant. For his first eight years, he was a general machine operator, working anywhere he was needed. For the next 13 years, he was a butt welder, loading coiled steel and welding the ends together in the tube mill. He spent the next 13 years as a slitter operator, operating the machinery that cut or "slit" 30,000-pound steel coils into the desired widths. During his final four months at the plant, Johnson worked as a spot welder on the muffler line.
Johnson described the air quality in the plant as "bad" and "filled with oily smoke." He explained that smoke coming off the welds was exhausted away from the welders' faces by fans, but, he said, the smoke just rose to the ceiling and had nowhere to go from there. He said that "the smoke would start at the top of the plant after a couple hours of production and build down into [the workers'] breathing areait didn't get any better the rest of the day." Johnson testified that he had complained to John Gary, the plant human resources manager, about the poor air quality, after which, Johnson said, some "small, ... insignificant [and] definitely inadequate" steps were taken to improve the ventilation in the plant, such as installing additional duct work and fans. Johnson said that soot was a "way of life" at the Arvin plant; he stated that, for the entire time he was at the plant, he cleaned soot from his nose every night after work. Johnson testified that when he left Arvin in April 2002, he was experiencing "extreme shortness of breath," as well as hoarseness every afternoon.
Johnson acknowledged that he was a long-time cigarette smoker. He testified that he had smoked one and a half to two packs of cigarettes per day for 36 years, from 1963 to 1999. In 1999, he quit smoking for two years. He said that he had started smoking again in 2001, when he heard that the plant would be closing soon, and smoked until 2005. Johnson testified that his wife was also a smoker and that she had recently been diagnosed with lung cancer.
After he left Arvin in April 2002, Johnson was unemployed for 15 months; during that time, he said, he re-roofed and painted his house. Then, on July 23, 2003, Johnson began work at Delta Apparel Company, where his job was to carry large spools of thread, put them into a wheeled buggy, and roll them to the area where they were needed. He worked part of an eight-hour shift and then resigned from his employment at Delta Apparel because, he said, the dust in the plant made his breathing problems so bad that he could not walk across the plant floor without stopping. Johnson subsequently applied for and received Social Security disability benefits. When he was questioned at trial as to the July 23, 2003, date that he had assigned to the onset of his disability in his Social Security disability application form, he explained *81 that the day he quit his job at Delta Apparel was the first time he had realized that he would never be able to work again.
Two other Arvin employees testified. Ray Thacker, who had also worked at the Arvin plant for 34 years, testified that he had been an "oiler" one who had the responsibility for mixing and handling the chemicals used in the plant. One of his duties was to check the water level of a "pit" into which recirculated water, grease, and sludge from all the plant machinery drained and to add biocides to the water to prevent the growth of bacteria. Thacker said that the plant was housed in a 280,000-square-foot building, which had a 40-foot ceiling. It had had 10 muffler lines with 8 to 10 welders on each line. With the addition of spot welders, there were more than 100 welders in the plant whose actions generated "a lot of smoke and fumes." Thacker described the air in the plant as "smoky, hazy, [with] a lot of stuff flying in the air, sand and dust, fiberglass, [and] basol." Thacker said that, although each welder operated under an exhaust hood or fan, the fans just blew the smoke around and all the employees breathed it. Thacker, who stated that he does not suffer from any breathing problems, said that he had seen Johnson and many other employees smoking in the plant.
Charlie Dale Jones spent most of his 35-year history at the Arvin plant working in the tube mill, where coiled steel was formed into tubes. The tubes were then welded, cooled, and sprayed with Hocutt synthetic nonoil, a metalworking lubricant. Jones said the plant was filled with haze and smoke. There were approximately 50 36-inch fans hanging at various points in the plant and 2 larger cross-ventilation fans at the ceiling. One of his job duties was to clean the 36-inch fans to remove the build-up of oil skim and metal particles that accumulated on them. Jones testified that the only employees who wore masks were those who handled the fiberglass insulation for the mufflers. He stated that there was no grinding of fiberglass. Neither Thacker nor Jones knew what were the permissible exposure limits for various substances in use at the plant or whether those limits had ever been exceeded. Nor did they know what were the air-quality limits established by the Occupational Safety and Health Administration ("OSHA") or whether the plant had ever exceeded those limits. Jones, who was not a smoker, testified that he suffered from bronchiectasis and had had part of a lung removed in 1990.
Lori Andrews, a civil engineer with a master's degree in occupational safety and health, testified by video deposition as an expert witness for Johnson. Andrews stated that, based on her training and experience, she was familiar with the health risks associated with heavy-metal fabricating plants such as Arvin's Fayette plant. She testified that she has worked with numerous industrial clients to analyze workplace health and safety issues and to provide air-monitoring programs. In addition, she has written several textbooks and has taught occupational-health-and-safety-related courses since 1979.
Andrews stated that in preparing to testify in this case she had received from Arvin and reviewed a "Master Chemical List" for every raw material and chemical substance used in the plant. She had also reviewed the Material Safety Data Sheets ("MSDS") applicable to those materials and substances. In addition, Andrews had reviewed testimony admitted in the companion case of ArvinMeritor, Inc. v. Handley, [Ms. 2050951, June 27, 2008] ___ So.3d ___, ___ (Ala.Civ.App.2008), specifically the testimony of Johnson's co-employees, Thacker and Jones. Thacker and *82 Jones had provided an overview of plant operations, outlined the job duties of various positions in the plant, specified the raw materials and chemical substances to which the employees holding those positions were likely to have been exposed, and described the air-quality environment in the plant. Finally, Andrews relied on information she had gleaned from a 2004 visit to the plant.
Andrews testified that she had written MSDS documents and that she routinely used them in her work. She stated that employers like Arvin are required by federal law to keep, post, and provide their employees with training on how to read and understand the MSDS documents for the materials used in their plants. Andrews said that an MSDS must include the product manufacturer's name, address, and telephone number, a list of hazardous ingredients in the product, and the threshold-limit value or permissible exposure limit for each product. Andrews stated that threshold-limit values were "authored and established through the American Conference of Governmental Industrial Hygienists." She explained that in 1972 threshold-limit values were adopted, under the name "permissible exposure limits" (hereinafter referred to as "PELs") by OSHA. Under either nomenclature, the limit refers to a unit of measurement: if the substance being measured is a solid, it is expressed as milligrams per cubic meter; if the substance is a liquid, it is expressed in milligrams per liter or parts per million, either by volume or by weight. Andrews further explained that the PEL is "a time-weighted average over a shift of operation established for a 40-hour work week for a 40-year period." According to Andrews, an MSDS must also include the health risks associated with the product, including the route of entry into the body and the symptoms of overexposure to the product.
The bulk of Andrews's testimony consisted of her reading and explaining the information contained on several MSDS documents pertaining to raw materials and chemical substances used in the Fayette plant. For example, MSDS documents for steel and steel-alloy products included the following statement: "When product is subjected to welding, burning, melting, sawing, brazing, grinding, and other similar processes, potentially hazardous airborne particulate fumes may be generated." Andrews stated that the MSDS for aluminum indicated that "inhalation of finely divided aluminum and aluminum oxide powder has been reported as a cause of pulmonary fibrosis and lung damage." The MSDS for cobalt indicated that
"[c]obalt dust may cause an asthma-like disease with symptoms ranging from cough, shortness of breath, and dyspnea to decreased pulmonary function, nodular fibrosis, permanent disability, and death. Exposure to cobalt may cause... respiratory hypersensitivity."
Andrews noted that the MSDS documents for some of the products used in the plant, such as sodium hydroxide (lye) and glycol, a surfactant, indicated that there were "no known chronic health effects."
Ultimately, Andrews rendered three opinions:
1. that there were "inhalation exposures occurring at [the Arvin plant],"
2. that Arvin's employees "were at a higher risk of potential exposure than those of people found in general employment," and
3. "that the metals, the metal emissions, fumes, [and] chemicals ... utilized [in the Arvin plant] aggravated or contributed to worker health issues."
On cross-examination, Andrews acknowledged that she had seen no data indicating that the PEL for any product *83 listed on the Arvin MSDS documents had ever been exceeded at the Fayette plant. She admitted that she had not seen the results of any air-quality or water-quality tests that may have been performed at the plant and that she did not know whether OSHA had ever cited the plant for noncompliance with health or safety standards. She conceded that she did not know whether any test had revealed the presence in Johnson's body of any hazardous substance identified in an MSDS. She acknowledged that she had never observed the plant in operation and that her 2004 visit had occurred two years after the plant had shut down and all the equipment except for the exhaust fans had been removed. Andrews did not calculate the capacity of the fans. Finally, Andrews answered the following questions:
"Q. [By Arvin's counsel] Do you know what a dose-response relationship is?
"A. Yes, I do.
"Q. What is a dose-response relationship?
"A. A dose-response relationship is something that you have to have a certain exposure for a certain response except for carcinogens, and that's a whole different discussion.
". . . .
Q. Do you know [what] dose of any particular chemical anyone in the plant received?
"A. No, I do not."
Dr. Allan Goldstein, a board-certified pulmonologist, testified by deposition as an expert witness for Arvin. Dr. Goldstein stated that in formulating an opinion as to the cause of Johnson's emphysema, he took an extensive history from Johnson, reviewed Johnson's medical records and Social Security disability claim, physically examined Johnson, and performed the following tests: a chest X-ray, complete pulmonary-function tests, a resting blood-gas test, and an electrocardiogram.
The history that Dr. Goldstein obtained from Johnson indicated that Johnson had been exposed to welding dust, smoke, steam lubricants, and scrubbing solutions at the Arvin plant. Johnson began experiencing breathing problems in 2000; his problems became progressively worse and did not improve on weekends, vacations, or other times when he was away from work. Johnson told Dr. Goldstein that he had suffered from asthma as child but that his symptoms had disappeared when he was about 20 years old. Johnson informed Dr. Goldstein that he had smoked one and a half packs of cigarettes per day for 30 years an amount that, Dr. Goldstein said, was equivalent to "45 pack-years" then Johnson quit smoking for 2 years but resumed smoking again and smoked 2 packs per day for 4 more years the equivalent, according to Dr. Goldstein, of "8 pack-years."
Dr. Goldstein testified that Johnson's chest X-ray revealed that his lungs were hyperinflated, a condition that, Dr. Goldstein said, was consistent with emphysema, but that there were no pleural changes. Dr. Goldstein stated that the pulmonary-function test results were consistent with moderate to severe airway obstruction and that the blood-gas test result was slightly abnormal, indicating a reading of 76, with 80 being normal.
Dr. Goldstein explained that in determining the causation of a patient's pulmonary disease, he assumes that the patient has a work-related lung disease until he "talks himself out of it." He stated that he began with that assumption in Johnson's case but that he talked himself out of it because of Johnson's "[s]trong, strong smoking history" and because of the fact that Johnson's symptoms did not improve when he was away from work. Dr. Goldstein *84 testified, "If [Johnson's lung disease] were related to chemicals, you'd expect the history of getting worse at work, better on the weekends or on vacation." In addition, he said that if Johnson's lung problems were related to metal dusts, he would have expected to find abnormalities on the chest X-ray, but he found none. Further, Dr. Goldstein observed, "I don't know how much [dust, smoke, or chemicals in the plant] he was exposed to because, obviously... there are safe levels of certain things." Dr. Goldstein testified that the most common cause of emphysema is smoking, and he stated that there was nothing in Johnson's history that would allow him to conclude that exposure to chemicals at work contributed to cause Johnson's disability.
Dr. Janice Hudson, a family-practice physician in Fayette, testified as an expert for Johnson on the issue of medical causation. The record indicates that, before she testified, she had viewed the video deposition of Lori Andrews, Johnson's occupational-safety-and-health specialist, and had heard the trial testimony of Johnson and his co-employees, Thacker and Jones. Dr. Hudson testified that in reaching an opinion as to the cause of Johnson's lung disease she had reviewed Johnson's medical records, taken a history, and performed a physical examination of Johnson. In addition, she had conducted blood-gas, pulmonary-function, and walking-treadmill tests on Johnson. Dr. Hudson noted that Johnson had a barrel chest, a pink face, and pursed his lips when he talked, all characteristic, she said, of COPD sufferers. Hudson testified that Johnson's pulmonary-function tests demonstrated that his lungs were "very obstructed." On the forced-vital-capacity portion of the test, Johnson performed at a level that was 65% of what was expected of a man his age; on the forced-expiratory-volume portion of the test, he performed at 53% of what was expected. Dr. Hudson stated that Johnson's exercise-desaturation rate on the walking-treadmill test was 87%, and, she explained, a score of 89% entitles a patient to oxygen under Medicare regulations. Dr. Hudson testified that she ordered oxygen for Johnson.
Dr. Hudson concluded that Johnson was suffering from "COPD, more of the emphysema type." She further opined that Johnson's condition would not improve in the future, that he would experience a progressive decline, and that he was permanently and totally disabled. She said that she was aware of Johnson's smoking history and that she knew that smoking could cause COPD, but, she said, smoking was not the only risk factor for COPD. She testified that, based on Andrews's video deposition and the live testimony she had heard from Johnson and his two co-employees, Thacker and Jones, she believed that Johnson's "occupational exposure ... certainly has contributed to his illness." Specifically, she stated that the respiratory hazards enumerated on the MSDS documents relating to steel, cobalt, and Hocutt nonoil led her to conclude that Johnson's exposure to those products "could have contributed to cause his COPD."
On cross-examination, Dr. Hudson acknowledged that she had performed no tests on Johnson that revealed the presence of steel or cobalt in his lungs and that she was not aware of any such tests that had been performed by any another medical provider. She stated that she did not know whether a blood test would have revealed the presence of cobalt. She admitted that she had not reviewed Dr. Goldstein's report or deposition testimony, that she had no test data about the air quality at the Fayette plant, and that she had no information regarding the extent of Johnson's exposure to hazardous substances in the plant. Finally, Dr. Hudson agreed *85 that there were "no actual test results" that supported her opinion that Johnson's employment at the Arvin plant had contributed to cause his emphysema.
Ted Wells, an industrial engineer, testified that he was the former worldwide environmental director for Arvin. His job duties required that he travel to all the Arvin plants to ensure that they were in compliance with environmental regulations. He said that Arvin's customers required that the products they purchased from Arvin be certified by the International Standards Organization ("ISO"). Wells developed a program, the Arvin Environmental Management System ("AEMS"), to ensure that Arvin plants complied with ISO requirements; he visited the Fayette plant in 1997 to implement that program, and, he said, the Fayette plant received AEMS certification in January 1999. Wells said that he revisited the Fayette plant twice a year for announced follow-up audits. Wells stated that the Alabama Department of Environmental Management ("ADEM") had inspected the plant and had found no problems with air quality. He did not specify the date of the ADEM inspection. Wells testified that Arvin monitors the occupational health of its employees, and, he said, in the course of that monitoring Arvin had not found "any elevated risk of COPD, industrial asthma, chronic bronchitis, or emphysema for employees working in muffler-assembly plants such as Fayette."
John Gary, who had been the human resources manager of the Fayette plant for 35 years when the plant closed in 2002, testified that Johnson had received training with respect to interpreting MSDS documents and knew the injury-reporting procedure at the plant. Gary stated that Johnson had never reported a lung injury or a breathing problem while he was employed at the Arvin plant. Gary testified that Safe State, a University of Alabama industrial-hygiene program under the auspices of OSHA, had evaluated the plant in 1987 with respect to employee exposure to three potential health risks: metal fumes; total dust; and dust, fiberglass, and airborne fibers. Safe State concluded that, in all three areas, employee exposures were within acceptable limits according to OSHA regulations. Gary said the plant had never been cited by OSHA for an air-quality violation. Gary also said that Arvin had hired a retired OSHA inspector as a consultant to make periodic air-quality inspections of the plant. Gary did not specify the time period during which the consultant had inspected the plant. Gary testified that there had been only one respiratory injury recorded in the OSHA logs for the Fayette plant and that that injury had resulted in one day's lost time from work in 1991.
Arvin raises the following issues on appeal: (1) that the circuit court erred by admitting the testimony of Johnson's two expert witnesses; (2) that the circuit court's findings with respect to legal causation, medical causation, and the date of Johnson's disability are not supported by substantial evidence; (2) that Johnson is not entitled to reimbursement of medical payments under § 25-5-77, Ala.Code 1975; (3) that Arvin was not the party in whose employment Johnson was "last exposed to the hazards of [an occupational] disease" as required by § 25-5-116, Ala.Code 1975; and (5) that, by affirming the circuit court's order, this court would be violating public policy by sanctioning a "smoker's retirement plan."
Standard of Review
Our review of this case is governed by the Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975, which states, in pertinent part: "In reviewing the standard *86 of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness." § 25-5-81(e)(1), Ala.Code 1975. See also Ex parte Trinity Indus.,Inc., 680 So. 2d 262, 268 (Ala.1996). "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." § 25-5-81(e)(2), Ala.Code 1975. Substantial evidence is "`evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Trinity Indus., 680 So.2d at 268 (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975).
Admissibility of the Testimony of Johnson's Experts
Generally, the question whether a witness is qualified as an expert is left largely to the discretion of the trial court, and that court's decision will not be disturbed unless the court has exceeded the limits of its discretion. See Knapp v. Wilkins, 786 So. 2d 457 (Ala.2000).
"`"The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is `largely discretionary with the trial court, and that court's judgment will not be disturbed absent an abuse of discretion.' Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 850 (Ala.2002). We now refer to that standard as a trial court's `exceeding its discretion.' ... However, the standard itself has not changed."'"
Millry Mill Co. v. Manuel, 999 So. 2d 508, 517 (Ala.Civ.App.2008)(quoting Prowell v. Children's Hosp. of Alabama, 949 So. 2d 117, 130 (Ala.2006), quoting in turn Kyser v. Harrison, 908 So. 2d 914, 918 (Ala.2005)).
Before trial, Arvin filed a motion in limine to exclude the testimony of Johnson's two expert witnesses Lori Andrews, an occupational-safety-and-health specialist, and Dr. Janice Hudson, a family-practice physician. The circuit court denied Arvin's motion and admitted the testimony of both witnesses.
"An appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds therefor at the time of the trial, unless he has obtained the express acquiescence of the trial court that subsequent objection to evidence when it is proffered at trial and assignment of grounds therefor are not necessary."
Owens-Corning Fiberglass Corp. v. James, 646 So. 2d 669, 673 (Ala.1994) (citing Liberty Nat'l Life Ins. Co. v. Beasley, 466 So. 2d 935 (Ala. 1985)).
Lori Andrews's Testimony
Andrews offered three opinions, namely: (1) that there were "inhalation exposures occurring" at the Arvin plant; (2) that Arvin's employees "were at a higher risk of potential exposure than those of people found in general employment"; and (3) that such exposures "aggravated or contributed to worker health issues." At trial, Arvin timely objected to the introduction of Andrews's opinions and assigned specific grounds therefor.
On appeal, Arvin correctly points out that Andrews had seen no data with respect to whether the PELs for any raw material or chemical substance used in the plant had ever been exceeded; that Andrews had performed no air-quality, water-quality, or inhalation-exposure testing; that Andrews had never seen the plant in *87 operation; and that Andrews's opinions concerning the exposure to hazardous substances by Arvin employees in the Fayette plant were based upon the testimony of Johnson and two former co-employees, Thacker and Jones, who were, themselves, unaware of the PELs for various substances in use at the plant, the air-quality limits established by OSHA, and whether the plant had ever exceeded those limits.
Arvin asserts that Andrews's own testimony established that the generally accepted scientific method for assessing the risk of an employee's exposure to a hazardous substance is to determine whether the PEL for the substance was exceeded. Because Andrews failed to provide any evidence concerning the level of exposure that Johnson or any other employee at the plant experienced with respect to any substance, Arvin argues that Andrews's testimony failed to satisfy the test announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for the admissibility of scientific evidence.[1] Under the Frye standard,
"a person who offers an opinion as a scientific expert must prove that he relied on scientific principles, methods, or procedures that have gained general acceptance in the field in which the expert is testifying."
Slay v. Keller Indus., Inc., 823 So. 2d 623, 626 (Ala.2001).
We hold that the first of Andrews's three opinions that there were "inhalation exposures occurring" at the Arvin plant, was not governed by the Frye test because it was not grounded upon a scientific principle, method, or procedure. Andrews's first "opinion" was actually not an opinion at all; it was a fact. At trial, there was no dispute that Arvin employees had been exposed to the risk of inhaling dust, fumes, or chemicals as a consequence of being employed in the Fayette plant. Instead, the dispute was whether any inhalation that had occurred was beyond permissible limits, rose to toxic levels, and caused or contributed to Johnson's emphysema/COPD. On that subject, as Arvin points out, Andrews offered no information and no opinion.
Andrews's second opinion that Arvin's employees "were at a higher risk of potential exposure than those of people found in general employment" was also not subject to the Frye test because it, too, was not dependent upon a scientific principle, method, or procedure. Instead, the admissibility of the opinion was governed by Rule 702, Ala. R. Evid., which provides:
"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."
Andrews testified that she has worked with numerous industrial clients to analyze workplace health and safety issues and to provide air-monitoring programs. In addition, she has written several textbooks and has taught occupational-health-and-safety-related courses since 1979. We conclude *88 that Andrews was qualified, by virtue of her knowledge, skill, experience, training, and education to render an opinion about the comparative risks of workplace exposure to airborne contaminants. See Southern Energy Homes, Inc. v. Washington, 774 So. 2d 505, 517 (Ala.2000) (stating that "`[e]xperience and practical knowledge may qualify one to make technical judgments as readily as formal education'" (quoting International Telecomm. Sys. v. State, 359 So. 2d 364, 368 (Ala. 1978))). Thus, Andrews's second opinion was admissible.
That said, Andrews's second opinion contributed nothing toward meeting Johnson's burden of proof with respect to legal causation. Section 25-5-110(1), Ala. Code 1975, defines an "occupational disease" as
"[a] disease arising out of and in the course of employment, including occupational pneumoconiosis and occupational exposure to radiation as defined in subdivisions (2) and (3), respectively, of this section, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease, including, but not limited to, loss of hearing due to noise, shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment."
There is no presumption that an employee's disability is the result of an occupational disease; the employee seeking benefits for an occupational disease has the burden of establishing that he is entitled to benefits. § 25-5-120, Ala.Code 1975. In order to satisfy § 25-5-110, the employee must first prove that his disease arose out of and in the course of his employment and that it resulted from exposure over time to the conditions of his employment. The employee must satisfy the two-pronged legal-causation test of § 25-5-110(1); he must establish that his disease was caused by hazards that are (1) in excess of those ordinarily incident to employment in general, and (2) peculiar to the occupation in which the employee is engaged. Edmonds Indus. Coatings, Inc. v. Lolley, 893 So. 2d 1197, 1201 (Ala.Civ.App.2004).
The first prong of the two-pronged legal-causation test for an occupational injury is not satisfied by evidence, such as Andrews's testimony, indicating that the employment increased the employee's risk of exposure to industrial inhalants; instead, it is satisfied by evidence indicating that the occupational exposure increased the risk of contracting the disease from which the employee suffers in Johnson's case, emphysema or COPD. See VF Jeanswear v. Taylor, 899 So. 2d 1002 (Ala.Civ. App.2004); Clark v. Russell Corp., 671 So. 2d 677 (Ala.Civ.App.1995); and Chrysler Corp. v. Henley, 400 So. 2d 412 (Ala.Civ. App.1981). Andrews did not testify that Johnson's risk of developing emphysema or COPD was increased by his exposure to inhalants at the Arvin plant.
We are unsure as to the import of Andrews's third opinion "that the metals, the metal emissions, fumes, [and] chemicals ... utilized [in the plant] aggravated or contributed to worker health issues." At trial, Johnson's counsel assured the circuit court that he was not offering Andrews's testimony to prove medical causation. The following exchange then occurred:
"MR. CARRIGAN [counsel for Arvin]: Your Honor, I would say ... if her testimony is about things that could be *89 an issue, that's different than this is causing a health problem for a particular individual.
". . . .
"MR. FULMER [counsel for Johnson]: She didn't testify to any particular plaintiff. She's testifying as to the conditions at the plant.
"THE COURT: All right.
"MR. FULMER: That exposures exist.
"MR. CARRIGAN: She didn't discuss health data on anyone in the plant. She didn't discuss reviewing OSHA laws to see who is sick. She didn't discuss any kind of mortality rate. She didn't discuss any kind of relative risks. The idea of her testifying to health issues when she did not identify any health data is completely unfounded.
"MR. FULMER: She's not giving any health opinions or data on any one plaintiff.
"THE COURT: All right. This lady has testified that there were problems in this plant with exposure generally, right?
"MR. CARRIGAN: Yes, sir, that is what she testified.
"THE COURT: Right?
"MR. FULMER: Yes.
"THE COURT: All right. Go ahead. That's the finding of the court."
(Emphasis added.) As the emphasized portions of the foregoing exchange demonstrate, the circuit court stated that it did not interpret Andrews's third opinion as medical-causation testimony. The court's judgment, however, indicates that it considered the testimony to be probative of medical causation. The court's findings of fact stated that
"[Johnson's] occupational health expert, Lori Andrews, testified that [the Arvin plant] processes regarding metals and chemical mixtures resulted in exposures sufficient to aggravate or contribute to cause worker health issues, including those of Mr. Johnson."
(Emphasis added.) To the extent that Andrews's third opinion can be construed to have been probative of the issue of medical causation, it was inadmissible because it did not satisfy the Frye general-acceptance test. As Arvin argues, Andrews's opinion was not based on scientific principles, methods, or procedures that have gained general acceptance in the field of occupational health.
Andrews testified that the generally accepted safe level of exposure for any of the raw materials and substances in use at the Arvin plant was stated by the PEL adopted by OSHA and noted on the MSDS documents. Nevertheless, Andrews implied that the plant had an unsafe workplace environment despite the absence of data indicating that the PEL for any product in use at the plant had ever been exceeded. She admitted that she had neither seen any air-sampling data from the plant nor conducted any air-quality or ventilation tests of the plant. In fact, she had never seen the plant in operation; her one visit to the plant in 2004 had occurred two years after the plant had shut down and the equipment had been removed. Andrews did not know whether OSHA had ever cited the plant for noncompliance with health or safety standards. She did not know whether any test had revealed the presence in Johnson's body of any hazardous substance identified in an MSDS. She understood the significance of a dose-response relationship, but she was unaware of the dose level of any particular chemical that any employee at the plant may have received.
Andrews stated that in forming her opinion of the health risks in the plant she had relied on testimony about the plant *90 environment from Johnson, Thacker, and Jones. The record demonstrates, however, that none of those witnesses were any more aware than Andrews of data that would have supported the thesis that the plant environment was unsafe. Neither Johnson, nor Thacker, nor Jones knew whether the PELs for any raw material or chemical substance had ever been exceeded in the plant or whether the plant had ever been cited for a violation of OSHA air-quality standards. Finally, Andrews did not translate the three employees' anecdotal evidence about the poor air quality in the plant into a conclusion that the PELs for various substances must have been exceeded in order to have produced air quality fitting the employees' descriptions.
All that can be gleaned from Andrews's testimony about the plant environment and the nature of Johnson's workplace exposure to dangerous substances is summed up in Andrews's statement that "inhalation exposures" occurred at the Arvin plant. However, "[a] mere showing of exposure... will not necessarily compel a finding in favor of [Johnson] on the issue of medical causation." Ex parte Valdez, 636 So. 2d 401, 405 (Ala.1994). Instead, Johnson was required to show that he was exposed to a sufficient amount of hazardous substances "to considerably increase the risk of developing" emphysema/COPD. Id. Even Johnson's appellate brief acknowledges the flaw in Andrews's testimony when it states, "Andrews testified that the chemicals and materials in use at Arvin could provide occupational exposure and negatively impact the health of Arvin workers given sufficient exposure." (Emphasis added).
In Ex parte Valdez, the survivors of an industrial painter who was a cigarette smoker and whose employment had exposed him to coal-tar epoxy sought workers' compensation benefits when the painter died of lung cancer. The Alabama Supreme Court stated that because lung cancer was not a disease indigenous to the painter's workplace environment like byssinosis, see Dan River Mills v. Foshee, 365 So. 2d 1232 (Ala.Civ.App.1979), or pneumoconiosis, see Black Diamond Coal Mining Co. v. Wilson, 274 Ala. 220, 147 So. 2d 810 (1962), and the painter's lung cancer could have been caused by a nonoccupational factor such as smoking, the plaintiffs bore a higher burden of proof with respect to medical causation; they were required to establish that "the totality of [his] work environment ... contributed to cause his cancer and thereby his death." 636 So.2d at 404. See also 1 Terry A. Moore, Alabama Workers' Compensation § 9:16 at 297 (1998):
"[W]hen the disease is one that may, and often does, arise from nonoccupational factors, such as ... emphysema... the claimant bears a heavier burden with respect to medical causation. In such cases, the claimant must establish through a totality of the circumstances that the work environment contributed to the acquisition of the disease; mere exposure to stimuli on the job would not establish causation."
The Valdez court explained:
"`[A]t least three factors must be considered when assessing the likelihood that a person was harmed by exposure to an agent.... The first is the existence of a hazard, that is, the potential health effect. The second is the exposure the person received, and the third is the level of risk associated with that exposure.'"
636 So.2d at 405 (quoting Kenneth R. Foster, David E. Bernstein, and Peter W. Huber, A Scientific Perspective, in Phantom Risk: Scientific Inference and the Law 1, 3 (Kenneth R. Foster et al. eds., *91 1993)). And, quoting from Professor Larson's treatise, the court stated:
"`Even in the case of unusual chemicals and fumes, however, the quantitative factor cannot be ignored. There should be some evidence of the exposure level necessary to cause increased risk .... Further, as in other types of injury, the injury to a certain extent is dose related, with some threshold amount necessary to cause any injury.'"
Valdez, 636 So.2d at 405 (quoting Arthur Larson, The Law of Workmen's Compensation § 41.61(c)(1991)). See also Edmonds Indus. Coatings, Inc. v. Lolley, 893 So.2d at 1206 (affirming an award of benefits for COPD as an occupational disease, despite the fact that the employee was a smoker, because the appellate court concluded that the trial court must have found that the employee's workplace exposure to paint fumes was "sufficient in intensity and duration" to cause or aggravate his COPD).
In summary, we hold that Andrews's first two opinions were admissible over Arvin's Frye objection but that they contributed nothing toward satisfying Johnson's burden of proof with respect to legal causation. With respect to the issue of medical causation, Andrews's third opinion was inadmissible because it did not pass the Frye test. Andrews's third opinion was so vague and incomprehensible that it did not constitute substantial evidence of any element necessary to the establishment of a prima facie case for Johnson.
Dr. Hudson's Testimony
In its motion in limine, Arvin argued that Dr. Hudson's testimony did not satisfy the Frye test. The circuit court denied the motion, and, at trial, Arvin did not restate its objections to Dr. Hudson's testimony. Arvin has therefore failed to preserve this issue for appellate review. See Owens-Corning Fiberglass Corp. v. James, 646 So.2d at 673.
As we have previously discussed, Andrews's testimony did not constitute substantial evidence of legal causation, a required element of Johnson's prima facie case. See Ex parte Valdez, supra; Edmonds Indus. Coatings, Inc. v. Lolley, supra. We will, therefore, examine Dr. Hudson's testimony to determine whether it constituted substantial evidence of legal causation because, failing that, Johnson did not establish his right to recover workers' compensation benefits for an occupational disease.
Dr. Hudson opined that Johnson's "occupational exposure" had contributed to his illness. She testified that, in arriving at that opinion, she had relied upon Andrews's video deposition as well as the testimony of Johnson, Thacker, and Jones, for an understanding of the nature of Johnson's exposure to potentially harmful substances in the Arvin plant. That part of Dr. Hudson's opinion that was based on a conclusion as to the nature of Johnson's "occupational exposure" was, therefore, by her own admission, derived from the testimony of others, none of whom provided any information with respect to the level of Johnson's exposure.
Generally, a physician's opinion is not subject to the Frye test because it is "opinion testimony, not scientific evidence, and thus [it does] not have to meet the admissibility requirements for scientific evidence." Minor v. State, 914 So. 2d 372, 402 (Ala.Crim.App.2004). A physician's opinion with respect to medical causation is generally not governed by the Frye standard because for many, if not most, diseases, science has not yet clearly established causation and there is no generally accepted procedure to determine conclusively *92 the etiology of the disease. In such cases, the physician's opinion as to causation is as much an "art" as a science, based on factors not readily quantifiable and derived, instead, from the witness's overall experience, skill, and training as a physician. See Bragg v. State, 134 Ala. 165, 174, 32 So. 767, 770 (1902) (stating that medicine is "a science or art, comprehending not only therapeutics, but the art of understanding the nature of diseases, the causes that produce them, as well as the art of knowing how to prevent them"). Accordingly, Rule 702, Ala. R. Evid., generally states the standard by which the admissibility of a physician's opinion is judged. See Courtaulds Fibers, Inc. v. Long, 779 So. 2d 198, 202 (Ala.2000) (holding that a veterinarian's testimony regarding the cause of death of horses was derived from the veterinarian's knowledge, skill, and expertise and was not subject to the Frye standard); Millry Mill Co., 999 So.2d at 517 (holding that physicians' testimony as to the cause of employee's neck injury was not subject to the Frye standard).
When, however, a physician addresses a topic about which there is a generally accepted method or procedure for assessing the facts, then the physician's testimony addressed to that topic is governed by Frye. See Kimberly-Clark Corp. v. Sawyer, 901 So. 2d 738 (Ala.Civ.App. 2004) (holding, in a workers' compensation case, that a doctor's report assessing only three of six factors included in a generally accepted diagnostic standard for asbestosis did not meet the Frye standard and was, therefore, inadmissible). See also United States Sugar Corp. v. Henson, 823 So. 2d 104 (Fla.2002) (applying, in a case of first impression on a certified question from a lower Florida court, the Frye standard to expert testimony in a workers' compensation case).
Dr. Hudson relied on Andrews's testimony concerning a topic whether the conditions at the Arvin plant had exposed Johnson to an increased risk for contracting or aggravating emphysema/COPD for which there are generally accepted scientific methods or procedures for assessing the facts, but Andrews did not employ those methods or procedures. Andrews presented no evidence indicating that Johnson's occupational exposure to various materials and substances in the plant had exceeded the permissible limits set by OSHA. Arvin, on the other hand, presented evidence indicating that PELs had not been exceeded and that the plant had never been cited by either ADEM or OSHA for an air-quality violation. Cf. Kimberly-Clark Corp. v. Sawyer, 901 So.2d at 741 (reversing, based on evidentiary error, the award of benefits for employee's workplace exposure to asbestos and noting that employer's mill had complied with OSHA guidelines for permissible limits of exposure to asbestos); McSween v. Michelin Tire Corp., 698 So. 2d 146, 148 (Ala.Civ. App.1997) (affirming the denial of benefits for tinnitus as an occupational disease and noting that employer's plant had never exceeded OSHA guidelines for permissible noise levels); Taylor v. United States Steel Corp., 456 So. 2d 831, 833 (Ala.Civ.App.1984)(affirming the denial of benefits for emphysema as an occupational disease and noting that results of air-quality studies for employer's mill were within permissible limits). In addition, Andrews did not testify, and Johnson presented no evidence indicating, that the PELs are not sufficiently protective of worker health. Cf. In re Welding Fume Prods. Liab. Litig., (No. 1:03-CV-17000, MDL No. 1535, Aug. 8, 2006) (N.D.Ohio 2006) (not reported in F.Supp.2d) (holding admissible, over a Daubert challenge, the proposed testimony of an industrial hygienist that the PEL for occupational exposure to *93 manganese is "not sufficiently protective of [a] welder's health").
We conclude that, had a proper and timely objection been made at trial, Dr. Hudson's opinion would have been inadmissible because it failed to satisfy the Frye test. Consequently, we cannot hold that it constituted substantial evidence of legal causation. No "fair-minded person[] in the exercise of impartial judgment [could] reasonably infer the existence of the fact sought to be proved," West v. Founders Life Assurance Co. of Florida, 547 So.2d at 871 i.e., that the conditions at the Arvin plant had exposed Johnson to a risk of contracting emphysema/COPD, or aggravating his existing emphysema/COPD based on Dr. Hudson's testimony.
Dr. Hudson concluded, in effect, that Johnson had been exposed to occupational inhalants at a level sufficient to cause or contribute to his emphysema/COPD. In reaching that conclusion, however, she acknowledged that she had relied on the testimony of Andrews, Johnson, Thacker, and Jones none of whom testified that Johnson had been exposed to inhalants at a sufficient level for a sufficient time to increase his risk of contracting emphysema/COPD or aggravating his existing emphysema/COPD. Dr. Hudson also implied that, because Johnson suffered some of the same respiratory ailments that were listed on the MSDS documents as symptoms of overexposure to products in use at the Arvin plant, Johnson's disease was related to occupational exposure. She admitted, however, that she had no scientific basis for that conclusion, and she conceded that smoking was a major cause of the same symptoms.
We hold that Johnson failed to present substantial evidence of legal causation and that he was not entitled to workers' compensation benefits for an occupational disease. Accordingly, the judgment of the Fayette Circuit Court is reversed, and the cause is remanded with directions to enter a judgment in favor of Arvin.
REVERSED AND REMANDED.
THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.
BRYAN, J., concurs in the result, without writing.
NOTES
[1] Alabama adopted the Frye standard in 1991. See Ex parte Perry, 586 So. 2d 242 (Ala. 1991). Two years later, the United States Supreme Court overruled the Frye standard for the admissibility of scientific evidence in federal trials. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Alabama courts, however, have not abandoned the Frye "general acceptance test" and have not adopted the Daubert standard in civil cases. See Bagley v. Mazda Motor Corp., 864 So. 2d 301, 310 (Ala.2003). The Daubert standard applies by statute in Alabama only to the admissibility of DNA evidence. See § 36-18-30, Ala.Code 1975. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602100/ | 1 So. 3d 93 (2008)
Lamoine GREENER
v.
Kandys KILLOUGH.
2061199.
Court of Civil Appeals of Alabama.
July 18, 2008.
*95 Wayne Carter, Luverne, for appellant.
P. Richard Hartley of Hartley & Hickman, Greenville, for appellee.
MOORE, Judge.
Lamoine Greener appeals from an order of the Butler Probate Court that declared her incapacitated and appointed her daughter, Kandys Killough, as guardian and conservator over Greener's person and estate. Because we conclude that the probate court committed reversible error by improperly allowing medical testimony to be presented by telephone at trial, we reverse and remand.
Procedural History
On August 9, 2007, Killough filed a petition in the probate court to be appointed guardian and conservator for Greener, alleging that Greener suffered from dementia and was unable to properly care for her own needs. That same date, the probate court set Killough's petition for a jury trial to be held on September 18, 2007, appointed Dr. Caudill Miller to make a medical evaluation of Greener, appointed Tom Nicholas, a social worker for the Butler County Department of Human Resources (hereinafter "DHR"), to render a report to the court, and appointed Yvonne Williamson as Greener's guardian ad litem.
On September 18, 2007, after ore tenus proceedings, a jury found Greener to be "an incapacitated person." Based on the jury's finding, the probate court entered a judgment granting Killough's petition. Greener appeals.
Facts
After her husband died in 2004, Greener moved from Texas to Greenville to be closer to Killough. Killough testified that while helping Greener move she and Greener discovered several boxes from the Home Shopping Network which, according to Killough, Greener did not remember ordering. Greener explained that she had ordered some things through the mail but that, when they arrived, they were not as she expected them to be; Greener and Killough returned the items in the boxes they had found.
Greener purchased a house in Greenville, but she lived there for under a year before she was hospitalized for several months. After her discharge from the hospital, Greener lived with Killough and her husband for approximately six weeks. Greener then purchased a modular house, which she placed on the Killough's property next to Killough's house. Killough testified that Greener later paid a contractor $80,000 to add a front porch and a garage to her modular house but that Greener had paid the contractor before he finished the job and he had not completed the improvements.
Killough testified that before Greener entered the hospital she regularly could not find the key to enter her house. Killough and her husband testified that there had been times when Greener had telephoned them because she had forgotten how to get home from the hospital or was lost; Greener denied those incidents. Killough's husband testified that Greener would forget telephone numbers shortly after learning them and that she would continuously call him for those numbers. Greener stated that she keeps most of her *96 telephone numbers written down and that she does not try to remember them. At one time, Greener drove into a ditch beside her driveway; Greener explained that it had been late and she had not lived there for very long. At the time of trial, Greener had recently been involved in two automobile accidents; according to Greener, she was not at fault in those accidents. Killough testified that Greener had been paying her own bills, writing her own checks, and balancing her own checkbook since being released from the hospital but that she sometimes forgets whether she has paid her bills.
It is apparent from the testimony of Greener and Killough that Greener has a substantial amount of wealth. While Greener was in the hospital, Killough took over Greener's accounts and assisted with paying her bills and managing her other finances. Before Greener moved from Texas, she had set up an account in Greenville, with Killough's husband as a cosigner, so that he could build her a greenhouse. According to Killough's husband, when Greener entered the hospital, that account was overdrawn; however, he stated that he and Killough had transferred deposits to that account from Greener's Texas accounts, and, by February 2007, that account contained approximately $72,000.
Greener testified that she had never had any problems with overdrafts of her accounts but that she did have some problems while she was in the hospital because she could not take care of her bills. Since her release from the hospital, however, Greener stated that she keeps up with her checkbook, pays her own bills, and does not have trouble remembering whether she has paid her bills.
According to Killough, she and Greener had a good relationship until Greener moved to Greenville, but Greener has since become suspicious of Killough. Greener testified that, during the period that Killough's husband had the key to her house, she noticed that some antique coins had disappeared from her house so she later took back her key and had her locks changed. In February 2006, Greener hired an attorney, who sent a letter to Killough informing her that Greener had revoked a power of attorney that Greener had signed in December 2003. The letter further advised that Greener had terminated access by Killough and her husband to all her financial accounts, that Greener requested that Killough not disturb her in her residence past 8:00 p.m., and that Greener requested that Killough not enter her residence unless Greener invited her. Killough stated that, since she received the letter, she only enters Greener's house once a month, with Greener's permission, to clean the air conditioning.
Killough and Shelly Hughes, Greener's niece, Shelly Hughes, each testified that Greener had changed in recent years. They explained that she did not have as much energy as she had once had, that she had trouble remembering things, and that the state of her home was now messy and cluttered when it had once been neatly kept. Hughes testified that on one occasion in June 2007 she was riding with Greener in her car at dusk and that Greener did not have her lights on, that Greener had insisted the lights were on when they were not, and that Greener was unable to turn on the lights when she tried to do so. Hughes also testified that on one occasion Greener was supposed to send Hughes's mother a check, that Greener had sent an empty envelope, and that Greener had later found the check, written for $5,000, in a book.
Tom Nicholas, the court-appointed DHR representative, visited Greener at her house on August 17, 2007. Nicholas testified *97 that Greener only hesitantly allowed him to enter the house. Greener explained that she was reluctant to let Nicholas inside because she did not want him to see the mess in the living room. Nicholas stated that the home was well maintained except that Greener's living room was strewn with papers, bills, and letters, and the food in the kitchen was stacked on the countertops rather than in the shelves. Greener testified that the clutter was a result of her attempt to go through her things in order to get rid of certain items and to pack others in her endeavor to move back to Texas.
Nicholas further testified that during his visit with Greener he performed a brief interview, wherein he asked her "her name; about who her daughter was; where she came from; her address; date of birth; what month it was; what day of the week it was; [and] who her doctor was," and that Greener had answered most of the questions correctly except for the current month or day of the week; Nicholas also stated that she did not remember her doctor's name, but she knew that she had a "woman doctor." Nicholas stated that, based on his evaluation of Greener and his discussion with Killough, he believed that Greener constituted a danger to herself and others.
Melissa English, a nurse practitioner, testified that in the three years before the trial she had treated Greener approximately nine times for high blood pressure, high cholesterol, ischemic heart disease, a thyroid condition, dementia, and depression. English stated that she "thinks" Greener has vascular dementia that is complicated by her hypothyroidism. English testified that if a patient with hypothyroidism does not take their prescribed medication, they will continue to have clinical manifestations of hypothyroidism, depending on the severity of their illness, and that it will complicate their dementia. English testified that she had seen most of the signs and symptoms that she would expect to see with untreated hypothyroidism in Greener.
English performed blood tests on Greener to determine whether she had been compliant in taking her medications; the initial test indicated that Greener was not taking her medications or was not taking enough. English testified, however, that the last blood test that was taken was normal, and she believed that Greener had been compliant with her medications because, she stated, a home-health provider and Killough had overseen the administration of Greener's medications. English stated that she believes there is a possibility that, with adequate treatment and compliance with her medicine, she believes there is a possibility that Greener may improve over time.
English performed a mini-mental exam a screening tool that tests various aspects of memory on Greener on July 17, 2007, that indicated that her recall was fair. English testified, however, that in the year and a half before the trial there had been several episodes when Greener did not remember anything about her previous visit to the office and did not remember undergoing diagnostic tests at the hospital that had included intravenous IV access and dye. English testified that when Greener left English's office on one occasion, she had started out the door and could not remember how to go home. English stated that she is concerned for Greener's safety because Greener's memory is poor, and she believes that Greener needs a conservator. English thinks that Greener is capable of writing checks and paying bills with some supervision, but she believes that there should be safeguards in place for her, such as the requirement of a second signature on her checks; she *98 thinks that Greener should not have unlimited access to her checkbook.
In English's report to the court, she suggested that Greener needed a guardian appointed and that it should be an independent party because she thinks that an objective third party is a better choice than a relative in order to protect the interests of both parties. English stated that it makes sense for a third party to take care of a person instead of a family member "when you're dealing with dementia or depression and you've got the possibility for psychosis or delusions, accusations of theft, [and] accusations of abuse."
Dr. Sara Shashy, a medical doctor who is board certified in internal medicine and who has been engaged in the practice of neurology since 1995, testified by telephone over Greener's objection. Dr. Shashy testified that she had treated Greener on three occasions November 30, 2004, February 19, 2007, and March 29, 2007.[1] Dr. Shashy testified that she had drafted a letter, dated July 27, 2007, concerning Greener's condition which explained that Greener had dementia, that Greener is not competent to manage her financial, medical, or personal affairs, and that it is not safe for Greener to operate an automobile.
According to Dr. Shashy, a document in Greener's file from Montgomery Metabolic and Memory Imaging, dated December 20, 2004, reflected that Greener was negative for Alzheimer's dementia at that time. On Greener's February 2007 visit, Dr. Shashy performed a mini-mental examination; Greener scored 29 out of 30, which results are considered normal. However, Dr. Shashy testified that Greener has a disease known as hypothyroidism, the signs and symptoms of which mimic Alzheimer's disease, including memory loss, depression, lots of physical complaints, fatigue, lethargy, poor sleeping, and cold intolerance. Dr. Shashy testified that Greener does have memory loss and that, unlike Alzheimer's disease, hypothyroidism is a curable or reversible disease. The treatment of hypothyroidism, according to Dr. Shashy, involves taking thyroid supplements, one pill each day, and allowing the physician to monitor the patient's response and adjust the dose until it is normalized. Dr. Shashy stated that, if the patient does not take their medicine, their thyroid will continue to deteriorate and their symptoms will worsen.
Although Dr. Shashy stated that she did not prescribe medication to Greener for her hypothyroidism, she testified that Greener's medical doctors had prescribed it over the years and that Greener was "obviously not taking it because she's quite deficient." According to Dr. Shashy, when Greener first visited her office, she had been prescribed Aricept, a prescription medication used for treating Alzheimer's disease, but Dr. Shashy stated that she did not believe that Greener had been taking it. According to Dr. Shashy, on Greener's second visit with Dr. Shashy, Greener indicated that she had run out of her Aricept. Dr. Shashy testified that, according to her records, Greener was taking several other medications, including antidepressants and blood-pressure medicine. Dr. Shashy stated that she believed that Greener was incompetent based on the fact that Greener had not been taking her medication. When Dr. Shashy saw Greener in March 2007, she instructed Killough to give Greener the prescribed medication. Dr. Shashy explained, however, that Greener *99 did not want her to tell Killough her diagnosis or otherwise talk to Killough.
Killough explained that she knew that Greener had not been taking her medications before she began to administer them because Greener had had no energy and had been depressed. Killough testified that she had administered Greener's medications for the two and a half months before trial and that she had noticed a lot of improvement in how Greener was feeling and how she looked.
Greener testified that she did not take her medications in compliance with her doctor's instructions because she wanted to stop taking all the medications that English had prescribed to her and she wanted to pursue herbal remedies, which she believes are better than prescription drugs. Greener stated that she is taking enough medication "to kill a mule." Greener stated that part of the reason she wanted to return to Texas was to locate doctors who practice alternative medicine so that she could pursue natural cures and that she does not know of any such doctors in Alabama. Greener testified that she did not know what medications she was taking because, for several months, Killough had been administering them to her. She testified that when she does not take the medicine, she does not feel bad; she also stated that she does not know whether her memory is worse or not when she fails to take her medicine.
Killough testified that it was not her intent to take Greener out of her home or to move her to a nursing home. Killough testified that Greener had always been very generous to her and her family and that they had no reason to steal her money. Killough testified that Greener did not trust her and that Greener had accused Killough of trying to poison her a few weeks before the trial.
Greener testified that she is capable of managing her own affairs. Greener acknowledged that she has memory problems, but she stated that she does not believe that she has dementia. Greener stated that she does not want Killough to manage her affairs for her and that, if she was appointed a conservator by the court, she did not want Killough to be that conservator.
Discussion
Greener first argues that the probate judge exceeded his discretion by failing to recuse himself on the basis of his alleged close personal relationship with the Killough.
"`"Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when `facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.' Specifically, the Canon 3(C) test is: `Would a person of ordinary prudence in the judge's position knowing all the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?' The question is not whether the judge was impartial in fact, but whether another person, knowing all the circumstances, might reasonably question the judge's impartiality whether there is an appearance of impropriety."'
"City of Dothan Personnel Bd., 831 So.2d [1] at 5-6 [(Ala.2002)] (quoting Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala.1994) (citations omitted)).
"`"`"[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea."' Any disqualifying *100 prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source."'
"Ex parte Little, 837 So. 2d 822, 825 (Ala. 2002) (quoting Ex parte Melof, 553 So. 2d 554, 557 (Ala.1989)). `"The burden of proof is on the party seeking recusal."' City of Dothan Personnel Bd., 831 So.2d at 9 (quoting Ex parte Cotton, 638 So.2d [870] at 872 [ (Ala.1994) ]). `[A] mere accusation of bias that is unsupported by substantial fact does not require the disqualification of a judge.' Ex parte Melof, 553 So.2d at 557 (emphasis omitted)."
Ex parte Monsanto Co., 862 So. 2d 595, 604-05 (Ala.2003) (footnotes omitted).
Greener asserts in her brief on appeal that the probate judge and Killough "were friends and had been seen in each others company both at the home of [Killough] and at social gatherings." However, "we cannot consider evidence that is not contained in the record on appeal because this Court's appellate review `"is restricted to the evidence and arguments considered by the trial court."'" Roberts v. NASCO Equip. Co., 986 So. 2d 379, 385 (Ala.2007) (quoting Ex parte Old Republic Sur. Co., 733 So. 2d 881, 883 n. 1 (Ala.1999), quoting in turn Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.1992), and citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So. 2d 1326 (Ala.1991)). In her answer to Killough's petition, Greener requested that the probate judge recuse himself "due to the close personal relationship between the Honorable Judge and the Petitioner and her husband," but she did not attach an affidavit or present any other evidence supporting her alleged basis for recusal. Therefore, we cannot place the probate court in error for failing to grant the recusal request based on the reasons asserted in Greener's brief.
Greener next argues that the probate judge exhibited his bias in favor of Killough by violating Rule 103(c), Ala. R. Evid.,[2] in ruling on Greener's evidentiary objections at trial. Greener maintains that the probate judge in several instances allowed the jury to hear objections and inadmissible evidence to which they should not have been privy. However, even assuming the truth of Greener's assertion, Greener has failed to show how such erroneous rulings prove bias on the part of the probate judge and warrant his recusal. Furthermore, Greener failed to request the probate judge's recusal based on his evidentiary rulings at trial. "[T]he appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling." Ex parte Wiginton, 743 So. 2d 1071, 1073 (Ala.1999).
Greener next argues that the probate court erred in allowing Dr. Shashy to testify by telephone. On appeal, Greener argues that Dr. Shashy's telephonic testimony should not have been permitted because that testimony was not the best evidence, because the jury could not observe Dr. Shashy's demeanor while she was testifying, because Greener has difficulty hearing and "it [was] difficult for her to understand the testimony," and because there was no way for the probate judge to know whether Dr. Shashy had her hand raised and was sworn in properly. A trial court's determination whether to admit or *101 exclude testimony will not be disturbed on appeal unless the trial court exceeded its discretion. See Key v. Ellis, 973 So. 2d 359, 368 (Ala.Civ.App.2007).
Killough argues, citing Hardeman v. State, 651 So. 2d 59 (Ala.Crim.App.1994), that Greener is precluded from presenting this issue on appeal. In Hardeman, the defense counsel objected at trial, citing as grounds therefor that the question called for a mental operation; on appeal, the assignment of error regarding the same testimony was based on the rule prohibiting the impeachment of one's own witness. The Court of Criminal Appeals determined that that issue was not preserved for appellate review because no objection had been made on that ground in the trial court.
"Objections must be `raised at the point during trial when the offering of improper evidence is clear,' see Charles W. Gamble, McElroy's Alabama Evidence § 426.01(3) (5th ed.1996)." HealthTrust, Inc. v. Cantrell, 689 So. 2d 822, 826 (Ala. 1997). This court will not hold a trial court in error "unless that court has been apprised of its alleged error and has been given the opportunity to act thereon." Sea Calm Shipping Co. v. Cooks, 565 So. 2d 212, 216 (Ala.1990). At the trial in the present case, Greener's attorney made the following objection before Dr. Shashy's testimony was permitted by the probate court:
"MR. CARTER: And also we object to Dr. Shashy testifying by telephone because it is not the best evidence. You have to testify when someone is in the office [sic] the jury cannot observe his demeanor and what's he testifying and they're not looking at the witness directly. The jury cannot view the witness and see what he is saying. Ms. Greener has a problem hearing and all so it's going to be a difficult thing with [Dr. Shashy] testifying. We object strenuously to [Dr. Shashy] testifying by telephone."
We conclude that Greener preserved the issue of whether the probate court's admission of Dr. Shashy's testimony by telephone was in error based on those grounds proffered at trial.
Greener's objections based on the best-evidence rule are misguided because that rule, Rule 1002, Ala. R. Evid., regulates proving the content of a writing and has no application to the admissibility of a witness's testimony by telephone. However, Greener continued at trial to assert a further basis for the objection grounded on Rule 43(a), Ala. R. Civ. P.,[3] which states, "[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules."[4] Citing Harrison v. Wientjes, 466 So. 2d 125 (Ala.1985), Killough argues that "in open court," as used in the rule, "refers to one's opportunity and ability to cross-examine the witnesses against him" and "does not require that the witness actually be in the courtroom." We disagree.
In Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293 *102 (Ala.1998), the Alabama Supreme Court discussed statutory construction as follows:
"`Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'"
714 So.2d at 296 (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)). The same principle applies in interpreting a rule of civil procedure. See Moffett v. Stevenson, 909 So. 2d 824, 826 (Ala.Civ.App.2005). "`It is this Court's responsibility to give effect to the legislative intent whenever that intent is manifested.'" Surtees v. VFJ Ventures, Inc., [Ms. 2060478, February 8, 2008] ___ So.3d ___, ___ (Ala.Civ.App.2008) (quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So. 2d 513, 517 (Ala. 2003)).
Rule 43(a) states that witness testimony is to be taken "in open court." "Open court" is defined by Black's Law Dictionary 1123 (8th ed.2004), as "[a] court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business." Furthermore, the Committee Comments on 1973 Adoption of Rule 43(a) state:
"Rule 43(a) will make oral testimony before the court in an equity proceeding the rule, rather than the exception. This desirable change gives the trial court the obvious advantage of observing the demeanor of witnesses so as to determine more readily their veracity (or lack thereof) and the weight to be given their testimony."
The language of Rule 43(a) and the Committee Comments to that rule indicate that the presence of the witness in the courtroom is what is contemplated by the rule.
Furthermore, in contrast to Alabama's Rule 43(a), Fed.R.Civ.P., Rule 43(a), states:
"At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location."
Alabama has not adopted that portion of the federal rule that allows contemporaneous transmission from a different location, and there are no cases in Alabama that indicate that testimony by telephone is permissible under Rule 43(a).
Killough argues that whether to allow a witness to testify is a matter within the sound discretion of the trial judge. Killough cites Truck Rentals of Alabama, Inc. v. M.O. Carroll-Newton Co., 623 So. 2d 1106, 1112 (Ala.1993), wherein the supreme court found that the trial court had not exceeded its discretion by allowing testimony from a witness whose name was not submitted on the list of proposed witnesses in compliance with a pretrial order. In the present case, however, we conclude that the probate court did exceed its discretion by admitting Dr. Shashy's testimony by telephone.
Because most states have adopted the federal version of Rule 43(a), there is little caselaw in other jurisdictions regarding whether testimony by telephone is permitted when there is not a provision in Rule 43(a) allowing contemporaneous transmission of testimony from a different location. But see, e.g., State ex rel. Juvenile Dep't of *103 Multnomah County v. Gates, 86 Or.App. 631, 634, 740 P.2d 217, 218 (1987) (it was error for trial court to permit telephonic testimony when not permitted by a statute or procedural rule), and Kinsman v. Englander, 140 Wash.App. 835, 843-44, 167 P.3d 622, 626 (2007) (a trial court may allow telephonic testimony with both parties' consent because, in Washington, testimony shall be taken orally in open court "`unless otherwise directed by the court'"). In Barry v. Lindner, 119 Nev. 661, 81 P.3d 537, (2003), the Nevada Supreme Court adopted a standard allowing telephonic testimony in special circumstances, such as when exigent circumstances exist or when the parties consent and have knowledge of the witness's identity and credentials.[5] 119 Nev. at 668, 81 P.3d at 542.
Several jurisdictions that have adopted a rule containing the contemporaneous-transmission clause of the federal rule have concluded that testimony by telephone should not necessarily be permitted in each case. See, e.g., Lawrence v. Delkamp, 750 N.W.2d 452 (N.D.2008) (affirming trial court's decision to disallow telephonic testimony because there were not adequate safeguards in place, including someone on site with the witness to administer the oath), and Dunsmore v. Dunsmore, 173 P.3d 389 (Wyo.2007) (affirming trial court's decision to rescind its order to allow telephonic testimony because it was in the court's discretion).
The record indicates that Greener was not informed before trial that Dr. Shashy would testify via telephone and that Greener did not consent to Dr. Shashy's testifying via telephone. Furthermore, there was no reason given for Dr. Shashy's inability to appear in court, it was stated only that she "could not come" to the court. Thus, had Alabama adopted that portion of the federal rule allowing contemporaneous transmission of testimony, Dr. Shashy's testimony would not have been allowed because there were not appropriate safeguards in place and there were no special circumstances necessitating the employment of telephonic testimony.
Nevertheless, based on the plain language of Rule 43(a), the probate court was not within its discretion to allow Dr. Shashy to testify by telephone.[6] The entire testimony of Dr. Shashy was inadmissible; thus, we conclude that the probate court committed reversible error in allowing Dr. Shashy's testimony. We therefore reverse the probate court's judgment and remand the case for a new trial consistent with this opinion.[7]
REVERSED AND REMANDED.
*104 THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.
PITTMAN, J., concurs in the result, without writing.
NOTES
[1] Although the probate court appointed Dr. Caudill Miller to examine Greener, Dr. Shashy, who worked with Dr. Miller, performed examinations on Greener and prepared reports relating to those examinations.
[2] Rule 103(c), Ala. R. Evid., provides: "In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury."
[3] The Rules of Civil Procedure apply to probate-court proceedings "in the absence of express provision to the contrary." Ala.Code 1975, § 12-13-12. See also Hutchinson v. Miller 962 So. 2d 884, 886 n. 1 (Ala.Civ.App. 2007).
[4] We note that Rule 32(a)(3)(D), Ala. R. Civ. P., allows a party to introduce the deposition of a licensed physician. However, Killough did not attempt to introduce a deposition of Dr. Shashy pursuant to that rule. Also, Killough has not argued that Rule 32(a)(3)(D) implies that testimony by a licensed physician is generally excepted from Rule 43(a). Therefore, we do not address that issue.
[5] In 2004, after Barry was released, the Nevada legislature adopted the federal version of Rule 43(a), adding the clause allowing contemporaneous transmission of testimony. At the time Barry was decided, the Nevada rule provided: "`In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or by statute.'" Barry, 119 Nev. at 667-68, 81 P.3d at 541.
[6] Nothing in this opinion should be construed as preventing the parties from "taking testimony by agreement in a manner different from ... [the manner] provided [in Rule 43(a) ] unless the court limits or prohibits such agreed manner." Rule 43(a), Ala. R. Civ. P. (emphasis added). We merely hold that in the absence of an agreement of the parties to accept testimony by telephone, the trial court has no discretion to allow testimony by that means.
[7] Because we are reversing the judgment and remanding the case for a new trial, we need not address Greener's other evidentiary arguments or her argument that the probate court erred in granting Killough's petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304602/ | SWEPSTON, J.
This appeal involves the rights and obligations of the respective owners of contiguous lots arising out of a party wall agreement.
Complainants, Nikas and wife, own a lot at the southwest corner of Main and Pontotoc Streets, Memphis, fronting 44 feet on Main and running 110 feet along Pontotoc, on which is situated a three-story brick building and basement formerly known as the Longinotti Hotel and now as the Manhattan.
Defendant Liberto and wife own the next lot to the south which fronts on Main Street 56 feet and runs back 110 feet west to the alley behind both properties.
The predecessors in title of the respective owners entered into a party wall agreement as follows:
“This agreement made this 30th day of May, 1895, by and between James Longinotti and August Longinotti of Water Valley in the State of Mississippi, of the one part, and Mrs. Lizzie Yeager Lee, of Memphis, Tennessee, of the other part,
*438“Witnesseth.:
“That whereas the said James Longinotti and August Longinotti are the owners of a lot of ground 44 feet front on the west side of Main Street by 110 feet back west to a private alley 15 feet wide, Memphis, Tennessee, being the same conveyed to them by Stacker S. Lee and the said Mrs. Lizzie Yeager Lee, his wife, by the deed to be found of record in the office of the Register of Shelby County, Tennessee, in Book 185, Page 36; and the said James Longinotti and August Longinotti are about to erect a building on the said ground forty four feet front on Main Street, and running back along Pon-totoc Street the same width, ninety feet, such building to be of brick and to have a basement and be three stories high above the ground.
“And whereas the wall of said building is to be 22 inches and it is desirable that the same should be located equally on the ground belonging to the said James Long-inotti and August Longinotti before described, and that lying immediately south of it, which belongs to the said Mrs. Lizzie Yeager Lee as the devisee under the will of said Stacker Lee, which is of record in the office of the Clerk of the Probate Court of Shelby County, Tennessee, and all the said parties agree that the said wall shall be so located.
“Now this agreement witness, that the parties hereto hereby consent and agree that the said James Longinotti and August Longinotti shall locate and build half the said wall upon the said ground so belonging to the said Mrs. Lizzie Yeager Lee, and do the excavation and other work necessary in that behalf, the said wall to remain there permanently as a part of the said house, and that the same shall be subject to be used and appropriated by the said Mrs. Lizzie Yeager Lee as the wall of and *439for the use of such buildings or improvements as she or those claiming under her may erect on the ground aforesaid now belonging to her, and that when the said wall is so used and appropriated by the said Mrs. Lizzie Yeager Lee (or those' claiming under her) she or they shall pay to the said James Longinotti and August Long-inotti, or their assigns, the one-half of the value of the said wall at the time the same is so used and appropriated and that such payment, so to be made shall be a full compensation for the said one-half of the said wall and shall vest in the said Mrs. Lizzie Yeager Lee or those claiming under her the full and complete title thereto.
“Done in duplicate this day and year above written.
“/s/ Mrs. Lizzie Yeager Lee
“James Longinotti
“A. Longinotti”
Pursuant to said agreement, the existing building was erected with the south wall twenty two inches thick at ground level resting half on each lot.
Omitting for the present intervening matters, after defendants acquired their lot, they began construction of a building on it and tied into the south side of the party wall for the north wall of their building, all without notice to complainants.
This suit was then filed to enforce payment for one-half the present value of the party wall.
Omitting certain steps not now relevant, defendants answered that in the year 1900 Joseph A. Bailey and George E. Witt, one of their predecessors in title, erected on said lot a one story building in which they used and appropriated said party wall as their north wall, attaching to same the supporting rafters and roof and using the chimneys built into said wall, which building remained unaltered until demolished in 1940.
*440Further, that said party wall agreement was not registered until 1905 and that Bailey et al. had no knowledge of same and were not liable to pay for the use of said wall on their property. They, therefore, set up the following defenses:
1. The nonliability of Bailey inures to defendants;
2. Presumption of payment by Bailey after the lapse of 47 years;
3. Ten year statute of limitations;
4. Laches and estoppel by reason of the death of witnesses and by conduct of complainants’ predecessors in title;
5. The agreement was a covenant personal to the parties and not binding upon defendants, nor inuring to the benefit of complainants;
6. Only Bailey and Witt were liable and not any subsequent grantee of theirs.
Defendants then filed a cross-bill bringing in Ketchum et al., their grantors, to recover for breach of covenant of general warranty, in event defendants be cast in complainants’ suit.
Ketchum et al. answered that cross-complainants are charged with notice of the alleged encumbrance and that the wall having been used by defendants is a benefit instead of a burden; hence, no liability.
The cause was heard regularly on oral testimony by order (R. 45) of the Chancellor who filed an elaborate written findings of fact and opinion (R. 46-71) which we do not abstract as to all points, for the reason that we are of opinion there is error in one determinative finding of fact.
The Chancellor found (R. 51 and 61) that Joseph A. Bailey asserted he was not using and appropriating said party wall within the sense of the said agreement; hence, *441since Bailey was and wonld be estopped to say later that be was nsing it, bis successors in title would be estopped (B, 62).
No fault can be found with his conclusion of law, but we do not think the record sustains the factual major premise.
The only testimony on the point is that of Will Long-inotti, son of August and nephew of James, who executed the agreement with Mrs. Lee. He was 16 at the time the Bailey building was constructed in 1900'.
As to Bailey it will be observed that witness never talked to Bailey, his father did not state what Bailey’s attitude was, and it does not appear that anybody talked to Bailey.
The testimony is:
“Q. Did you ever discuss that with your father? A. No sir, only once I asked him after I read the agreement did he ever try to collect on the wall from Bailey and he said no, he didn’t want to go into court or have a law suit about it.
‘ ‘ Q. Did he say the people who owned the other building had refused to pay?' A. He didn’t say.
i£Q. Did he say why he didn’t go to court about it? A. Well, he said there was some question about whether they were using the wall. He said it would cause a law suit.” (B. 94.)
“Q. When you went back you spoke to your father about it? A. That is right.
“Q. You considered the wall was being used by Bailey? A. I thought so, yes sir.
“Q. You thought so? A. Yes.
“Q. You spoke to your father and his response was it might cause a law suit to collect and he didn’t want to have any trouble or law suit?' A. Yes sir.
*442“ Q. He said, ‘Well, there might he a law suit to collect on it and I don’t want to have any trouble.’ Those were almost his exact words?' A. Yes sir.” (E. 96.)
“Q. Did one of those gentlemen living at time give any reason for not paying for the wall, do you recall? ’A. I was telling you about a conversation I had with my father. He said he didn’t want a law suit.
“Q. Didn’t your father state what Mr. Bailey’s position was? A. No sir.
“Mr. Shea: We object to his leading.
“The Court: Eestate the question.
“Q. Did your father state in that conversation or any other conversation (interrupted).
“Mr. Shea: We object to that, your Honor.
“The Court: On what ground?'
“Mr. Shea: He is asking him ‘Did your father state in that conversation?’
“The Court: Ee-phrase your question.
“Q. Mr. Longinotti, what did your father state you said there was a conversation what did he state about what Mr. Bailey or any of the Others might have said to him as their reason for not paying for it? A. I asked him why they didn’t pay him and he said he — said there was some talk about they weren’t using the wall. He said he figured there would be a lawsuit and he didn’t want a lawsuit.” (E. 101-102.)
The witness himself said he thought Bailey had appropriated his side of the wall; it appears that his father thought so, but did not want a lawsuit about it. It is fair to infer from the attitude of the father (1) that he knew the agreement was not then of record, (2) that Bailey did not know about the unrecorded agreement, (3) if demand were made on Bailey for payment, he would have stood on his lack of actual knowledge and *443(4) that by reason of the father’s reluctance to have a lawsuit he said nothing to Bailey. There is reason- to infer, therefore, that whatever talk there was about a lawsuit was between the Longinottis and not with Bailey.
The only other evidence that could by any possibility be used even to suggest Bailey’s attitude is this same witness’ testimony (R. 91) that the roof of the Bailey building was supported by wooden columns 8 x 8, or 10 x 10, along the wall, but not attached to it and that the roof joists did not rest on the corbel or shelf that extended out about 6 inches from the rest of the wall but rested only on the wooden columns, but, as we shall later demonstrate, Mr. Longinotti’s memory was erroneous and there were no wooden columns along the wall, but only in the center of the building running parallel to the north and south walls.
In our view there is, therefore, no evidence either direct or circumstantial, from which it could be found that Bailey asserted that he was not using the party wall; hence, there could be no estoppel of Bailey and his successors in title.
Much of the evidence and the briefs are directed at whether the Bailey building was a substantial building that would amount to a use and appropriation of the party wall within the sense of the agreement. The Chancellor, being of the opinion that estoppel lay against Bailey and his successors, put his decision on that ground and made no specific finding as to the present question.
We deem it necessary to make a finding on the point.
First, by way of clarifying the picture, pursuant to the customary method of construction of party walls and of the type of construction generally in that era and within the spirit of the agreement the south side of the party wall had built into it at the second and third floor levels *444and the roof level a horizontal shelf extending the full length of the building, on which a builder on the Lee lot could rest the ends of the floor or roof joists as the case might be. This structure is called a corbel; it is any bracket extending from the face of the wall either for ornamental or support purposes — here obviously for support. These extended out about 6 inches.
The Chancellor thought the evidence doubtful that there was a substantial use and appropriation of the wall by Bailey. There is some slight conflict in the evidence but we do not think there is any doubt about the decided weight of it.
There is only one eyewitness to the kind of building Bailey put up. There are many who either rented it or visited it after about 1916 and up until it was demolished in 1938. All of the original parties to the agreement are dead; also the contractor who demolished it.
True that defendant said it was a “kind of a shack, a real small building, more like a shed”, but the point is to what extent was the party wall used.
Of one thing there is no possible doubt — the roof of the Bailey building was flashed to the party wall. Exhibits 3 and 4, photographs, taken recently show this plainly. The tar mark begins at the front about three feet above the lowest corbel and slopes downward toward the west or rear until it is only about six inches above the corbel, thus showing the roof line. Ample testimony also supports the fact.
Witness Levine, a graduate engineer, and a building contractor by vocation, says that it is flashed and counter-flashed, which simply means that a. layer of metal or other waterproof material is lapped over the edge of the roof planks and upward against the wall-flashing, and then another layer inserted into the wall a few inches *445above tbe first and brought down to overlap the upper edge of the first layer — counterflashing, with cement or asphalt sealing the edges to wall and roof.
Most of the witnesses agree that it had brick walls on the other three sides and that the chimney in the western part of the wall was used by occupants and that there was no ceiling below the roof.
There was a concrete floor running from the party wall south about 35 feet the full depth of the building. Will Longinotti says it had some concrete running from the south wall, but it was not fully concreted until about 1922, before which time the concrete, he says, did not touch the party wall. We think he is mistaken about it just as about the big wooden support timbers.
If there was no concrete floor in the beginning against the party wall, then the wooden timbers would have had to rest either on the ground or on some more solid footing. Then if the concrete floor was put down later, there should have been some evidence of the wooden supports being surrounded by the newer floor either by way of holes where the posts went through, or by joints between the old footing and the newer surrounding floor. Yet there is no such evidence; the floor there appears perfectly smooth and homogeneous.
Furthermore, Longinotti says that there was never any change in the structure of the building other than the type of floor. Elmer Harris, a rental agent and realtor, had charge of the building from 1916 until it was demolished in 1938. Harris says it was all concrete when he first saw it and they never put down any more, although Longinotti says the additional concrete was put down when Chambers Motor Co. rented it in 1922.
Now, several witnesses testify that there were not in later years from about 1916 to 1938 any wooden supports *446along the party wall, — Elmer Harris, Ira Wells and others. Wells, age 75, worked in the building as a cabinet maker; one time he put a roof on the building; he says that he saw the roof joists resting on the corbel, that the only wooden posts were those down the center of the building, that the roof was flashed to the party wall and that there was plaster on the wall. All saw posts down the center of the building.
Finally as to the wooden posts, besides the testimony of several witnesses who saw no posts, or evidence of same, along the party wall, we have the point made by Levine, the contractor, that on account of the corbel protruding the posts, if set straight, would have to be at least six inches from the party wall, which would leave the edge of the roof boards without support at the wall. He says this is possible, but hardly probable that anyone would use such construction, for obvious reasons.
As to whether the wall was plastered, several witnesses so testified. Longinotti on direct said not, but when confronted with a letter his brother Ed Longinotti, an official of the Union ¡Planters Bank, had written Elmer Harris in 1938 shortly after the demolition of the Bailey building, which letter was based solely on a written memorandum Will had handed him, he admitted his statement in 1938 probably reflected the fact. The letter complained to Harris that in razing the building the contractor had left roof flashing and some plaster in bad shape on the south side of the wall. (B. 190 and Ex. 5 and 20.) Harris testified that he ordered it removed.
Incidentally, it is argued that because in the above letter Ed Longinotti said “our wall”, the Longinotti Estate was still claiming to own all of the party wall, because they had never been paid for the half on the adjoining lot. There is no merit in this — the law of *447party walls is too obstruse for a layman to be bound by any such casual phraseology.
"We conclude this point. The Bailey building was not “a thing of beauty and a joy forever”; it was a shed type structure simply because it was not ceiled, but it had four brick walls, a roof and a concrete floor and was in use for 38 years; the party wall agreement does not even suggest the type of building that Mrs. Lee or any of her successive assigns might be expected to build. Provision was made in the wall so that they might build anything from one to three stories against this wall. A one story building was put there by Bailey and Witt and the decided weight of the evidence shows that substantial use was made of the wall. It was in our opinion a use and appropriation within the sense of the agreement.
Therefore, by the express terms of the agreement Bailey and Witt became liable for contribution of half the then value of the wall, unless, as defendants now claim, that Bailey was an innocent purchaser because the agreement had not then been registered; and further that defendants being purchasers in succession from an innocent purchaser are entitled to the same immunity from liability, even though the party wall agreement having been registered before defendants purchased would otherwise have been constructive notice to defendants.
As the rule of constructive notice is applied in this State, Bailey could not have been an innocent purchaser. The south wall of the hotel was plainly over the line eleven inches when Bailey purchased.
In Macon v. Sheppard, 21 Tenn. 335, where one acre was occupied by a church regularly used the congregation had been promised a deed but same had never *448been executed. A vendee of the entire tract of which this was a part claimed he had no notice. The Court: “And it is settled that if a person purchase an estate from the owner, knowing it to be in possession of tenants, he is bound to enquire into their estates, and is affected with notice of all the facts in relation thereto.”
In Jarman v. Farley, 75 Tenn. 141, 144: “there can be no innocent purchaser of land from a vendor who was out of possession at the date of conveyance . . . ”
Walgreen Co. v. Walton, 16 Tenn. App. 213, 221, 64 S. W. (2d) 44, 48: “Where the lessee is in possession, the purchaser takes subject to the lease.”
In Williams v. Title Guaranty & Trust Co., Tenn. App., 212 S. W. (2d). 897, 901, referring to the notice: “It need not contain complete information of every fact material for the purchaser to know. ’ ’
Hence, since defendants’ predecessor was not an innocent purchaser, defendants cannot rely on the rule that a subsequent purchaser even with notice from a bona fide purcháser has the benefit of that status.
By perhaps the greater weight of authority this sort of an agreement is a covenant running with the land available to and binding on the successors in title of the adjoining properties. Thompson on Real Property, Secs. 571 and 3426.
Under the facts as we have found them Bailey and Witt first used and appropriated the wall on the south side and so became personally liable to Longinotti. But the proof is that Longinotti never received payment. Then after the building had stood for 38 years it was razed. Then the lot passed to Ketchum and Hammond and then to defendants.
The question arises whether the defendants are liable to contribute under these facts.
*449First, we think that the evidence we have quoted, supra, coupled with the lapse of over 30 years that either of the Longinotti brothers could have filed suit to collect from the Baileys, shows clearly that Longinotti waived his right to contribution. ’ ' ' ■
He had full knowledge of his rights under the agreement and of the use made by Bailey of the wall, his attention was called to it by his son Will, there was discussion among some of the family, but never any attempt to discuss it with Bailey or to negotiate with him. If he was in doubt of the extent of the use he could have had the doubt resolved, but he did nothing except to take the positive stand that he would not have a lawsuit.
This positive stand coupled with long delay, laches, is a clear abandonment or waiver. See cases cited in Prewitt v. Bunch, 101 Tenn. 723, 742, 50 S. W. 748.
We think the Gentry case, Gentry v. Gentry, 1 Tenn. 87, cited therein is easily distinguishable on the facts.
Complainants are bound by the conduct of their predecessor in title and under the contract.
In the absence of the above facts showing an abandonment by Longinotti of the claim, liability might be claimed by complainants on the theory of an equitable lien hovering over the land, as he held by some courts, of which a subsequent purchaser has either actual or constructive notice. 40 Am. Jur. 512, Sec. 40.
But we think that if such rule be applied, the suit would be barred by the ten year statute of limitations, Code Section 8601, covering all actions, real or otherwise, not otherwise provided for. City of Knoxville v. Gervin, 169 Tenn. 532, 89 S. W. (2d) 348, 103 A. L. R. 877. (Suit to enforce lien for front foot assessment.)
*450Lawman v. Barnett, 180 Tenn. 546, 177 S. W. (2d) 121, 153 A. L. R. 772.
Of course, this suit was filed to recover for defendants use of the wall, whereas we have been discussing the use made by Bailey.
The cases are rather in accord on the point that when the wall has once been used and paid for, a subsequent grantee is not liable for continued use of same. We see no difference where the builder of the wall has waived or abandoned his claim instead of receiving actual payment. (See above authorities.)
We find it unnecessary to discuss other defenses made or matters raised by the cross-bill.
We sustain the relevant assignments of error, and reverse the decree and dismiss the bill and. cross-bill at the costs of complainants.
Anderson, P. J., and Baptist, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3045672/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3299
___________
Charles A. Abeyta, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Richard Plant, Dr., East Arkansas *
Regional Unit, ADC; Roland Anderson, * [UNPUBLISHED]
Arkansas Department of Correction, *
*
Appellees. *
___________
Submitted: November 10, 2008
Filed: December 17, 2008
___________
Before MURPHY, BYE, and BENTON, Circuit Judges.
___________
PER CURIAM.
Charles Abeyta challenges the district court’s1 adverse grant of summary
judgment in his 42 U.S.C. § 1983 action. After careful de novo review of the record
on appeal, see Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007)
(standard of review), we affirm. See 8th Cir. R. 47B.
______________________________
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District
of Arkansas. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1602167/ | 181 So.2d 828 (1966)
Arthur GARRY, Jr., et al.
v.
ZOR, INC., et al.
No. 1987.
Court of Appeal of Louisiana, Fourth Circuit.
January 10, 1966.
*829 Charles E. McHale, Jr., New Orleans, for plaintiffs-appellees.
Favret, Favret & Favret, Marshall Favret, New Orleans, for Zor, Inc., defendant-appellant.
James M. Colomb, Jr., and Thomas Barr, III, New Orleans, for defendants-appellees.
Before SAMUEL, HALL and BARNETTE, JJ.
HALL, Judge.
This is a suit by the forced heirs of Julia Thomas, wife of, and Arthur Garry: (a) to annul a judgment rendered by the Civil District Court for the Parish of Orleans on April 22, 1963, in proceeding No. 410,060 of the docket of that Court entitled "Housing Authority of New Orleans vs. Arthur Garry et als.", and, (b) to annul a tax sale in the name of A. Garry to the defendant, Zor. Inc. Other parties named as defendants herein, in addition to Zor, Inc., are Housing Authority of New Orleans and the Clerk of the Civil District Court, ex-officio custodian of the funds in the Registry of said Court.
From a judgment annulling in part the judgment of April 22, 1963, rendered in proceeding No. 410,060 C.D.C. and also annulling the tax sale, defendant, Zor, Inc., appealed. Since plaintiffs neither appealed nor answered the appeal, the defendant, Housing Authority of New Orleans, has no further interest in the suit, and the defendant, Clerk of Court, being a mere stakeholder has submitted the matter.
We must first consider the proceeding No. 410,060 C.D.C. wherein was rendered the judgment herein sought to be annulled. That was a suit by Housing Authority of New Orleans (HANO) seeking to expropriate certain lots situated in the City of New Orleans. In its petition HANO alleged that Arthur Garry was the apparent and presumptive owner of the property but further alleged:
"Par. 6
"That, your petitioner has been informed and upon such information alleges that Arthur Garry is deceased; that this succession has never been opened and that accordingly, it is necessary that a curator ad hoc be appointed to represent the heirs of Arthur Garry and any and all other persons who may have an interest in and to the hereinabove described property.
"That, the subject property was sold to Zor, Inc., for the non-payment of 1957 taxes, and that accordingly, it is necessary that Zor, Inc., be named a party defendant in these proceedings."
The petition prayed for citation and services upon Zor, Inc., and upon the heirs of Arthur Garry, through a curator ad hoc to be appointed by the Court, and further prayed that in due course the property be adjudged to HANO upon the deposit by it in the Registry of the Court to the credit of the owners, the amount determined by the Court to be the fair value of the property.
*830 The curator ad hoc appointed by the Court filed a pro-forma answer to plaintiff's petition. Zor, Inc., answered plaintiff's petition, alleged the details of the tax proceedings which culminated in a tax deed of the property to it, and averred that it was the owner of the property by virtue of the tax deed. It submitted the matter of expropriation to the Court and prayed for a decree "holding that said Zor, Inc., is the sole and only owner in law of the said property and accordingly entitled to the totality of the amount decreed by the Court to be due for and on account of said expropriation." Zor, Inc. did not pray for citation and service on anyone. No citation was issued but on the bottom of its pleading there appears a certificate by its attorney that copies thereof had been mailed to "The Curator ad hoc to represent the heirs of Arthur Garry", and to the attorney for the plaintiff.
Following trial on the merits judgment was rendered recognizing and decreeing Zor, Inc., to be the owner of the property by virtue of its tax deed and condemning and adjudging the property to Housing Authority of New Orleans upon deposit by it in the Registry of Court of the sum of $3,800.00 to the credit of such owner but subject to the payment of all taxes, liens, mortgages etc. due on the property. This judgment was rendered and signed on April 22, 1963.
On October 7, 1963, the forced heirs of Arthur Garry and wife filed the present suit praying that the expropriation judgment be annulled and for further judgment in their favor and against Zor, Inc., decreeing the nullity of the tax sale to Zor, Inc., reserving unto Zor, Inc., its rights to be reimbursed for the amount of taxes, penalty and interest as in the case of redemption. Petitioners prayed in the alternative in the event the Court should hold the judgment of April 22, 1963 to be valid insofar as it expropriates the property to the Housing Authority, that there be judgment in their favor decreeing them to be entitled to the $3,800.00 on deposit in the Registry of the Court, and ordering said amount released to them.
After trial on the merits judgment was rendered and signed on December 2, 1964: (a) annulling the judgment of April 22, 1963, rendered in the expropriation proceedings insofar and only insofar as that judgment decreed that Zor, Inc., was the owner of the property and as such entitled to the $3,800.00 deposited in the Registry of the Court, (b) declaring the tax sale to Zor, Inc., to be a nullity, and (c) decreeing the plaintiff heirs of Arthur Garry and wife to be the sole and only owners of the $3,800.00 on deposit in the Registry and ordering the Clerk of Court to pay over such deposit to them. It is from this judgment that Zor, Inc., prosecutes the present appeal.
Since the heirs of Garry, appellees herein, did not answer the appeal that part of the judgment of April 22, 1963, which condemned the property to Housing Authority of New Orleans is not at issue here. We have before us only the question of the nullity vel non of that part of the judgment which decreed Zor, Inc., to be the owner of the property by virtue of the tax deed and entitled as such to the proceeds of the condemnation.
The heirs of Garry based their action in nullity on two grounds, viz: (1) that the curator ad hoc was without authority to represent them because they were not "absentees," and, (2) that there was no joinder of issue on the claim asserted by Zor, Inc., in the condemnation proceedings, no answer having been filed to its pleading therein and no default having been issued thereon.
With reference to the first ground of nullity asserted, the record reveals that Arthur Garry purchased the subject property in 1926 during his marriage to Julia Thomas and that neither he nor his heirs ever disposed of it; that he died in New Orleans on November 30, 1939 and that *831 his wife, Julia Thomas, predeceased him having died in New Orleans on July 2, 1935. The record further shows clearly and without contradiction that prior to filing the expropriation proceeding Housing Authority knew that Arthur Garry and his wife were dead, knew the names of his children and forced heirs, (plaintiffs herein) knew that they were all of age and residents of and domiciled in New Orleans, and knew how to get in touch with them. In fact prior to the institution of suit the Housing Authority had sought them out and had obtained a written option from them to sell the subject property to it for $3,300.00. The Housing Authority was also well aware that the heirs had placed the matter in the hands of their attorney to complete the sale. Apparently the Housing Authority wished the successions of Arthur Garry and wife to be opened prior to taking title and when this was delayed it decided to expropriate.
The fact that the successions of plaintiffs' father and mother had not been opened gave the Housing Authority no excuse to have a curator appointed. See LSA-C.C. Arts. 940, 941; Succession of Scardino, 215 La. 472, 40 So.2d 923, 925. They were not "absentees" as defined in LSA-C.C.P. 5251 and the appointment of a curator ad hoc to represent them was unauthorized. See Quaker Realty Company Limited v. O'Rourke, 9 Orleans App. 237.
Notwithstanding the fact that Zor, Inc., in the pleading filed by it in the expropriation proceeding simply asked for a decree holding it to be the sole and only owner of the property and did not pray specifically for judgment against anyone, its pleading in our opinion was in essence and in effect an action to confirm or quiet its tax title. It had only a defeasable title, subject to attack, and moreover subject to attack for any reason since the five year constitutional prescription had not then run. A confirmation of its tax title was a sine qua non for a decree entitling it to full ownership. If its pleading was not an attempt to confirm its tax title it served no purpose whatever.
Such a proceeding had to be brought against the former proprietor or proprietors of the property by petition and citation as in ordinary cases (LSA-R.S. 47:2228) and had to be tried contradictionally with them. But Zor, Inc., prayed for no citation and none was issued. It merely mailed a copy of its pleading to the curator ad hoc (See LSA-C.C.P. Arts. 1313 and 1314), who had previously been appointed to represent the heirs in the condemnation proceeding.
No answer was filed to the pleading of Zor, Inc., and no default was entered thereon. Whether its pleading be regarded as a third party petition (See LSA-C.C.P. Arts. 1031, 1111) or an intervention (See LSA-C.C.P. Arts. 1031, 1091) it required a joinder of issue by answer or by default (See LSA-C.C.P. Arts. 1035, 1701; see also all Hans Credit Union v. Saucier, La.App., 143 So.2d 281).
Although Zor, Inc., in its brief filed herein refers to this pleading as an "answer and third-party demand" it suggests that the condemnation proceedings "can be likened in some respects to a concursus proceeding" in which no answer and no default is required to join issue between claimants. (See LSA-C.C.P. Art. 4656). Questions of title to and ownership of real estate cannot in our opinion be inquired into in concursus proceedings but must be tried according to the forms of special laws.
It is elementary that no valid judgment can be rendered in any lawsuit unless the defendant is served with process as required by law and unless issue has been joined by answer or by default. There was here no valid service, no answer filed, and no default entered. These are not simple errors to be corrected only by appeal.
*832 LSA-C.C.P. Art. 2002 provides in part as follows:
"A final judgment shall be annulled if it is rendered:
* * * * * *
"(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken * * *."
We are of the opinion for the foregoing reasons that the judgment herein appealed from is correct insofar as it annulled the judgment rendered in favor of Zor, Inc., in the condemnation proceedings.
We come now to consider the action by the heirs of Garry to annul the tax sale to Zor, Inc. The appellant, Zor, Inc., has failed to argue in its brief the validity of its tax title, nor was any evidence offered by it in the Trial Court to contradict the proof of appellees that the tax sale is null and void.
The subject property was sold by the City of New Orleans in the name of Arthur Garry for the 1957 city taxes and was acquired by Zor, Inc., by tax deed registered in the Conveyance Office on November 3, 1958. Plaintiffs' suit to annul the sale was filed on October 7, 1963, within the five year constitutional prescription. (LSA-Const. Art. 10, Sec. 11).
As we have seen, both Arthur Garry and his wife died many years prior to the assessment of the 1957 taxes. Their presumptive heirs were all of age and domiciled in New Orleans. Nevertheless the assessment for the 1957 taxes was made in the name of a dead man, Arthur Garry, and the property was advertised and sold in his name. No notice of tax delinquency was served on anyone (See LSA-R.S. 47:2180), but the tax deed offered in evidence contains a recitation that the notice was served on Arthur Garry either personally or by domiciliary service. There is proof in the record however, that it was actually advertised and sold by the City under the "unknown owner" statute (see LSA-R.S. 47:2180, third paragraph). In Robertson v. Polmer, La.App., 112 So.2d 735, our predecessor Court was presented with a similar situation and held as follows (syllabus 6):
"Where tax deed recited that there had been served on co-owners written or printed notice of tax delinquency by personal or domiciliary service or by registered mail, but no such notice was served, even if substituted notice by publication had been given, tax sale was void. LSA-R.S. 47:2180, 47:2181; LSA-Const. art. 10, § 11."
The giving of notice of delinquency required by Article 10, Section 11 of the Constitution and by LSA-R.S. 47:2180 is mandatory. Doll v. Montgomery, La.App., 58 So.2d 573, 60 So.2d 907; Wainer v. Zor, Inc., La.App., 161 So.2d 378; Blythe v. Zor, Inc., La.App., 148 So.2d 832.
When a tax debtor proves that he did not receive the delinquency notice required by law and the attack is made within the preemptive period the tax deed will be set aside. See Gibbs v. Roos, La.App., 178 So. 674; Sanders v. Abbitt, La.App., 29 So.2d 718; Wilkerson v. Wyche, 158 La. 596, 104 So. 381.
In conclusion we are of the opinion that the judgment appealed from is correct insofar as it decreed the nullity in part of the judgment of April 22, 1963, rendered in proceeding No. 410,060 of the docket of the Civil District Court, and insofar as it decreed the nullity of the tax sale. However the judgment omitted to provide for the payment to Zor, Inc., of the amount which plaintiffs herein are obligated to pay that company in accordance with Section 11 of Article 10 of the Constitution (LSA-Const. Art. 10 § 11) which provides in part:
"* * * No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, with ten per cent per annum interest on the amount of the price and taxes *833 paid from date of respective payments, be previously paid to the purchaser * * *."
The judgment is not invalid for this reason but it is erroneous and ineffective as written. (See Westwego Canal & Terminal Co. v. Petre, 195 La. 107, 196 So. 36) As we said in Robinson v. Zor, Inc., La.App., 174 So.2d 154:
"* * * We would correct the judgment by amendment in general terms were it not for the decision of the Supreme Court in Westwego Canal & Terminal Co. v. Pitre, 195 La. 107, 196 So. 36 which seems to hold that it is necessary for a judgment annulling a tax sale to contain a specific monetary judgment in favor of the tax purchaser for the price of the sale etc. In that case the Court held that where, as here, the record is silent as to the amount expended by the tax-purchaser in connection with the sale it is necessary for the appellate Court to remand the case in order that the tax purchaser may make proof of the amount paid and in order that the judgment appealed from may be amended to comply with the provisions of Section 11 Article 10 of the Constitution * * *."
For the foregoing reasons it is ordered that the case be remanded to the District Court with instructions to require Zor, Inc., to prove the amount which it has expended in the purchase of the property at tax sale, together with interest and costs and such other taxes, if any, which it has paid since that time together with interest thereon, and that after such amounts are ascertained, to render judgment in accordance with the views expressed herein and in accordance with the provisions of Article 10 Section 11 of the Constitution, such judgment to provide for the payment to Zor, Inc., by priority out of the fund in the Registry of the Court the amount thus ascertained to be due it and to provide for the payment to plaintiffs herein of the balance of said fund, after satisfaction of all mortgages, liens, privileges and other encumbrances with which the subject property may be burdened. Costs incurred in the District Court to date and costs of this appeal shall be paid by defendant-appellant.
Affirmed in part; remanded in part with instructions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602118/ | 254 Miss. 617 (1966)
181 So.2d 923
JONES
v.
RICHARDS
No. 43744.
Supreme Court of Mississippi.
January 17, 1966.
P.L. Douglas, Ben F. Hilbun, Jr., Starkville, for appellant.
*619 Stone & McBryde, Columbus, for appellees, Myrtis L. Richards and Woodrow Jones.
Jack B. Carlisle, Ackerman, for appellee, William H. Ray.
*620 INZER, J.
Appellant, Mrs. Hallie Jones, filed this suit in the Circuit Court of Oktibbeha County against appellees, Myrtis Richards, Woodrow Jones and William H. Ray, seeking to recover damages for personal injuries alleged to have been caused by the negligence of the appellees. From a jury verdict and judgment in favor of appellees, she appeals to this Court.
The declaration charged that appellant was injured on June 4, 1963, while riding as a guest in a vehicle owned by Woodrow Jones, being driven by Myrtis Richards, and that said vehicle was struck from the rear by a vehicle owned and operated by William H. Ray. The specific charge of negligence as set out in the declaration is as follows:
That when the 1963 Oldsmobile in which the plaintiff was riding reached a point on Highway 12 near the East entrance to the Natchez Trace Parkway said defendant, Myrtis L. Richards, acting as the agent of said Woodrow Jones did cause said vehicle to come to a sudden stop in a negligent and reckless manner and at a time when other traffic was in close proximity to rear of said vehicle and without warning at a point approximately 33 feet West of the East entrance to said Natchez Trace Parkway; that said defendant failed to keep said vehicle under reasonable control; that said defendant operated said vehicle in a careless and reckless manner without due care for the safety of other persons using said highway; that said defendant did fail to keep a reasonable and proper lookout; that said defendant did park or stop her vehicle on said Highway 12 in violation of the law of the State of Mississippi.
Said defendant William H. Ray drove his 1957 Mercury Automobile into the rear of the 1963 Oldsmobile mentioned above causing his vehicle to strike and violently *621 collide with said 1963 Oldsmobile. That said William H. Ray did fail to keep a reasonable lookout and did fail to keep his vehicle under control.
Miss Richards and Mr. Jones filed separate answers and denied that they were guilty of any negligence that caused or contributed to the accident, and affirmatively alleged that the accident was caused by the sole negligence of Ray. They alleged that Ray was guilty of negligence in failing to keep a proper lookout, not keeping the automobile under control at all times, and following too closely. Ray answered, and denied that he was guilty of any negligence that caused or contributed to the accident, and alleged that the sole, proximate cause of the collision was the negligence of Richards, as stated in the declaration.
Appellant assigns as error three reasons for the reversal of this case. They are: (1) the verdict of the jury was contrary to the law and against the overwhelming weight of the evidence, and the court was in error in overruling a motion for a new trial; (2) the court erred in admitting into evidence two photographs as Exhibits 1 and 2 to the testimony of the defendant, Woodrow Jones; (3) the court erred in giving instructions No. 1, No. 2, No. 4 and No. 8 for defendants, Myrtis Richards and Woodrow Jones.
(Hn 1) We have reached the conclusion that the verdict of the jury was against the overwhelming weight of the evidence, and that the trial court should have granted a new trial. The proof shows without question that the collision occurred on June 4, 1963, at a point on Mississippi Highway No. 12, just West of the East entrance to the Natchez Trace Parkway in Attala County; that Mrs. Jones was riding as a guest on the rear seat of the 1963 Oldsmobile owned by Jones, and driven by Richards under his direction; that the Oldsmobile was struck from the rear by a 1957 Mercury owned and driven by Ray. According to the evidence on behalf of Richards *622 and Jones, the accident was due to the negligence of Ray, in failing to keep his vehicle under proper control and following so close as to be unable to stop it in his assured distance ahead. The evidence on behalf of Ray was to the effect that the driver of Jones' vehicle stopped it suddenly in front of him, and in spite of his doing everything he could, he was unable to avoid the collision. (Hn 2) It is clear from the evidence that the collision was caused by the negligence of either one or both of the drivers of the vehicles involved. It was not an unavoidable accident. Appellant was not charged with any negligence, and none is shown by the proof. Under these circumstances, appellant was entitled to a verdict against one or all of the appellees, provided she was injured as a result of this accident. Mitchell-Davis Distrib. Co. v. McDonald, 223 Miss. 573, 78 So.2d 597 (1955).
The proof relative to her injuries was that she was riding on the left side of the back seat of Jones' vehicle at the time it was hit by the vehicle driven by Ray. Mrs. Jones testified that when the collision occurred, she felt her neck pop. She said she exclaimed, "Lord, my neck is broke." Richards and Jones both testified that the car in which appellant was riding was struck a hard blow, and it was knocked some fifteen feet forward by the force of the blow. They both stated that it jolted them, and they did not deny that Mrs. Jones told them that she was hurt. They admitted that they wanted to take her to the doctor, but Mrs. Jones thought she would be all right in a little while. Mrs. Jones testified that she went on to Louisiana, where she remained for two days, and after she returned home, she did not see a doctor until the twenty-fourth of June, 1963. She said that after the accident her neck continued to hurt, and instead of getting better, it got worse; that the pain became so intense that she finally had to go to see the doctor; that since the accident her neck has continued to bother her, and for much of the time she was unable *623 to perform her household duties. She admitted that she had had some trouble with her neck about two years prior to the accident, but stated that she had completely recovered from this trouble. She had also had an operation for a thyroid condition some four months before the accident, but she said that the operation had not caused her any pain in her neck.
Dr. John T. Copeland testified on behalf of appellant, and he stated that he first saw appellant on June 24, 1963, relative to her injuries. He said that she came to his office complaining of neck pain and headaches, and told him that she had been in an automobile accident on June 4, 1963. He examined her and had multiple X-rays made. He found that she had some paracerebellar muscle strain which was a tenderness of the muscles to the right and left of the bony structure of the neck. The X-rays showed no bony deformity, but on the basis of the pain she had and on the basis of the tenderness of the neck and limitation of motion, the doctor placed her on oral medication. She was also given local therapy such as heat and massage and traction to her neck. The doctor said that pain in the neck persisted to different degrees, and eventually the picture became predominantly that of a headache, which seemed to arise out of her neck and ligate toward her right eye. Because of the progression of these symptoms, he referred her to a specialist, Dr. Charles Neal of Jackson. Dr. Neal took additional X-rays, and suggested additional medication which Dr. Copeland prescribed for her. Dr. Copeland was asked about his previous treatment of Mrs. Jones, and he said that he had treated her in relation to blood pressure and for a thyroid condition. He said that she had had an operation about four months prior to the accident, but in his opinion, the operation had no connection with the results from the accident. Dr. Copeland treated Mrs. Jones until March 30, 1964, and had not treated her since that time prior to the date of the trial. Dr. Neal *624 was not offered as a witness, although appellant waived the privilege as to his testimony.
(Hn 3) Mrs. Jones was corroborated by the testimony of her husband, who testified that she had been, and was still, unable to do much of her housework since the accident. There was no other testimony relative to her injuries or lack of injury. Her testimony is not contradictory, and it is not incredible, improbable, unreasonable or untrustworthy, and it should not be arbitrarily and capriciously rejected. (Hn 4) We are of the opinion that a finding by the jury that appellant was not injured as a result of this accident is against the overwhelming weight of the evidence. Fisher v. Daniels, 252 Miss. 662, 173 So.2d 908 (1965); Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442 (1953).
The error complained of relative to the admission into evidence of the two photographs is not material, and we are certain that upon the retrial of this case, the court will require a proper identification of the photographs prior to admitting them into evidence.
The instructions complained of were instructions granted the appellees, Myrtis Richards and Woodrow Jones. We find no error in these instructions, except that some of the instructions are couched in language that does seem to imply that the jury was required to believe that both of these defendants were guilty of negligence before the jury would be authorized to return a verdict against either of them. Upon the retrial of this case, these instructions should not be given unless they are amended to eliminate this objection.
For the reasons stated, this case must be reversed and remanded for a new trial.
Reversed and remanded.
Gillespie, P.J., and Rodgers, Jones and Brady, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602132/ | 361 F.Supp. 504 (1973)
Thomas A. GOZDANOVIC, Plaintiff,
v.
The CIVIL SERVICE COMMISSION FOR the CITY OF PITTSBURGH, PA.,
and
Dr. Russell Scott Consultant To the Civil Service Commission
and
Peter F. Flaherty, Mayor of the City of Pittsburgh, Defendants.
Civ. A. No. 73-164.
United States District Court, W. D. Pennsylvania.
July 13, 1973.
*505 J. K. Lewis, Lewis, Stockey & Daniels, Pittsburgh, Pa., for plaintiff.
Ralph Lynch, Jr., City Sol., Robert B. Smith, Asst. City Sol., Pittsburgh, Pa., for defendants.
OPINION AND ORDER
MARSH, Chief Judge.
Thomas A. Gozdanovic, an unsuccessful civil service applicant for the position of a City of Pittsburgh police officer in 1966 and 1970, has brought this civil rights suit for damages and injunctive relief against the Civil Service Commission for the City of Pittsburgh, Dr. Russell Scott, and Mayor Peter F. Flaherty.[1] In his complaint, plaintiff alleges that jurisdiction is based upon "42 U.S.C.A. § 1981 et seq 28 U.S.C.A. § 1343 and the 14th Amendment of the United States Constitution."[2]
The defendants have moved to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) for lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted; also that the causes of action are barred by the Statute of Limitations and by laches.
*506 In our opinion the motion to dismiss should be granted.
The complaint alleges that in September, 1966, the plaintiff applied to the Pittsburgh Police Department for employment as a police officer; he submitted his application to the defendant, Civil Service Commission, and took physical and mental tests, including psychological tests. His application was rejected as a result of the psychological tests in that certain psychological deficiencies were allegedly reported.
The plaintiff in August, 1970, again applied and underwent the same procedures for employment as a police officer and again he was rejected because the psychological test results were unfavorable. The plaintiff immediately consulted Dr. John J. Guhel, a psychiatrist, who found that the plaintiff was mentally stable, suffered no psychological impairment, and was mentally and emotionally suited to work as a police officer. On October 10, 1970, Dr. Guhel notified the Secretary of the defendant Commission of the plaintiff's well-being. The Commission ignored the information forwarded by Dr. Guhel and refused to reevaluate plaintiff's application.
The plaintiff concludes that the failure of the Commission to reevaluate plaintiff's application demonstrated an arbitrary and discriminatory attitude toward plaintiff's application and violated his civil rights guaranteeing a fair and adequate opportunity for employment. He further concludes that the Commission has unlawfully denied to him an opportunity for employment with the Pittsburgh Police Department by rejecting his application on the basis of certain psychological testing procedures which have no objective criteria upon which the Commission could accept or reject an applicant.[3] He further concludes that his application was unlawfully rejected because the Commission failed to consult a psychiatrist for the purpose of reviewing and evaluating plaintiff's emotional fitness as a police officer, and that this failure denied the plaintiff his right to a fair and adequate evaluation of his application. He further concludes that the Commission had recommended applicants less qualified than the plaintiff on the basis of these inadequate testing procedures and thereby unlawfully discriminated against the plaintiff.[4] He finally concludes that the failure of the Commission to provide a review of certain test results has wrongfully excluded certain classes of persons who are qualified for civil service positions as police officers and that the plaintiff is one of these persons.[5]
The plaintiff avers that the defendant Scott, in his position as consulting psychologist, did act in concert with the Commission by reporting the plaintiff's psychological test results as being conclusive of plaintiff's unfitness to work as a police officer, and that the defendant Peter F. Flaherty, Mayor of the City of Pittsburgh, is partially or wholly responsible for permitting the Commission to operate pursuant to these discriminatory procedures, and has violated the plaintiff's right to have an equal opportunity to obtain a position as a police officer.
Plaintiff alleges that he has suffered injury because of the discrimination carried on by the defendants in the following particulars:
"(a) He has been precluded from obtaining employment as a police officer in the City of Pittsburgh.
"(b) The Plaintiff has been subject to embarrassment in that he was rejected from a position that he was qualified for.
*507 "(c) That the Plaintiff has been the victim of discrimination and has been denied his civil right to be fairly and justly considered for a position as a police officer in the City of Pittsburgh."
The plaintiff requests:
1. That an injunction issue against the defendants to terminate the psychological testing procedures and to substitute some objective standard by which the defendants accept or reject applicants for the police force.
2. That an injunction issue compelling the Commission to employ a qualified psychiatrist to review any psychological test results of any applicant who has been rejected because of negative test results.
3. That the plaintiff's application for employment as a police officer for the City of Pittsburgh be fairly and adequately reviewed by a competent psychiatrist to determine whether or not the test results upon which the plaintiff's application was refused were fair and objective.
4. The plaintiff requests an award in the sum of $50,000 for damages suffered by him as a result of the defendants' acts.
It is apparent that many of the allegations of the complaint lack the factual specificity required to support a cause of action under the Civil Rights Act. A Civil Rights Act complaint should set forth with specificity the acts and conduct of the defendants which worked an infringement of civil rights which will permit an informed ruling whether the wrong complained of is of federal cognizance.[6]
The plaintiff alleges that the defendant, The Civil Service Commission for the City of Pittsburgh, is an administrative agency which functions pursuant to the powers vested in it by the Commonwealth of Pennsylvania. Paragraph 2 of the complaint identifies by names the members of the Civil Service Commission and states that they "are being sued collectively in their official capacity as a commission." The caption does not list the individual members of the Commission as defendants; neither has any member been served with process as an individual; nor has any member entered an appearance in person or by counsel.
In his brief, plaintiff states:
"* * * Plaintiff maintains this action is for equitable relief primarily and, therefore, the Commission is a `person' * * * and as a consequence, the members need not be sued individually."
We hold that the members of the Civil Service Commission have not been sued as individuals and are not parties in this case.
The Civil Rights Act prescribes two elements as requisite for recovery: (1) The conduct complained of must have been done by some person acting under color of state or local law; and (2) such conduct must have subjected the plaintiff to a deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States. The plaintiff has not met either requirement in his claim for damages. The Commission is not a person, and this court does not have jurisdiction under the Civil Rights Act to entertain a suit for damages against it. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969); Meachem v. City of Philadelphia, 346 F.Supp. 885 (E.D.Pa.1972).
*508 Since the Commission is not a proper party to the claim for damages, Dr. Scott cannot be liable on the conclusory allegation that he acted in concert with the Commission as distinguished from the members of the Commission who are not parties defendant. Likewise, Mayor Flaherty cannot be liable on the conclusory allegation that he is partially or wholly responsible for the acts of the Commission.
However, it appears that the Commission, as such, is a "person" within the Civil Rights Act for purposes of injunctive relief. Garren v. City of Winston-Salem, North Carolina, 439 F. 2d 140 (4th Cir. 1971); Meachem v. City of Philadelphia, supra. We point out hereafter that the Commission did not violate plaintiff's rights to due process and equal protection, and that his request for injunctive relief cannot be granted.
Due Process
The Pennsylvania Civil Service Act, 53 Purdon's Pa.Stat.Ann. § 23431 et seq., at § 23442, provides:
"* * * If any applicant feels himself aggrieved by the action of the commission in refusing to examine him, or, after an examination, to certify him as an eligible, as provided in this section, the commission shall, at the request of such applicant, appoint a time and place for a public hearing; at which time such applicant may appear, by himself or counsel, or both, and the commission shall then review its refusal to make such examination or certification, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by him. After such review, the commission shall file the testimony taken, in its records, and shall again make a decision, which shall be final." (Emphasis supplied.)
Another section, 53 Purdon's Pa.Stat. Ann. § 604, provides for an appeal to the Court of Common Pleas from an adverse decision by the Civil Service Commission. In the light of these explicit state rights to review, the allegations of plaintiff's complaint to the effect that Dr. Guhel "reported" his findings to the Commission are insufficient to establish that plaintiff himself ever demanded a hearing. Under the quoted statute only the plaintiff could request a public hearing. Under the facts alleged it cannot be presumed that a hearing was requested by, and denied to, plaintiff. We find no denial of procedural due process or any other federally secured right.
Moreover, it is to be observed that the Pennsylvania two-year Statute of Limitations is applicable to civil rights actions. The complaint was filed on February 26, 1973, and all the factual allegations therein occurred prior to February 26, 1971. Civil and equitable relief sought for events occurring prior to February 26, 1971 is barred. Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), citing P.L.E. Limitation of Actions §§ 31, 32.
Although plaintiff never requested the Commission for a public hearing, by his complaint he now requests this court to order the defendants to terminate psychological testing and compel the defendants to employ a qualified psychiatrist to review psychological test results of "any applicant" who has been rejected because of negative test results. He also requests that his application(s) (presumably of 1966 and 1970) be reviewed by a competent psychiatrist to determine whether or not the test results upon which the plaintiff's application(s) was refused were fair and equitable. No case has been cited which authorizes this type of injunctive relief in the circumstances of this case. Plaintiff has never been refused a public hearing. Only the non-existent right to employment as a police officer has been affected by the action of the Commission. No underlying right, privilege or immunity guaranteed by the Constitution, or proved retribution for exercising constitutionally protected rights, has been alleged. *509 Thus, no such injunctive action is constitutionally required when public employment is denied, or even withdrawn. Cf. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Chism v. Price, 457 F.2d 1037 (9th Cir. 1972); Hodgin v. Noland, 435 F.2d 859 (4th Cir. 1970); Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969); Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966).
Equal Protection
Nor do we think that plaintiff's allegation that the offending psychological test has "no objective criteria upon which said Commission can accept or reject an applicant" is sufficient to state a cause of action for the injunctive relief he seeks under the Civil Rights Act and the Fourteenth Amendment.
The Pennsylvania Civil Service Act at 53 Purdon's Pa.Stat.Ann. § 23441 provides that:
"All examinations for positions in the classified service shall be practical in their character, and shall relate to such matters, and include such inquiries, as will fairly and fully test the comparative merit and fitness of the persons examined to discharge the duties of the office or employment sought by them."
Clearly, the Pennsylvania Civil Service Act requires that civil service tests objectively measure an applicant's fitness for the particular job he is applying for, and if the psychological test administered by the Commission fails to measure an applicant's fitness, then the Commission is acting dehors the law. Accordingly, it would be the Commission's actions, not the requirements of the law, which would be violating the plaintiff's rights. In such circumstances, absent an allegation of racial or other invidious discrimination, it must be alleged that the Commission is intentionally and purposefully discriminating against the applicant rejected on the results of the psychological test. As was said in Snowden v. Hughes, 321 U. S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944):
"But not every denial of a right conferred by state law involves a denial of the equal protection of the laws, even though the denial of the right to one person may operate to confer it on another. Where, as here, a statute requires official action discriminating between a successful and an unsuccessful candidate, the required action is not a denial of equal protection since the distinction between the successful and the unsuccessful candidate is based on a permissible classification. And where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws.
"The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class of persons, cf. McFarland v. American Sugar Co., 241 U.S. 79, 86, 87 [36 S.Ct. 498, 501, 60 L.Ed. 899], or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself. Yick Wo v. Hopkins, 118 U.S. 356, 373, 374 [6 S.Ct. 1064, 1072, 1073, 30 L.Ed. 220]. But a discriminatory purpose is not presumed, Tarrance v. Florida, 188 U.S. 519, 520 [23 S.Ct. 402, 403, 47 L.Ed. 572]; there must be a showing of `clear and intentional discrimination', Gundling v. Chicago, 177 U.S. 183, 186 [20 S.Ct. 633, 635, 44 L.Ed. 725]; see Ah Sin v. Wittman, 198 U.S. 500, 507-508 [25 S.Ct. 756, 758, 759, 49 L.Ed. 1142]; *510 Bailey v. Alabama, 219 U.S. 219, 231 [31 S.Ct. 145, 147, 55 L.Ed. 191]." (Emphasis supplied.)
The failure of plaintiff to allege that the Commission has intentionally and purposefully discriminated against him requires that the complaint be dismissed as it fails to state a cause of action showing any infringement of plaintiff's rights under the equal protection clause. Shock v. Tester, 405 F.2d 852 (8th Cir. 1969); Powell v. Workmen's Compensation Bd. of State of New York, 327 F.2d 131 (2d Cir. 1964); cf. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
An appropriate order will be entered.
NOTES
[1] Appearances were entered by counsel for the City of Pittsburgh and for Dr. Russell Scott.
[2] Since plaintiff does not allege any racial discrimination, §§ 1981 and 1982 are not applicable. Likewise inapplicable are § 1986, which relates to the refusal of persons with knowledge to prevent commission of wrongs proscribed by § 1985, and § 1984, which deals with Supreme Court review of decisions under the Civil Rights Act. It is evident that plaintiff's action is based on §§ 1983 and 1985.
[3] None of the psychological tests are specified.
[4] None of the less qualified applicants are identified.
[5] The plaintiff has not requested an order that the case proceed as a class action under Rule 23, Fed.R.Civ.P. Moreover, the "certain classes of persons qualified for Civil Service positions as police officers" are not identified by names or by numbers, or by race, color, or religion. There is no showing that there are any other persons similarly situated.
[6] Snowden v. Hughes, 321 U.S. 1, 7, 10, 64 S.Ct. 397, 88 L.Ed. 497 (1943); Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970); Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir. 1970); Rodes v. Municipal Authority of the Borough of Milford, 409 F.2d 16, 17 (3d Cir. 1969); Pusateri v. Johnston, 398 F.2d 327 (3d Cir. 1968); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967); United States ex rel. Hoge v. Bolsinger, 311 F. 2d 215 (3d Cir. 1962); Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), affd. 345 F.2d 797 (3d Cir. 1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602135/ | 476 N.W.2d 565 (1991)
STATE of North Dakota, Plaintiff and Appellee,
v.
Terrance HOOK, Defendant and Appellant.
Cr. Nos. 900280-900282.
Supreme Court of North Dakota.
October 10, 1991.
Lewis C. Jorgenson, State's Atty., Devils Lake, for plaintiff and appellee. No appearance.
Douglas L. Broden (argued), of Broden & Broden, Devils Lake, for defendant and appellant.
GIERKE, Justice.
Terrance Hook appeals from judgments of conviction for driving while under the influence of alcohol, fleeing or attempting to flee a peace officer, and driving when his driving privileges were revoked. We affirm.
On April 7, 1989, North Dakota highway patrolman Gerald Buchli observed an automobile speeding on U.S. Highway 20 approximately three miles south of Devils Lake in Ramsey County. Buchli activated the overhead lights on his squad car and pursued the automobile as it entered the boundaries of the Devils Lake Sioux Indian Reservation where police officers for the Bureau of Indian Affairs stopped it at a roadblock. Buchli immediately arrived at the roadblock and approached the vehicle. He arrested the driver and took him directly to the Law Enforcement Center in Devils Lake without turning him over to the Bureau of Indian Affairs or following the Tribe's extradition procedures. Buchli subsequently identified the driver as Terrance Hook, an enrolled member of the Devils Lake Sioux Tribe, and ascertained that Hook's North Dakota driving privileges were revoked. Hook submitted to a blood alcohol test, and the results of that test indicated that he had a blood alcohol concentration of .13 percent.
Hook was charged with driving while under the influence of alcohol, fleeing or attempting to elude a police officer, and driving when his driving privileges were revoked. Hook moved to suppress the evidence obtained after he was arrested, contending that Buchli did not have jurisdiction to arrest him on the reservation in violation of the Tribe's extradition procedures.
Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d *566 508 (N.D.1955), the trial court denied Hook's motion. The court concluded that the arrest was legal because under the Act of May 31, 1946, ch. 279, 60 Stat. 229,[1] Congress intended to give the State criminal jurisdiction over misdemeanors committed by members of the tribe on the Devils Lake Sioux Indian Reservation. Hook entered a conditional plea of guilty to all of the charges pursuant to Rule 11(a)(2), N.D.R.Crim.P., and he has appealed.
Relying upon State v. Lohnes, 69 N.W.2d 508 (N.D.1955), Hook contends that he was illegally arrested because the State does not have criminal jurisdiction over Sioux tribal members on the reservation for crimes committed off the reservation. Hook asserts that the fresh pursuit doctrine does not justify the arrest because the State did not comply with the Tribe's extradition procedures and the Tribe has not granted the State authority to enter the reservation in pursuit of persons suspected of misdemeanors. Hook thus contends that the trial court erred in not suppressing the evidence obtained as a result of his arrest.
The State responds that Hook's arrest was legal because the State has criminal jurisdiction over misdemeanors committed on the Devils Lake Sioux Indian Reservation under 60 Stat. 229 (1946). See n. 1. The State argues that in State v. Lohnes, supra, a majority of our court misconstrued the provisions for disclaimer of governmental control of Indian lands in North Dakota's enabling act and our original constitution and should be overruled.
Generally, a valid arrest may not be made outside the territorial jurisdiction of the arresting authority. 50 Am.Jur.2d, Arrest, § 50 (1962); 34 A.L.R.4th 328, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Police Officer Outside of Jurisdiction, When Not in Fresh Pursuit, § 2 (1984); F. Cohen, Handbook of Federal Indian Law, p. 357 (1982). We therefore initially consider whether the State has criminal jurisdiction over offenses committed on the Devils Lake Sioux Indian Reservation.
The allocation of criminal jurisdiction in Indian country[2] is governed by "a complex patchwork of federal, state, and tribal law." Duro v. Reina, 495 U.S. 676, n. 1, 110 S.Ct. 2053, 2057 n. 1, 109 L.Ed.2d 693, 700 n. 1 (1990).[3]See F. Cohen, *567 supra, at ch. 6. However, the primary source of criminal jurisdiction in Indian country is federal law. F. Cohen, supra, at p. 282. It is well established that "absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See also Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983); Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978); Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832). The unique and limited sovereignty that Indian tribes retain is subject to complete defeasance by Congress. Rice v. Rehner, supra; United States v. Wheeler, supra. The principles announced in those decisions establish a general framework that states do not have criminal jurisdiction over Indians on an Indian reservation unless allowed by Congress.
Under those principles, we examine State v. Lohnes, supra, our 1955 decision involving state criminal jurisdiction on the Devils Lake Sioux Reservation under 60 Stat. 229 (1946). See n. 1. In Lohnes, a majority of our court traced the history of Indian jurisdiction in North Dakota and held that the State did not have criminal jurisdiction over an enrolled member of the Devils Lake Sioux Tribe for assault and battery allegedly committed upon another *568 Indian on reservation land. The majority said that the intent of the disclaimer in North Dakota's Enabling Act, Act of February 22, 1889, ch. 180, § 4, 25 Stat. 676, 677, and original constitution, Art. XVI, § 203, N.D.Const. (1889),[4] was to make the Indians the responsibility of the United States and to give the United States complete control over the Indians and their lands until that obligation was fulfilled. Relying upon the disclaimer language, the majority concluded that it created a compact between the United States and the State of North Dakota which could not be revoked without the consent of both. The majority held that because the State of North Dakota had not consented to the jurisdiction given by 60 Stat. 229 (1946), that statute did not give North Dakota criminal jurisdiction over crimes committed by Indians on the Devils Lake Sioux Reservation.
The dissent said that the disclaimer language was not territorial and declined to construe that language to disclaim the sovereign police powers of the state to enforce its criminal laws whenever or wherever Congress had relinquished jurisdiction to the state:
"The federal criminal jurisdiction exercised over Indians in North Dakota by the federal government is based on the status of Indians as such rather than upon the lands on which they reside. When that jurisdiction is relinquished it falls to the state which has general criminal jurisdiction within its borders." State v. Lohnes, supra, 69 N.W.2d at 521 (Morris, J., dissenting).
The dissent concluded:
"that the provisions of the Enabling Act and our constitutional disclaimer have no effect whatever upon the criminal jurisdiction of the state; that the state has general jurisdiction over reservations wholly within the state, excluding however, that jurisdiction which has been retained by the federal government over `Indian country' as long and only as long as that jurisdiction is asserted by the federal government and when the federal government cedes or confers criminal jurisdiction over Indian country to the state the federal restraint on the state's jurisdiction is removed and to the extent of that removal the jurisdiction of the state is automatically extended." State v. Lohnes, supra, 69 N.W.2d at 522 (Morris, J., dissenting).
A recognized Indian law scholar has questioned the analysis of the majority in Lohnes:
"The North Dakota court reasoned that the disclaimer was adopted under a federal-state compact, so it could not be altered without state consent. The court determined that state consent would have required a state constitutional amendment. The premise that the disclaimer was part of a compact was correct....
"But it does not follow that state consent is necessary to alter the compact. Congress probably has power to withdraw Indian country preemption under the Supremacy Clause without state consent regardless of any compact. The correct inquiry was whether Congress intended to break the compact and require state jurisdiction without state consent." F. Cohen, supra, at 374, n. 229.
We agree that the correct inquiry is to ascertain the intent of Congress. A determination of congressional intent is consistent with the principles underlying the Supreme Court's preemption analysis for determining jurisdiction in cases involving Indians. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986); Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).
Subject to the restrictions in the second clause of 60 Stat. 229 (1946), the first clause of that statute unambiguously confers *569 jurisdiction on the State of North Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation.[5] Subject to those restrictions we believe that statute shows a clear congressional intent to confer state criminal jurisdiction over offenses by or against Indians on the Devils Lake Indian Reservation.
Moreover, decisions after Lohnes which have construed disclaimer language identical *570 to that in our enabling act and original constitution support the conclusion that consent of the State of North Dakota was not necessary to receive the jurisdiction given by 60 Stat. 229 (1946). In Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), the Supreme Court considered the effect of disclaimer language in the Statehood Act for Alaska which was similar to the disclaimer language in nine prior statehood acts, including North Dakota. After observing that caselaw from Arizona and Montana, two states with identical enabling acts, indicated that "absolute" federal jurisdiction was not exclusive jurisdiction [Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896)] the Court said that the "momentum of substantially identical past admission legislation touching Indians carries the settled meaning governing the jurisdiction of States over Indian property to the Alaska Statehood Act." Kake, supra, 369 U.S. at 68, 82 S.Ct. at 567. The Court quoted the following congressional history for the disclaimer language and said that the disclaimer language was not intended to completely oust the State from regulation of Indian land:
"Mr. Barney denied that the provision would deprive the State of `political jurisdiction' over disclaimed properties. Senator Cordon declared:
"`The State may well waive its claim to any right or title to the lands and still have all of its political or police power with respect to the actions of people on those lands, as long as that does not affect the title to the land.'
"Senator Jackson said: `All that you are doing here is a disclaimer of proprietary interest,' and Mr. Barney agreed. Senator Cordon said:
"`The act of admission gives to the State of Alaska political jurisdiction, including all that is meant by the term "police power," within its boundaries unless there be express or definitely implied, which is the same thing, a reservation of exclusive jurisdiction in the United States.'" Kake, supra, 369 U.S. at 69-70, 82 S.Ct. at 568, 7 L.Ed.2d at 580.
The Court concluded that the disclaimer language was a disclaimer of a proprietary interest in the land itself and not a disclaimer of a governmental or political interest. The proprietary-governmental distinction in Kake has been followed by other jurisdictions with disclaimer language similar to North Dakota. Sangre De Cristo Development Corp., Inc. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323 (1972), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 400 (1973); State ex rel. Iron Bear v. District Court, 162 Mont. 335, 512 P.2d 1292 (1973); Francisco v. State, 113 Ariz. 427, 556 P.2d 1 (1976).
In Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), we relied primarily upon Kake and held that the State's warrantless arrest of an enrolled member of the Devils Lake Sioux Tribe on the reservation for a felony committed off the reservation did not deprive the Indian of his rights under the constitution, laws, or treaties of the United States and did not entitle the Indian to release from custody under a writ of habeas corpus. We noted that absent a congressional enactment, the question was whether the state action infringed on the right of the Indian reservation to make its own rules and be ruled by them, and we said:
"[W]e believe that our law should apply, as the arrest did not interfere with the reservation self-government nor impair any right granted or reserved to the petitioner by federal law or treaty." Fournier, supra, 161 N.W.2d at 467.
Kake and Fournier essentially followed the dissent's rationale in Lohnes. Under that rationale, North Dakota's enabling act and original constitution required the state to disclaim a proprietary interest in Indian land but not a governmental or political interest. We believe that the analysis of the majority in Lohnes misconstrued the provisions of our enabling act and original constitution regarding the necessity of state consent for the assertion of criminal jurisdiction over the Devils Lake Sioux Indian Reservation. Rather, we believe the *571 correct focus is on congressional intent, and pursuant to the unambiguous language of 60 Stat. 229 (1946), we conclude that that statute gave the State criminal jurisdiction over the non-major offenses committed by or against Indians on the Devils Lake Indian Reservation.[6]
Although Hook contends that state jurisdiction would interfere with tribal sovereignty because the Tribe has an extradition procedure,[7] a tribe's unique and limited sovereignty is subject to complete defeasance by Congress. Rice v. Rehner, supra; United States v. Wheeler, supra. Congress may withdraw some aspects of tribal sovereignty. In this case, 60 Stat. 229 (1946) gave the State criminal jurisdiction over the Devils Lake Indian Reservation. Compare State v. Spotted Horse, 462 N.W.2d 463 (S.D.1990). Because the federal statute gives the State criminal jurisdiction over the non-major offenses committed by or against Indians on the Devils Lake Indian Reservation, we conclude that Hook was arrested legally and that the trial court did not err in denying his motion to suppress the evidence.
The judgments of conviction are affirmed.
GRAFF, District Judge, MESCHKE, Acting C.J., and VANDE WALLE, JJ., concur.
GRAFF, District Judge, sitting in place of ERICKSTAD, C.J., disqualified.
LEVINE, Justice, dissenting.
In support of my dissent, I take a page out of the book of the majority in Wiederholt v. Dept. of Transp., 462 N.W.2d 445 (N.D.1990). There, the majority concluded that the failure of the legislature to amend a statute which we had interpreted in a manner most likely contrary to the clearly expressed intent of the legislature, was an indication that the legislature was satisfied with our interpretation. So, too, if the Lohnes majority misconstrued 60 Stat. 229 (1946) and the provisions for disclaimer of governmental control of Indian lands in North Dakota's enabling act, that misconstruction has been the law in our state for over thirty-five years. To my knowledge, Congress has done nothing to indicate its displeasure with either our interpretation of its statutes or our deference to Indian sovereignty. No congressional enactments have declared our error and, indeed, it could be said that the Lohnes majority was prescient in anticipating and implementing what would become a national policy of promoting and nurturing Indian self-government and sovereignty.
Because our interpretation in Lohnes is so congenial with the long-standing congressional policy of autonomy and self-determination of Indian nations, we should uphold it and preserve the needs of stability in our legal system. Stare decisis is a reasonable credo in these circumstances. I would follow Lohnes and reverse the judgments of conviction.
I, therefore, respectfully dissent.
NOTES
[1] Act of May 31, 1946, ch. 279, 60 Stat. 229, provides:
"[J]urisdiction is hereby conferred on the State of North Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation in North Dakota to the same extent as its courts have jurisdiction generally over offenses committed within said State outside of Indian reservations: Provided however, That nothing herein contained shall deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on said reservation, nor shall anything herein contained deprive any Indian of any protection afforded by Federal law, contract, or treaty against the taxation or alienation of any restricted property."
[2] 18 USCS § 1151 defines Indian country:
"§ 1151. Indian country defined
"Except as otherwise provided in sections 1154 and 1156 of this title [18 USCS §§ 1154 and 1156], the term `Indian country', as used in this chapter [18 USCS §§ 1151 et seq.], means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."
[3] In Duro v. Reina, 495 U.S. 676, n. 1, 110 S.Ct. 2053, 2057 n. 1, 109 L.Ed.2d 693, 700 n. 1 (1990), the United States Supreme Court summarized the allocation of criminal jurisdiction in Indian country:
"For enumerated major felonies, such as murder, rape, assault, and robbery, federal jurisdiction over crime committed by an Indian is provided by 18 USC § 1153 [18 USCS § 1153], commonly known as the Major Crimes Act, which, as amended in 1986, states:
"`(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.'
"`(b) Any offense referred to in subsection (a) of this section that is not defined and punished by federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.'
"It remains an open question whether jurisdiction under § 1153 over crimes committed by Indian tribe members is exclusive of tribal jurisdiction. See United States v Wheeler, 435 US 313, 325, n 22, 55 L Ed 2d 303, 98 S Ct 1079 (1978).
"Another federal statute, the Indian Country Crimes Act, 18 USC § 1152 [18 USCS § 1152], applies the general laws of the United States to crimes committed in Indian country:
"`Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.'
"The general law of the United States may assimilate state law in the absence of an applicable federal statute. 18 USC § 13 [18 USCS § 13]. Section 1152 also contains the following exemptions:
"`This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.'
"For Indian country crimes involving only non-Indians, longstanding precedents of this Court hold that state courts have exclusive jurisdiction despite the terms of § 1152. See New York ex rel Ray v Martin, 326 US 496, 90 L Ed 261, 66 S Ct 307 (1946); United States v McBratney, 104 US 621, 26 L Ed 869 (1882). Certain States may also assume jurisdiction over Indian country crime with the consent of the affected Tribe pursuant to Public Law 280, Act of Aug. 15, 1953, ch 505, 67 Stat 588 (codified as amended at 18 USC § 1162 [18 USCS § 1162], 25 USC §§ 1321-1326 [25 USCS §§ 1321-1326], 28 USC § 1360 [28 USCS § 1360]).
"The final source of criminal jurisdiction in Indian country is the retained sovereignty of the tribes themselves. It is undisputed that the tribes retain jurisdiction over their members, subject to the question of exclusive jurisdiction under § 1153 mentioned above. See United States v Wheeler, supra. The extent of tribal jurisdiction over non-members is at issue here. For a scholarly discussion of Indian country jurisdiction, see Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz L Rev 505 (1976)."
These sources indicate that the allocation of jurisdiction over crimes in Indian country among the federal, tribal, and state governments depends upon the classification of the offense and whether or not the accused or the victim are Indians. See generally F. Cohen, supra, at Chapter 6.
[4] That disclaimer language provided that "Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States."
[5] The sparse congressional history available for the 1946 Act indicates that the Devils Lake Sioux Tribe requested that Act because the status of state criminal jurisdiction over the Devils Lake Sioux Tribe was "confused." A letter from Acting Secretary of Interior Abe Fortas to the Speaker of the House and President of the Senate provides:
"I am enclosing a draft of a bill to confer jurisdiction on the State of North Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation in that State, and I ask that this proposed bill be placed before the Senate for favorable consideration.
"The Indians of the Devils Lake Reservation received allotments of land in severalty pursuant to the General Allotment Act of February 8, 1887 (24 Stat. 388). A majority of the allotments were approved November 2, 1892, for which the usual 25-year trust patents were issued on June 11, 1893, in most cases. Section 6 of that act provides, in part:
"`That upon the completion of said allotments and the patenting of the lands to said allottes, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; * * *.'
"Evidently in pursuance of the above provision of law, the courts of the State of North Dakota have for many years assumed jurisdiction over offenses committed by Indians on the Devils Lake Indian Reservation. That legislative provision has never been repealed, but it was amended by the act of May 8, 1906 (34 Stat. 182), so as to read:
"`That at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, as provided in section 5 of this act, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; * * *.'
"The amendatory act also authorized the issuance of patents in fee simple to allottees and included a proviso, `That until the issuance of fee simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States.' [Italic added.] The amendments in the act of May 8, 1906, however, were not made retroactive.
"Patents in fee simple for approximately 60 percent of the allotments at Devils Lake have heretofore been issued, mostly many years ago. Jurisdiction over such fee-patented Indians is in the State whether they received their allotments before or after the amendment of May 8, 1906.
"Those Indians who received their trust patents after May 8, 1906, would not come within the above-mentioned provision of the 1887 act extending the State laws over allotted Indians. Another class of Indians there is composed of the Indian descendants of the Indians who were allotted and became subject to State laws under the 1887 act. Still another possible class would be those other Indians if any, who never received allotments under the 1887 act either before or after its amendment by the act of May 8, 1906, supra.
"No tribal court of Indian offenses has been maintained on the reservation for many years. A few years ago consideration was given to a proposal that an Indian court be established for these Indians, but it was discarded because it appeared that they had been conforming with the laws of North Dakota for more than 40 years and offenders have been prosecuted in State courts; that they are familiar with the State laws and procedures and are desirous of having access to the State courts; that both the county and district courts are very sympathetic toward Indians and mete out sentences that take cognizance of the adjustments these people are making to conform with the white man's law; that Indians are given the choice of serving their sentences in the county jail, or at the agency jail; and that all of their rights and civil liberties are accorded them.
"In view of the foregoing, the status of jurisdiction over these Indians for the prosecution of criminal offenses is somewhat confused, and questions have arisen which indicate the need of legislation to clarify the matter.
"Under date of April 14, 1944, the Devils Lake Sioux Tribe adopted a resolution indicating its desire to have the State courts continue the exercise of jurisdiction over criminal offenses committed on the reservation. A copy of that resolution is herewith submitted.
"The enclosed draft of proposed legislation is therefore submitted to fix in one place criminal jurisdiction over all the above-mentioned different classes of Indians of the Devils Lake Reservation, and to assure these Indians that they will continue to be subject to the same laws and courts as other citizens and residents of the State. The language follows that of the act of June 8, 1940 (54 Stat. 249), conferring jurisdiction on the State of Kansas over Indians of the State of Kansas. I recommend early and favorable action on the measure."
[6] This case involves only misdemeanors and we express no opinion on the allocation of jurisdiction for more serious crimes. However, we observe that other congressional enactments may limit jurisdiction. See generally 2 and Iowa Tribe of Indians v. State of Kansas, 787 F.2d 1434 (10th Cir.1986); Youngbear v. Brewer, 415 F.Supp. 807 (N.D.Iowa 1976), aff'd, 549 F.2d 74 (8th Cir.1977).
[7] During oral argument we were informed by counsel for Hook that he notified the Tribe about this proceeding. However, the Tribe has not appeared to advance its interests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602139/ | 181 So.2d 701 (1966)
Soi M. ROSS and Elaine Ross, Appellants,
v.
Eugene M. WHITMAN, Appellee.
No. 65-300.
District Court of Appeal of Florida. Third District.
January 11, 1966.
Rehearing Denied February 2, 1966.
*702 Daniel G. Satin, Miami, for appellants.
Joseph M. Fitzgerald and Thomas A. Horkan, Jr., Miami, for appellee.
Before CARROLL, BARKDULL and SWANN, JJ.
CARROLL, Judge.
The appellee Eugene N. Whitman filed an action in the circuit court in Dade County on two promissory notes made to him by the appellants. The latter, the defendants below, pleaded usury. Trial without a jury resulted in a holding that the notes were not usurious, and judgment was entered in favor of the plaintiff for the principal with 6% interest. Thereupon the defendants appealed.
The two notes evidenced cash loans by the plaintiff Whitman to the defendant Sol M. Ross. The first note, for $6,000, made on February 14, 1956, contained a promise to pay the principal sum three years after date, "with interest." That printed form note had no space or blank for insertion of a rate of interest, and none was stated. The second note, for $5,000, was dated January 14, 1957, and contained a promise to pay the principal three years after date. That second note was drawn on a form customarily used in Florida which contained the following printed provision as to the payment of interest: "With interest thereon at the rate of per cent, per annum, from date until fully paid. Interests payable semiannually."
The defendants averred that at the time the loans were made the lender, Whitman, demanded interest at the rate of 15% per annum and the borrower agreed to proceed on that basis; that pursuant to such agreement the borrower paid interest thereon semi-annually at the rate of 15% per annum; and that said interest was in excess of the amount lawfully permitted under the Florida Usury Statutes[1]; and defendants counterclaimed for affirmative relief by reason thereof.[2]
*703 Notwithstanding the fact that the record clearly established that the parties understood that 15% per annum would be paid in interest on the loan[3], and that interest was paid thereon semi-annually at the rate of 15% per annum before the principal matured[4], the trial court was of the opinion that the plaintiff was not guilty of "wilfully violating the provisions of § 687.03 [Fla. Stat., F.S.A.] and was without any corrupt or illegal intent, and was an innocent party in this transaction, and is therefore not subject to any of the penalties provided in § 687.04 F.S.A." In so holding the trial court was in error and we reverse.
The fact that the suggestion of the usurious rate of interest may have emanated from the borrower did not absolve the lender where the amount or rate of interest thus charged and received was usurious. Lee Const. Corp. v. Newman, Fla.App. 1862, 143 So.2d 222. The trial court appears to have attached importance to the feature that there was no written provision for payment of interest at a rate in excess of 10% per annum. But an agreement for or a charging of usurious interest can be established by parol evidence. Wicker v. Trust Co. of Florida, 109 Fla. 411, 147 So. 586, 588. The lender's professed ignorance of the laws of usury did not render lawful his knowing and intentional acceptance of usurious interest. Shorr v. Skafte, Fla. 1956, 90 So.2d 604, 607. The wilfull violation mentioned in the statute, and corrupt intent as referred to in the decisions, consists of knowingly and intentionally charging or accepting interest at a higher rate than the law allows. Shorr v. Skafte, supra, Jones v. Hammock, 131 Fla. 321, 179 So. 674; Shaffran v. Holness, Fla.App. 1958, 102 So.2d 35, 39.
The making of the loans following discussion of 15% interest, and the payment of such interest semi-annually thereafter clearly established the knowing and intentional charging and acceptance of interest in excess of 10% per annum. The loan was usurious, and having pleaded usury the borrower was entitled to forfeiture of the interest, under § 687.03 Fla. Stat., F.S.A., and double the amount of the usurious interest which was paid, under § 687.04.
Accordingly the judgment is reversed, and the cause remanded with directions to revise the judgment to exclude the allowance of interest and to reduce the principal by double the amount of interest paid.
Reversed and remanded with directions.
NOTES
[1] § 687.03 Fla. Stat., F.S.A. provides that it is unlawful "to reserve, charge or take for any loan, or for any advance of money, or for forbearance to enforce the collection of any sum of money, except upon an obligation of a corporation, a rate of interest greater than ten per cent per annum, either directly or indirectly, by way of commission for advances, discounts, exchange, or by any contract, contrivance or device whatever, whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of ten per cent; and such transactions with the corporation shall, whereby the corporation pays interest, be usury and unlawful if for a rate of interest greater than fifteen per cent per annum."
[2] § 687.04 Fla. Stat., F.S.A. provides that any person wilfully violating the provisions of § 687.03 "shall forfeit the entire interest so charged, or contracted to be charged or reserved, and only the actual principal sum of such usurious contract can be enforced in any court in this state, whether at law or in equity; and when said usurious interest is taken or reserved, or has been paid, then and in that event the person, who has taken or reserved, or has been paid, either directly or indirectly, such usurious interest, shall forfeit to the party from whom such usurious interest has been reserved, taken or exacted in any way, double the amount of interest so reserved, taken or exacted" (with an exception not applicable here).
[3] The trial court found that in seeking the loan the borrower advised the lender he would pay 15%. On the first note, dated February 14, 1956, payable three years after date, a semi-annual interest payment, if one were to be made, fell due on August 14, 1956. The record discloses a letter written by the lender to the borrower on September 7, 1956, in which the lender stated: "By the way, since I am sure it is an oversight but on Aug. 14, $450 was due me from that loan." Interest thus requested, amounting to 15% per annum, was paid by the borrower to the lender. The record contains another letter from the lender requesting payment of certain overdue interest, in the same amount. Also there is disclosed a letter from the lender to the borrower following the advance of the second loan of $5,000 requesting that the borrower forward a note to evidence the same, with instructions to the borrower to "include in it the `agreed' rate of interest." The second note which was made and received subsequent to that request provided for payment of semi-annual interest with the "agreed" rate left blank.
[4] The record discloses two semi-annual interest payments on the first note, in the amount of $450 each (15% per annum) and, after the making of the second loan in 1957, certain semi-annual interest payments of $825 and $850, amounting to approximately 15% per annum on the two loans, prior to maturity of either note. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739287/ | 110 F.3d 810
155 L.R.R.M. (BNA) 2020, 324 U.S.App.D.C. 66
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, Petitioner,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent,Office of Personnel Management, Intervenor.
No. 95-1593.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 21, 1997.Decided April 18, 1997.Rehearing Denied June 5, 1997.
On Petition for Review of an Order of the Federal Labor Relations Authority.
Kevin M. Grile, argued the cause for petitioner, with whom Mark D. Roth and Charles A. Hobbie, Washington, DC, were on the briefs.
David M. Smith, Solicitor, Federal Labor Relations Authority, argued the cause for respondent, with whom William R. Tobey, Deputy Solicitor, and James F. Blandford, Attorney, Washington, DC, were on the brief.
Mark W. Pennak, Attorney, United States Department of Justice, argued the cause for intervenor, with whom Frank W. Hunger, Assistant Attorney General, and William Kanter, Deputy Director, Washington, DC, were on the brief.
H. Stephan Gordon, Silver Spring, MD, was on the brief for amicus curiae National Federation of Federal Employees.
Before: SILBERMAN, SENTELLE and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
1
This is a petition for review of a Federal Labor Relations Authority ("FLRA" or "Authority") decision that a bargaining proposal from Local 32 of the American Federation of Government Employees ("Union") is outside the Office of Personnel Management's ("OPM" or "Agency") duty to negotiate. The Authority found the proposal non-negotiable because it directly implicates and purports to regulate the working conditions of supervisors. Agreeing with the Authority, we deny the petition.
BACKGROUND
2
Where a union is the exclusive representative of employees of a federal agency, the Federal Service Labor-Management Relations Statute ("Statute" or "FSLMRS") imposes upon the agency a general obligation to negotiate in good faith over the conditions of employment of the represented employees. 5 U.S.C. §§ 7114, 7117; U.S. Merit Sys. Protection Bd. v. FLRA, 913 F.2d 976, 977 (D.C.Cir.1990). The scope of the agency's obligation to bargain, however, is limited. The agency need not negotiate, inter alia, over a proposal that "seek[s] to regulate the conditions of employment of members of other bargaining units and supervisory personnel." United States Dep't of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1443 (D.C.Cir.1992) [hereinafter Cherry Point]. This case requires us to apply the quoted language from Cherry Point.
3
The Union is the exclusive representative of a unit of employees of the OPM working at its central office in Washington, D.C. On May 2, 1995, OPM informed the Union that it intended to revise its policies regarding reductions in force ("RIF"). Among other things, the Agency proposed to modify the "competitive areas" that would be used by the Agency in the event of a RIF.
4
The concept of a "competitive area" is an important one in the field of federal labor relations. As we have previously explained,
5
a competitive area is simply a grouping of employees within an agency, according to their geographical or organizational location, who compete for job retention when a particular position is abolished or some other adverse action constituting a RIF is imposed. In such circumstances, an employee holding the affected position may be able to prevail over less senior or less qualified employees who hold different positions but are within the same competitive area.
6
American Fed'n of Gov't Employees, Local 32, AFL-CIO v. FLRA, 853 F.2d 986, 988 (D.C.Cir.1988) (footnotes omitted) [hereinafter AFGE II]. How an agency's competitive areas are defined affects which employees will retain their jobs in the event of a RIF.
7
The definition of the Agency's competitive areas is obviously an issue of great concern to the Union. Given this, the Union responded to the Agency's proposed changes by advancing its own proposal. The Union's proposal called for the Washington office to be divided into fewer competitive areas than did the Agency's proposal. The Union's proposal favored more senior and more qualified employees. The greater the number of other employees within a competitive area the more likely it will be that these employees will find juniors to displace in the event of a RIF.
8
A week after receiving the Union's proposal, the Agency asserted that its duty to bargain under the Statute did not extend to the Union's competitive bargaining proposal. The Union appealed that decision to the Authority. See 5 U.S.C. 7117(c). The Agency argued to the Authority that the Union's proposal was non-negotiable because, if accepted, it would determine the competitive areas for supervisory and managerial personnel.
9
Under OPM regulations, "[a] competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." 5 C.F.R. § 351.402(b) (emphasis added); see also U.S. Merit Sys. Protection Bd., 913 F.2d at 980 (defining "the competitive area to include only bargaining unit employees ... is clearly prohibited under OPM regulations"). A union, however, has no right to negotiate over the working conditions of supervisors. A union has the right to negotiate only for employees who are members of its bargaining unit. See 5 U.S.C. § 7114(a)(1). Supervisors may not belong to any bargaining unit. 5 U.S.C. § 7112(b)(1). An agency therefore has no obligation to negotiate over any proposal that directly implicates the working conditions of supervisors. Allowing the Union to force the Agency to negotiate over this proposal would violate the basic principle of labor law that a union represents employees who are members of its bargaining unit, and those employees only. Cherry Point, 952 F.2d at 1442. The Agency relied on the Authority's opinion in International Fed'n of Prof'l and Technical Eng'rs and U.S. Dep't of the Navy Marine Corps Sec. Force Battalion Pac., 47 F.L.R.A. 1086 (1993) [hereinafter IFPTE]. Because the Union's proposal necessarily defined the competitive area for supervisory personnel, it was outside the Agency's duty to negotiate.
10
The Union countered by arguing that its proposal was negotiable because "it is not AFGE 32's intention to determine the competitive area for [supervisory] personnel." The proposal affected supervisory personnel only because OPM regulations required that competitive areas include all employees within the area. The Union relied on the Authority's decision in National Weather Service Employees Org. and U.S. Dep't of Commerce Nat'l Oceanic and Atmospheric Admin., Nat'l Weather Serv., Silver Spring, Maryland, 44 F.L.R.A. 18 (1992), enforced sub nom. Department of Commerce v. FLRA, 7 F.3d 243 (D.C.Cir.1993) [hereinafter National Weather Service]. In National Weather Service, the Authority held a competitive area bargaining proposal to be negotiable despite the effect it would have on management personnel. The Authority focused in that case on the union's intent. Because the union did not intend to regulate the conditions of employment of management personnel, the proposal was negotiable. 44 F.L.R.A. at 28. The Union argued thatNational Weather Service required the Authority to hold that its proposal was negotiable.
11
The Authority agreed with the Agency. After a careful analysis of relevant Authority and D.C. Circuit precedent, the Authority stated that there was no basis, either in the Statute or in precedent, for the "proposition that, in determining whether a proposal [is negotiable], it is appropriate to rely on what the union seeks to accomplish rather than what the proposal would, in fact, accomplish." 51 F.L.R.A. 491, 1995 WL 649037, at * 10 (1995). Rather, the exact opposite was true. Negotiability was determined based on a proposal's actual, not its intended, effect. The Authority disavowed the contrary position it had taken in National Weather Service.
12
Once this was established, the application to the facts in this case was easy. The Union's proposal, if adopted, would determine the competitive areas for supervisors. An agency has no obligation to negotiate over proposals that directly implicate supervisory personnel. See, e.g., Cherry Point, 952 F.2d at 1442. The Union's proposal was therefore outside the duty to bargain.
13
The Authority recognized that this decision placed the Union in a " 'catch-22' situation." 51 F.L.R.A. 491, 1995 WL 649037, at * 10. OPM regulations require that competitive areas be defined to include supervisors, yet agencies have no duty to negotiate over proposals that affect supervisors. The Union might thus never be able to negotiate over this important condition of employment. The Authority nevertheless dismissed the petition for review. This appeal followed.
ANALYSIS
14
This is not a new issue for this court. This is at least the fourth time that these two parties have clashed over the negotiability of union competitive area proposals. In Local 32, Am. Fed'n of Gov't Employees, AFL-CIO v. FLRA, 774 F.2d 498 (D.C.Cir.1985) [hereinafter AFGE I], the Authority below had held that a union proposal was outside an agency's duty to negotiate because it would affect non-bargaining unit employees. In a different case presenting similar facts, however, the Authority had held that a proposal defining competitive areas was within an agency's duty to negotiate. This court noted the discrepancy between these holdings and remanded the case to the Authority to reconcile the apparent inconsistency. Id. at 499-500.
15
On remand the Authority announced again that the union's competitive area proposals did not fall within the Agency's duty to negotiate. It arrived at this conclusion by balancing "the right of the union to negotiate over the conditions of employment of bargaining unit employees and the right of the agency to set the conditions of employment of nonbargaining unit employees." American Fed'n of Gov't Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 F.L.R.A. 478, 482 (1986).
16
The union contested the Authority's conclusions and its analysis in an appeal to this court. We again agreed with the union and remanded the case to the Authority. In doing so we concluded that the Authority's use of a balancing test was inconsistent with the statute. AFGE II, 853 F.2d at 991. We reminded the Authority of the analogous relationship between the FSLMRS and the National Labor Relations Act and urged it to consider using the private sector's "vitally affects" test in its further consideration of this question. Id. at 992; see Allied Chem. & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 397-98, 30 L.Ed.2d 341 (1971). The "vitally affects" test has been used in the private sector to expand "the scope of mandatory bargaining subjects to include issues directly relating to non-employees or other conditions [outside the bargaining unit], so long as a sufficient nexus with the employees' interests can be shown." Cherry Point, 952 F.2d at 1440 (quoting CHARLES J. MORRIS, THE DEVELOPING LABOR LAW 765 (2d ed.1983)) (alteration in original).
17
Accepting our suggestion, the Authority began to use the "vitally affects" test to determine the negotiability of union proposals. Applying that test to the proposals involved in AFGE I and AFGE II, the Authority found that the proposals were negotiable because they "vitally affect[ed]" the working conditions of employees in the bargaining unit. American Fed'n of Gov't Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 F.L.R.A. 335, 338-39 (1988). The OPM appealed the decision to this court, challenging both the result and the Authority's use of the "vitally affects" test. We denied its petition.1 We did not, however, consider whether the "vitally affects" test had been appropriately applied. We held that the law of the case doctrine and justiciability concerns barred us from considering the challenge. United States Office of Personnel Management v. FLRA, 905 F.2d 430, 433-35 (D.C.Cir.1990) [hereinafter AFGE III].
18
The Authority therefore went on resolving negotiability disputes by asking whether the proposal "vitally affected" the working conditions of employees in the relevant bargaining unit. See, e.g., American Fed'n of Gov't Employees, Council of Marine Corps Locals and Dep't of the Navy, U.S. Marine Corps, 35 F.L.R.A. 1023, 1030-33 (1990). The appropriateness of this practice went unreviewed until this court considered the question in Cherry Point.
19
In Cherry Point, the Authority applied the "vitally affects" test to proposals concerning promotion practices and parking policy at a military base. The Authority found the proposals to be negotiable and the Navy brought a petition challenging the Authority's "adoption, construction and application" of the "vitally affects" test. Cherry Point, 952 F.2d at 1436. We approved the Authority's decision to adopt the "vitally affects" test, but held that the Authority's construction and application of the test were flawed. Id. at 1439. Contrary to the Authority's practice, the "vitally affects" test is applicable only when the subject of the proposal is outside the scope of mandatory bargaining. Id. at 1440.
20
In addition, and of greater relevance for this case, we also held that the vitally affects test is not applicable if a union proposal "directly implicate[s]," "purports to regulate," or "seek[s] to regulate" the working conditions of supervisory personnel or members of other bargaining units. Id. at 1441-43. Such proposals are always non-negotiable. The present case requires us to expound on this aspect of Cherry Point.
21
In order to determine the negotiability of the union's proposal, we must first ascertain whether it "directly implicates," "purports to regulate," or "seeks to regulate" the working conditions of supervisors. If it does, the proposal is outside the Agency's duty to negotiate.
22
We note at the outset that the Authority has not been consistent in its application of Cherry Point. In National Weather Service, the Authority focused on the union's intent in determining whether the proposal "purported" to regulate the working conditions of supervisory personnel. If the effect on supervisors was a result of the operation of a federal regulation rather than the result of the union's intent, the Agency could not claim that the proposal "purported" to regulate the working conditions of supervisors and was for that reason outside the duty to negotiate. In IFPTE and in its opinion in this case, however, the Authority relied not on the union's expressed intent, but rather on the effect that the proposal would have on the working conditions of supervisory personnel.
23
We are not suggesting, however, that the Authority has been arbitrary or capricious. Rather, as we noted above, the Authority expressly rejected its National Weather Service reasoning in its decision in this case. See op. at p. 813, supra (citing 51 F.L.R.A. 491, 1995 WL 649037, at * 10 (1995)). The Union argues to us now that the Authority's approach in National Weather Service is correct. It reads our use of the terms "purport" and "seek" in Cherry Point to require the Authority to determine the negotiability of a proposal by looking to the intent of the union as it is expressed in the language of the proposal itself. In the Union's view, its proposal does not say anything about the working conditions of supervisory personnel, and therefore cannot be said to "purport" or "seek" to regulate their working conditions or "directly implicate" them. The Union contends that its proposal is therefore negotiable so long as it "vitally affects" the working conditions of members of its bargaining unit. Due to the central importance of the RIF process, the Union maintains that its competitive area proposal clearly meets that standard and is within the Agency's duty to negotiate.
24
The Authority disagrees. It rejects as contrary to statute, common sense, and Cherry Point the Union's "myopic" focus on the language of the proposal. It interprets Cherry Point to mean that a union proposal that "preclusively determines" or "mandate[s]" working conditions for supervisory personnel is outside the scope of the agency's duty to negotiate. In this case the union proposed a redefinition of OPM's competitive areas. OPM regulations require that competitive areas be defined so as to include all employees within the area. 5 C.F.R. § 351.402(b). Supervisors work within the competitive area that the union proposes to define. Therefore, the Authority contends that the union's proposal "purports" to regulate the working conditions of supervisors and is outside the Agency's duty to negotiate.
25
The Authority is correct. All the Union has to offer in support of its position is a strained interpretation of the Cherry Point court's use of the word "purports." Its interpretation is easily rejected. Its most obvious flaw is that it is completely counter to the approach we took in Cherry Point itself. In Cherry Point we focused, not on the language that the union used in crafting its proposal, but on the effect that the union proposal would have if the agency accepted it. We held that the proposals in question in Cherry Point were nonnegotiable. We did not base our holdings on the fact that the union proposals, if accepted, would have some effect on the working conditions of supervisors or members of other bargaining units. Nearly every bargaining proposal, if accepted, will have some effect on non-unit personnel. We found that the union's proposals were non-negotiable because, if accepted, they would govern the working conditions of supervisors and employees in other bargaining units. This is the distinction that we were drawing through our use of terms such as "directly implicate," "seek to regulate," and "purport to regulate."
26
An analysis of the two parking proposals mentioned in the opinion makes this point clear. The first proposal is the one the union submitted. The union's proposal called "for the establishment of an 'open' parking policy for all employees and supervisory personnel working at the Cherry Point installation." Cherry Point, 952 F.2d at 1436. We held that this proposal was outside the agency's duty to negotiate. The second parking proposal, a hypothetical mentioned at oral argument and discussed in the opinion, called for "all parking at Cherry Point [to] be reserved for employees in the Local 2297 unit." Id. at 1441. We said that this proposal was negotiable.
27
The significant difference between these proposals is not that the first mentions the interests of the supervisors and the second does not or that the first impacts non-unit personnel and the second does not. The crucial difference is that the first would have bound the agency vis-a-vis the parking rights of members of other bargaining units and supervisors, and the second would not have. Had the agency accepted the second proposal, it would have had severely limited options regarding the parking privileges of these other employees and supervisors (and that is why the proposal would likely have been unreasonable, despite being negotiable) but it still could have worked with these other groups to arrive at some other arrangement. The first proposal, by contrast, would have defined parking privileges not just for members of the union's bargaining unit, but also for members of other bargaining units and supervisory personnel. Because this would be counter to basic principles of labor law, we held that the union's parking proposal was non-negotiable.
28
Applying this principle to the facts of this case, it is clear that the Union's competitive area proposal is not within the agency's duty to negotiate. 5 C.F.R. § 351.402(b) and U.S. Merit Sys. Protection Bd. require that a competitive area be defined to include all workers in an area. The Union's proposal, if implemented, would therefore govern the competitive area not only for members of the Union's bargaining unit, but also for supervisory personnel. As the Cherry Point court made clear, such a proposal is outside an agency's duty to negotiate. The Authority's decision was therefore correct.
29
The Union emphasizes repeatedly that it does not intend to define the competitive area for supervisors. Its proposal has this effect only because of the necessary operation of 5 C.F.R. § 351.402(b). The Authority noted that this placed the Union in a difficult position, where it might never be able to force the Agency to bargain bilaterally over the definition of competitive areas. 51 F.L.R.A. 491, 1995 WL 649037, at * 10.
30
We acknowledge that this ruling puts the Union in a difficult position. Difficult though that position may be, it seems to be contemplated by the FSLMRS. Under § 7117(a)(1) the duty to bargain in good faith does not extend to proposals that are inconsistent with federal law or government-wide regulations. This statutory provision appears to give the government the ability to make certain categories of proposals non-negotiable by adopting government-wide regulations covering those subjects. This is essentially what the government did here. The FSLMRS gives the Union the right to negotiate only for employees who are members of its bargaining unit. 5 U.S.C. § 7114(a)(1). Supervisors may not belong to any bargaining unit. See 5 U.S.C. § 7112(b)(1). Because of 5 C.F.R. § 351.402(b), however, the Union's proposal will determine competitive areas for supervisors as well as for members of the Union's bargaining unit. The Union's proposal therefore exceeds the negotiating authority that it is given under the FSLMRS.2 It is inconsistent with federal law and outside the Agency's duty to negotiate. See AFGE III, 905 F.2d at 436 (Silberman, J., concurring).
CONCLUSION
31
If adopted, the Union's proposal would govern the working conditions of supervisors at the OPM. It is therefore outside the Agency's duty to negotiate. We deny the Union's petition for review.
1
We also denied the petition of the Nuclear Regulatory Commission, co-petitioner in the case
2
Note that the Union cannot cure its problem by altering the proposal so that it covers only members of its bargaining unit. Such a proposal would be directly inconsistent with a government-wide regulation, 5 C.F.R. § 351.402(b), and would for that reason be outside the Agency's duty to negotiate. 5 U.S.C. § 7117(a)(1) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1602250/ | 8 So.3d 697 (2009)
AJB PROPERTIES, LLC
v.
Jon A. GEGENHEIMER, Clerk of Court and Ex-Officio Recorder of Mortgages for the Parish of Jefferson, Richard Anthony Galvan, Chad B. Ham, Canlas Ellis, LLC and Robert J. Ellis, Jr., Esq.
No. 08-CA-669.
Court of Appeal of Louisiana, Fifth Circuit.
February 10, 2009.
*698 Gerald Wasserman, Leonard M. Berins, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
John B. Esnard, III, Attorney at Law, New Orleans, Louisiana, and Thomas A. Robichaux, Attorney at Law, New Orleans, Louisiana, for Defendants/Appellants.
Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
WALTER J. ROTHSCHILD, Judge.
On June 28, 2007, A.J.B. Properties, L.L.C. ("AJB") filed a "Petition for Mandamus," against Jon Gegenheimer, the Clerk of Court and Ex-Officio Recorder of Mortgages for Jefferson Parish ("Clerk of Court"), seeking an order requiring him to set aside the cancellation of two mortgages in the Jefferson Parish mortgage records and to re-inscribe these mortgages. Also named as defendants in the Petition for Mandamus were Chad Ham, Robert Ellis, Jr., Canlas-Ellis, L.L.C., and Richard Galvan.
In its petition, AJB asserts that on October 19, 2004, Mr. Galvan executed a promissory note in favor of AJB in the principal amount of $8,600.00 as partial consideration for the purchase of property located at 2712 Destrehan Avenue in Harvey, Louisiana. This note was secured by a mortgage affecting the property, and the mortgage was recorded in the Jefferson Parish mortgage records on December 6, 2004. AJB also contends that Mr. Galvan signed a promissory note in favor of AJB in the principal amount of $8,500.00 as partial consideration for the purchase of property located at 4249 Lac St. Pierre Street in Harvey, Louisiana. This note was also secured by a mortgage affecting the property, and it was recorded in the Jefferson *699 Parish mortgage records on December 6, 2004.
On March 16, 2007, Robert Ellis, Jr., who is an attorney, filed a "Request for Cancellation" for each of the two mortgages, seeking to have the recordation or inscription of the mortgages cancelled from the Jefferson Parish mortgage records. In support of each Request for Cancellation, Mr. Ellis attached an "Affidavit of Lost Note and Authorization to Cancel Mortgage by Notary Public" executed by Chad Ham. In each affidavit, Mr. Ham asserted that he was the notary public who satisfied the October 19, 2004 promissory notes that were secured by the mortgages on the respective properties. Mr. Ham also asserted in each affidavit that he received the original note from the last holder of the note and was informed that the debt was cancelled, but the note was lost or destroyed due to Hurricane Katrina. Based on the Requests for Cancellation and the affidavits, the Clerk of Court noted in the mortgage records that these two mortgages had been cancelled.
In its Petition for Mandamus filed June 28, 2007, AJB asserts that the cancellation of both mortgages was unauthorized and improper, because neither of the promissory notes secured by the mortgages has been satisfied and AJB has never released or forgiven the maker from his obligations under the notes. AJB further asserts that Mr. Ham's execution of each "Affidavit of Lost Note and Authorization to Cancel Mortgage by Notary Public" and Mr. Ellis's execution and filing of the Requests for Cancellation were done without the prior knowledge or authority of AJB. In its petition, AJB seeks the issuance of a writ of mandamus directing the Clerk of Court to set aside the cancellation of both mortgages and to have these mortgages reinscribed in the mortgage records. AJB further contends that because this proceeding was necessitated by the filing of unauthorized affidavits and Requests for Cancellation, attorney fees and costs should be assessed against Chad Ham, Robert Ellis, Jr., and Mr. Ellis's law firm, Canlas-Ellis, L.L.C.
On July 26, 2007, Mr. Ellis filed an Answer generally denying the allegations in AJB's petition and Exceptions of Unauthorized Use of Summary Proceedings and No Cause of Action, arguing that a mandamus proceeding is improper under the circumstances and that there can be no cause of action against him in a mandamus proceeding because he is not a public official. On August 15, 2007, the Clerk of Court filed an Answer and a Request for Attorney Fees to be assessed against Mr. Ellis, Canlas-Ellis, L.L.C, and Mr. Ham. On September 27, 2007, Mr. Ham filed a Memorandum in Opposition to Petition for Writ of Mandamus, asserting that the mortgages were validly cancelled under his authority as the last holder of the promissory notes paraphed with the mortgages and that a mandamus proceeding is improper for the relief sought by AJB. On September 28, 2007, Richard Galvan filed an Answer generally denying the allegations in AJB's petition, as well as Exceptions of Unauthorized Use of a Summary Proceeding and No Cause of Action.
On October 1, 2007, the matter came before the trial court for hearing. After counsel for the parties argued as to whether or not a mandamus proceeding was proper in this case, the trial judge indicated that he would hear the merits of the Petition for Mandamus, and an evidentiary hearing was conducted that day. At the hearing, Robert Ellis testified that at the time of the sale of the properties from AJB to Mr. Galvan, Josh Bruno, who is the owner and only managing member of AJB, agreed to forgive the two promissory notes at issue and waive the second mortgages *700 that secured these notes. Mr. Ellis testified that after the sale, Mr. Bruno reneged on waiving the mortgages and tried to collect on them, but this was not what had been agreed to by the parties. He stated that he signed and filed the Requests for Cancellation, because Mr. Bruno had agreed to forgive the notes immediately and waive the mortgages. He also stated that he had authority to cancel the notes, because the affidavit of Chad Ham indicated that the promissory notes had been satisfied.
Chad Ham testified that he is an attorney who has handled hundreds of real estate closings. He stated that the promissory notes at issue were retained by him at the closing, and he understood that the debt was to be forgiven and he was to later cancel the mortgages. He testified that he felt that it was his duty to have the mortgages cancelled in order to clear the titles to the properties.
Joshua Bruno, the owner of AJB, testified that he did not agree to forgive the promissory notes and he believed that he had a valid second mortgage on each of the properties. He further stated that he never gave Mr. Ham, Mr. Ellis or Mr. Galvan the authority to cancel these mortgages.
At the conclusion of the hearing and in a written judgment dated November 5, 2007, the trial judge granted the Exceptions of No Cause of Action as to all defendants, except the Clerk of Court, because they were not public officials, and he dismissed Chad Ham, Robert Ellis, Jr., Canlas-Ellis, L.L.C, and Richard Galvan from the lawsuit, without prejudice. With regard to the merits of the Petition for Mandamus, the trial judge ordered that the cancellations of the two mortgages at issue be set aside and that these mortgages be re-inscribed, restoring to them the ranking and seniority that they would have had if the cancellations had never occurred. The trial judge ordered the Clerk of Court to make the appropriate notations in the Jefferson Parish mortgage records in order to reflect that the cancellations of the mortgages have been set aside and that both mortgages have been re-inscribed. The trial judge further ordered Robert Ellis, Jr., Canlas-Ellis, L.L.C, and Chad Ham to pay $1,500.00 in attorney fees to the Clerk of Court.
On December 13, 2007, Richard Galvan, Chad Ham, Robert Ellis, Jr., and Canlas-Ellis, L.L.C. filed a Motion for New Trial, which was denied by the trial court. These defendants now appeal the November 5, 2007 judgment and the denial of their Motion for New Trial.
LAW AND DISCUSSION
In their first assignment of error on appeal, Richard Galvan, Chad Ham, Robert Ellis, and Canlas-Ellis, L.L.C. ("defendants") argue that the trial court erred in ordering the re-inscription of the mortgages at issue in a judgment arising out of a mandamus proceeding and in not ordering AJB to amend its petition or re-file as an ordinary proceeding. They argue that this case does not meet the requirements for a mandamus proceeding, particularly because the actions sought by AJB, i.e. setting aside the cancellation of two mortgages and re-inscription of these mortgages, are not legally mandatory ministerial acts. They argue that because the validity of the cancellation of these mortgages is in dispute, the Clerk of Court would have had to use his discretion to determine whether or not the cancellations should be set aside, which renders the actions sought non-ministerial.
AJB responds that, based on the affidavits and Requests for Cancellation filed by Mr. Ham and Mr. Ellis, the Clerk of Court had a clear and non-discretionary duty not to cancel either of the mortgages. Further, AJB claims that LSA-R.S. 44:114 *701 specifically permits the bringing of an action against the recorder of mortgages via a mandamus proceeding to compel the recordation of any instrument permitted to be recorded, to cancel from the records any improperly recorded document, or to correct any errors or omissions in the records.
A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty that is required by law. LSA-C.C.P. art. 3863; Hebert v. Abbey Healthcare Group, Inc., 94-1280, p. 3 (La.App. 3 Cir. 5/17/95), 657 So.2d 278, 280. Mandamus is a summary proceeding used to compel the performance of a ministerial act, which is an act that is so clear and specific that no element of discretion can be exercised in its performance. Naquin v. Lafayette Public Utilities Authority, 07-42, p. 4 (La.App. 3 Cir. 7/5/07), 963 So.2d 1045, 1048. Mandamus is an extraordinary remedy which is used sparingly by courts and will not be issued in doubtful cases. City of Hammond v. Parish of Tangipahoa, 07-574, p. 11 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 181; King v. Bourgeois, 04-1106, p. 3 (La. App. 1 Cir. 5/6/05), 903 So.2d 549, 551, writ denied, 05-1891 (La.2/3/06), 922 So.2d 1177. The jurisprudence is clear that a writ of mandamus may not issue to compel the performance of an act which contains any element of discretion, however slight. The duty must be purely ministerial. Wiginton v. Tangipahoa Parish Council, 00-1319, p. 4 (La.App. 1 Cir. 6/29/01), 790 So.2d 160, 163, writ denied, 01-2541 (La.12/7/01), 803 So.2d 971; Big Train Construction Company, Inc. v. Parish of St. Tammany, 446 So.2d 889, 890 (La.App. 1 Cir. 2/28/84).
In the present case, AJB alleges in its Petition for Mandamus that the cancellation of both mortgages was unauthorized and improper, because neither of the promissory notes secured by the mortgages has been satisfied and AJB has never released or forgiven the maker from his obligations under the notes. AJB further asserted that the Requests for Cancellation were done without the authority of AJB. The defendants, except for the Clerk of Court, denied the allegations of AJB's petition and argued that the mortgages at issue were validly cancelled. In its petition, AJB seeks the issuance of a writ of mandamus directing the Clerk of Court to set aside the cancellation of both mortgages and to have these mortgages re-inscribed in the mortgage records. However, throughout the pleadings, it is clear that AJB was not seeking a clear and specific legal right that was required to be performed. Rather, the action for which AJB seeks a writ of mandamus would have required the Clerk of Court to determine whether or not the cancellation of the mortgages was proper and valid, or whether the cancellations were unauthorized and should be set aside. Clearly, the Clerk of Court was not asked to perform a purely ministerial act. At the hearing on this matter, the trial judge and counsel for AJB both acknowledged that the trial judge was being asked to make a credibility call as to whom he believes. A mandamus may not be used to compel the performance of a duty that is dependent on disputed facts.
Although AJB asserts that LSA-R.S. 44:114 authorizes a mandamus proceeding initiated against the recorder to compel the recordation of any document authorized to be recorded, the cancellation from the records of any documents authorized to be cancelled, or the cancellation from the records of any improperly recorded document, this statute does not authorize the use of a mandamus proceeding against the recorder of mortgages when the duty of the recorder is based on disputed facts *702 and the action sought is contested. Further, this statute does not overrule or negate the years of jurisprudence holding that a mandamus proceeding may not be used for non-ministerial acts or in doubtful cases.
Based on the record before us, along with the applicable law, we find that a mandamus proceeding was inappropriate in this case and that the trial judge erred in rendering the November 5, 2007 judgment via a mandamus proceeding. AJB's appropriate remedy is by ordinary proceedings during which discovery may be conducted. Accordingly, we vacate the trial court's November 5, 2007 judgment ordering the Clerk of Court to set aside the cancellations of the mortgages and to re-inscribe them, because the proceedings used to obtain this judgment were improper. We remand the case for AJB to timely amend its petition and to proceed by ordinary action, if it so chooses.
In their second assignment of error, defendants argue that the trial court erred in casting them with costs and attorney fees when these same defendants were dismissed from the case on their Exceptions of No Cause of Action. Based on our finding that this proceeding was improperly filed against these defendants as a mandamus proceeding, we vacate the order requiring them to pay $1,500.00 in attorney fees to the Clerk of Court. However, this ruling does not prohibit the trial court from assessing costs and attorney fees as it deems appropriate at a later date, if the matter proceeds as an ordinary action.
DECREE
For the foregoing reasons, we reverse the decision of the trial court allowing this matter to proceed as a mandamus action. We remand the case to allow AJB the opportunity to timely amend its petition to proceed via ordinary proceedings. We further vacate the November 5, 2007 judgment ordering the Clerk of Court to set aside the cancellations of the two mortgages and to re-inscribe these mortgages, as well as the order of $1,500.00 in attorney fees assessed against defendants.
REVERSED; JUDGMENT VACATED; REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602295/ | 786 N.W.2d 304 (2010)
SKYLINE VILLAGE PARK ASSOCIATION, Appellant,
v.
SKYLINE VILLAGE L.P., et al., Respondents.
No. A10-167.
Court of Appeals of Minnesota.
July 20, 2010.
*305 John Cann, Housing Preservation Project, and Justin Bell, All Parks Alliance for Change, St. Paul, MN, for appellant.
John F. Bonner, III, Thomas F. DeVincke, Bonner & Borhart LLP, Minneapolis, MN, for respondents.
Considered and decided by SHUMAKER, Presiding Judge; LARKIN, Judge; and COLLINS, Judge.[*]
OPINION
LARKIN, Judge.
Appellant challenges the district court's declaratory judgment in favor of respondents, arguing that the district court's ruling is based on an erroneous interpretation of Minnesota Statutes, chapter 327C. Because the district court correctly determined that section 327C.02, subdivision 2, does not impose a reasonableness requirement on increases in manufactured-home-park-lot rental rates and that section 327C.05, subdivision 1, which prohibits a park owner from engaging in an unreasonable course of conduct, does not apply to increases in manufactured-home-park-lot rental rates, we affirm.
FACTS
The facts in this case are undisputed. Respondent Skyline Village is a manufactured-home community located in Inver Grove Heights. Appellant Skyline Village Park Association is a resident association consisting of 268 of the 351 occupied households in the Skyline community. The dispute in this matter arises from a $25 per month rent increase imposed by Skyline Village beginning March 1, 2008.
Appellant initiated a lawsuit claiming, in part, that the proposed increase is unreasonable and therefore unenforceable under *306 Minn.Stat. § 327C.02 (2008). Appellant argued that the increase is unreasonable because (1) it set the rent at a level substantially higher than that of other comparable parks in the region, (2) it is part of a 23%-24% rent increase over the course of four years, and (3) requested repairs and maintenance had not been completed in the park. Appellant sought declaratory and injunctive relief.
In August 2009, the parties moved for a declaratory judgment establishing whether manufactured-home-park-lot rent increases are subject to a reasonableness requirement under Minnesota statutes, and if so, how reasonableness is to be evaluated. The district court determined that any requirement for reasonableness set forth in Minn.Stat. § 327C.02 does not apply to increases in the rental rate for a manufactured-home-park lot and in the alternative, a determination of whether a rent increase is reasonable is limited to a comparison of market-comparable rents or rent increases. The district court further declared that (1) a determination of whether a manufactured-home-park-lot rent increase is reasonable may not include consideration of the factors set out in Minn.Stat. § 327C.01, subdivision 8 (2008); (2) a determination of whether a manufactured-home-park-lot rent increase is enforceable may not include consideration of whether it is substantial pursuant to Minn.Stat. § 327C.01, subd. 11 (2008); and (3) the prohibition under Minn.Stat. § 327C.05, subd. 1, against a manufactured-home-park owner's course of conduct that is unreasonable does not apply to rent increases. The district court entered a final judgment in respondents' favor, and this appeal followed.
ISSUES
I. Did the district court err by concluding that Minn.Stat. § 327C.02, subd. 2, does not impose a reasonableness requirement on manufactured-home-park-lot rent increases?
II. Did the district court err by concluding that the prohibition under Minn. Stat. § 327C.05, subd. 1, against a manufactured-home-park owner's course of conduct that is unreasonable does not apply to increases in lot rent?
ANALYSIS
I.
In this appeal, we must determine whether Minnesota statutes impose a reasonableness requirement on manufactured-home-park-lot rent increases. Our focus is on section 327C.02, subdivision 2, which provides, in relevant part, that "[a] rule adopted or amended after the resident initially enters into a rental agreement may be enforced against that resident only if the new or amended rule is reasonable and is not a substantial modification of the original agreement." Minn.Stat. § 327C.02, subd. 2. It further states: "A reasonable rent increase made in compliance with section 327C.06 is not a substantial modification of the rental agreement and is not considered to be a rule for purposes of section 327C.01, subdivision 8." Id. Appellant argues that we should interpret section 327C.02, subdivision 2, as imposing a reasonableness requirement on rent increases. Appellant contends that under section 327C.02, subdivision 2, an unreasonable rent increase is a rule change that must comply with the statutory requirements governing rule changes.
"On appeal from a declaratory judgment, we ... review the [district] court's determination of questions of law de novo." Rice Lake Contracting Corp. v. Rust Env't & Infrastructure, Inc., 549 N.W.2d 96, 98-99 (Minn.App.1996), review *307 denied (Minn. Aug. 20, 1996). "Statutory construction is ... a legal issue reviewed de novo." Lee v. Fresenius Med. Care, Inc., 741 N.W.2d 117, 122 (Minn.2007). When interpreting a statute, our object is to "ascertain and effectuate the intention of the legislature." Minn.Stat. § 645.16 (2008). "[An appellate court] first look[s] to see whether the statute's language, on its face, is clear or ambiguous. A statute is ambiguous only when the language therein is subject to more than one reasonable interpretation." Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation and citations omitted). If the legislature's intent is clearly discernible from a statute's unambiguous language, appellate courts interpret the language according to its plain meaning, without resorting to other principles of statutory construction. State v. Anderson, 683 N.W.2d 818, 821 (Minn.2004).
The portion of section 327C.02, subdivision 2, at issue here provides: "A reasonable rent increase made in compliance with section 327C.06 [governing rent increases] is not a substantial modification of the rental agreement and is not considered to be a rule for purposes of section 327C.01, subdivision 8 [defining a reasonable rule]." Minn.Stat. § 327C.02, subd. 2. Appellant argues that this statement suggests that an unreasonable rent increase is a substantial modification of the rental agreement and is considered to be a rule for purposes of section 327C.01, subdivision 8. Respondents counter that the word "reasonable" means nothing more than "made in compliance with section 327.06." Because both interpretations are reasonable, we conclude that the statutory language is ambiguous and that it is appropriate to apply principles of statutory construction.
"A statute should be interpreted, whenever possible, to give effect to all of its provisions; `no word, phrase, or sentence should be deemed superfluous, void, or insignificant.'" Am. Family Ins. Group, 616 N.W.2d at 277 (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)) (other citation omitted). And "[appellate courts] are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations." Id. In ascertaining the legislature's intent, we may be guided by the following statutory presumptions: "the legislature intends the entire statute to be effective and certain," and "the legislature does not intend a result that is absurd, impossible of execution, or unreasonable." Minn.Stat. § 645.17 (2008). "Every law shall be construed, if possible, to give effect to all its provisions." Minn. Stat. § 645.16.
Appellant emphasizes the need to give effect to all of the provisions in section 327C.02, subdivision 2, and argues that we must give meaning to the word "reasonable" in the phrase "reasonable rent increase made in compliance with section 327C.06." Appellant asserts that interpreting the word "reasonable" to mean nothing more than compliance with section 327C.06 renders the word superfluous. Appellant argues that we must instead give effect to the word by interpreting section 327C.02, subdivision 2, to mean that "rent increases must be reasonable and those which are not are subject to limitations in [s]ections 327C.01[,] subdivision 8 and 327C.02."
We are mindful of our statutory obligation to construe every law, if possible, to give effect to all of its provisions. See Minn.Stat. § 645.16. But we must also consider whether construing the word "reasonable" as imposing a reasonableness requirement on rent increases (1) is consistent with the predominant scheme in chapter 327C that distinguishes "rules" and *308 "rule changes" from "rent" and "rent increases," (2) yields an absurd result, and (3) is consistent with the contemporaneous legislative history. See Minn.Stat. §§ 645.16 (listing factors that may be considered when determining the legislature's intent); .17 (providing that the legislature does not intend a result that is absurd); Am. Family Ins. Group, 616 N.W.2d at 277 (requiring that appellate courts construe statutes as a whole and interpret each section in light of the surrounding sections to avoid conflicting interpretations). We address each consideration in turn.
Statutory Scheme
Chapter 327C expressly and consistently differentiates between "rules" and "rule changes" and "rent" and "rent increases." A rule is defined as "any rental agreement provision, regulation, rule or policy through which a park owner controls, affects or seeks to control or affect the behavior of residents." Minn.Stat. § 327C.01, subd. 10 (2008). Unreasonable rules are prohibited. Minn.Stat. § 327C.05, subd. 1. The statute enumerates rules that are presumptively unreasonable and provides that a court may declare unreasonable any rule that fails to meet the statutory definition of a reasonable rule. Minn.Stat. § 327C.05, subds. 2, 3 (2008). The enforceability of a rule modification is governed by section 327C.02, subdivision 2, which requires that the new or amended rule be reasonable and not a substantial modification of the original agreement. Minn.Stat. § 327.02, subd. 2. Section 327.01, subdivision 8, defines "reasonable rule," and subdivision 11 defines "substantial modification."[1] Minn.Stat. § 327.01, subds. 8, 11.
"Rent" is governed by separate and distinct provisions within chapter 327C. Section 327C.03, subdivision 3, governs rent and requires, with limited exceptions, uniform rental charges throughout a manufactured-home park. Minn.Stat. § 327C.03, subd. 3 (2008). A park owner may charge a fee for delinquent rent, as part of the rent, if the fee is provided for in the rental agreement. Id. The inclusion of certain types of fees within rent is prohibited. Id. For example, a park owner may not charge a fee based on the number of people residing in the resident's home, the size of the home, or the type of personal property used or located in the home. Id. A park owner may charge a fee for pets owned by the resident, but the fee is capped at $4 per pet per month. Id.
Rent increases are governed by section 327C.06, which provides:
Subdivision 1. Notice of rent increases required. No increase in the amount of the periodic rental payment due from a resident shall be valid unless the park owner gives the resident 60 days' written notice of the increase.
Subd. 2. Prohibition. No rent increase shall be valid if its purpose is to pay, in *309 whole or in part, any civil or criminal penalty imposed on the park owner by a court or a government agency.
Subd. 3. Rent increases limited. A park owner may impose only two rent increases on a resident in any 12-month period.
Minn.Stat. § 327C.06 (2008). Additionally, a park owner may not increase rent as a penalty for a resident's good-faith complaint to the park owner, government agency or official; good-faith attempt to exercise rights or remedies under law; or joining and participating in the activities of a resident association. Minn.Stat. § 327C.12 (2008).
The distinction between "rules" and "rent" is carried forth in the provisions governing rental agreements, termination of rental agreements, and defenses to evictions. Section 327C.02, subdivision 1, requires that every agreement to rent a lot be in writing and enumerates the terms and conditions that must be contained in the agreement. Minn.Stat. § 327C.02, subd. 1. The enumeration distinguishes between "the amount of rent per month" and "all rules applicable to the resident." Id. Section 327C.09 lists the reasons that a park owner may recover possession of land upon which a manufactured home is situated. Minn.Stat. § 327C.09 (2008). The statute lists nonpayment of rent and rule violations as separate reasons for termination and describes termination procedures that are unique to each. Id., subds. 2, 4. Lastly, section 327.10, which governs defenses to eviction, distinguishes between defenses related to failure to pay rent, failure to pay rent increases, and rule violations. Minn.Stat. § 327C.10, subds. 1-3 (2008). A renter may assert, as a defense to an eviction based on an alleged rule violation, that "the rule allegedly violated is unreasonable." Id., subd. 3. But the reasonableness of a rent increase is not listed as a defense to an eviction based on nonpayment of a rent increase; instead, the listed defenses are based on the restrictions on rent increases set forth in section 327C.06. Id., subd. 2.
We have implicitly recognized the statutory distinction between "rules" and "rent" when reviewing a district court's interpretation of chapter 327C. In Sargent v. Bethel Props., Inc., we determined that the addition of utility charges to existing manufactured-home-park rental agreements was a new rule that substantially modified the agreements and rendered them unenforceable as a matter of law. 653 N.W.2d 800, 803 (Minn.App.2002). We rejected the park owner's argument that the addition of utility charges constituted a rent increase and not a rule modification, reasoning that the decision to impose separate utility charges was intended to control behaviorextraordinary water consumptionand not to increase revenue. Id. at 802. We also stated that the owner's provision of the notice required for a rent increase had no bearing on whether the addition of utility charges constituted a "rent increase or a rule modification." Id. at 803 (emphasis added). We concluded that the district court did not err by finding that the owner's decision to add utility charges constituted "a new rule and not a rent increase." Id.
Our analysis in Sargent recognizes that rule changes and rent increases are not synonymous, unlike our approach in Schaff v. Hometown Am., L.L.C., No. A04-1778, 2005 WL 1545525 (Minn.App. July 5, 2005), review denied (Minn. Sept. 28, 2005), on which appellant relies. Of course, Schaff is not binding authority. Unpublished opinions are of persuasive value "[a]t best" and not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App.1993); Minn.Stat. § 480A.03, subd. 3 (2008) ("Unpublished *310 opinions of the court of appeals are not precedential."). And because the issue of whether a rent increase constitutes a rule change was not raised, analyzed, or decided, Schaff is not persuasive.
Schaff involved both a change to a utility-billing method and a corresponding rent increase. 2005 WL 1545525, at *2. In the facts and decision sections of our opinion in Schaff, we referred to the elimination of individual, metered utility billing and the corresponding implementation of a rent increase as a "rule change." 2005 WL 1545525, at *2-*4. But we also referred to the change as a "rent increase." Id. at *4. While we used these terms interchangeably, we never considered or determined whether the rent increase, which was imposed in conjunction with the utility-billing change, would constitute a rule change standing alone. Id. Thus, it cannot be said that our holding that the rent increase was "not unreasonable" as a matter of law was based on a conclusion that the rent increase constituted a rule change subject to a statutory reasonableness requirement. Id. at *5. While we referenced section 327C.02, subdivision 2, as one of the grounds for the underlying lawsuit, the issues on appeal were whether "the district court erred in its determination that respondent's rental increase was not retaliatory, abused its discretion in a number of evidentiary rulings, and showed bias." Id. at *1. We were not asked to consider or determine the reasonableness of the rent increase under section 327.02, subdivision 2.[2]
Given the statutory scheme set forth in chapter 327, we agree with respondents' assertion that "the completeness and detail with which the [l]egislature addressed rent leads one to conclude that had the [l]egislature wanted to address rent increase controls, it would have done so expressly." The legislature's failure to impose an express "reasonableness" requirement on rent increases in its enumeration of rent increase restrictions in section 327C.06 indicates that the legislature did not intend to impose a reasonableness restriction. See Underwood Grain Co. v. Harthun, 563 N.W.2d 278, 281 (Minn.App.1997) ("It is a principle of statutory construction that the expression of one thing means the exclusion of others (`expressio unius est exclusio alterius').").
Absurd Result
We next consider whether appellant's proposed construction of section 327C.02, subdivision 2, yields an absurd result. Appellant argues that when the legislature excluded reasonable rent increases from the provisions prohibiting substantial modifications of a rental agreement and requiring compliance with the reasonableness standards of section 327C.01, subdivision 8, the legislature intended that any other type of rent increase (i.e., an unreasonable rent increase) is not so excluded. Under this construction, an unreasonable rent increase constitutes a rule change subject to the reasonableness standards of section 327C.01, subdivision 8.
There are two problems with this approach. First, because chapter 327C only defines "reasonable" in the context of *311 rules, it assumes that a rule is the subject of any reasonableness determination. Appellant's argument, however, reverses this process; it would use a determination that a rent increase is unreasonable to make that rent increase a rule. Chapter 327C, however, lacks a standard for determining whether a rent increase is reasonable. See Minn.Stat. § 327C.01, subd. 8 (defining "reasonable rule"). Thus, if adopted, appellant's argument would put the district court in the untenable position of either (a) determining whether a rent increase is reasonable without any guidance from the legislature[3] or (b) applying the definition of a reasonable rule to a rent increase to determine whether that increase is a rule, thereby assuming the conclusion that the increase is, in fact, a rule. Neither option is judicially palatable. Moreover, adoption of standards for determining whether a rent increase is reasonable, within the regulatory structure of chapter 327C, involves policy decisions balancing the considerations of that chapter. Adoption of such standards is for the legislature, not the courts. See, e.g., Haskin v. Northeast Airways, Inc., 266 Minn. 210, 216, 123 N.W.2d 81, 86 (1963) (stating that public policy considerations that might justify a change in law "are for the legislature and not [an appellate] court to evaluate").
Second, under appellant's proposed construction, if a court were to determine apparently by some unarticulated, non-rule-based methodthat a rent increase is unreasonable, the rent increase would be subject to an evaluation of reasonableness under section 327C.01, subdivision 8. But if a determination of unreasonableness is necessary to transform a rent increase into a rule change, we discern no purpose in re-evaluating the reasonableness of the resulting rule change a second time under section 327C.01, subdivision 8, particularly because different standards could produce conflicting results. Thus, appellant's proposed construction yields an illogical and absurd result.
Legislative History
Lastly, we consider the contemporaneous legislative history. "The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature." Minn.Stat. § 645.16. The legislature's intent may be ascertained by considering several factors including the occasion and necessity for the law, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, and the contemporaneous legislative history. Id.
Appellant argues that the legislative purpose of chapter 327C is to protect park residents. See Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 286 (Minn.App.1996) ("Minnesota has long regulated the mobile home park industry to protect park residents."), review denied (Minn. Oct. 29, 1996). The rationale for the special protection of manufactured-home-park residents is that residents are typically low- to moderate-income persons who have made a substantial investment in their homes that is at risk because they only rent the land on which the homes are situated. Id. at 284 n. 2. Once on site, the homes are costly and difficult to move, putting park owners in a superior bargaining position. Id.
Appellant relies on a 1982 memorandum from Senator Gene Merriam that describes the legislative history of Chapter 327. The memorandum discusses the unusual status of the manufactured-home-park *312 owner, noting that the park owner "has come to resemble a private government" and that "[p]ark rules control a wide spectrum of resident conduct, ranging from the length that grass may be allowed to grow, to whether a homemaker can earn some extra income by babysitting neighborhood children, to how many people can live in each private home." "In short," the memorandum concludes, "a park owner is like an unelected mayor of a bedroom community."
The memorandum notes that the legislature first recognized the special nature of manufactured-home-parks in 1973 when it created a law to govern landlord-tenant relations in those parks. In 1979, the legislature heard testimony regarding major abuses of power occurring through this form of "private government" and substantially amended the law in response. The amendments required that all park rules be reasonable; prohibited substantial modification of a preexisting lease; clarified and strengthened the right of a resident to sell his or her home within the park; and severely limited no-cause eviction. The memorandum also notes that while these amendments made major improvements, they also left "major" problems: no-cause evictions were still occurring and key terms, such as "reasonable" and "substantial modification" were left undefined.
The memorandum goes on to highlight the key features of the proposed 1982 amendments, which were meant to address these problems: vague and general language is clarified and made more specific; no-cause eviction is eliminated; for-cause eviction is made more efficient; rents will be required to be uniform within a park, varying only for lots with special advantages or in cases of residents with special needs; and in-park sale rights are clarified.
Noticeably absent from the memorandum is any mention of rent increases. The only restriction, control, or regulation concerning rent is the requirement that rents be uniform within a park. Moreover, reasonableness is only discussed in the context of park rules, and the rules described in the memorandum concern the regulation of "resident conduct," such as requiring residents to maintain a certain grass length on their lots. The memorandum does not suggest that a rent increase is synonymous with efforts to restrict this type of resident conduct.
While the imposition of a reasonableness requirement might be consistent with the legislature's general desire to protect manufactured-home-park residents and to limit a park owner's power in relation to the residents, the legislative history simply does not indicate intent to impose a reasonableness requirement on rent increases. Such a policy decision must be made through the legislative process, which provides opportunity for public input, debate, and deliberation, as well as representative decision making. We therefore will not construe chapter 327C to impose a reasonableness requirement in the absence of clear legislative intent to do so. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) ("The function of the court of appeals is limited to identifying errors and then correcting them." (citations omitted)); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) ("[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court."), review denied (Minn. Dec. 18, 1987).
In summary, construing the word "reasonable" in section 327C.02, subdivision 2, as imposing a reasonableness requirement on rent increases is inconsistent with the statutory scheme distinguishing "rules" from "rent," yields an absurd result, and is *313 unsupported by the contemporaneous legislative history. Moreover, and of great significance, interpreting chapter 327C to impose a reasonableness requirement on rent increases is a policy determination beyond this court's authority. Thus, while we are mindful of the requirement that we construe every law, if possible, to give effect to all its provisions, we conclude that the term "reasonable" before the phrase "rent increase" in section 327C.02, subdivision 2, is superfluous.
We therefore hold that a rent increase is not a rule change for purposes of chapter 327C and affirm the district court's conclusion that any requirement for "reasonableness" set forth in section 327C.02 does not apply to increases in manufactured-home-park-lot rental rates. Accordingly, the district court correctly concluded that the provisions of section 327C.01, subdivisions 8 and 11, which by their express terms apply to rules, do not apply to rent increases. Because we determine that section 327C.02, subdivision 2, does not impose a reasonableness requirement on rent increases, we do not review the district court's determination that, to the extent such a requirement exists, a determination of reasonableness is limited to a comparison of market-comparable rents or rent increases.
II.
We next review the district court's declaration that the following prohibition does not apply to rent increases: "No park owner may engage in a course of conduct which is unreasonable in light of the criteria set forth in section 327C.01, subdivision 8." Minn.Stat. § 327C.05, subd. 1. Appellant argues that the "pattern of rent increases" instituted by respondent "is surely a `course of conduct' and thus must be evaluated for reasonableness in light of the criteria set out in Section 327C.01, [s]ubd. 8."
But the plain language of section 327C.05 indicates that it applies to rules, not rent increases. Subdivision 1 prohibits unreasonable rules. Minn.Stat. § 327C.05, subd. 1 ("No park owner shall adopt or enforce unreasonable rules."). And the provision within subdivision 1 upon which appellant relies specifically references the criteria set forth in section 327C.01, subdivision 8, which also applies to rules. Id. Subdivision 2 enumerates rules that are presumptively unreasonable. Id., subd. 2. Subdivision 3 provides that "a court may declare unreasonable any park rule if the courts finds that the rule fails to meet the standard of section 327C.01, subdivision 8." Id., subd. 3. The last subdivision allows a park owner to adopt and enforce a reasonable rule that limits the maximum number of persons permitted to reside in a manufactured home. Id., subd. 4 (2008).
Because the language of section 327C.05 is unambiguous, we interpret it according to its plain meaning, without resorting to other principles of statutory construction. See Anderson, 683 N.W.2d at 821 ("When the text of a law is plain and unambiguous, we must not engage in any further construction." (Quotation omitted)). And because the language applies to rules and a rent increase is not a rule, we hold that section 327C.05, subdivision 1, does not apply to a series of rent increases.
DECISION
Because Minn.Stat. § 327C.02, subd. 2, does not impose a reasonableness requirement on manufactured-home-park-lot rent increases and because Minn.Stat. § 327C.05, subd. 1, does not apply to manufactured-home-park-lot rent increases, the district court did not err by entering *314 declaratory judgment in respondents' favor.
Affirmed.
NOTES
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[1] A reasonable rule is defined as
a park rule: (a) which is designed to promote the convenience, safety, or welfare of the residents, promote the good appearance and facilitate the efficient operation of the park, protect and preserve the park premises, or make a fair distribution of services and facilities; (b) which is reasonably related to the purpose for which it is adopted; (c) which is not retaliatory or unjustifiably discriminatory in nature; and (d) which is sufficiently explicit in prohibition, direction, or limitation of conduct to fairly inform the resident of what to do or not to do to comply.
Minn.Stat. § 327C.01, subd. 8. Substantial modification "means any change in a rule which: (a) significantly diminishes or eliminates any material obligation of the park owner; (b) significantly diminishes or eliminates any material right, privilege or freedom of action of a resident; or (c) involves a significant new expense for a resident." Id., subd. 11.
[2] Appellant's reliance on Schaff demonstrates why it is improper to rely on unpublished opinions of this court as anything other than persuasive authority and why care must be taken when citing unpublished opinions as persuasive authority. See Vlahos v. R & I Const. of Bloomington, Inc., 676 N.W.2d 672, 676 n. 3 (Minn.2004) ("The danger of miscitation is great because unpublished decisions rarely contain a full recitation of the facts."); Dynamic Air, 502 N.W.2d at 801 ("We remind the bench and bar firmly that neither the trial courts nor practitioners are to rely on unpublished opinions as binding precedent."). Our holding in Schaff is not persuasive on the issue presented in this case.
[3] As discussed in the next section, the legislative history of chapter 327C indicates that a "major" problem with earlier versions of the legislation was the failure to define key terms such as "reasonable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602280/ | 786 N.W.2d 269 (2010)
RABE HARDWARE, INC.
v.
JAYAPATHY.
No. 07-1581.
Court of Appeals of Iowa.
May 12, 2010.
Decision Without Published Opinion Affirmed in part, Reversed in part, and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602286/ | 181 So. 2d 297 (1965)
Charles S. ELCHINGER
v.
Charles F. ELCHINGER.
No. 1978.
Court of Appeal of Louisiana, Fourth Circuit.
December 6, 1965.
Rehearings Denied January 10, 1966.
*299 James J. Morrison, New Orleans, for plaintiff-appellant and appellee.
John Pat Little, New Orleans, for defendant-appellant and appellee.
Before REGAN, YARRUT, and CHASEZ, JJ.
YARRUT, Judge.
This suit involves six appeals, one appeal by Defendant from a judgment awarding Plaintiff (his mentally afflicted major son) $13,347.48 for unpaid arrearages of alimony, and five appeals by Plaintiff from rulings of the district court. In addition, Plaintiff filed in this court pre-emptory exceptions of no cause or right of action and that Defendant's appeal has become moot.
On September 13, 1961, the District Court awarded Plaintiff who suffers from a mental illness, $450 per month alimony beginning September 1, 1961, under LSA-C.C. art. 229, which imposes a duty on ascendants to provide for their needy descendants. This judgment was affirmed by this court (135 So. 2d 347), and Defendant paid the alimony for September, October and November, 1961. In late November Plaintiff had a relapse and was treated at Charity Hospital and East Louisiana State Hospital, both public institutions. When Plaintiff's hospitalization terminated in June, 1962, he and Defendant met regularly on friendly terms, during which Defendant gave his son various sums of money, but considerably less than $450 per month, during which period Plaintiff made no attempt to execute the judgment until December 18, 1964, when he obtained a writ of fieri facias to collect all past due alimony. On December 15, 1964, the district judge recalled the writ and, on January 26, 1965, refused Plaintiff's motion to reinstate it. On March 15, 1965, Plaintiff obtained judgment for past due alimony amounting to $13,347.48, the balance after deducting $5,552.52 for cash given to, or sums paid for Plaintiff's account.
From this judgment Defendant was first granted a suspensive appeal, which the trial judge revoked because LSA-C.C.P. art. 3943 prohibits suspensive appeals from judgments awarding alimony; but later rescinded his order of revocation on the ground he was without jurisdiction because the appeal bond had already been filed.
On March 17, 1965, Defendant moved to terminate the alimony, but the court merely reduced it to $150 per month, commencing March 17, 1965. On May 28, 1965, another judgment was rendered making the alimony due for March through May executory, but prorated the amount due for March, so that the amount due for the period March 1 to March 17th, 1965, was based on the old $450 award, and that due from March 18th to March 31st, based on the $150 award.
First, we will consider Plaintiff's pre-emptory exceptions; then his appeal from the five district court rulings. In support of his exceptions Plaintiff contends that Defendant acquiesced in judgment he appealed from because: (1) he did not appeal from the May 18th judgment reducing the alimony award, or the May 28th award *300 making the alimony from March through May executory; (2) he paid the May 28th judgment.
We find that Defendant has never paid the March 15th lump-sum judgment for alimony in arrears, nor has he acquiesced in this judgment in any manner. Since it is only from this judgment that he is appealing, Plaintiff's exceptions are overruled.
We now consider Plaintiff's appeals from the five judgments:
1. The January 26th judgment refusing to reinstate his writ of fieri facias;
2. The March 24th and March 26th judgments allowing suspensive appeals;
3. The May 18th judgment reducing alimony to $150 per month, on the ground (a) that the trial court had no jurisdiction to reduce the alimony after an appeal had been taken, and (b) there was no justification for the reduction;
4. The May 28th judgment, on the ground the alimony for March should not have been prorated, so as to reduce the second half of the month on the reduced $150 award.
All rulings of the trial judge are affirmed for the following reasons:
1. The district court properly recalled Plaintiff's writ of fieri facias because the monthly arrearages had not first been fixed by the court and made executory as provided by LSA-C.C.P. art. 3945 in the absence of an admission by Defendant that the amount claimed is correct.
2. Defendant was entitled to a suspensive appeal. This court denied Plaintiff's application for certiorari to have the suspensive appeal dismissed as LSA-C.C.P. art. 3943 only prohibits suspensive appeals from judgments awarding alimony, not from judgments for alimony already awarded, but in arrears.
3. The trial court did have jurisdiction to reduce the amount of alimony, even though an appeal from the judgment awarding past due alimony was pending on appeal. An alimony judgment is never final, but is always subject to review and change in future installments by the court that rendered it to meet changing conditions. Laiche v. Laiche, La.App., 138 So. 2d 257.
4. The trial judge did not abuse his discretion in reducing the alimony to $150 per week. When it affirmed the award of $450 in December, 1961, this court noted that it was "rather high;" however, at that time, Defendant had not asked for a reduction (135 So.2d at 350). According to Defendant's income tax return, he had a gross income of $6,900 during 1964. He testified that during recent years his business has been on the decline and his debts were increasing. Considering the present means of the Defendant, the reduction was justified.
5. The trial court properly prorated the alimony due for the month of March since the alimony was reduced from $450 to $150, effective March 17, 1965, so that $246.67 was due for the first 17 days and $67.76 for the last 14 days. This proration was correct, because the alimony was payable in advance on the first of every month.
Regarding Defendant's appeal from the award of $13,347.48 for alimony in arrears, he contends:
1. There was an agreement between counsel to modify the award.
2. Plaintiff waived his rights by not demanding payment for nearly three years.
3. It would be inequitable to allow a son to lull his father into a false sense of security and then enforce a judgment for a large lump sum amount.
4. Defendant should have been given credit for wages earned by the Plaintiff *301 during this period and also for cash payments made periodically to Plaintiff.
With regard to the first contention, the trial judge found as a matter of fact that there was no agreement to modify or terminate alimony payments. The only evidence on this point is the testimony of two of Defendant's attorneys that Plaintiff's counsel agreed not to enforce the judgment, either while Plaintiff was in a public institution, or while his counsel was out of town. Even if there were an oral agreement to modify the judgment, it is doubtful that it would have been enforceable, as all compromises, as well as all agreements between counsel must be reduced to writing. LSA-C.C. art. 3071; Lopez v. Duvic, 14 Orleans App. 239.
Plaintiff did not waive or abandon his right by not demanding payment from his father during the three-year period. The right to alimony is not waived by neglecting to make periodic demands therefor or failing to execute judgment therefor. Dupuis v. Patin, La.App., 155 So. 2d 768; Dunham v. Dunham, La.App., 162 So. 2d 767; De La Bretonne v. De La Bretonne, La.App., 164 So. 2d 149; Wainwright v. Wainwright, 217 La. 563, 46 So. 2d 902. Courts cannot consider equity for the purpose of nullifying or reducing accumulated alimony, which is a vested property right until the judgment is altered or amended by a subsequent judgment or is terminated by operation of law. Pisciotto v. Crucia, 224 La. 862, 71 So. 2d 226; Allen v. Allen, La.App., 136 So. 2d 168. Defendant contends that the above cited cases refer only to alimony awarded a wife. However, even though LSA-C.C.P. art. 3945 is in a section entitled "AnnulmentSeparation Divorce" it is applicable to all alimony, including that due ascendants and descendants under LSA-C.C. art. 229 as being laws in pari materia, LSA-C.C. art. 17. The article is not discretionary as it provides that, once the amount of past due alimony is determined, "the court shall render judgment for the amount of past due alimony." Moreover, we cannot reduce the amount of alimony due by deducting wages which the Plaintiff earned during the three-year period, as they had no effect on the running of the alimony judgment. Snow v. Snow, 188 La. 660, 177 So. 793.
Defendant testified he would on occasions give his son cash when he requested it, and the Defendant's bookkeeper corroborated this statement. However, there were no receipts nor notations made of these cash payments and Defendant, himself, conceded it would be difficult to determine the exact amount, but that it probably averaged out to about $15 per week. We agree with the trial judge who disregarded this testimony because it was just "picking" a figure "out of the air." Defendant was given credit for all checks introduced as evidence of expenditures on behalf of Plaintiff.
For the above reasons all judgments of the trial court are affirmed; Defendant to pay all taxable costs in both courts.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602283/ | 181 So. 2d 704 (1966)
George FOULK, Appellant,
v.
Lottie D. PERKINS, Administratrix and surviving widow of Julian C. Perkins, Deceased, Appellee.
No. 5248.
District Court of Appeal of Florida. Second District.
January 12, 1966.
Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
Smith, Carroll, Vega, Brown & Nichols, Naples, for appellee.
WILLIS, BEN C., Associate Judge.
The plaintiff, Lottie D. Perkins, the surviving widow of Julian C. Perkins, and administratrix of his estate, brought suit against the defendant Foulk to recover for the wrongful death of her husband under *705 F.S. 768.01, 768.02, F.S.A., and also for damages to the decedent's estate pursuant to F.S. 45.11, F.S.A. The action arose out of fatal injuries to Mr. Perkins from an accident involving a truck owned by the defendant and operated by his employee, whose negligence was alleged to have proximately caused the fatality. Defenses of denial of negligence and of contributory negligence and assumption of risk by decedent were asserted.
Following presentation of all the evidence, the trial judge on his own motion struck the defenses of contributory negligence and assumption of risk. He also declined to permit argument to the jury on those subjects, and refused to give requested instructions on those defenses. A jury verdict in favor of the plaintiff in both capacities in which she was suing was rendered, motion for new trial was denied, and judgment on the verdicts were entered, from which an appeal is brought to this court.
The appellant-defendant presents two points which he contends entitle him to a reversal:
(1) The action of the trial court in eliminating consideration by the jury of the defenses of contributory negligence and assumption of risk; and
(2) Because of the employment status of the decedent and the defendant's truck driver, the defendant was not a third party tort-feasor under F.S. 440.39, F.S.A., against whom the plaintiff may prosecute an action for damages.
The evidence on the pertinent facts is not in material conflict. Plaintiff's decedent was employed as a bulldozer operator for Hendry County Rock Company at a place where wet marl was being dumped from trucks owned by the defendant and operated by his employees. After the marl was dumped and when a sufficient quantity of it was accumulated, the plaintiff's decedent would bulldoze it into a pit. Hendry County Rock Company was engaged in moving this wet marl from one location it owned to another location owned by it a short distance away. It had contracted with defendant to provide two trucks and drivers to effect the transfers. At the place where the marl was located the rock company had a drag line, with an operator, which dug out the marl and loaded it on the defendant's trucks. It was then taken and dumped at the place where the plaintiff's decedent, Mr. Perkins, had the bulldozer.
On May 2, 1963, one of defendant's trucks was driven into an area near the pit and it became stuck. In attempting to pull the truck out its bumper and front end were damaged. In this disabled state the truck remained where it was while its driver and another employee of the defendant undertook to repair it.
The other truck of defendant continued to make trips hauling the wet marl, and made several deliveries while the disabled truck remained where it had become stuck. These deliveries continued until after dark. A single artificial light, probably 300 watts, was attached to a pole which was stuck in a mound of dirt 30 to 50 feet from the disabled truck.
The accident happened when defendant's driver was backing his 10-wheel truck, with blinker lights flashing, at something less than 3 miles per hour. Apparently he was aiming along a course which would have taken him to the dumping area and would have easily cleared the disabled truck, but the wet marl and general muddy state of the ground caused the truck to slip and skid off course so that its rear struck the front of the stationary truck. At this moment, defendant's other two employees were working underneath or near the front end of the disabled truck, each having a light which was pointed straight up beneath the truck near where they were working. Immediately after the collision, the driver moved his truck forward a few feet and it was then discovered that Perkins was lying badly injured between the two trucks. He died a few moments later from injuries *706 which obviously he had incurred in being struck by the truck.
Perkins had been in and around the disabled truck from time to time and would on occasion during the dumping of the marl stand nearby and even comment upon or make suggestions to the truck operators. However, at the time of the accident none of the other persons at the scene knew where he was or what he was doing, though he was known to be in the general vicinity of the disabled truck.
It is in substance contended that the factual situation was such that the jury could have inferred that the decedent was so inattentive to his own safety and otherwise contributorily negligent that the plaintiff is barred from recovery. Also it is contended that there were allowable inferences of assumption of risk by the decedent to forestall recovery.
No contention is made that the evidence failed to establish a prima facie case of negligence on the part of the defendant's truck driver which proximately caused the death of Mr. Perkins. The record shows substantial competent evidence on this issue. The problem thus presented is whether there is evidence of facts from which reasonable men could lawfully conclude that defendant's own lack of due care was a proximate contributing cause of his death.
After examining the evidence we conclude that the trial judge was not in error in ruling as he inferentially did, that there was no substantial competent evidence to support the defendant's affirmative defenses.
The evidence is clear that decedent was fatally injured by being crushed between the two trucks. There is no evidence from which it could be inferred that when he was first struck he was at any place other than at some point close to and directly in front of the disabled truck. He had a right to be there and had no reason to anticipate that the moving truck would be driven on a course to collide with the front of the stationary truck. On the contrary he had every reason to expect that he was at the one place the truck would not be driven. This would be true regardless of how noisy and illuminated the moving truck may have been. The sound of the engine and flashing of lights from the truck does not raise an inference that the decedent was alerted to the fact that the truck was off course and endangering his safety. Such circumstances would be equally indicative that the truck was on course and no threat of any kind.
It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any. Berlin v. Southgate Corp., Fla.App. 1962, 142 So. 2d 362; Mertz v. Krueger, Fla., 58 So. 2d 160; First Federal Savings & Loan Ass'n of Miami v. Wylie, Fla., 46 So. 2d 396; Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So. 2d 903; Sears, Roebuck & Co. v. Geiger, 123 Fla. 446, 167 So. 658; Crosby v. Donaldson, 95 Fla. 365, 116 So. 231; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A. 1916C, 1208; J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45. The law presumes that one injured by another's negligence did everything that a reasonably prudent man would have done under the circumstances to protect his own safety. Murden v. Miami Poultry & Egg Co., 113 Fla. 870, 152 So. 714. This presumption is not overcome by mere speculative and conjectural inferences. "[A]n inference recognizable in law cannot be based upon evidence that is so uncertain or speculative as to raise merely a conjecture or possibility." Sirmons v. Pittman, Fla.App. 1962, 138 So. 2d 765.
We are fully aware of the well-established rule that it is only necessary that there is some evidence tending to show negligence on the part of the plaintiff to make the question of contributory negligence one for the jury. Garris v. Robeison, Fla.App. 1962, 146 So. 2d 388; Redwing Carriers, Inc. v. Helwig, Fla.App. 1959, 108 So. 2d 620. However, in the case before us we find there was no evidence from which *707 the jury may have concluded that the plaintiff was guilty of contributory negligence.
The defense of assumption of risk is found to be equally unsupported by the evidence.
The action of the trial court in striking the defenses may have been a procedural error, but if it was it was harmless. The trial court properly regarded these pleaded defenses as unsubstantiated by the proofs and that jury instructions on those subjects would be unwarranted. "Charges must square with the rule of law arising from the facts developed at the trial of the case. Derived from any other source they are as apt to mislead as they are to lead the jury aright." Green v. Atlantic Co., Fla. 1952, 61 So. 2d 185.
The contention that the plaintiff is barred from pursuing this cause because her decedent and the operator of defendant's truck were both statutory employees of Hendry County Rock Company, thus limiting her to Workmen's Compensation benefits, is without merit. Hendry County Rock Company was not a "contractor" and the defendant was not a "subcontractor" as those terms are used in F.S. 440.10(1), F.S.A., so as to confine the plaintiff to Workmen's Compensation benefits as provided in F.S. 440.11, F.S.A. The mere fact that plaintiff's decedent and defendant's truck driver were working on the same general project does not make them employees of a common employer, and as Hendry County Rock Company had no primary obligation under a contract with another party, a portion of which it was passing on to defendant, it was not a "contractor" who would become the statutory employer of defendant's employees. Jones v. Florida Power Corp., Fla. 1954, 72 So. 2d 285. The defendant was a mere independent contractor performing services directly for Hendry County Rock Company. See also: Cromer v. Thomas, Fla.App. 1960, 124 So. 2d 36 (cert. denied Fla., 135 So. 2d 420); State ex rel. Auchter Company v. Luckie, Fla.App. 1962, 145 So. 2d 239 (cert. denied Auchter Co. v. Luckie, Fla., 148 So. 2d 278).
Under the facts in this case the defendant was a "third party tortfeasor," as that term is used in F.S. 440.39, against whom the plaintiff may bring these actions. The cases of Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, and Smith v. Poston Equipment Rentals, Fla.App. 1958, 105 So. 2d 578, urged by the appellant in support of its contentions on this question, are not in point.
The judgment appealed from is hereby
Affirmed.
ALLEN, C.J., and LILES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551743/ | 409 B.R. 611 (2009)
In re Patrice L. HOUSEY, Marie Housey, Debtors
David W. Ostrander, Chapter 7 Trustee, Plaintiff,
v.
Sandra Brown and Deutsche Bank National Trust Company, As Trustee for Morgan Stanley Loan Trust 2006-NC2, Defendants.
Bankruptcy No. 03-43473-HJB. Adversary No. 07-04128-HJB.
United States Bankruptcy Court, D. Massachusetts.
August 6, 2009.
*613 David W. Ostrander, Northampton, MA, pro se.
Meredith A. Swisher, Bernkopf Goodman, LLP, Boston, MA, David M. Rosen, Harmon Law Offices P.C., Newton, MA, for Defendants.
New Century Mortgage Corporation, pro se.
MEMORANDUM OF DECISION
HENRY J. BOROFF, United States Bankruptcy Judge.
Before the Court are cross-motions for summary judgment filed by the plaintiff Chapter 7 trustee (the "Trustee") and the defendants in this adversary proceeding. The Trustee seeks avoidance, pursuant to 11 U.S.C. § 549(a), of a postpetition, unauthorized transfer of estate property. For these purposes, the defendants do not deny that the facts establish a voidable transfer under subsection (a), but have raised a defense under § 549(c).[1] Accordingly, *614 the Court must determine whether in this case subsection (c) excepts the transfer from avoidance.
I. FACTS AND TRAVEL OF THE CASE
Patrice and Marie Housey (the "Debtors") filed a petition under Chapter 13 of the Bankruptcy Code on June 9, 2003. In Schedule A[2] of their bankruptcy petition, the Debtors disclosed that they owned a two-family house located at 50 Orange Street in Springfield, Massachusetts (the "Property"). Neither the Debtors nor the Chapter 13 Trustee filed a notice of the Debtors' bankruptcy case filing with the Hampden County Registry of Deeds (the "Registry"), whose jurisdiction includes the city of Springfield.
In their original submissions, the Debtors listed the current market value of the Property as $100,000, subject to two mortgages totaling $99,150.81. On September 5, 2003, the Debtors amended Schedules A and C. In amended Schedule A, the Debtors reduced the value of the Property to $69,200. And in amended Schedule C,[3] the Debtors made no request for an exemption in the Property, represented to have no equity per the amended schedules. The Debtors' First Amended Chapter 13 Plan of Reorganization (the "Plan") was confirmed in January 2004. The Plan did not provide for a sale of the Property.
On November 4, 2005, with their Chapter 13 bankruptcy case still pending and without court authorization, the Debtors sold the Property to defendant Sandra Brown ("Brown") for $182,900.[4] To finance the purchase, Brown granted a purchase money mortgage on the Property to New Century Mortgage Corporation ("New Century") for $164,610, which mortgage (the "Mortgage") was subsequently assigned to Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Loan Trust 2006-NC2 ("Deutsche Bank"). The Mortgage was properly recorded at the Registry on November 7, 2005.[5] Brown had no relationship with the Debtors prior to the sale, and it is undisputed that neither Brown nor New Century had knowledge at any relevant time that the Debtors had filed a bankruptcy case.
*615 On July 5, 2006, at the request of the Debtors, the case was converted to one under Chapter 7, and David Ostrander was appointed the Trustee. On August 14, 2007, he commenced an adversary proceeding against Brown and New Century to avoid the unauthorized transfer of the Property and to recover the Property or its value. In November 2007, the Trustee amended the complaint to substitute Deutsche Bank for New Century (the "Complaint"). The Trustee thereafter filed a motion for summary judgment only on Count I of the Complaint his request that the sale of the Property be avoided pursuant to § 549(a). Brown and Deutsche Bank (the "Defendants") responded with oppositions and a cross-motion for summary judgment on all counts of the Complaint.[6] After a hearing on the competing summary judgment motions (the "Hearing"), the Court took them under advisement.
II. POSITIONS OF THE PARTIES
The Trustee contends that the sale of the Property (the "Transfer") is avoidable under § 549(a) of the Bankruptcy Code as an unauthorized postpetition transfer of estate property. The Trustee argues that the Transfer must be avoided, because the undisputed facts establish each element required for avoidance pursuant to § 549(a); namely: (1) a transfer; (2) of estate property; (3) that was not authorized; and (4) after the commencement of the bankruptcy case.
For these purposes, the Defendants do not deny that all required elements for avoidance of the Transfer under § 549(a) have been met. But, according to the Defendants, the Transfer is nevertheless excepted from the avoidance provisions by operation of § 549(c). Section 549(c) protects a transfer of estate property otherwise avoidable under § 549(a) when the purchaser has taken in good faith, without knowledge of the bankruptcy case, and for fair equivalent value. The § 549(c) exception also requires that a purchaser's interest in the transferred property be perfected before a copy or notice of the bankruptcy petition is filed where interests in real estate may be recorded pursuant to state or local law. See 11 U.S.C. § 549(c).
The Defendants argue that Brown purchased the property in good faith and without knowledge of the Debtors' bankruptcy case and properly recorded her interest in the Property. Therefore, because a copy or notice of the petition was never filed in the Registry, the Transfer may not be avoided. The Defendants have also moved for summary judgment on Counts II and III of the Complaint, arguing that the Trustee is not entitled to recovery under § 550 because the Transfer itself may not be avoided.[7]
In response to the Defendant's cross-motion for summary judgment, the Trustee argues that Brown does not qualify as a good faith purchaser without knowledge of the bankruptcy case. His argument is grounded on the availability of a "bankruptcy *616 index" (the "Bankruptcy Index") through the computer terminals located at the Hampden Registry. In their Joint Statement of Undisputed Facts, the parties stipulated to the following regarding the Bankruptcy Index:[8]
. . . .
20. In addition to the Registry itself, the Hampden County Registry of Deeds houses various indices, including a bankruptcy index. This bankruptcy index is a separate and distinct index that is linked to PACER[9] and not to the Registry.
21. The Hampden County Registry of Deeds obtains the bankruptcy records from the United States Bankruptcy Court for the District of Massachusetts through PACER, an outside service to which the Registry subscribes through a paid subscription. The records available through PACER are not official records of the Registry, and the availability of the information through PACER does not cause the information to be recorded with the Registry. M.G.L. c. 36 §§ 14-15.
. . . .
23. The bankruptcy records available by computer terminal at the Hampden County Registry of Deeds are updated by Registry staff, who obtain the information through PACER. According to the Registry staff, the records are updated weekly and contain information about bankruptcy filings for the Bankruptcy Court for the District Of Massachusetts from 1994 to the present. Specifically this information includes name of the debtor(s), the case number, the chapter of the case and the filing date. The bankruptcy records have not been verified by the Hampden County Registry of Deeds. These bankruptcy records are separate from any notices that are recorded or filed with the Hampden County Registry of Deeds.
. . . .
25. According to registry staff, ... 15 registries currently have no computer bankruptcy indices available[.]
26. According to registry staff, ... 5 registries currently have computer indices available for bankruptcy and/or probate records[.]
The Trustee argues that knowledge of the Debtors' pending bankruptcy case should be imputed to Brown, because "checking for bankruptcy records simply requires the entry of a few additional keystrokes at the same computer station at which other real estate records can be accessed and viewed." Masse Aff. ¶ 9. Relying on the affidavit of Robert J. Masse,[10] deposition testimony given by the title examiner and closing attorney working on Brown's behalf in connection with the Transfer, and printed materials from certain continuing legal education seminars on title examination standards, the Trustee *617 argues that the title examiner and closing attorney were essentially derelict in their duties by failing to check the Bankruptcy Index to confirm that the sellers (the Debtors) had not previously filed for bankruptcy.[11]
The Defendants strenuously argue that the Masse affidavit and seminar materials are irrelevant to the issues presented here. Instead, the Defendants maintain that the issue presented is one of straightforward statutory interpretation that the language of § 549(c) is clear and unambiguous and does not require consideration of extraneous materials for its interpretation.[12] And, because the undisputed facts demonstrate that notice of the Debtors' bankruptcy was not recorded at the Registry and because Brown paid fair value, acted in good faith, and had no knowledge of the Debtors' bankruptcy case, summary judgment must be entered in the Defendants' favor.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2) (2009) (made applicable to this adversary proceeding by Fed. R. Bankr.P. 7056). The parties contend, and the Court agrees, that no triable issue of fact exists in this case; no material fact is disputed. Accordingly, the Court reaches its conclusions as a matter of law.
A. Section 549(a): Avoidance of Unauthorized Postpetition Transfers
"[S]ection 549 of the Bankruptcy Code ... provides that a trustee may avoid certain post-petition transfers of property." Fleet Nat'l Bank v. Gray (In re Bankvest Capital Corp.), 375 F.3d 51, 62 (1st Cir.2004). "In order to prevail, the Trustee must establish that there was (1) a transfer; (2) of estate property; (3) that was not authorized; (4) after the commencement of the case." Grossman v. Madoff (In re Fadili), 365 B.R. 7, 14 (Bankr.D.Mass.2007); see also Miranda v. Doral Fin. Corp. (In re Marrero), 382 B.R. 861, 865-66 (1st Cir. BAP 2008).
The Trustee has rightly argued that each of the elements required to avoid the Transfer under § 549(a) has been established: (1) the Debtors sold the Property; (2) the Property was property of the Debtors' bankruptcy estate; (3) the Debtors did not seek, nor did the Court provide, authorization for the Transfer; and (4) the Transfer occurred during the pendency of the Debtors' bankruptcy case. Were these the only issues before the Court, the Trustee would unquestionably be entitled to summary judgment. But the Defendants have raised a defense under § 549(c), and the Trustee's entitlement to summary judgment turns on the validity of that defense. See 11 U.S.C. § 549(a) (trustee *618 may avoid qualifying transfers, "except as provided in subsection (b) or (c) of [§ 549]"); 11 U.S.C. § 549(c) ("The trustee may not avoid under subsection (a)" transfers meeting requirements of that subsection.).
C. § 549(c): Origins and Overview
The earliest version of the Bankruptcy Act of 1898[13] (the predecessor of the current Bankruptcy Code) provided no protection for purchasers of a Debtor's property after the commencement of the case.[14] But "[t]he courts would not tolerate a case where the rights of a bona fide purchaser, who relied on the state real estate records, could be cut off by the filing of bankruptcy by the purchaser's transferor," and many courts interpreted the early Bankruptcy Act to incorporate a bona fide purchaser exception. Dunham, Postpetition Transfers, at 115.[15] In 1938, however, Congress amended the 1898 Bankruptcy Act to provide protection for purchasers who purchased a debtor's real estate in good faith and without knowledge of the case. See Chandler Act, ch. 575, § 21g, 52 Stat. 840, 853 (1938). The 1938 amendments further provided a method for providing "constructive notice" of the bankruptcy case the recording of a notice of the bankruptcy case in relevant land records.[16]Id.; see also Kaiser-Francis Oil Co. v. Oklahoma (In re Waterford Energy), No. 07-20844, *619 2008 WL 4411387, *5 (5th Cir. Sept. 30, 2008); Culpin, Validity at 159.
The 1978 Bankruptcy Code carried forward the good faith purchaser exceptions of the Bankruptcy Act by means of § 549(c). Thus, in order to defeat a trustee's right to avoid a postpetition transfer of estate property, the purchaser, who bears the burden of proof,[17] must establish (1) the purchaser's (a) good faith; (b) lack of knowledge of the commencement of the bankruptcy case; and (c) payment of fair equivalent value; (2) perfection of the purchaser's property interest against other bona fide purchasers pursuant to applicable local law; and (3) that no copy or notice of the bankruptcy petition was filed before the purchaser's property interest was perfected. 11 U.S.C. § 549(c). Elements (1)(c) and (2) are not in dispute here; the parties agree that Brown paid present fair equivalent value for the Property and her interest in the Property was perfected against other bona fide purchasers pursuant to Massachusetts law.
According to the Trustee, however, the Defendants have not established that Brown was a "good faith purchaser" and have not demonstrated that Brown was "without knowledge of the bankruptcy case" at the time of the Transfer. And, at the Hearing, the Trustee also took the position that the accessibility of the Bankruptcy Index at the Registry equates to a "filing of a copy or notice of the petition" so as to defeat the § 549(c) defense. It is to these three issues that the Court now turns.
D. Analysis
1. "Good Faith Purchaser ..."
The term "good faith purchaser" is not defined in the Bankruptcy Code, and courts have essentially taken two different approaches in determining its meaning. The first approach, relying heavily on Collier's treatise on bankruptcy, requires a case-specific look at whether (1) the purchaser had knowledge of facts sufficient to prompt a reasonable person to investigate whether the seller was in bankruptcy; or (2) the transaction was at arms-length or carried other indicia suggesting that the seller was not trading normally.[18]
*620 A second line of case law measures a "good faith purchaser" by reference to relevant state or local law. As one court noted:
`[G]ood faith purchaser' status is an element apart from the purchaser's knowledge of the commencement of a relevant bankruptcy case. This issue depends upon the purchaser's notice regarding competing ownership interests in real property, which is the critical element in establishing the status of a good faith purchaser generally.
D'Alfonso v. A.R.E.I. Inv. Corp. (In re D'Alfonso), 211 B.R. 508, 515 (Bankr. E.D.Pa.1997) (emphasis added); see also, In re Ward, 837 F.2d 124, 126-27 (3d Cir.1988) (noting that "[s]ubsection (c), which sets forth a substantive federal law standard limiting the trustee's power of avoidance, utilizes various local legal rules for the perfection of title for reference points").
Given the purpose and history of the § 549(c) exception, with its long-understood codification of bona fide purchaser status under state and local law, this Court is inclined to agree that a determination of good faith purchaser status requires an application of relevant non-bankruptcy law. But the Court need not conclusively determine the applicable rule here, as Brown would qualify as a good faith purchaser in either case.
The Trustee does not dispute the Defendants' assertion that Brown herself was aware of no facts that would put her on notice of the Debtors' pending bankruptcy case or that the Debtors were not "trading normally" or were defrauding creditors. The transaction is fairly characterized as arms-length. Thus, under the first approach, which relies on a general duty of inquiry into bankruptcy status in light of suggestive facts known to the purchaser, the Court would conclude that Brown was a good faith purchaser.
The Trustee's contentions, however, are more properly characterized as grounded in Massachusetts law regarding what constitutes a good faith purchaser in real estate transactions. According to the Trustee, Brown cannot be characterized as a good faith purchaser because the title examiner and closing attorney, working as agents for Brown, "hid their heads in the sand" and failed to take advantage of information readily available to them and that would have put them on notice that a bankruptcy case was pending.
But Massachusetts law does not avail the Trustee either. Massachusetts law requires actual notice of a competing, unrecorded interest in order to deprive a purchaser of good faith status. See Mass. Gen. Laws ("M.G.L.") ch. 183, § 4 (recorded land); M.G.L. ch. 185, § 46 (registered land). "Actual notice" is strictly construed under Massachusetts law, Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502, 829 N.E.2d 1105, 1111 (2005); Richardson v. Lee Realty Corp., 364 Mass. 632, 307 N.E.2d 570, 572 (1974), and even "knowledge of facts which would ordinarily put a party upon inquiry [notice] is not enough," Lindsay, 829 N.E.2d at 1111 (quoting McCarthy v. Lane, 301 Mass. 125, 16 N.E.2d 683 (1983)).[19] Indeed, the Massachusetts Supreme Judicial Court (the "SJC") has held that purchasers are not *621 required to examine files or indices extraneous to the official records, even if available at the registry of deeds. See Assessors of Boston v. John Hancock Mut. Life Ins. Co., 323 Mass. 242, 81 N.E.2d 366, 369 (1948).
Even before land records were computerized in Massachusetts, some registry offices maintained lists of bankruptcies available for search. In Assessors of Boston, an insurance company holding a mortgage on certain real estate was assessed taxes on the property that, it argued, should have been assessed against the owner's bankruptcy estate. After the owner defaulted, the insurance company had entered the premises and recorded a notice of that entry. Id. at 368. The owner then filed a bankruptcy petition and the insurance company was ordered to turn over the premises as they had become property of the bankruptcy estate. Id. When the tax assessors searched the land records, they had notice of the insurance company's entry, but no notice of the intervening bankruptcy proceedings or of the insurance company's surrender of the premises. Id. And although an index of bankruptcies was maintained at the registry office, the tax assessors did not search them. The SJC held that the tax assessors were only obligated by the applicable statute to search "in the records of the county ... where the estate lies," and further stated that:
An informal list of bankruptcies voluntarily kept in the registry office by the index commissioners and not by the register would not have been part of the records of the county to which the statute refers, even if it had contained any material information.
Id. at 369.
Massachusetts continues to adhere to the principle that only official land records can provide constructive notice of competing interests. Relying on well-established Massachusetts law, the Mass Appeals Court recently reiterated that:
[T]he only persons who should be affected by constructive notice are those who can obtain actual notice, or even full knowledge, by means of a search conducted in the conventional method ....
Dalessio v. Baggia, 57 Mass.App.Ct. 468, 783 N.E.2d 890, 894 (2003) (emphasis added) (quoting 4 American Law of Property § 17.17 at 593 (Casner ed.1952)).[20]
Requiring purchasers to search unofficial bankruptcy indices where available would diminish the value of having a single record on which purchasers can rely in identifying outstanding interests and encumbrances on real estate.[21] Imposing a duty to search bankruptcy indices, if available, in order to be deemed a good faith *622 purchaser would increase litigation and uncertainty surrounding real estate transfers and good faith purchaser status in Massachusetts. Factual issues would arise regarding the availability of bankruptcy indices at particular registries, the currency of information included in the indices, or whether the title examiner did (or even should) consult the computerized, as opposed to physical, land records. And this is precisely the type of uncertainty recording laws seek to obviate in order to provide an efficient and less costly system for transfer and adjudication of rights in land.
In sum, the Defendants have established that Brown had no actual knowledge of the Debtors' bankruptcy case at the time of the sale. Nor was Brown aware of any facts that would lead a reasonable person to suspect a pending bankruptcy case. The Debtors and Brown had no pre-existing relationship, and the transaction was conducted at arms length. No notice of the bankruptcy case appeared in the official land records, and Massachusetts law does not require purchasers to examine unofficial bankruptcy indices, even where available at the registry of deeds. Thus, the Defendants have carried their burden of proving that Brown was a "good faith purchaser" under § 549.
2. "... Without Knowledge of the Commencement of the Case ..."
Apart from Brown's good faith purchaser status, the Trustee argues that she should not be considered "without knowledge of the commencement of the [Debtors' bankruptcy] case," owing to the availability of the Bankruptcy Index at the Registry. The Bankruptcy Code does not define "knowledge" under § 549(c). Some courts have held that "knowledge" under the Code refers only to actual knowledge. See, e.g., Smith v. Mixon, 788 F.2d 229, 232 (4th Cir.1986). Others have interpreted "knowledge" to include knowledge of facts that would constitute what is commonly referred to as "inquiry notice"i.e., "a duty of a purchaser to conduct a reasonable investigation upon gaining constructive or actual notice of facts which would make a prudent person suspicious," Stern v. Cont'l Assurance Co. (In re Ryan), 851 F.2d 502, 511 (1st Cir.1988) (emphasis omitted).[22] The Court finds it unnecessary, *623 however, to determine whether "knowledge," as used in § 549(c), encompasses both actual and inquiry notice or actual notice only, for Brown can be charged with neither.
It is undisputed that Brown had no actual knowledge of the Debtors' bankruptcy case. Thus, the only questions are whether the availability of the Bankruptcy Index at the Registry (1) charges Brown with inquiry notice of the pending bankruptcy, or (2) gives rise to a duty to search that index such that the information available there can be imputed to Brown.
As earlier stated, "knowledge of the commencement of the case" has been interpreted to include knowledge of facts sufficient to cause a prudent person to inquire whether the seller has filed a bankruptcy case.[23] The Trustee, however, would have the Court go further and take an approach criticized by the First Circuit in In re Ryan. In that case, the First Circuit reversed a bankruptcy court ruling that an improperly executed deed provided notice of an interest in real estate, despite well-settled state law holding that such deeds, even where physically recorded, did not provide constructive notice to future purchasers. The bankruptcy court had concluded that, despite its nonconformity, the deed provided inquiry notice of an existing interest in the property because a purchaser had a "duty of good faith inquiry, [which] must certainly extend to the town land records, [] the most obvious source of information regarding the interests of previous purchasers." 851 F.2d at 510. The First Circuit disagreed, emphasizing that inquiry notice "is moored upon *624 the existence of preliminary facts which serve to put the purchaser on inquiry." Id. at 511 (emphasis added). The First Circuit explained:
This reasoning of the bankruptcy court, if adopted by a state court or legislature, might result in an improved land recording system. We do not believe, however, that the bankruptcy court was free to write on a clean slate. To accept the suggested expansion of inquiry notice would be to disregard the clear [state law] that defectively recorded mortgages do not provide constructive notice.
....
We think the bankruptcy court cut inquiry notice loose from this mooring.... It bypassed the source of the preliminary facts that serve to put a purchaser upon inquiry, and instead simply created, as a matter of policy, a new legal duty to search the town land records. Questions of a purchaser's duty, however, are by definition in the sphere of constructive notice.
Id. (second emphasis added).
Accordingly, a finding of knowledge based on inquiry notice must first be rooted in a finding that the purchaser had knowledge of facts that would lead a reasonable person to investigate further. Here, there is no evidence that Brown possessed any facts which would have led her to suspect the Debtors had filed a bankruptcy case and was aware of no facts which would have led a reasonably prudent person to search the Bankruptcy Index absent some independent duty to do so.
So, does the fact that the Bankruptcy Index was accessible through the Registry computers change this analysis? The answer must be no. There is nothing in the language of § 549(c) or its legislative history to suggest that purchasers must perform a bankruptcy search before being afforded protection under § 549(c).
Instead, the history of § 549(c) and its predecessors indicates otherwise. Section 549 relies on and preserves long-standing systems of real estate recording as created by the states and their localities. Section 549(c) specifically refers to notices or copies of bankruptcy petitions filed where a transfer of an interest in such real property may be recorded to perfect such transferi.e., official real estate and land records. This legislative scheme reinforces the conclusion that Congress assumed that extraneous records were irrelevant.
In sum, the Court rules that knowledge of the commencement of the bankruptcy case is not established by the mere availability of unofficial bankruptcy records at the Registry where the applicable land records are kept. To impose a duty to search those records would expand well-established state and local law and impose new duties on purchasers of real estate that are not contemplated by § 549(c). Because Brown had no actual notice of the bankruptcy case, and no knowledge of facts which would lead a reasonable person to further investigate whether the sellers were in bankruptcy, Brown was "without knowledge of the commencement of the case" under § 549(c).
3. "... Unless a Copy or Notice of the Petition was Filed ..."
Even if otherwise acting in good faith and without actual knowledge of the bankruptcy case, a transferee of estate property is not protected by § 549(c) if a copy or notice of the bankruptcy petition has been "filed" in the appropriate land records. 11 U.S.C. § 549(c). At the Hearing, in response to questions from the Court regarding the import, if any, of Congress's use of the word "filed" (as opposed to "recorded"), the Trustee took the position that notice of the Debtors' bankruptcy case was "filed" at the Registry because the Bankruptcy Index was readily available *625 on the computers where searches of the land records are performed.
There is, indeed, a well-accepted distinction between "filing" and "recording."[24] The distinction between the terms, however, does not take the meaning the Trustee proposed or the Court conjectured at the hearing. According to Black's Law Dictionary ("Black's"), to file means: "To deliver a legal document to the court clerk or record custodian for placement into the official record." Black's Law Dictionary 660 (8th ed.2004) (emphasis added). Although the verb "record" is not defined, "recordation" is, and consists of the "act or process of recording an instrument ... in a public registry." Id. at 1301 (emphasis added). That is, recording refers to the entry, indexing, or placement of information onto the official record, while filing refers to the delivery of the document to an official responsible for its recording.
The distinction noted in Black's is affirmed in case law throughout the country.[25] Consistent with this usage and common *626 legal understanding, the Court rules that filed, as used in § 549(c), means the copy or notice of the petition must have been given to an official responsible for placing the document on the official record. Here, although information regarding the Debtors' bankruptcy was available at the Registry premises, there was no delivery to an official for the purpose of recording, and information related to the Debtors' bankruptcy was thus not filed within the meaning of § 549(c).
IV. CONCLUSION
The Court is compelled to rule against the Trustee and in favor of the Defendants on their cross-motions for summary judgement, but is not without sympathy for the Trustee's position. The cost of recording in the Massachusetts registries notices of all pending bankruptcy cases is, in most cases, prohibitive.[26] And the relative ease with which bankruptcy information can be obtained in some registries of deeds with a minimum of effort presents a frustrating circumstance when estate property is transferred without court authorization.
But while prudence does not always create a legally cognizable standard, neither do legal rules define the outer limits of prudent behavior. The time, energy, and delay imposed by this litigation could easily have been averted had the professionals involved in the sale of the Property availed themselves of a simple and readily-available tool, presumably made accessible by the Registry to help individuals avoid just this sort of litigation. Similar problems could be avoided in the future were state law modernized to fit the times and the registries of deeds of the Commonwealth afforded the tools necessary to accommodate a changing technological landscape. Surely, Massachusetts has no public policy interest in facilitating transfers of real estate by persons with no right to do so.
Nevertheless, the Court rules that the Defendants' cross-motion for summary judgment must be granted and the Trustee's motion for summary judgment must be denied. Although the Trustee has established that all elements for avoidance of the Transfer have been met, the undisputed material facts also establish that Brown was a good faith purchaser without knowledge of the Debtors' bankruptcy case. And no copy or notice of the bankruptcy petition was filed at the Registry. Thus, the Transfer may not be avoided.
Orders in conformity with this memorandum shall issue forthwith.
*627 Appendix 1
*628
*629
NOTES
[1] 11 U.S.C. § 549(a) and (c) provide, in relevant part:
(a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate
(1) that occurs after the commencement of the case; and
(2) ....
(B) that is not authorized under this title or by the court.
. . . .
(c) The trustee may not avoid under subsection (a) of this section a transfer of real property to a good faith purchaser without knowledge of the commencement of the case and for present fair equivalent value unless a copy or notice of the petition was filed, where a transfer of such real property may be recorded to perfect such transfer, before such transfer is so perfected that a bona fide purchaser of such property, against whom applicable law permits such transfer to be perfected, could not acquire an interest that is superior to the interest of such good faith purchaser.
. . . .
11 U.S.C. § 549 (2003). Because the Debtors' case was filed in 2003, the amendments to this section effected by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub.L. No. 109-8, § 1214, 119 Stat. 23, 195, are not applicable. Moreover, the BAPCPA amendments were made to "clarify [§ 549(c)'s] application to an interest in real property," see House Report No. 109-31, Pt. 1, 109th Cong., 1st Sess. 144 (2005), and would not change the outcome here. Further references to the "Bankruptcy Code" or the "Code" are to Title 11 of the United States Code, see 11 U.S.C. § 101 et seq.
[2] See Official Bankruptcy Form 6A, Schedule A Real Property ("Schedule A").
[3] See Official Bankruptcy Form 6C, Schedule C Property Claimed as Exempt ("Schedule C").
[4] After payment of the outstanding mortgages, settlement charges, and taxes, the Debtors received net proceeds of $36,614.96 from the sale of the Property.
[5] Since that time, Deutsche Bank has foreclosed on the Property, and Brown no longer retains any interest therein.
[6] In Count II of the Complaint, the Trustee seeks recovery of the Property or its value, pursuant to § 550 of the Code, from Brown as initial transferee. In Count III, the Trustee seeks, in the alternative, recovery of the Property or its value from Deutsche Bank as the immediate transferee of Brown, also pursuant to § 550. See 11 U.S.C. § 550.
[7] Section 550 provides, in relevant part:
(a) ... [T]o the extent that a transfer is avoided under section ... 549 ..., the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from
(1) the initial transferee ...; or
(2) any immediate or mediate transferee of such initial transferee. ....
11 U.S.C. § 550(a).
[8] The joint statement contains a notation indicating that the Defendants do not dispute the veracity of these statements, although they maintain that the information is not material. Material or not, however, the information is critical to understanding and analyzing the Trustee's legal argument.
[9] PACER is the acronym for "Public Access to Court Electronic Records." It is "an electronic public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts. ... PACER is a service of the United States Judiciary. The PACER Service Center is run by the Administrative Office of the United States Courts." Public Access to Court Electronic Records Overview, http://pacer.psc. uscourts.gov/pacerdesc.html (last visited August 6, 2009), reproduced at Appendix 1.
[10] Included with the Trustee's opposition to the Defendants' summary judgment motion was the affidavit of Robert J. Masse, an attorney represented to have extensive experience in title examinations and real estate transactions throughout western Massachusetts.
[11] Specifically, the Trustee maintains, in his memorandum of law filed in opposition to the Defendants' motion for summary judgment, that "[t]he title examiner and closing attorney... completely ignored their responsibility for reviewing the available bankruptcy records. The title examiner failed to make any reference to whether or not she had reviewed bankruptcy records in preparing her title report.... [The closing attorney] should have been aware of her responsibility, in reviewing the title report, to determine whether bankruptcy records were checked or not." Tr.'s Mem. of Law 6.
[12] Although the Defendants did provide the Court with a copy of the Real Estate Bar Association ("REBA") Title Standard 31 and commentary, they maintained at the Hearing that the Title Standard was not material to the Court's analysis and was provided only in response to the seminar materials provided by the Trustee.
[13] Bankruptcy Act of 1898, ch. 541, 30 Stat. 544 (repealed 1978).
[14] See Kelly Culpin, The Validity of Post-Petition Transfers of Real Property: Who Does the Bankruptcy Code's Section 549(c) Protect?, 40 Real Prop. Prob. & Tr. J. 149, 158-59 (2005) ("Validity"); Darrell W. Dunham, Postpetition Transfers in Bankruptcy, 39 U. Miami L.Rev. 1, 20, 115 (1984) ("Postpetition Transfers").
[15] See also Cuplin, Validity, at 157-158; William J. Rochelle, III & Gwen L. Feder, Unauthorized Sales of a Debtor's Property: The Rights of a Purchaser Under Section 549 of the Bankruptcy Code, 57 Am. Bankr.L.J. 23, 25 (1983) ("Unauthorized Sales") (citing 4B Collier on Bankruptcy ¶ 70.66[2] at 737-38 (14th ed.1978); Analysis of H.R. 12889, 74th Cong., 2d Sess. 229-231 (1936)); Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy, ¶ 549.LH[1] (15th ed. rev.2009) ("Prior to the enactment of former Section 70d of the 1938 [amendments to the 1898 Bankruptcy Act], there was no statutory law with respect to post-petition transactions in bankruptcy cases. Judge-made law, compelled by considerations of justice and equity, frequently protected those whose bona fides in dealing with the debtor after bankruptcy were clear.")
[16] Section 21 g, introduced by the Chandler Act in 1938, provided, in relevant part:
A certified copy of the [bankruptcy] petition with the schedules omitted, of the decree of adjudication or of the order approving the trustee's bond may be recorded at any time in the office where conveyances of real property are recorded, in every county where the bankrupt owns or has an interest in real property. Such certified copy may be recorded by the bankrupt, trustee, receiver, custodian, referee, or any creditor, and the cost of such recording shall be paid out of the estate of the bankrupt as part of the expenses of administration. Unless a certified copy of the petition, decree, or order has been recorded in such office, in any county wherein the bankrupt owns or has an interest in real property in any State whose laws authorize such recording, the commencement of a proceeding under this Act shall not be constructive notice to or affect the title of any subsequent bona-fide purchaser or lienor of real property in such county for a present fair equivalent value and without actual notice of the pendency of such proceeding. ... Provided, however, That this subdivision shall not apply to the county in which is kept the record of the original proceedings under this Act.
Chandler Act, ch. 575, § 21 g, 52 Stat. 840, 853 (1938). This section of the Bankruptcy Act, as well as the earliest version of Bankruptcy Code § 549(c), did not require notice of a bankruptcy to be filed in order to avoid a transfer when the transferred property was located in the same county where the bankruptcy case was filed. In 1984, however, Congress amended § 549(c), extending the § 549(c) exception to purchasers of a debtor's real property wherever located. See, e.g., Culpin, Validity, at 167; Dunham, Postpetition Transfers, at 86
[17] See Fed. R. Bankr.P. 6001 ("Any entity asserting the validity of a transfer under § 549 of the Code shall have the burden of proof.").
[18] See, e.g., Brown v. Harris (In re Auxano, Inc.), 96 B.R. 957, 961 (Bankr.W.D.Mo.1989) ("As to what constitutes good faith, this Court has previously opined that its presence turns on `whether the transaction carries the earmarks of an arms-length bargain' under the circumstances. Alternatively stated, good faith does not exist when a transferee possesses enough facts that would induce a reasonable person to investigate whether the debtor was in bankruptcy or that such occurrence was imminent. In the context of section 549, such an investigation would reveal to the transferee that the transferred property belonged to the debtor's bankruptcy estate.") (citations omitted); Evans v. Robbins (In re Robbins), 91 B.R. 879, 886 (Bankr.W.D.Mo. 1988) ("`The question of good faith [] depends under the circumstances on whether the transaction carries the earmarks of an arms-length bargain.' Inland Sec, Co. v. Estate of Kirshner, 382 F. Supp. 338 (W.D.Mo. 1974). Collier, in his bankruptcy treatise, states that a transferee's good faith depends upon whether the transferee `knew or should have known that [the debtor] was not trading normally but that on the contrary, the purpose of the trade so far as the debtor was concerned was the defrauding of his creditors.' 4 Collier on Bankruptcy, p. 550-9 (15th ed.1987)."); Culpin, Validity, at 165 n. 92 ("According to Brown v. Third Nat'l Bank (In re Sherman), `Good faith is not susceptible of precise definition and is determined on a case-by-case basis.' 67 F.3d 1348, 1355 (8th Cir. 1995) (citing Consove v. Cohen (In re Roco Corp.), 701 F.2d 978, 984 (1st Cir.1983)). `To determine whether a transferee acts in good faith, "courts look to what the transferee `knew or should have known'" instead of examining the transferee's actual knowledge from a subjective standpoint.' Id. (citing Hayes v. Palm Seedlings Partners (In re Agric. Research and Tech. Group, Inc.), 916 F.2d 528, 535-36 (9th Cir.1990)).").
[19] See also Richardson, 307 N.E.2d at 572 ("knowledge of facts which might arouse suspicion would not be sufficient to destroy the bona fides of the subsequent purchaser"); Moore v. Gerrity Co., Inc., 62 Mass.App.Ct. 522, 818 N.E.2d 213, 216 (2004).
[20] The SJC has also subsequently spoken on the issue in the context of registered land:
"[W]e ask whether there were facts within the Land Court registration system available... at the time of their purchases, which would lead them to discover that either property was subject to an encumbrance, even if that encumbrance was not listed on their certificates of title. [The purchasers] were obligated to review only documentation within the registration system because to require a purchaser to investigate facts not documented within that system would be directly contrary to the purposes of the Land Registration Act."
Jackson v. Knott, 418 Mass. 704, 640 N.E.2d 109, 113 (1994) (emphasis added).
[21] See, e.g. Lindsay, 829 N.E.2d at 1111 (Discussing purposes of land recording acts and noting that "to make the system self-operative and to notify purchasers of existing claims, the recording acts create a public record from which prospective purchasers of interests in real property may ascertain the existence of prior claims that might affect their interests.") (quoting 14 R. Powell, Real Property § 82.01[3], at 82-13 (M. Wolf ed.2000)).
Consistent with the SJC's observation that "`the effective operation of the entire process of conveyancing and title assurance depends upon a recording system that excludes from recordation as few instruments as possible,'" Lindsay, 829 N.E.2d at 1110 (quoting, citing 14 R. Powell, Real Property, § 82.02[3], at 82-86 to 86-87), Massachusetts law provides for the recording of documents indicating that persons with interest in specific real property have filed a bankruptcy case, see M.G.L. ch. 36, § 24A.
[22] Although some courts have used the term "constructive notice" in this context, the Court finds helpful the distinctions between "actual," "constructive," and "inquiry" notice as described by the First Circuit Court of Appeals in In re Ryan:
Notice is sometimes broken down into various types: constructive, actual, record, implied, imputed, inquiry, etc.... A helpful formulation, however, appears in Tiffany's Real Property. Separating notice into two main types, actual and constructive, the treatise continues,
It would seem that one might properly be said to have actual notice when he has information in regard to a fact, or information as to circumstances an investigation of which would lead him to information of such fact, while he might be said to have constructive notice when he is charged with notice by a statute or rule of law, irrespective of any information which he might have, actual notice thus involving a mental operation on the person sought to be charged, and constructive notice being independent of any mental operation on his part.
5 Tiffany's Real Property § 1284, at 50 (emphasis added). Thus, "constructive notice" is not really "notice," as that word is commonly used, at all. Instead, constructive notice is a positive rule of state law that permits the prior purchaser to gain priority over a latter purchaser, regardless of whether the latter purchaser really knows of the prior purchase.
Constructive notice is an essential element of the land recording system: if a deed is properly recorded, all further purchasers have constructive knowledge of the deed. See 4 American Law of Property § 17.17. A purchaser, therefore, can protect his interest by the act of recording his deed of purchase....
A term sometimes used as a third and distinct type of notice is "inquiry notice." But we do not believe "inquiry notice" is a type of notice separate from "actual" or "constructive" notice. Rather, it is a corollary of both types. See 5 Tiffany's Real Property § 1285 (inquiry notice as a form of actual notice); 4 American Law of Property § 17.11, at 565 (inquiry notice as a form of constructive notice). Inquiry notice follows from the duty of a purchaser, when he has actual or constructive knowledge of facts which would lead a prudent person to suspect that another person might have an interest in the property, to conduct further investigation into the facts....
851 F.2d at 506-07.
[23] See, e.g., McCord v. Agard (In re Bean), 251 B.R. 196, 202 (E.D.N.Y.2000) (Noting that "knowledge" is not defined in the Code and that "decisional law is relatively sparse," the court stated that "courts have uniformly determined that constructive knowledge or inquiry notice precludes invocation of § 549(a)'s good faith purchaser exception."); In re Auxano, 96 B.R. at 962 ("`Knowledge' is not defined in the Code or in the legislative history, but is construed in this District to include constructive knowledge. Constructive knowledge is knowledge of such facts or circumstances that would ordinarily cause a prudent person exercising the reasonable diligence expected of him to inquire and learn the critical facts.... Perhaps the distinction [between good faith and knowledge], if any exists, is that good faith can be undermined by knowledge of a broader range of facts, whereas the knowledge requirement refers only to knowledge of the commencement of the case."); In re Robbins, 91 B.R. at 886 (Knowledge is "frequently employed to signify constructive knowledge, which neither indicates nor requires actual knowledge, but means knowledge of such circumstances as would ordinarily lead on investigation, in the exercise of reasonable diligence which a prudent man ought to exercise, to a knowledge of the actual facts. In this connection the rule has been said to have been frequently announced that means of knowledge may be equivalent to knowledge. There is also a corollary that one who intentionally remains ignorant may be chargeable in law with knowledge. In some connections the word `knowledge' means either actual or constructive knowledge.") (citing, quoting 51 C.J.S. Knowledge, pp. 538-39).
[24] See, e.g., Tracey v. United States (In re Tracey), 394 B.R. 635, 640-42 (1st Cir. BAP 2008) (where statute required "filing," lien was valid upon delivery of documents to clerk despite clerk's failure to properly index documents; statute did not require "filing and recording" for validity of lien); Town of Hurley v. N.M. Mun. Boundary Comm'n, 94 N.M. 606, 614 P.2d 18, 21 (1980) ("Filing and recording as those terms are known to the law are not synonymous."); State v. Noren, 621 P.2d 1224, 1225 (Utah 1980) ("Although the words `file' and `record' have occasionally been used somewhat interchangeably they have more frequently been interpreted as implying or requiring different things."); Radway v. Selectmen of Dennis, 266 Mass. 329, 165 N.E. 410, 411 (1929) ("There is a well-defined distinction between filing an instrument and offering it for record or causing it to be recorded.") (internal citations omitted).
[25] See, e.g., The Washington, 16 F.2d 206, 208 (2d Cir. 1926) ("`Filing' means the delivery of the thing filed into the actual custody of the proper officer...."); In re Labb, 42 F. Supp. 542, 543 (W.D.N.Y.1941) ("A contract is filed `when it is delivered to the proper officer, and by him received, to be kept on file.'") (quoting President and Directors of Manhattan Co. v. Laimbeer, 108 N.Y. 578, 15 N.E. 712, 713 (1888)); In re Grodzins, 27 F. Supp. 521, 524 (S.D.Ca.1939) ("Filing a paper consists in presenting it at the proper office, and leaving it there, deposited with the papers in such office."); Hirsch v. Md. Dep't of Natural Res., 288 Md. 95, 416 A.2d 10, 19 (1980) ("In modern usage, the `filing' of a paper consists in placing it in the custody of the proper official who makes the proper indorsement thereon.") (quoting Levy v. Glens Falls Indem. Co., 210 Md. 265, 123 A.2d 348, 352 (1956)); Hurley, 614 P.2d at 20 ("`[T]o file' a paper, on the part of a party, is to place it in the official custody of the clerk.... `Record' is defined ... as ... [t]o transcribe a document, or enter the history of an act or series of acts, in an official volume, for the purpose of giving notice ... and for preservation."); Noren, 621 P.2d at 1225 ("`Recorded' has been held to signify `copied or transcribed into some permanent book' while `filing' signifies merely delivery to the proper official."); Pers. Loan & Fin. Corp. of Memphis v. Guardian Disc. Co., 206 Tenn. 221, 332 S.W.2d 504, 507 (1960) ("The word `filing' is in no way synonymous with recording ... it merely means the receipt in this office."); Covington v. Fisher, 22 Okla. 207, 97 P. 615, 617 (1908) ("[T]he party filing ... for record ... deposits a properly prepared instrument with the register of deeds."); Nat'l Lumber Co. v. Lombardi, 64 Mass.App.Ct. 490, 834 N.E.2d 267, 271 (2005) ("[T]he lien holder who files the document (i.e., leaves it to be recorded) is not the person responsible for actually, physically recording it...."); Crye v. Edwards, 178 Ariz. 327, 873 P.2d 665, 668 (1993) ("The duty to file a paper is discharged when the filer places the paper in the hands of the proper custodian at the proper time and in the proper place."); Pease & Elliman Realty Trust v. Gaines, 160 Ga.App. 125, 286 S.E.2d 448, 451 (1981) ("The presentation of the instruments to the office of the clerk constituted proper filing.") (citing Albany Nat'l Bank v. Ga. Banking Co., 137 Ga. 776, 74 S.E. 267 (1912)); Blake v. R.M.S. Holding Corp., 341 So. 2d 795, 799 (Fla.Dist.Ct.App.1977) ("`A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.'") (quoting Bituminous Cas. Corp. v. Clements, 148 Fla. 175, 3 So. 2d 865 (1941)); Fidelity State Bank v. La Tempa, 350 S.W.2d 276, 280 (Mo.Ct.App.1961) ("Filing consists of delivery of the paper to be filed to the proper officer at the proper place within the proper time, and the receiving of it by him to be placed or kept on file or to be kept in his official capacity.") (citing 76 C.J.S. Records § 4); Beatty v. Hughes, 61 Cal. App. 2d 489, 143 P.2d 110, 111 (1943) ("The word `recorded' in ordinary usage signifies copied or transcribed into some permanent book.") (quoting Cady v. Purser, 131 Cal. 552, 63 P. 844 (1901)); 76 C.J.S. Records § 3 (2009) ("Filing consists of delivery of the paper to be filed to the proper officer at the proper place within the proper time, and the receiving of it by such officer to be placed or kept on file or to be kept in his or her official capacity.")
[26] The cost of recording a notice consisting of a one-page document in the Massachusetts registries is $75.00, see M.G.L ch. 262, § 38; M.G.L. ch. 36, § 41; M.G.L. ch. 44B, § 8; the total compensation of Chapter 7 trustees in no-asset cases is $60.00, see 11 U.S.C. §§ 330(b)(1) & (2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602821/ | 786 N.W.2d 274 (2010)
CITIZENS STATE BANK, Appellant,
v.
RAVEN TRADING PARTNERS, INC., et al., Respondents.
No. A08-1560.
Supreme Court of Minnesota.
July 22, 2010.
*275 Michael L. Brutlag, Matthew R. Doherty, Brutlag, Hartmann & Trucke, P.A., Minneapolis, MN, for appellant.
*276 Daniel W. Stauner, Plymouth, MN, for respondents.
Bradley N. Beisel, Kevin J. Dunlevy, Michael E. Kreun, Beisel & Dunlevy, P.A., Minneapolis, MN, for amicus curiae Minnesota Land Title Association.
OPINION
BARRY G. ANDERSON, Justice.
This appeal involves a dispute about the priority of two mortgages on the same property. At issue is whether appellant Citizens State Bank should be equitably subrogated to the position of two prior mortgagees and a mortgage held by Citizens given priority over a mortgage held by respondent Raven Trading Partners, LLC. Citizens brought an action in district court seeking an order declaring that, based on equitable subrogation, the Citizens mortgage recorded on May 9, 2005, has priority over a mortgage held by Raven that was recorded on April 29, 2005. The district court applied equitable subrogation and gave the Citizens mortgage priority over the Raven mortgage. Raven appealed, and the court of appeals reversed and remanded. Because we conclude that Citizens' negligence in waiting 38 days to resubmit the mortgage to the county recorder's office for recording was not an excusable or justifiable mistake of fact that warrants applying equitable subrogation, we affirm and remand.
On February 16, 2005, Feyereisen Enterprises, Inc., entered into a loan agreement with Citizens to borrow $165,000, and Feyereisen gave Citizens a mortgage on real property located in Hennepin County as security for the loan. The loan proceeds were applied to the balance due on two prior mortgages on the property. On February 21, 2005, Land Title, Inc., acting on behalf of Citizens, sent the Citizens mortgage to the county recorder's office to be recorded. But on March 14, 2005, the county recorder's office returned the mortgage to Land Title, Inc., unrecorded because the check for the mortgage registration tax was not for the proper amount.
On April 7, 2005, Feyereisen executed a mortgage on the property in favor of Raven, and the mortgage referenced the two prior mortgages on the property that had been satisfied by the loan from Citizens.[1] The Raven mortgage was recorded on April 29, 2005. On April 20, however, the Citizens mortgage was returned to the county recorder's office for recording. On May 9, 2005, subsequent to the recording of Raven's mortgage, the Citizens mortgage was recorded.
Two years later, Citizens filed a complaint in district court seeking declaratory judgment. Citizens argued that it should be equitably subrogated to the positions of the two prior mortgagees, because the Citizens loan was used to satisfy the prior mortgages, and thus the Citizens mortgage should be given priority over the Raven mortgage. The district court granted Citizens' motion for summary judgment and denied Raven's cross-motion for summary judgment.
The district court noted that Raven's mortgage was recorded prior to the Citizens mortgage and would normally take priority based on Minn.Stat. § 507.34 (2008). But the district court reasoned that equitable subrogation should apply for several reasons. Raven knew its mortgage would be subordinate; when Raven received its mortgage, it did not know of the Citizens mortgage, but believed that *277 there were two other mortgages on the property, to which the Raven mortgage was junior. In addition, the court reasoned that if it did not apply equitable subrogation, Raven would receive a windfall. The court also noted that Raven had security in an additional piece of property. Further, the district court viewed Citizens' delay in recording as excusable, and concluded that it would be unjust to give Raven priority over Citizens.
Raven appealed, and the court of appeals reversed and remanded. Citizens State Bank v. Raven Trading, Partners, Inc., No. A08-1560, 2009 WL 1515585, at *1 (Minn.App. June 2, 2009). The court of appeals stated that a professional lender is held to a higher standard than an unsophisticated party, and Citizens' delay in failing to timely record its mortgage is not a "`justifiable or excusable mistake'" that should trigger application of equitable subrogation. Id. at *2. Therefore, the court held that the district court abused its discretion by granting Citizens summary judgment. Id. The concurring opinion agreed with the result based on the application of Ripley v. Piehl, 700 N.W.2d 540 (Minn.App.2005), but questioned the wisdom of Ripley. Citizens, 2009 WL 1515585, at *2-9 (Crippen, J., concurring). We granted Citizens' petition for review.
On appeal from summary judgment, such as here, we must determine whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 630 (Minn.2007). Where the material facts are not disputed, we review the district court's application of the law de novo. Id. We have previously said, however, that "[g]ranting equitable relief is within the sound discretion of the trial court [and] [o]nly a clear abuse of that discretion will result in reversal." Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979); accord City of Cloquet v. Cloquet Sand & Gravel, Inc., 312 Minn. 277, 279, 251 N.W.2d 642, 644 (1977) ("The standard of review in nuisance cases and others involving equitable relief is whether the trial court has abused its discretion."). Therefore, for this appeal, we review the district court's application of equitable subrogation for abuse of discretion.[2] Under *278 an abuse of discretion standard, we may overrule the district court when the court's ruling is based on an erroneous view of the law. Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 306 (Minn. 1990). A party that invokes an equitable doctrine has the burden of proving applicability of equity. See Heidbreder v. Carton, 645 N.W.2d 355, 371 (Minn.2002).
Citizens argues that a strict application of the Minnesota Recording Act, Minn.Stat. § 507.34, would lead to an inequitable result by giving Raven priority over Citizens, and contends that the district court's application of equitable subrogation was proper. The Minnesota Recording Act gives protection to those who purchase property in good faith, for valuable consideration, and who first record their interests, by providing that
[e]very conveyance of real estate shall be recorded in the office of the county recorder of the county where such real estate is situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate ... whose conveyance is first duly recorded.
Minn.Stat. § 507.34.[3] A "good faith purchaser" is someone "who gives consideration in good faith without actual, implied, or constructive notice of inconsistent outstanding rights of others." Anderson v. Graham Inv. Co., 263 N.W.2d 382, 384 (Minn.1978). The priority of a mortgage is based on the date of recording. See Minn. Stat. §§ 386.41, 507.34 (2008). The purpose of the Minnesota Recording Act is to protect recorded titles against the gross negligence of those who fail to record their interests in real property. See Akerberg v. McCraney, 141 Minn. 230, 233, 169 N.W. 802, 803-04 (1918). The Minnesota Recording Act has existed in some form since Minnesota's territorial days. See Act of Mar. 4, 1854, ch. 22, § 1, 1854 Minn. Laws 62, 62.
At the time Raven recorded its mortgage, Citizens had already paid the two prior mortgages on the property, but Citizens had not recorded its own mortgage. Raven did not have actual, implied, or constructive notice of the Citizens mortgage, and Raven recorded its mortgage on the property prior to Citizens. It is undisputed that Raven was a good faith purchaser and that under Minn.Stat. § 507.34 Raven has priority over Citizens. The only question is whether we should apply equitable subrogation[4] to reverse that priority. To answer the question, we review the history of equitable subrogation in Minnesota, and determine its applicability to this case.
*279 Under equitable subrogation, when a person has discharged the debt of another with respect to real property, that person may, "when justice requires, ... be substituted in place of a prior encumbrancer and treated as an equitable assignee of the lien." First Nat'l Bank of Menahga v. Schunk, 201 Minn. 359, 363, 276 N.W. 290, 292-93 (1937). In other words, that person may be substituted to the rights and position of the prior creditor. "Although [equitable] subrogation is a highly favored doctrine, it is not an absolute right, but rather, one that depends on the equities and attending facts and circumstances of each case." Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1315 (8th Cir.1991); accord Am. Sur. Co. v. State Farm Mut. Auto. Ins. Co., 274 Minn. 81, 85, 142 N.W.2d 304, 307 (1966). Equitable subrogation will not be applied when the parties' equities are equal or rights are unclear. S. Sur. Co. v. Tessum, 178 Minn. 495, 502, 228 N.W. 326, 329 (1929). We have also said that equitable subrogation "will be applied in the interest of substantial justice ... where one party has provided funds used to discharge another's obligations if (a) the party seeking subrogation has acted under a justifiable or excusable mistake of fact and (b) injury to innocent parties will otherwise result." Carl H. Peterson Co. v. Zero Estates, 261 N.W.2d 346, 348 (Minn.1977).
Equitable subrogation has a long history in Minnesota and has existed alongside the Minnesota Recording Act. See Emmert v. Thompson, 49 Minn. 386, 391-92, 52 N.W. 31, 31-32 (1892) (noting that "the doctrine of [equitable] subrogation has been steadily growing and expanding in importance, and becoming more general in its application to various subjects and classes of persons"). Citizens argues that applying equitable subrogation here is consistent with how we have applied it in the past, and that equitable subrogation must be applied in order to prevent Raven from obtaining an unjustified and inequitable windfall. Essentially, Citizens contends that the court of appeals ignored the history of equitable subrogation in Minnesota and underlying equitable principles by rejecting application of equitable subrogation. Accordingly, in determining whether the district court properly applied equitable subrogation, it is helpful to trace the history of equitable subrogation as we have applied it previously.
In Geib v. Reynolds, there was a dispute over whether a deceased mortgagee had accepted a new mortgage as a substitute for a former mortgage. 35 Minn. 331, 335-37, 28 N.W. 923, 924-25 (1886). Subsequent mortgagees argued that the cancellation of the first mortgage, due to the substitution, gave them priority in the property. See id. at 335-36, 28 N.W. at 924-25. We said that it must be presumed that the deceased mortgagee, had he known of the intervening mortgages, would not have discharged his mortgage. Id. at 337, 28 N.W. at 925. We focused on whether a mistake of fact had been made that may have induced a party to act, and said that
if the holder of a mortgage take a new mortgage as a substitute for a former one, and cancel and release the latter in ignorance of the existence of an intervening lien upon the mortgaged premises, equity will, in the absence of some special disqualifying fact, restore the lien of the first mortgage, and give it its original priority.
Id. at 336, 28 N.W. at 924. We held that, under those circumstances, it was proper to "restor[e] the lien of the [deceased mortgagee], and giv[e] it priority over those of [the subsequent mortgagees]." Id. at 337, 28 N.W. at 925.
*280 In Gerdine v. Menage, when deciding whether equitable subrogation should apply, our focus was again on whether there was a mistake of fact that had induced a party to act, but we specified an additional element to the analysis: whether applying equitable subrogation would cause harm to a third party. 41 Minn. 417, 420, 43 N.W. 91, 92 (1889). In Gerdine, the defendant held a first and second mortgage on two properties. Id. at 418-19, 43 N.W. at 91-92. He foreclosed on the second mortgage, and satisfied the first mortgage based on the mistaken belief that the foreclosure proceedings were valid, when in fact they were not. Id. at 419, 43 N.W. at 92. We said that "[i]t is a common thing for courts of equity to relieve parties who have by mistake discharged mortgages upon the record, and to protect them fully from the consequences when such relief would not result prejudicially to third persons." Id. at 420, 43 N.W. at 92. We concluded that the defendant's misunderstanding about the validity of the foreclosure proceedings was a mistake of fact because we viewed the defendant's mistake as one a "layman would naturally fall intoa mistake as to the condition of his title resulting from a misapprehension as to the correctness or regularity of proceedings upon foreclosure." Id. at 421, 43 N.W. at 92. Because the defendant satisfied the first mortgage based on his mistaken understanding, and the plaintiff was essentially unharmed by application of equitable subrogation, we held that equitable subrogation was appropriate. See id. at 421-23, 43 N.W. at 92-93.
Three years later in Emmert v. Thompson, we again applied a two-part analysis to determine whether equitable subrogation should apply. See 49 Minn. 386, 391, 52 N.W. 31, 31 (1892). In Emmert, a property owner intentionally induced a mortgagee into loaning money to pay off several liens on the property in exchange for a first priority mortgage on the property. Id. at 390, 392, 52 N.W. at 31-32. Unknown to the mortgagee that anticipated receiving a first priority mortgage, another recorded, junior mortgage in fact existed (the plaintiff's mortgage) and became the senior lien on the property when the mortgagee paid the other encumbrances on the property. Id. at 391, 52 N.W. at 31. We concluded that equitable subrogation was appropriate, and subordinated the plaintiff's mortgage to the interests of the mortgagee that had paid the first liens on the property. Id. at 393, 52 N.W. at 32. We reasoned that equitable subrogation "is enforced solely for accomplishing the ends of substantial justice; and ... it is only when an applicant has an equity to invoke, and where innocent persons will not be injured, that a court can interfere." Id. at 391, 52 N.W. at 31. Specifically, we said that a court "may relieve one who has acted under a justifiable or excusable mistake of fact." Id. at 391, 52 N.W. at 32 (emphasis added). Although the plaintiff's junior mortgage was recorded and the mortgagee thus had constructive notice of the existence of the junior mortgage, we viewed the mortgagee and his agents' error in examining property records as "a mistake of fact" that did not bar the mortgagee from obtaining equitable relief. Id. at 392-93, 52 N.W. at 32. The mortgagor had intentionally concealed the truth about the existence of the junior mortgage. Id. at 392-93, 52 N.W. at 32.
Unlike the cases mentioned above, in Wentworth v. Tubbs, we concluded that equitable subrogation should not apply. 53 Minn. 388, 397-98, 55 N.W. 543, 545 (1893). In Wentworth, a mortgagor obtained a second mortgage in order to have the mortgagee pay certain mechanics' liens, but not all of them. Id. at 396, 55 *281 N.W. at 544-45. We said that equitable subrogation
can only apply where the payment operates as a purchase or equitable assignment, and not an extinguishment of a claim.... Whether the payment amounts to a purchase or an extinguishment is really a question of intention.... [T]he court finds that the agreement was that [the mortgagee] should pay the claims, and obtain releases therefor, and that the payment operated to extinguish them.
Id. at 397, 55 N.W. at 545 (emphasis omitted). We determined that the payment of the liens was merely to extinguish the claims, not to purchase them, and that in making the payment, the mortgagee had not operated under a mistake of fact. Id. at 397, 55 N.W. at 545 (citing Emmert, 49 Minn. at 391-92, 52 N.W. at 32). Significantly, we recognized that if we did not apply equitable subrogation some lienholders might receive a windfall; nevertheless, we still refused to apply subrogation: "The mere fact that, if subrogation is not allowed, the other lienors may be in better position, or, if allowed, may be in no worse position than if these claims had not been paid, is not, of itself, ground for subrogation." Id. at 398, 55 N.W. at 545.
One year after Wentworth, in Heisler v. C. Aultman & Co., we again noted our statement in Emmert that a court may provide relief to a party that has "acted under a justifiable or excusable mistake of fact," and concluded that equitable subrogation should apply due to a mistake of fact where a mother failed to examine whether there were any judgments against her son. Heisler v. C. Aultman & Co., 56 Minn. 454, 456-59, 57 N.W. 1053, 1053-54 (1894).
Unlike Emmert, where the mortgagee had constructive notice, but not actual notice of a recorded junior mortgage, the plaintiff-mortgagee in London & Northwest American Mortgage Co. v. Tracy knew of an existing junior mortgage. 58 Minn. 201, 203, 59 N.W. 1001, 1002 (1894). The mortgagors told the plaintiff that if the plaintiff loaned money to pay two prior mortgages, the plaintiff would receive a first priority mortgage, and a third mortgagee, the mortgagors' mother, would release her mortgage and accept a new mortgage that was subordinate to the plaintiff's. Id. at 203, 59 N.W. at 1002. The plaintiff relied on the misrepresentation and loaned the money, but the third mortgagee's mortgage was not satisfied of record, and the plaintiff foreclosed before the plaintiff knew the third mortgage had not been satisfied. Id. at 203, 59 N.W. at 1002. We said that "where [the prior lien] was discharged under a mistake of fact of the party paying the money to discharge it, to refuse to restore it for his protection would be permitting the second lien holder to profit at the expense of that party, and from his mistake." Id. at 204, 59 N.W. at 1002. We concluded that to permit the inducement would amount to a fraud if equitable subrogation did not apply, and the plaintiff was entitled to subrogation of the discharged mortgages unless the junior mortgagee could somehow demonstrate that she had changed her position and would be prejudiced. Id. at 204, 59 N.W. at 1002.
Our emphasis that there must be a mistake of fact was reinforced in Elliott v. Tainter, where a property owner executed two mortgages on property. 88 Minn. 377, 378-79, 93 N.W. 124, 124-25 (1903). The property owner sought a loan in order to pay the first priority mortgage and taxes on the property; the abstract on the property mistakenly omitted reference to a second mortgage, and the lender was led to believe that there was only one encumbrance on the property. Id. at 379, 93 *282 N.W. at 125. Neither the lender nor her attorneys examined the title to the property; instead, they relied on the faulty abstract, and the lender paid the senior mortgage and the taxes. Id. at 379-80, 93 N.W. at 125. We noted that equitable subrogation should apply when a lien "has been discharged under a mistake of the real situation," and we affirmed the district court in subrogating the lender to the rights of the first priority mortgagee because the lender had not intended to give priority to the junior mortgage by satisfying the senior mortgage and paying the taxes. Id. at 378-81, 93 N.W. at 124-26.
In Sucker v. Cranmer, we held that equitable subrogation may be applicable in a different context: when a party pays taxes to protect that party's rights. 127 Minn. 124, 128, 149 N.W. 16, 18 (1914). In Sucker, property owners defaulted on a mortgage, and the plaintiff, a mortgage assignee, foreclosed the mortgage. 127 Minn. at 125, 149 N.W. at 16-17. The plaintiff purchased the property at a foreclosure sale, and while the year of redemption was running, the plaintiff paid taxes on the property that the property owners had previously agreed to pay, but did not pay. Id. at 125, 149 N.W. at 17. The plaintiff paid the taxes to avoid a statutory penalty, but failed to file a statutorily required affidavit due to "mistake and inadvertence." Id. at 125, 149 N.W. at 17. The property owners subsequently redeemed the property, but did not reimburse the plaintiff for the tax payments because of the plaintiff's failure to file the affidavit. Id. at 126, 149 N.W. at 17. The mortgage provided that if the property owners failed to pay the taxes, the plaintiff could pay the taxes and charge the property owners for that amount in the form of a lien. Id. at 126, 149 N.W. at 17. We noted that the foreclosure never became complete because the property owners redeemed the property and the mortgage gave the plaintiff a right to make the payment and charge the property owners for that amount, so the plaintiff was entitled to personal judgment against the property owners. Id. at 126, 128, 149 N.W. at 17-18. Alternatively, we said that the plaintiff was entitled to equitable subrogation to the position of those parties to whom the property owners owed the taxes because "one, who has paid taxes to protect his own rights and not as a volunteer or intermeddler, may be subrogated to the rights of the state or of the one who had acquired the state's rights." Id. at 128, 149 N.W. at 18.
Unlike Sucker, where we applied equitable subrogation when a party had paid taxes to protect his rights, in Kingery v. Kingery we declined to apply equitable subrogation because "[t]here could be no belief on plaintiff's part that he would be subrogated to the two mortgages discharged so as to come ahead of the new first mortgage." 185 Minn. 467, 471, 241 N.W. 583, 585 (1932). The plaintiff in Kingery had orally agreed to help his mother obtain a new first mortgage in order to partially pay off two prior mortgages on her property; the plaintiff also agreed to pay whatever amount the new first mortgage failed to cover in order to discharge the two prior mortgages. Id. at 469, 241 N.W. at 584. We cited Emmert, Wentworth, and Heisler, and concluded that there was no mistake of fact about the situation, no inadvertence, and no fraud; the plaintiff had been the one who had negotiated for the new first mortgage for his mother, and he could not have believed that he would be subrogated to the two prior mortgages and take priority over the new first mortgage. Id. at 470-71, 241 N.W. at 585.
In Hirleman v. Nickels, we again analyzed whether there was a mistake of fact, but implicit in our analysis was the understanding *283 that the mistake must have somehow induced the party to act. See 193 Minn. 51, 54-57, 258 N.W. 13, 15-16 (1934). In Hirleman, the plaintiff purchased a first priority mortgage on property and recorded the assignment. 193 Minn. at 52, 258 N.W. at 14. The original property owners sold the property, and the new owners subsequently executed a second mortgage on the property. Id. at 52-53, 258 N.W. at 14. The second mortgage expressly stated that it was subject to the first mortgage, and the second mortgage was recorded. Id. at 52-53, 258 N.W. at 14. The plaintiff agreed with the property owners to extend or renew the first priority mortgage for another three years, but the plaintiff was unaware of the existence of the intervening mortgage, and relied upon the representations of the transacting company. Id. at 53, 258 N.W. at 14. The plaintiff executed a satisfaction of the first mortgage and accepted a new mortgage for the same amount and the same interest rate as the original mortgage. Id. at 53, 258 N.W. at 14. Although the new mortgage indicated that the property was subject to the intervening mortgage, the plaintiff had no actual knowledge of the intervening mortgage and did not intend to release the lien of her first mortgage, but executed a satisfaction of her first mortgage in ignorance of the intervening mortgage. Id. at 53, 258 N.W. at 14-15. We concluded that "[t]here can be no doubt that the mortgage was mistakenly satisfied" and the plaintiff executed a satisfaction of her mortgage based on ignorance of the intervening mortgage. Id. at 54, 56, 258 N.W. at 15-16.
We then specifically looked at the nature of the mistake to determine whether equity should apply to correct the mistake. Id. at 56, 258 N.W. at 16. We noted that previously we had relieved parties who discharged mortgages due to a mistake and when no prejudice to third parties would occur. Id. at 56-57, 258 N.W. at 16. In analyzing what constituted a "mistake," we suggested that the mistake must mislead a person to perform an action that, but for the error, the person would not have done. Id. at 57, 258 N.W. at 16. After analyzing the mistake the plaintiff made, we then noted that the intervening mortgagee would not be harmed if we applied equitable subrogation because she would receive that for which she bargained. Id. at 58, 258 N.W. at 16. In other words, we first analyzed whether there was a mistake, what type of mistake was made, whether that mistake induced the party to satisfy a prior mortgage, and then we proceeded to determine whether prejudice to a third party would occur.
Forty-three years later in Carl H. Peterson Co. v. Zero Estates, we again analyzed equitable subrogation. 261 N.W.2d 346 (Minn.1977). In Peterson, the First National Bank of Lakeville made a loan to the Brauns in 1970, secured by a mortgage on 152 acres owned by the Brauns. Id. at 347. The Brauns endeavored to construct a 300-by 176-foot horse barn on the property, with construction beginning in 1972. Id. In 1973 the bank made a second loan to the Brauns, and the bank received another mortgage on the property subsequent to the initial labor and materials provided for construction by mechanics' lienholders. Id. Part of the second loan was used to pay the balance on the first loan and delinquent taxes. Id. The mechanics' lienholders commenced actions to foreclose the liens in 1974; the barn collapsed in 1975. Id.
The bank argued that its 1973 mortgage should be equitably subrogated to its 1970 mortgage and given priority over the 1972 mechanics' liens to the extent that part of the second loan from the bank was used to pay off the first loan and delinquent taxes. Id. at 348. We stated that equitable subrogation *284 "will be applied in the interest of substantial justice ... where one party has provided funds used to discharge another's obligations if (a) the party seeking subrogation has acted under a justifiable or excusable mistake of fact and (b) injury to innocent parties will otherwise result." Id. But we concluded that equitable subrogation should not apply. Id. We began by first analyzing whether there was a mistake involved, and distinguished the bank from the unsophisticated individual in Heisler, 56 Minn. 454, 57 N.W. 1053, who was unaware of a judgment lien. Peterson, 261 N.W.2d at 348. We reasoned that the bank was "a professional lender with knowledge of construction in progress giving rise to inchoate liens for contractors and materialmen" and concluded that the bank's failure to consider the intervening liens and obtain subordination agreements "cannot be deemed justifiable as an excusable mistake." Id. We then noted that if we applied equitable subrogation, the rights of innocent partiesthe mechanics' lienholderswould be jeopardized.[5]Id. Weighing these factors, we concluded that equitable subrogation should not apply because the bank had not demonstrated equities in its favor. Id.
Citizens argues that our approach in Minnesota case law is consistent with the approach in Restatement (Third) of Property: Mortgages § 7.6 (1997) in analyzing when equitable subrogation should apply, and Citizens argues that we should adopt the Restatement's position. The Restatement provides:
(a) One who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment. Even though the performance would otherwise discharge the obligation and the mortgage, they are preserved and the mortgage retains its priority in the hands of the subrogee.
(b) By way of illustration, subrogation is appropriate to prevent unjust enrichment if the person seeking subrogation performs the obligation:
(1) in order to protect his or her interest;
(2) under a legal duty to do so;
(3) on account of misrepresentation, mistake, duress, undue influence, deceit, or other similar imposition; or
(4) upon a request from the obligor or the obligor's successor to do so, if the person performing was promised repayment and reasonably expected to receive a security interest in the real estate with the priority of the mortgage being discharged, and if subrogation will not materially prejudice the holders of intervening interests in the real estate.
Id. The comments to the Restatement note that "[s]ubrogation is an equitable remedy designed to avoid a person's receiving an unearned windfall at the expense of another." Id. cmt. a. Further, "[t]he holders of intervening interests can hardly complain about this result, for they are no worse off than before the senior obligation was discharged. If there were no subrogation, such junior interests would be promoted in priority, giving them an unwarranted and unjust windfall." Id.
We agree that, depending on all the circumstances, equitable subrogation may be applicable when a party satisfies a lien *285 in order to protect that party's interest, when a party is under a legal duty to satisfy a lien, or when there is a misrepresentation, mistake, duress, undue influence, or deceit. But we have specified that a mistake must be justifiable or excusable, not simply a mistake. In addition, we have not previously applied equitable subrogation based solely on a party expecting to receive a security interest in real property because of the promise of repayment and priority of the discharged mortgage. Although our approach may overlap in part with the approach suggested by the Restatement, there are differences, and we decline to wholly adopt the approach set forth in the Restatement.[6]
In Minnesota, a party seeking equitable subrogation has the burden of establishing that equities weigh in the party's favor, which also requires that no injury to innocent third parties will result if subrogation is applied. See Peterson, 261 N.W.2d at 348. There is no injury to a party if the party's position remains unchanged or the party received that for which the party bargained. See, e.g., Hirleman, 193 Minn. at 58, 258 N.W. at 16 ("She bargained for and secured a second mortgage.... She has just that now. She is entitled to nothing more."); Gerdine, 41 Minn. at 421, 43 N.W. at 93 ("He had paid nothing, and his position remained unchanged."). Because Citizens is the party seeking equitable subrogation, Citizens has the burden of establishing that equities weigh in its favor.
We said in Emmert that a court "under a great variety of circumstances, may relieve one who has acted under a justifiable or excusable mistake of fact." 49 Minn. at 391, 52 N.W. at 32. And we have applied equitable subrogation to a variety of circumstances. But we conclude that it should not apply here.
It is undisputed that, here, there was no mistake of fact, no misrepresentation, and no fraud that induced Citizens to loan $165,000 to Feyereisen to pay the two prior mortgages. Citizens was not legally obligated to loan the money, and Citizens did not loan the money in order to protect its own interests. The initial mistake was that Land Title, Inc., acting on Citizens' behalf, did not send the correct amount of money for the mortgage registration tax when the Citizens mortgage was sent to the county recorder's office to be recorded. We may assume, without deciding, that this mistake might be justifiable or excusable. But our inquiry does not end there.
*286 Citizens has not explained why it, or its agent, failed to promptly resubmit the mortgage to the county recorder's office when the mortgage was returned unrecorded on March 14, 2005. Citizens did nothing for 38 days, waiting until April 20, 2005, to again submit the mortgage for recording. Citizens simply neglected to act in a timely manner. In the meantime, Feyereisen executed a second mortgage on the property on April 7, 2005, and Raven had the mortgage recorded on April 29, 2005, taking priority over the Citizens mortgage that was finally recorded on May 9, 2005, based on the provisions of Minn.Stat. § 507.34.
In the end, whether to apply equitable subrogation is determined based on the circumstances present in each dispute. Here, we conclude that equitable subrogation should not apply to waive the normal recording requirements of Minn.Stat. § 507.34 when Citizens had notice of the unrecorded mortgage on March 14, 2005, and did nothing for 38 days. This delay in submitting the document for recording, given that Minnesota is a race-notice state, see Minn.Stat. § 507.34, is not justifiable or excusable, regardless of the sophistication of the mortgagee.[7] Once Citizens received notice that the mortgage was returned, Citizens had an obligation to expeditiously record the mortgage. Unlike previous cases where equitable subrogation applied, Citizens was aware of its original mistakenot paying the correct mortgage registration taxand had the opportunity to remedy it by timely resubmitting the mortgage with the correct payment. In previous cases where equitable subrogation applied, we were concerned with parties that unknowingly made one mistake, whether due to fraud or negligence, and who had no opportunity to correct that mistake once it had been made. See, e.g., Hirleman, 193 Minn. at 54, 56-57, 258 N.W. at 15-16 (satisfaction of a first mortgage in ignorance of existing intervening mortgage); Elliott, 88 Minn. at 379-81, 93 N.W. at 125-26 (property owner misled lender); London, 58 Minn. at 203, 59 N.W. at 1002 (mortgagee relied upon mortgagors' misrepresentation); Emmert, 49 Minn. at 390, 392, 52 N.W. at 31-32 (fraudulent inducement of mortgagee); Gerdine, 41 Minn. at 419, 43 N.W. at 92 (satisfaction of first mortgage based on the mistaken belief that the foreclosure proceedings were valid, when they were not).
The dissent concludes that we are "tak[ing] a step back" from "the path our court blazed approximately a century ago," and that we are adopting a restrictive analysis of "justifiable or excusable mistake of fact," because, according to the dissent, Citizens' mistake is not more serious than the mistakes plaintiffs in the past have committed.[8]Infra at D-4, D-5. On *287 the contrary, the dissent's position represents a departure from the principles in our previous cases. Plaintiffs in previous cases unknowingly committed a variety of errors, whether due to fraud or negligence, based on a mistake of fact. But the parties cite no precedent, and we have found none, where a plaintiff knowingly committed a second mistake when there was an opportunity to correct an underlying problem. To overlook Citizens' mistake in neglecting to more timely resubmit the mortgage with proper payment would require flexibility with respect to the requirements of Minn.Stat. § 507.34 to the point where the normal recording requirements of the statute become suggestions, not requirements. We believe that, based on the undisputed facts here, we must give effect to the statute that the Legislature enacted.
We recognize that if we do not apply equitable subrogation, Raven will receive a windfall because Raven anticipated that its mortgage on the property would have second priority. If we apply equitable subrogation and give the Citizens mortgage priority over the Raven mortgage, Raven would be in no worse position. But we need not apply equitable subrogation merely to prevent a party from obtaining a windfall or unjust enrichment.[9]See Wentworth, 53 Minn. at 398, 55 N.W. at 545.
We conclude that the facts here, in light of applicable law and principles of equity, do not support applying equitable subrogation. "[E]quity aids the vigilant, and not the negligent." Sinell v. Town of Sharon, 206 Minn. 437, 439, 289 N.W. 44, 46 (1939) (citation omitted) (internal quotation marks omitted). Contrary to the district court's conclusion, Citizens' mistake in failing to act for 38 days was not a *288 justifiable or excusable mistake of fact. Because the district court's weighing of the equities and decision to apply equitable subrogation rested on an erroneous view of the law, we conclude that the district court erred in giving the Citizens mortgage priority over the Raven mortgage.
Affirmed and remanded.
STRAS, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
PAGE, Justice (dissenting).
The court's decision rests on the notion that "equity aids the vigilant, and not the negligent," and therefore Citizens' failure to act for 38 days in resubmitting the mortgage registration tax does not warrant equitable subrogation. However, in our over-century-long application of equitable subrogation we have faced far more egregious conduct and have never found a mistake so unjustifiable or so inexcusable that equitable subrogation should not apply. I would hold that the district court did not clearly abuse its discretion when it applied equitable subrogation to Citizens' mortgage.
Most disturbing in this case is the court's abandonment of our standard of review. The purpose of appellate review is to determine whether a district court has made an error and not to try the case de novo. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n. 2 (Minn.1979). The standard of review circumscribes the role of the reviewing appellate court and ensures uniformity and consistency in the law by precluding the retrial of a case on appeal. In re the Welfare of M.D.O., 462 N.W.2d 370, 374 (Minn.1990). On appeal from summary judgment, we are to determine whether there are any genuine issues of material fact and whether either party is entitled to judgment as a matter of law. Christensen v. Milbank Ins. Co., 658 N.W.2d 580, 584 (Minn.2003). While we apply a de novo review to legal questions, the decision of whether to grant equitable relief rests within "the sound discretion" of the district court and will not be reversed on appeal absent clear abuse of that discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979) ("Granting equitable relief is within the sound discretion of the trial court. Only a clear abuse of that discretion will result in reversal."). An abuse of discretion may occur when the district court's findings are unsupported by the evidence or the applicable law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). An appellate court does not, however, reweigh the evidence or find its own facts. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). Absent a clear abuse of discretion, we are not free to substitute our own judgment for that of the district court. Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn.1979).
Subrogation is generally defined as the substitution of one person in the place of another with reference to a lawful claim or right. See Rowe v. St. Paul Ramsey Med. Ctr., 472 N.W.2d 640, 644 (Minn.1991). The subrogee, the person discharging the debt, stands in the shoes of the subrogor, the original creditor, and acquires all of the subrogee's rights, in particular, the priority level of the creditor's debt. See id.; Errett v. Wheeler, 109 Minn. 157 163, 123 N.W. 414, 416 (1909). "Subrogation rests on the maxim that no one should be enriched by another's loss." Medica, Inc. v. Atl. Mut. Ins. Co., 566 N.W.2d 74, 77 (Minn.1997) (citation omitted) (internal quotation marks omitted). Subrogation is not a legal remedy, but is an equitable remedy where the court weighs and balances the equities of the two parties and determines who should have the higher priority. N. Trust Co. v. Consol. Elevator *289 Co., 142 Minn. 132, 138, 171 N.W. 265, 268 (1919) ("The doctrine of subrogation is of purely equitable origin and nature. Whether a case for its application arises in favor of a surety as against third persons depends upon the balance of equities between them and the surety."). We have consistently liberally applied the doctrine of equitable subrogation for over 100 years, even in the face of serious, unexplained mistakes by plaintiffs and their agents. See, e.g., Hirleman v. Nickels, 193 Minn. 51, 57-58, 258 N.W. 13, 16 (1934) (applying equitable subrogation when a party renewed their mortgage and negligently failed to check for intervening mortgages); Gerdine v. Menage, 41 Minn. 417, 419-21, 43 N.W. 91, 92 (1889) (applying equitable subrogation when the defendant satisfied a first mortgage and foreclosed a second mortgage on "the mistaken notion that [its] foreclosure proceedings were valid and effectual"). Further, we have been vigilant in avoiding unwarranted windfalls to junior lienholders because of the mistakes committed by those paying off senior debts, and we have steadfastly refused to elevate the priority of junior lienholders when they have not paid for the elevation in status. Hirleman, 193 Minn. at 58, 258 N.W. at 16 (noting that the party holding the second mortgage "bargained for and secured a second mortgage inferior to plaintiff's first mortgage," and "[i]t would be a sad reflection upon a court of equity if [the party holding the second mortgage] were to prevail").
Although we have stated the test for equitable subrogation using different terms, the concept behind equitable subrogation has always been that when a party pays the debt of another in an attempt to receive the creditor's priority level that payment shall operate as an assignment of the lien if the assignment can be accomplished without harming innocent parties. See Elliott v. Tainter, 88 Minn. 377, 378, 93 N.W. 124, 124 (1903) (stating that "the true principle" of equitable subrogation is that "where money is so paid, it shall operate in the nature of an assignment of the canceled lien, to continue it in force to subserve the ends of justice"). While our early case law was concerned with whether the claimant's mistake was justifiable or excusable, and we have routinely recited that language, we have never found the nature of the mistake to be dispositive. Instead, our prime concern in equitable subrogation cases is whether the "restoration of the discharged lien may be made without putting the holder of the second incumbrance in any worse position than if the prior lien had not been discharged" and protecting the expectations of those who pay off another's debt. London & Nw. Am. Mortgage Co. v. Tracy, 58 Minn. 201, 204, 59 N.W. 1001, 1002 (1894).
The district court determined that Raven does not have a superior equitable claim that should prevent the application of equitable subrogation. The district court noted that Raven bargained for and received a mortgage that was subordinate to $164,000 in existing encumbrances, Raven's security interest encumbers other property than the property that is the basis of this litigation, and Raven would receive a windfall by being elevated to first priority. Citizens, though admittedly inadvertent, is seeking the application of a doctrine created to aid those who inadvertently fail to secure their priority. While Citizens failed to utilize due care, it cannot be said that Citizens' mistake is more serious than the mistakes committed by plaintiffs in cases in which we have applied equitable subrogation. In Sucker v. Cranmer, we applied equitable subrogation in favor of a plaintiff who, without any justification or excuse, negligently failed to file a statutorily required affidavit that resulted in the plaintiff's lien never becoming effective. *290 127 Minn. 124, 125, 128, 149 N.W. 16, 17-18 (1914). Here, Citizens, in recording its mortgage, attempted to pay the required mortgage registration tax but sent an incorrect amount. Upon being notified that the mortgage had not been recorded because of the failure to submit the correct mortgage registration tax amount, Citizens, within 38 days, again recorded the mortgage submitting the correct tax. If equitable subrogation was appropriate in Sucker, a case in which the claimant of the doctrine never submitted the statutorily required affidavit, it is appropriate here, a case in which Citizens submitted the statutorily required registration tax within 38 days of being notified that its mortgage had not been recorded. However, in direct conflict with Sucker, the court, without explanation or reason, adopts a restrictive "justifiable or excusable mistake of fact" analysis. As the Restatement[1] and other courts[2] have begun to follow in the path our court blazed approximately a century ago, we take a step back.
Here, the district court identified the equitable interests, weighed them, and determined that equity favored Citizens. However, the court has chosen to apply its own judgment and not defer to the district court's equitable findings. While the court may be inclined to weigh the equities differently, the responsibility of making equitable determinations lies with the district court. See Arundel, 281 N.W.2d at 667 ("While we are less than convinced that a higher award would not be appropriate..., we are not free to substitute our judgment for that of the trial court absent a clear abuse of its discretion."). Our limited role is to determine if the district court clearly abused its discretion by reaching a decision that is unsupported by the evidence in the record. Pikula, 374 N.W.2d at 710 ("The trial court's findings must be sustained unless clearly erroneous."). When there is competent evidence in the record supporting the district court's determination, as there is here, the district court has not abused its discretion. By substituting our judgment for that of the district court, we have abandoned our standard of review and usurped responsibilities properly left in the able hands of the district court. Therefore, I respectfully dissent.
ANDERSON, PAUL H., Justice (dissenting).
I join in the dissent of Justice Page.
NOTES
[1] Although the Raven mortgage referenced the two prior mortgages, it did not reference the Citizens mortgage. The Raven mortgage also encumbered, as additional security, a second parcel of property in Hennepin County.
[2] We note that the question of the proper standard of review for a district court's decision on a motion for summary judgment regarding the applicability of equitable subrogation is not clearly settled in Minnesota. The court of appeals applied an abuse of discretion standard of review, Citizens, 2009 WL 1515585, at *2, Citizens' argues that such a standard is applicable here, and the dissent agrees, see infra at D-1. The court of appeals cited Ripley v. Piehl, 700 N.W.2d 540, 544 (Minn.App.2005). Ripley, like the dissent, cites Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979), for support. Our statement in Nadeau, however, was made in the context of considering whether a district court should have granted a plaintiff's post-trial motion to be reinstated as a deputy sheriff and enjoined the defendants from slandering him. Id. at 522, 524. None of our previous cases analyzing the applicability of equitable subrogation involving the priority of mortgages discussed the applicable standard of review where there are cross-motions for summary judgment.
Medica, Inc. v. Atlantic Mutual Insurance Co., suggests that a de novo standard of review might apply here. 566 N.W.2d 74 (Minn. 1997). In Medica, there were cross-motions for summary judgment on whether a health maintenance organization had either conventional or equitable subrogation rights against an insurer that issued a general liability policy. Id. at 75-76. The district court granted summary judgment for the insurer, and held that the health maintenance organization had no subrogation rights. Id. We said that
[o]n appeal from summary judgment, this court reviews the record to determine whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law. Because the parties do not dispute the relevant facts, a de novo standard of review is applied to determine whether the district court erred in its application of the law.
Id. at 76 (citations omitted). Although our primary focus was on conventional subrogation, see id. at 77-79, we also reviewed the record under a de novo standard of review and concluded "that equitable subrogation [was] not appropriate under the facts and circumstances," id. at 79. Here we need not decide the proper standard of review because we would reach the same result concerning equitable subrogation were we to review it under an abuse of discretion standard or solely under our normal review on appeal from summary judgment.
[3] "A mortgage is a conveyance of real estate for purposes of Minn.Stat. § 507.34." MidCountry Bank v. Krueger, 782 N.W.2d 238, 244 (Minn.2010).
[4] There are two types of subrogation, conventional and equitable. Medica, 566 N.W.2d at 77. Conventional subrogation is contractual and is based on an agreement between parties. Id. It does not apply here. Equitable subrogation has its origin in common law and equity. See id.
[5] We also noted that the mechanics' lienholders only had recourse to 39.5 acres that were subject to their liens, while the bank had undisputed priority over 112 acres. Peterson, 261 N.W.2d at 348.
[6] We also take this opportunity to clarify that contrary to the court of appeals' statement in Ripley, 700 N.W.2d at 545, that "actual or constructive notice of an existing lien bars equitable subrogation," we have not automatically rejected equitable subrogation when the party seeking subrogation has actual or constructive notice of an existing lien. For example, we have applied equitable subrogation where a mortgagee had actual notice of a recorded junior mortgage, but was induced by misrepresentation to loan money to pay two prior liens. London & Nw. Am. Mortgage Co., 58 Minn. at 203, 59 N.W. at 1002. In addition, we have previously applied equitable subrogation where a party had constructive notice of recorded liens. See, e.g., Elliott, 88 Minn. at 379-81, 93 N.W. at 125; Heisler, 56 Minn. at 457-60, 57 N.W. at 1053-54; Emmert, 49 Minn. at 391-92, 52 N.W. at 31-32. Our focus has not been on whether a party had actual or constructive notice; rather, in most of our cases, we have looked primarily to whether a mistake was made, the nature of the mistake made, and whether the mistake induced the party seeking equitable subrogation to satisfy a lien. Then, to weigh the equities, we have analyzed whether applying equitable subrogation would harm innocent third parties. But as we noted in Wentworth, the mere fact that there may be a windfall to a third party does not in itself provide sufficient grounds for applying equitable subrogation. See Wentworth, 53 Minn. at 398, 55 N.W. at 545.
[7] We agree with the court of appeals that equitable subrogation should not apply here, but disagree to the extent that the court of appeals opinion suggests that Citizens must be held to a higher standard as a commercial lender in order to conclude that equitable subrogation should not apply. Citizens, 2009 WL 1515585, at *2 (citing Peterson, 261 N.W.2d at 348). It is not necessary for us to decide here whether the presence of a commercial lender is a factor to be considered in deciding whether to apply equitable subrogation.
[8] The dissent also concludes that "[i]f equitable subrogation was appropriate in Sucker,... it is appropriate here." Infra at D-5. Sucker, however, is not controlling under these circumstances. We said in Sucker that the issue was whether
a mortgagee, who at the foreclosure sale bid in the property for the full amount of the debt then due, but, while the year of redemption ran, disbursed money in payment of taxes and in redemption from tax sales, [has] no remedy if he has failed to file and furnish an affidavit in accordance with [the statute], when redemption is made by the mortgagor, as owner, without reimbursement for such tax payments, the mortgage containing a provision that the mortgagee may pay delinquent taxes and charge the amount to the mortgagor or the then owner, or at his option secure tax title to the property.
127 Minn. at 126, 149 N.W. at 17. Our basis for protecting the plaintiff's interest and excusing the failure to file an affidavit was twofold: (1) the mortgage executed by the defendants gave the plaintiff the right to pay the taxes and charge the amount to the defendants, and the defendants had failed to perform their covenant with regard to the taxes; and (2) "[t]axes are a perpetual lien until paid." Id. at 127-28, 149 N.W. at 17-18. Here, unlike the plaintiff in Sucker that paid taxes on the property in order to protect his rights after a foreclosure sale and had an underlying right expressed in the mortgage to charge that amount to the defendants, Citizens did not pay taxes on the property. The grounds for applying equitable subrogation in Sucker are not present here.
[9] The dissent states that "our prime concern in equitable subrogation cases is whether the `restoration of the discharged lien may be made without putting the holder of the second incumbrance in any worse position than if the prior lien had not been discharged' and protecting the expectations of those who pay off another's debt." Infra at D-4 (quoting London, 58 Minn. at 204, 59 N.W. at 1002). But in London, we said: "A prime consideration... is that the restoration of the discharged lien may be made without putting the holder of the second incumbrance in any worse position... where [the mortgage] was discharged under a mistake of fact...." London, 58 Minn. at 204, 59 N.W. at 1002. Consideration of the rights of a third-party lienholder, such as Raven, is a prime consideration, but not the prime consideration. The implication from the dissent's position is that there is a presumption that because we have liberally applied equitable subrogation in the past, equitable subrogation will apply so long as there is no harm to a third party. The first determination that must drive the analysis is whether the expectations of a party who paid the debt of another should be protected. Citizens did not discharge the mortgages under a mistake of fact, and had the opportunity to correct its mistake. It is not enough to invoke equity merely to prevent a windfall. See Wentworth, 53 Minn. at 398, 55 N.W. at 545.
[1] The Restatement says, "One who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment." Restatement (Third) of Property: Mortgages § 7.6 (1997).
[2] The Washington Supreme Court has found that public policy concerns weigh in favor of a liberal approach to equitable subrogation. Bank of Am., N.A. v. Prestance Corp., 160 Wash.2d 560, 160 P.3d 17, 28 (2007). Equitable subrogation helps stem the threat of foreclosure by serving as an incentive for one to advance sums to those threatened by foreclosure, and can save billions of dollars by reducing title insurance premiums that are passed on to homebuyers. Id. at 580-81, 160 P.3d 17; see also Grant S. Nelson & Dale A. Whitman, Adopting Restatement Mortgage Subrogation Principles: Saving Billions of Dollars for Refinancing Homeowners, 2006 BYU L. Rev. 305, 359 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602835/ | 280 Neb. 186
VITALIX, INC., APPELLANT,
v.
BOX BUTTE COUNTY BOARD OF EQUALIZATION, APPELLEE.
No. S-09-1074.
Supreme Court of Nebraska.
Filed July 9, 2010.
Gerard T. Forget III, of Forget Firm, P.C., L.L.O., for appellant.
No appearance for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
HEAVICAN, C.J.
I. INTRODUCTION
The Box Butte County assessor set the valuation for improvements to property made by the appellant, Vitalix, Inc. Vitalix protested the valuation, arguing that the property was exempt from taxation because it was public land being used for a public purpose. The Box Butte County Board of Equalization affirmed the county assessor's valuation, essentially denying an exemption. Vitalix appealed that decision to the Tax Equalization and Review Commission (TERC), which affirmed the board of equalization's decision. Vitalix appeals to this court. We affirm.
II. FACTUAL BACKGROUND
Vitalix manufactures nutritional supplements for livestock. Its plant is located on a parcel of real property owned in fee simple by the City of Alliance, Nebraska (City). The operative lease was signed by the City and Vitalix on December 17, 2004. At that time, the lease provided for the lease of the real property along with three buildings, identified as buildings Nos. 3000, 3001, and 3101, located on the real property.
Subsequently, an addition was built connecting buildings Nos. 3000 and 3001 to form a U-shaped contiguous structure. The lease between the City and Vitalix was amended in June 2005 to provide for this addition (referred to as the "Warehouse Addition"). The Warehouse Addition was constructed using community redevelopment funds obtained from the State of Nebraska by the City.
In 2007, the county assessor assessed the Warehouse Addition and certain other improvements to Vitalix in the amount of $897,051. The Warehouse Addition had been assessed at $570,935; the other property was assessed at $326,116. Only improvements were assessed to Vitalix; the land was assessed at zero and is exempt from taxation as property owned by the City. In addition, buildings Nos. 3000 and 3001 are exempt from taxation and have been since an exemption was granted to the City by the board of equalization in May 2005.
The issue on appeal is whether the Warehouse Addition is exempt from taxation as public property used for a public purpose. Vitalix is not contesting the assessment of the other improvements to the parcel.
III. ASSIGNMENTS OF ERROR
On appeal, Vitalix assigns that TERC erred in (1) rejecting a stipulation of facts entered into by the parties and (2) denying an exemption from taxation for the Warehouse Addition.
IV. STANDARD OF REVIEW
[1-3] Appellate courts review decisions rendered by TERC for errors appearing on the record.[1] When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.[2] Questions of law arising during appellate review of TERC decisions are reviewed de novo on the record.[3]
V. ANALYSIS
1. PARTIES' STIPULATION
In its first assignment of error, Vitalix argues that TERC erred in rejecting the stipulation of facts entered into by the parties. At issue is the parties' stipulation stating that the parcel of land in question, "together with any appurtenant structure (`Warehouse Addition'), is owned in fee simple by the City . . . subject only to the leasehold interest of Vitalix." TERC notes that "[i]f only the land is described as the `Warehouse Addition' for purposes of the stipulation, the stipulation conforms to the evidence. If `Warehouse Addition' also refers to the warehouse constructed in 2004, it is contrary to the evidence."
[4] Because the ownership of the warehouse has bearing on whether it is exempt from taxation, TERC's concern with this stipulation is well founded. The above language"[the] parcel of land . . . together with any appurtenant structure (`Warehouse Addition'), is owned in fee simple by the City" suggests that the parties could be attempting to stipulate that the Warehouse Addition is owned by the City. Such is a legal conclusion and cannot be the subject of a stipulation between the parties.[4] We conclude that TERC did not err by refusing to consider the parties' stipulation. Vitalix's first assignment of error is without merit.
2. TERC'S DECISION
In its second assignment of error, Vitalix argues that TERC erred in affirming the decision of the board of equalization. Vitalix contends that Neb. Rev. Stat. § 77-202(1)(a) (Cum. Supp. 2006) provided an exemption for the Warehouse Addition. Section 77-202(1) provided in relevant part that "[t]he following property shall be exempt from property taxes:. . . [p]roperty of the state and its governmental subdivisions to the extent used or being developed for use by the state or governmental subdivision for a public purpose." Vitalix argues that upon its construction, the Warehouse Addition became a part of the real estate and thus was owned by the City and not by Vitalix. And because the land was used for a public purpose, namely because it was built upon using community redevelopment funds, it was exempt from taxation.
(a) Property of State or Governmental Subdivision
We turn first to TERC's finding that the Warehouse Addition was owned by Vitalix and thus not "[p]roperty of the state" or a governmental subdivision as required by § 77-202(1)(a).
The record in this case shows that the Warehouse Addition was included in a list of assets reported by Vitalix to the federal government for tax purposes. The lease between the City and Vitalix provided that "[w]ith prior permission of [the City, Vitalix] may make alterations or additions to the premises," but that "[i]n the absence of consent of [the City], all additions and alterations to the premises, including fixtures, made by [Vitalix] shall become property of [the City] upon termination of the lease." Finally, the lease provided that "[a]ny fixtures, equipment or supplies not removed from the premises by [Vitalix] upon termination of the lease shall become property of [the City]." Neither of these exceptions is relevant in this case, as the City granted consent for the Warehouse Addition and the lease has not yet been terminated.
An addendum to the same lease specifically notes that Vitalix, and not the City, had constructed, on the real property that is the subject of the lease, a warehouse building. The record also includes a deed of trust between Vitalix, the institutions which financed the project, and the City. Both the addendum and the deed indicate that Vitalix is responsible for the repayment of all funds.
Vitalix's primary argument is that as a general rule, when improvements are made to leased real estate, the improvements become a part of the real estate and are owned by the landowner, not the tenant. And this is indeed the general rule.[5] But the general rule does provide for the converse upon agreement of the parties. And this lease, as is noted above, makes such provision: Any improvements become the City's property only under certain circumstances not at issue here. More importantly, the addendum to the lease does not include any language suggesting otherwise.
Neb. Rev. Stat. § 77-1374 (Reissue 2003) also supported the general conclusion that improvements do not necessarily become part of the underlying real estate, at least for taxation purposes. That section provided in part that "[i]mprovements on leased public lands shall be assessed, together with the value of the lease, to the owner of the improvements as real property." Indeed, besides the Warehouse Addition, Vitalix has been assessed for other improvements to the leasehold interest in question, and it is not protesting that assessment.
The burden is on Vitalix[6] to show that the Warehouse Addition was "[p]roperty of the state."[7] Vitalix failed to meet that burden. We conclude that TERC's conclusion that Vitalix and not the City owned the Warehouse Addition despite the fact that the building was constructed on real property owned by the City conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
(b) Public Purpose
Vitalix also argues that the construction of the Warehouse Addition was for a public purpose under § 77-202(1)(a), which provided in part:
For purposes of this subdivision, public purpose means use of the property . . . to provide public services with or without cost to the recipient, including the general operation of government, public education, public safety, transportation, public works, civil and criminal justice, public health and welfare, developments by a public housing authority, parks, culture, recreation, community development, and cemetery purposes . . . .
Vitalix contends that because the Warehouse Addition was constructed as part of community redevelopment, it is for a public purpose. We disagree.
While community development was listed in § 77-202(1)(a), that section also noted that "public purpose means use of the property . . . to provide public services." Vitalix fails to show, and there is no other evidence to support the conclusion, that by operating its business, Vitalix is providing a public service. To the contrary, Vitalix is running a for-profit business manufacturing nutritional supplements for livestock. Simply purchasing the improvements with community redevelopment funds is insufficient to make the improvements be for a "public purpose." We therefore reject Vitalix's argument that the Warehouse Addition is being used for a "public purpose."
Vitalix's second assignment of error is without merit.
NOTES
[1] Fort Calhoun Bapt. Ch. v. Washington Cty. Bd. of Eq., 277 Neb. 25, 759 N.W.2d 475 (2009).
[2] Id.
[3] Id.
[4] See, e.g., Roberts v. Roberts, No. 08-740, 2009 WL 3785696 (Ark. Nov. 12, 2009); 73 Am. Jur. 2d Stipulations § 4 (2001). Cf. Mischke v. Mischke, 253 Neb. 439, 571 N.W.2d 248 (1997).
[5] See, Schmeckpeper v. Koertje, 222 Neb. 800, 388 N.W.2d 51 (1986); Lienemann v. Lienemann, 201 Neb. 458, 268 N.W.2d 108 (1978); State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970), overruled in part on other grounds, State v. Rosenberger, 187 Neb. 726, 193 N.W.2d 769 (1972).
[6] See Neb. Rev. Stat. § 77-5016(8) (Reissue 2009).
[7] See § 77-202(1)(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602313/ | 8 So.3d 370 (2009)
Anthony LEWIS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-841.
District Court of Appeal of Florida, Fifth District.
January 30, 2009.
Rehearing Denied May 8, 2009.
James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
MONACO, J.
The appellant, Anthony Lewis, appeals separate judgments and sentences of the trial court sending him to prison after concluding that he violated probation and community control. The sole issue for our *371 consideration is whether Mr. Lewis violated his community control and probation by possessing a 10 inch knife and pornographic DVDs, and in failing to keep his probation officer apprised of his employment status. We affirm the determination of the trial court to the effect that the appellant violated his probationary and community control placements.
In order to prove exclusive constructive possession, the State must prove both that the accused had dominion and control over the contraband and that he or she had knowledge that the contraband was in his or her presence. Where the premises on which the contraband is found is not in the exclusive possession of an accused, knowledge of the presence of the contraband on the premises and the ability of the accused to maintain control over it may not be inferred, and must be established by independent proof. Thus, the mere proximity to contraband is not sufficient to establish exclusive constructive possession. See J.J.N. v. State, 877 So.2d 806 (Fla. 5th DCA 2004). See also K.A.K. v. State, 885 So.2d 405, 406 (Fla. 2d DCA 2004); Diaz v. State, 884 So.2d 387, 388 (Fla. 2d DCA 2004); State v. Bell, 882 So.2d 468, 470 (Fla. 5th DCA 2004); Lindsey v. State, 793 So.2d 1165, 1166 (Fla. 1st DCA 2001). Moreover, where possession of the contraband is joint, the State must present additional evidence to support the inference of knowledge and the ability to control. See Brown v. State, 428 So.2d 250, 252 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Frank v. State, 199 So.2d 117, 120 (Fla. 1st DCA 1967). See also Lopez v. State, 711 So.2d 563 (Fla. 2d DCA 1997); Torres v. State, 520 So.2d 78 (Fla. 3d DCA 1988). We, therefore, agree with Mr. Lewis that the State failed to prove that he had dominion and control over the contraband found in a room in which he slept on some occasions, or that he had knowledge that the contraband was in his presence.
On the other hand, we disagree with his position regarding the other charged violation of probation. We conclude in this regard that the trial court did not abuse its discretion in determining that Mr. Lewis violated his probation by failing to abide by the explicit directions of his probation officer to keep her advised of his employment status. Mr. Lewis admitted as much in his testimony. This violation alone, while technical in nature, is sufficient to authorize a revocation of probation, and was in this case fully supported by the facts. See Aaron v. State, 400 So.2d 1033 (Fla. 3d DCA), review denied, 408 So.2d 1095 (Fla.1981) (discharge by employers may afford justification for not maintaining employment but does not justify failure to notify probation officer). Moreover, a fair reading of the testimony presented at the revocation hearing indicates that the trial court would have revoked Mr. Lewis's probation for either of the violations listed. Accordingly, we affirm the judgments revoking probation as well as Mr. Lewis's community control sentences. See Simmons v. State, 913 So.2d 19, 24 (Fla. 2d DCA 2005).
We note, however, that the written orders of revocation fail to specify the conditions that Mr. Lewis violated. Thus, while the judgments and sentences on appeal are affirmed, we remand to the trial court for correction of the written orders concerning revocation of probation in order for them to reflect the specific conditions violated. See Payne v. State, 920 So.2d 742 (Fla. 5th DCA 2006).
AFFIRMED and REMANDED with INSTRUCTIONS.
GRIFFIN and COHEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602326/ | 181 So.2d 69 (1965)
Roy URK et al., Plaintiff-Appellant,
v.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendant-Appellee.
No. 10470.
Court of Appeal of Louisiana, Second Circuit.
November 15, 1965.
Rehearing Denied December 21, 1965.
Writ Refused February 23, 1966.
Thomas & Loridans, Bossier City, for plaintiff-appellant.
Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, Watson, Williams & Brittain, Natchitoches, for defendant-appellee.
Before HARDY, GLADNEY and BOLIN, JJ.
GLADNEY, Judge.
This suit was instituted by Roy Urk appearing in his own behalf and as administrator of the estates of his three minor children, Edith Sue Urk, David Urk and Raymond Urk, aged from nine to twelve years, for the recovery of damages resulting from the death of Dorothy Russell Urk, the wife of Roy Urk and mother of the minor children. Mrs. Urk was killed in an automobile accident on April 9, 1964 at approximately 2:10 A.M. while driving a 1953 Plymouth sedan on East Texas Street in Bossier City, Louisiana when a truck driven by Samuel D. Sewell, Jr. collided headon with the automobile.
After the institution of this suit, Samuel D. Sewell, Jr. and his liability insurer, the Southern Farm Bureau Casualty Insurance Company, deposited into the registry of the court the sum of $10,000.00, of which amount Sewell contributed $5,000.00 and his liability insurer a like sum, the limit of its liability under its policy. The insurer was relieved and discharged from all further liability. Sewell requested permission of the court to furnish evidence as to his financial inability to respond for payment of any greater sum. With such deposit the liability of Sewell was admitted and the case heard by the trial court on two issues: first as to proof of Sewell's financial condition *70 and the amount of judgment which should be rendered against him, and second, as to whether or not the accident resulted solely from the willful, wanton and gross negligent conduct of the defendant, Sewell. From a judgment awarding plaintiff $10,000.00 only, the amount deposited into the registry of the court, and holding Sewell's negligence not to be willful, wanton or gross, plaintiff has appealed.
Mrs. Dorothy Urk was 31 years old at the time of her death. She had been regularly employed at the Southern Bell Telephone Company with earnings approximately $300.00 per month which was a substantial portion of the family income. Plaintiff sought damages in the sum of $152,000.00; $105,000.00 for the estates of his minor children and $47,000.00 for himself, these items including loss of support and earnings, affection, companionship and society.
Counsel for plaintiff-appellant, although conceding Louisiana jurisprudence recognizes that the financial condition for the tort feasor may be considered as justifying a reduction of the allowance for damages, argues earnestly that in limiting the recovery of petitioner to $10,000.00, too great a reduction has been imposed because of defendant's financial condition. The trial judge properly observed, we think, that an award of between ten and twenty thousand dollars to the husband alone for the death of his wife, and an award of from five thousand to seventy-five hundred dollars to each of the three minor children for the death of their mother would be in line with recent jurisprudence in this state assessing such damages. The court, however, in fixing its award gave application to the jurisprudential rule prevalent in this state that the ability of the defendant to respond in damages will be taken into consideration in determining the amount of the judgment, and, after examining the evidence as to Sewell's financial condition, commented:
"Recognizing this existing principle of our law, counsel for defendant herein has put this matter squarely before this Court with uncontradicted testimony which revealed that defendant Samuel D. Sewell, Jr., a dairy farmer from Natchitoches Parish, Louisiana, married and the father of five children, ages six months to twelve years, had assets valued at $41,501.00 and liabilities of $48,746.73 as of shortly before the date of trial.
"In addition it was shown that his total taxable income for the year 1963, before exemptions, amounted to $2,954.64 and that his taxable income had been substantially the same, that is, between $2,000.00 and $3,000.00 for the past three or four years and he estimated would be no more for the year 1964, although his return for 1964 had not been prepared. Other evidence was introduced to show that Mr. Sewell could not anticipate paying his debts by liquidating his assets in any short period of time."
It has always been the theory of our government and a cardinal principle of our jurisprudence that the rich and poor stand alike in courts of justice and that neither the wealth of one nor the poverty of the other shall be permitted to affect the administration of justice. The legal principle generally followed by the courts of other states is that one who sustains damages by reason of the tortious act of another is entitled to a verdict for the amount of damages which he is able to prove, regardless of the ability of the defendant to pay, and accordingly, evidence of a defendant's pecuniary resources is inadmissible where compensatory damages only are recoverable. 22 Am.Jur.2d Damages §§ 319 and 320. The courts of Louisiana, however, have uniformly held that the ability of the defendant to respond in damages will be taken into consideration in determining the amount of the judgment.
Thiel v. Shiff, 7 La.App. 582 (Orl.1928); Perez-Sandi v. Berges, 12 La.App. 191, 125 So. 185 (Orl.1929);
*71 Boyd v. Dorvin, La.App., 177 So. 76 (Orl.1937); Danove v. Mahoney, La. App., 176 So. 404 (Orl.1937);
Cole v. Sherrill, La.App., 7 So.2d 205 (2nd Cir. 1942, Cert. denied);
Smith v. Freeman, La.App., 31 So.2d 524 (2nd Cir. 1947);
Landry v. News-Star-World Publishing Corp., La.App., 46 So.2d 140 (2nd Cir. 1950);
Keith v. Royal Indemnity Co., La.App., 90 So.2d 534 (2nd Cir. 1956);
Ryan v. All State Ins. Co. of Chicago, Ill., La.App., 86 So.2d 126 (Orl.1956); 232 La. 831, 95 So.2d 328 (1957);
Lacaze v. Horton, La.App., 100 So.2d 252 (2nd Cir. 1958);
Leon v. Jackson, La.App., 122 So.2d 102 (2nd Cir. 1960);
Theriot v. Gianelloni, La.App., 121 So. 2d 275 (1st Cir. 1960);
De Shazo v. Cantrelle, La.App., 165 So. 2d 893 (4th Cir. 1964); writ refused, 167 So.2d 674;
Davis v. McKey, La.App., 167 So.2d 416 (4th Cir. 1964) writ refused, 246 La. 910, 168 So.2d 822.
In Cole v. Sherrill, supra, a decision by this court, the rationale of the Louisiana rule is set forth:
"The lower court has correctly related in its opinion the injuries suffered by plaintiff and stated that it had taken into consideration all of the factors in assessing damages. It is to be presumed that the lower court took into account the worth of the defendant, his ability to earn money, etc., as well as the fact that he was not covered by insurance to protect himself. These are all legal factors to be considered in assessing damages. It has never been considered good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for the injuries he received. Fair justice between both parties must be arrived at. We feel sure the lower court has done that." [7 So.2d 205, 211]
In Lacaze v. Horton, supra, this court after approving the remarks by Judge Taliaferro in Smith v. Freeman, La.App., 31 So.2d 524 (2nd Cir. 1947) that:
"`Ability to pay, or the lack of it, is a proper matter to be considered in determining an award in a damage suit. But application of the principle should not be carried to extremes.' (Emphasis supplied)"
observed:
"After consideration of all the facts bearing upon the opposed contentions of the parties litigant, we are impelled to the conclusion that the judgment in the instant case is an extreme and unwarranted application of the principle that, in fixing the quantum of damages allowed, consideration should be given to the ability of a defendant to pay. It must be borne in mind that this principle is not intended to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it be considered as justifying the reduction of the allowance of damages to a bare minimum. Either of these alternatives, in our opinion, would be an extreme application of the principle and would result in effecting a gross injustice toward a plaintiff, under the guise of the application of a humane consideration for the plight of an impecunious defendant." [100 So.2d 252, 255]
We have most carefully considered the application of these legal principles in relation to the financial condition of the defendant, Samuel D. Sewell, Jr. The ruling of the trial court in fixing the amount of damages is fully justified and does not *72 reflect an abuse of the discretion vested in the court in such matters.
Nash v. Longville Lumber Co., 148 La. 943, 88 So. 226 (1921);
Franklin v. Arkansas Fuel Oil Company, 218 La. 987, 51 So.2d 600 (1951);
Harness v. Toye Bros. Yellow Cab Company, La.App., 170 So.2d 737 (4th Cir. 1965).
The trial court did not abuse its discretion in limiting a total award of damages to the sum of $10,000.00.
Forasmuch as our decision affirms the decision of the trial court as to quantum, the remaining question presented to this court, namely, whether or not the negligence of Sewell was willful, wanton and gross, has become moot and we deem it unnecessary to decide this issue.
For the reasons hereinabove set forth, the judgment is affirmed. It is our opinion that costs be assessed against defendant-appellee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602335/ | 181 So.2d 323 (1965)
Lillie LaFLEUR, Plaintiff and Appellant,
v.
Eraste GUILLORY, Defendant and Appellee.
No. 1594.
Court of Appeal of Louisiana, Third Circuit.
November 30, 1965.
Rehearing Denied January 11, 1966.
*324 Daniel J. McGee, Mamou, for plaintiff-appellant.
Tate & Tate, by Paul C. Tate, Mamou, and Roland B. Reed, Ville Platte, for defendant-appellee.
Before TATE, SAVOY and CULPEPPER, JJ.
CULPEPPER, Judge.
Lillie LaFleur sues her former husband, Eraste Guillory, to be recognized as the owner of an undivided one-half interest in approximately 95 arpents of land and 25 head of cattle, allegedly acquired by the *325 community of acquets and gains formerly existing between them. She also prays for an accounting and partition of the property. From a judgment rejecting her demands, plaintiff appeals.
The substantial issue concerns the conveyance by sale, and mortgage of the subject property, during the existence of the community, by one Rene Andrus to Wilbur Guillory, son of the defendant, and a "counter letter" executed by Wilbur Guillory at the same time, declaring that the property was purchased "* * * in his name for the convenience of the actual owner of the property and the obligor for the balance due, Eraste Guillory, * * *"
The general facts show that plaintiff and defendant were married in 1946 and ceased living together in 1957. On April 8, 1958 plaintiff sued defendant for a separation from bed and board on the grounds of abandonment. On April 18, 1958, before the judgment of separation was signed, and while the community still existed,[1] Rene Andrus, a cousin of defendant, conveyed the subject property to Wilbur Guillory, son of defendant, by an act of sale and mortgage. The stated consideration was $8,000, $2,300 cash and $5,700 represented by one promissory note to be paid in 15 annual installments of $380 each. At the same time, and as part of the same transaction, Wilbur Guillory and Eraste Guillory executed the instrument referred to as a "counter letter", which reads as follows:
"BEFORE ME, the undersigned authority, personally came and appeared WILBUR D. GUILLORY who declared that the property purchased this date from Rene Andrus was placed in his name for the convenience of the actual owner of the property and the obligor for the balance due,
ERASTE GUILLORY, widower, a resident of Evangeline Parish, Louisiana here present and joining in said stipulation."
The act of sale and mortgage from Rene Andrus to Wilbur Guillory was recorded on April 21, 1958, but the counter letter was held in the possession of Eraste Guillory and was not recorded until several years later.
On April 29, 1958 the judgment of separation from bed and board was signed, dissolving the community of acquets and gains between plaintiff and defendant as of that date. On May 5, 1958 plaintiff and defendant entered into an act of partition of the declared community property, whereby plaintiff received a small residential lot in the town of Mamou and defendant received a 1957 Ford automobile. The property which is the subject of the present suit was not mentioned in this act of partition.
On April 7, 1961 Rene Andrus died, leaving by testament to Eraste Guillory all of his property, including the $5,700 mortgage note hereinabove referred to.
On May 7, 1961 Wilbur Guillory died, leaving as his sole heirs his father, Eraste Guillory, and a sister, Mrs. June Guillory Vidrine. This sister executed an instrument of date, June 22, 1961, declaring "* * * I take cognizance of the counter letter given by my brother, Wilbur D. Guillory, to my father, Eraste P. Guillory, and I acknowledge that it reflects the actual circumstances relating to the hereinafter described property * * *" The property described therein is the 95 arpents in question, to which Mrs. June Guillory Vidrine states she makes no claim and quitclaims all of her interest to her father.
*326 On June 24, 1961 the quitclaim from Mrs. June Guillory Vidrine and the counter letter from Wilbur Guillory were recorded.
On June 19, 1964 plaintiff, Lillie LaFleur, was asked to sign a quitclaim to the subject property. She contacted her attorney and on investigation discovered for the first time the previously recorded counter letter. This suit followed.
The essential issue is the nature and effect of the so-called "counter letter". Plaintiff contends title vested in defendant on the date the act of sale and mortgage, and the counter letter, were executed, i. e., April 19, 1958 and hence that the property fell into the then existing community. LSA-C.C. Articles 2334, 2402 and 2405. Plaintiff calls attention to the well established jurisprudence that the acquisition of real property, in the name of the husband, during the marriage, creates a presumption in favor of the community, juris et de jure, unless the deed contains the double declaration that the property is acquired with separate funds of the husband, for his separate estate. See Succession of Hemenway, 228 La. 572, 83 So.2d 377 and the many authorities cited therein.
On the other hand, although defendant has made several alternative defenses, his primary contention is that the act of sale and concurrent counter letter did not vest title in Eraste Guillory at the time they were executed, or at any other time but, instead, that Eraste Guillory acquired this property in 1961 by inheritance from his son, Wilbur Guillory, and by quitclaim from his daughter, Mrs. June Guillory Vidrine.
Planiol, Traite Elementaire De Droit Civil, An English Translation By The Louisiana State Law Institute, Vol. 2, Part 1, in discussing simulation, makes the following relevant observations:
"1186. Definition
"There is simulation when one makes an apparent contract, the effects of which are modified or suppressed by another agreement, contemporaneous with the first and intended to remain secret. That definition, therefore, presupposes that there is identity of parties and of the object between the ostensible and the secret act. The secret act is called `counter-letter.'"
"1189. Simulation by Employment of Third Person
"In the cases above indicated the simulation bears only on the act made by the parties, either as to its very existence, its nature, or its conditions. Often also a person wishes to make a contract for his own account without the knowledge of third persons or without letting the third person know of his interest in the transaction. He then employs a mandatary who does not avow his quality and who appears as author and beneficiary of the act, as buyer or donee, etc., although the act does not concern him. There is in such case `interposition' of persons, or the employment of a prete-nom. It is another kind of simulation which does not affect the nature or the conditions of the act, but the persons who take part in it. It is treated later on in Nos. 2266 et seq."
"2266. Definition
"Mandate is an ostensible contract, whereby the person who employs an intermediary makes himself known, so that the act is made in his name; in the contract of commission, the personality of the principal becomes a matter of indifference to third persons, who are fully guaranteed by the personal responsibility of the commission agent with whom they transact, but they know, nevertheless, that the commission agent does not act on his own account, and that there is someone behind him who gives orders and for whose account the transaction is made. It may be that the person who employs another to look after his affairs wishes *327 to make third persons believe that the intermediary is the veritable interested party; not only does he wish to conceal his name from them but he also wishes to keep them from knowing that any person other than the apparent beneficiary is interested. It is then said that the intermediary acts as a `pretenom' or that he lends his name to his principal; the mandate is entirely concealed, since it is kept secret; nothing reveals to third person that the `pretenom' or undisclosed mandatary acts for another."
In the case of Peterson v. Moresi, 191 La. 932, 186 So. 737 (1939) our Supreme Court was concerned with a factual situation very similar to the present. Defendant there purchased 7 acres of land in his own name and, at the same time, executed a separate instrument recognizing plaintiffs as owners of certain fractional interests and agreeing to convey said interests to plaintiffs on request. After defendant, A. P. Moresi, died, plaintiffs sued to be recognized as owners of their respective fractional interests. The principal defense was that the so-called counter-letter did not convey title at the time of its execution, but instead was only an executory contract, such as an offer to sell. The court held the intrument was not an executory contract and, further, that an additional conveyance by defendant to plaintiffs of their respective interests in the property was not essential. The reasoning of the court is as follows:
"The instrument on which this suit is founded is neither a sale nor an offer to sell; it does not purport to be a transfer of title, or a promise on the part of A. P. Moresi to transfer title from him to the other persons named in the instrument. The instrument is merely an acknowledgment by A. P. Moresi that he bought the land for himself and as the agent for the other persons named in the instrument, and that they paid the price in proportion to the interests which they acquired, and hence that they all owned the property jointly and in the proportions stated in the instrument. A. P. Moresi's expression of willingness to execute an act of transfer if or when requested so to do was deemed proper because the title apparently stood in his name; but this expression of willingness to execute an act of transfer was not hampered with any condition, or coupled with any obligation to be performed by any one who might request an act of transfer. The instrument is more of the character of a counter letter than of any other instrument that has been suggested. It is pointed out in the brief for the appellees that the agency of A. P. Moresi, which was not disclosed in the sale made to him by McFarlain, was what the French jurists and commentators call pre te-nom,meaning one who lends his name. Spiers & Surenne's French Pronouncing Dictionary (1867); Heath's Standard French and English Dictionary; Baudry-Lacantinerie, vol. XXIV, p. 465, no. 880."
In the present case, we think the counter-letter, i. e., the secret instrument modifying the apparent recorded act of sale and mortgage, is a classic example of "prete-nom", as that term is explained in the above authorities. Eraste Guillory freely admitted that the reason he could not be named as vendee in the act of sale and mortgage was that he was "having trouble with my divorce, my wife". He admitted that if he had not been having trouble with his wife, he would have purchased the property in his own name. Thus, the purpose of the "prete-nom" was to deceive Lillie LaFleur, a third party to the transaction. This situation is recognized in Planiol, Traite Elementaire De Droit Civil, An English Translation By The Louisiana State Law Institute, Vol. 2, Part 2, No. 2268(2) as follows:
"The `prete-nom' can be employed to permit the principal to do an act which he would not be permitted to do ostensibly.
*328 In this case the intervention of the `prete-nom' can be known to the other party; it is not the latter, therefore, whom they wish to deceive; it is a fraud on the law which is plotted, the object of which is to avoid a nullity or the claims of a third person."
Under the counter-letter, Wilbur Guillory was nothing more than a "prete-nom," i. e., one who lends his name. The counter-letter states in clear and unambiguous language that the property was purchased in the name of Wilbur D. Guillory "* * * for the convenience of the actual owner of the property and the obligor for the balance due, Eraste Guillory * * *" This was not a promise by Wilbur Guillory to transfer the property to Eraste Guillory at some future date on request or on the happening of some condition such as the payment of a loan. As between the parties, no further action was contemplated under the counter-letter. This is borne out by the fact that after Wilbur Guillory died, Eraste Guillory simply recorded the counter-letter as evidence of his ownership of the property. Also, Mrs. June Guillory Vidrine recognized the counter-letter as showing ownership in Eraste Guillory.
We conclude that the effect of the act of sale and mortgage and the contemporaneous counter-letter was to vest title in Eraste Guillory as of the date of execution of those two instruments, i. e., April 18, 1958. The community of acquets and gains between plaintiff and defendant was still in existence on that day. Hence the property fell into the community.
In view of the conclusion which we have already reached, it is unnecessary for us to discuss all of the many arguments which defendant has made. We will mention those we think necessary.
Defendant cites Karcher v. Karcher, 138 La. 288, 70 So. 228 (1915) in which our Supreme Court defined a counter-letter to be:
"`An agreement to reconvey where property has been passed by absolute deed with the intention that it shall serve as security only. A defeasance by a separate instrument.' Bouvier."
Under this definition of a counter-letter, defendant argues the instrument in question here was nothing more than an agreement to convey the property to Eraste Guillory at some future time. We think it is obvious that the Karcher case involved only one type of counter-letter. The secret instrument of "counter-letter, modifying or suppressing the apparent contract, may be used for different purposes, such as (1) a security device agreeing to reconvey the property after payment of a loan or the happening of some other condition, (2) recognizing that the apparent contract is a pure simulation, of no effect between the parties whatever, (3) recognizing that the true owner is someone other than the person named in the apparent contract, as in the case of prete-nom, or (4) changing the nature of the apparent contract, as by acknowledging that a sale is actually a donation. This is all made clear in Planiol, Traite Elementaire De Droit Civil, An English Translation By The Louisiana State Law Institute, Vol. 2, Part 1, Nos. 1186-1190. Louisiana jurisprudence also has involved different types of counter-letters. See Louis v. Garrison, La.App., 64 So.2d 254, Schwarz v. Friedenburg, La.App., 135 So.2d 371, Haggard v. Rushing, La.App., 76 So.2d 52.
Defendant argues that the 1962 amendment to LSA-C.C. Art. 155, providing that a judgment of separation dissolves the community as of the date the suit was filed, should be given retroactive effect. Citing Talbot v. Trinity Universal Insurance Co., La.App., 99 So.2d 811, defendant argues the 1962 amendment affects only procedural and not substantive rights. This argument has no merit. Under the decision in Tanner v. Tanner, supra, the community existing between plaintiff and defendant acquired title to this property on April 18, 1958. To hold that the 1962 amendment *329 divests the community of its ownership would clearly destroy this substantive right of ownership.
Having concluded the property was acquired by the community on April 18, 1958, when the instruments in question were executed, it is not necessary for us to discuss further defendant's argument that he acquired the property in 1961 by inheritance from his son, Wilbur Guillory, and by quitclaim from his daughter, Mrs. June Guillory Vidrine.
Defendant also argues that plaintiff is estopped by the partition of community property entered into on May 5, 1958. One answer to this argument is that knowledge, actual or constructive, of the real facts is essential to such an estoppel. Here plaintiff clearly had no knowledge in 1958 of the fact that the community owned the property in question. Actually, the real facts were concealed from her by defendant. The equitable doctrine of estoppel has no application here.
A considerable portion of the record, and of defendant's brief, is concerned with an attempt to show that considering the transaction as a whole, the intention of the parties and the equities of the case require a decision for Eraste Guillory. The circumstances urged are as follows: Eraste Guillory and his cousin, Rene Andrus, were reared together like brothers, in the Andrus home. The property fell to Rene Andrus by inheritance, but it was understood he would leave it by will to Eraste Guillory. On the occasion of this transaction in 1958, Rene Andrus needed money and offered to sell the property to Eraste Guillory. As noted above, Eraste said he could not take the property in his name at that time, because of the divorce proceedings with his wife. Hence the idea was conceived of purchasing the property in the name of Eraste's son, Wilbur Guillory.
The mechanics of the transaction were that an act of sale and mortgage was drawn from Rene Andrus to Wilbur Guillory for a consideration of $8,000, of which $2,300 was cash and $5,700 was represented by a note. Wilbur signed this note as maker and Eraste signed it as endorser. At the same time Wilbur Guillory executed a mortgage to the bank for $3,500. Part of this bank loan was used to pay Rene Andrus the cash portion of the purchase price and the balance was used to pay attorney's fees, etc. Both Wilbur and Eraste signed the face of this note. At the same time the counter-letter in question was executed, in which Wilbur Guillory declared that the property was purchased in his name for the convenience of the actual owner, and obligor for the balance due, Eraste Guillory.
We fail to see how defendant finds confort in either the intention of the parties or the equities of the case. The intention of the parties was that Rene receive his needed money and Eraste acquire the property in 1958, instead of waiting to acquire it by testament from Rene Andrus. The purpose of naming Wilbur as the purchaser and drawing the secret counter-letter was to conceal the true nature of the transaction from Lillie LaFleur. Hence, even if we were to consider the intention of the parties, or the equities of the case, as having any effect whatsoever on the legal effect of this counter-letter, it would not change our decision.
One of defendant's "alternative" averments is that if Lillie LaFleur is recognized as owner of a one-half interest in the property, and a partition thereof is ordered, he is entitled to reimbursement for any of his separate funds used to improve the property, pay the mortgages, taxes, etc. Of course, in the event of a partition, defendant can assert these or any other rights he has to reimbursement in accordance with law.
For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be *330 judgment herein in favor of the plaintiff, Lillie LaFleur, and against the defendant, Eraste Guillory, decreeing plaintiff to be the owner in common with defendant, in proportion of an undivided one-half to each, of the approximately 95 arpents of land and 25 head of cattle as described in plaintiff's petition, and this case is remanded to the district court for further proceedings in accordance with the views expressed herein. All costs thus far in the lower court, as well as the costs of this appeal, are assessed against the defendant appellee.
Reversed and remanded.
On Application for Rehearing.
En Banc. Rehearing denied.
NOTES
[1] Tanner v. Tanner, 229 La. 399, 86 So. 2d 80 (1956), holding that a judgment of separation dissolved the community as of the date of the judgment, and not as of the date on which the suit was filed, was the law until LSA-C.C. Art. 155 was amended by Act 178 of 1962, legislatively overruling the Tanner decision and providing that a judgment of separation dissolves the community retroactive to the date on which the suit was filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602425/ | 577 So.2d 364 (1991)
Joseph OVERPECK, Through James BARBREY, Executor of his Estate
v.
CHRIST EPISCOPAL CHURCH, Christ Episcopal School and the Episcopal Diocese of Louisiana.
No. 90 CA 0120.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
Writ Denied May 31, 1991.
Sheila C. Myers, New Orleans, for plaintiff-appellant.
Louis Leonard Galvis, New Orleans, for defendants-appellees.
Before LOTTINGER, SHORTESS and CARTER, JJ.
CARTER, Judge.
Plaintiff, as executor of the Estate of Joseph Overpeck, appeals an adverse judgment dismissing his suit for discrimination under the provisions of LSA-R.S. 46:2251 et seq. because the decedent is survived by a parent and siblings.
In appealing, plaintiff contends that the district court erred in maintaining defendants' peremptory exception raising the objection of no right of action and in dismissing the proceeding by the executor of the estate in that he is a named legatee in Overpeck's will.
We have studied and reviewed the entire record, including the trial judge's reasons for judgment, a copy of which is attached hereto, and conclude that the results reached by the trial judge are correct. The legislature by enacting LSA-R.S. 46:2251 recognized that discrimination is an offense or quasi-offense. Cf. Nathan v. Touro Infirmary, 512 So.2d 352 (La.1987), Day v. Day, 563 So.2d 441 (La.App. 1st Cir.), writ denied, 567 So.2d 109 (La.1990); Kok v. Harris, 563 So.2d 374 (La.App. 1st Cir. 1990). Cf also Hellpenstell v. Bonnabel Hospital, 523 So.2d 887 (La.App. 4th Cir.), writ denied, 531 So.2d 282 (La.1988). Inasmuch as we conclude that the trial judge was correct in maintaining the peremptory exception raising the objection of no right of action and in dismissing plaintiff's petition, we pretermit any discussion of defendants' dilatory exception raising the objection of prematurity.
Therefore, for the above and foregoing reasons, we affirm the decision of the trial court at plaintiff's costs.
AFFIRMED.
*365 APPENDIX
Joseph Overpeck, through James Barbrey, Executor of his estate
versus
Christ Episcopal Church, Christ Episcopal School, and the Episcopal Diocese of Louisiana
Number: 89-10338
Division: "D"
22nd Judicial District Court
Parish of St. Tammany
State of Louisiana
/s/ [Signature]
Deputy Clerk
REASONS FOR JUDGMENT
Filed June 16, 1989
This is a suit brought pursuant to LSA-R.S. 46:2251 et seq., the Louisiana Civil Rights for Handicapped Persons Act, to recover damages. It is alleged that Joseph Overpeck was terminated from his employment with the defendants as a result of his development of AIDS. Overpeck died on November 22, 1988 from complications associated with AIDS, and the instant action was filed by the executor of his succession. Currently pending before the Court are exceptions of no right of action and of prematurity filed by the defendants. The matters were set for hearing on May 10, 1989. At the conclusion of the hearing of oral argument on the matters from both parties, the Court ordered the defendants to file a reply memorandum within ten days and then took the matters under advisement.
Concerning defendants's exception of no right of action, the basic issue boils down to whether the plaintiff's cause of action should be governed by the survivorship provisions of La.Civil Code article 2315.1 or whether it should be governed by the provisions of La.Code of Civil Procedure articles 426 and 428, dealing with the transmission of the right to enforce obligations.
I.
Article 2315.1 of the Civil Code provides that if a person who has been injured by an offense or quasi-offense dies, the right to recover damages for the offense or quasi-offense survives for one year in favor of certain classes of people. First, the right of action descends to the surviving spouse and child or children of the deceased. If the decedent died without surviving spouse or children, the right of action vests in the deceased's surviving father and/or mother. In lieu of either of the first two classes, the right of action next falls to the surviving siblings of the deceased. Only if the decedent left no surviving spouse, child, parent, or sibling is the succession representative entitled to bring the survivor action on behalf of the decedent's estate. In the instant case, if plaintiff's cause of action is in fact governed by Article 2315.1, then plaintiff does not have a right to prosecute the action because the decedent was survived by his father and a number of siblings.
If the cause of action is governed by Code of Civil Procedure articles 426 and 428, then the plaintiff does have the right to proceed with the action since he is the decedent's universal legatee under his will and is also the executor of the decedent's succession.
II.
The Court has been unable to find any reported case law interpreting the Civil Rights for Handicapped Persons Act at all, much less any jurisprudence that would supply any direct guidance as to whether the cause of action created by the Act should be treated as an "offense or quasi-offense" for purposes of a survivor action. Therefore, the only remaining alternative is to examine analogous actions to see what guidance they may offer.
In Ascani v. Hughes, 522 So.2d 1259 (La.App. 4th Cir.1988), the Court was faced with a suit filed pursuant to a federal civil rights action (42 U.S.C. 1985) by the siblings of a deceased party. The Court applied Civil Code article 2315.1 to the action and found that the siblings were preempted *366 from bringing the action because the deceased's father had previously filed a wrongful death action.
In Robertson v. Wegmann, 436 U.S. [584], 591 [98 S.Ct. 1991, 1995, 56 L.Ed.2d 554] (1978), the U.S. Supreme Court interpreted the survivorship provisions of Article 2315 (which has since been separated out, amended slightly and renumbered as 2315.1) in a case arising out of the Eastern District of Louisiana. The case dealt with an action brought under another federal civil rights statute (42 U.S.C.1983) in which the original plaintiff died after the action was filed but before it went to trial and the executor of the decedent's succession sought to be substituted as party plaintiff.
The Court looked directly to the survivorship provisions of Article 2315 to address the question of whether the executor's substitution was proper and found that it was not. The Court stated that "[i]n actions other than those for damages to property..., Louisiana does not allow the deceased's personal representative to be substituted as plaintiff; rather, the action survives only in favor of a spouse, children, parents, or siblings". Id. at 591 [98 S.Ct. at 1996]. The Court specifically noted that Louisiana's statutory scheme for survivorship passed constitutional muster even though it did place limits on some actions.
This Court finds that these cases, even though the deal with federal rather than state civil rights actions and even though the factual contexts of the cases are different from the instant case, provide the most directly analogous situations to the case at hand. The plaintiff has advanced no compelling policy reasons why this case should be treated differently. Therefore, the Court finds that Civil Code article 2315.1 should be applicable to plaintiff's action brought pursuant to the Louisiana Civil Rights for Handicapped Persons Act. Since the decedent has a surviving parent and surviving siblings, the Court finds that the plaintiff does not have a right of action in accordance with Article 2315.1 and the defendants's exception should be maintained.
III.
The plaintiff has cited to the Court two cases in defense of his position, but the Court finds that they are both clearly distinguishable in material ways from the instant case.
In Ashcraft v. Louisiana Coca-Cola Bottling Co., Ltd., 658 F.Supp. 772 (E.D. La.1987), the Court was faced with applying Louisiana survivorship law as it concerned actions in securities fraud and civil RICO. The court in fact found that Civil Code article 2315.1 did not apply to those causes of action. However, the court also noted that Louisiana securities law, upon which all the claims were based, contains its own particular survivorship statute. In addition, the issue in Ashcraft was one of prescription rather than right of action. Further, an action based in securities fraud is much more analogous to a breach of contract case and much less similar to a tort than is a civil rights action.
The other case relied upon by the plaintiff was Nathan v. Touro Infirmary, 512 So.2d 352 (La.1987), in which a decedent's succession representative was permitted to prosecute a medical malpractice claim in which the suit was not filed until after the decedent's death. However, the Court notes that the decedent in Nathan died without being survived by any of the classes of beneficiaries listed in Article 2315.1 except for his succession representative. The Court further notes that the holding in Nathan turned upon the peculiar procedural requirements of a medical malpractice claim that are clearly not present in the instant case.
IV.
Accordingly, the Court finds that the exception of no right of action filed by the defendants should be maintained and that plaintiff's petition should be dismissed. Due to the Court's disposition of the above matter, defendants's exception of prematurity need not be addressed.
*367 The Court will sign a judgment consistent with these Reasons when such is presented to it.
Covington, Louisiana this 9th day of June, 1989.
/s/James R. Strain, Jr.,
James R. Strain Jr.,
Judge Division "F" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3076057/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
PATSY JOY PIERCE, No. 08-12-00150-CR
§
Appellant, Appeal from
§
v. 355th District Court
§
THE STATE OF TEXAS, of Hood County, Texas
§
Appellee. (TC # CR11911)
§
JUDGMENT
The Court has considered this cause on the record and concludes there was no error in the
judgment. We therefore affirm the judgment of the court below. This decision shall be certified
below for observance.
IT IS SO ORDERED THIS 23RD DAY OF APRIL, 2014.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3033391/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-4-2008
USA v. McKinnon
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2523
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. McKinnon" (2008). 2008 Decisions. Paper 160.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/160
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 07-2290 and 07-2523
___________
UNITED STATES OF AMERICA
v.
MICHAEL MCKINNON
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-cr-00251)
District Judge: The Honorable Sylvia H. Rambo
___________
Submitted Under Third Circuit LAR 34.1(a)
OCTOBER 31, 2008
BEFORE: McKEE, NYGAARD, and SILER,* Circuit Judges.
*Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
(Filed: December 4, 2008)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
This consolidated appeal arises from the dismissal of three pro se motions filed by
McKinnon. The first two motions are the subject of the appeal at case number 07-2290,
and the third is the subject of the appeal at case number 07-2523. McKinnon filed these
pro se motions in the District Court while his direct appeal at case number 05-5314 was
pending before us. The District Court dismissed the three motions in these two cases
because it lacked jurisdiction. The filing of a notice of appeal removes a case from the
District Court and places it under our jurisdiction. The District Court was correct.
Because the District Court lacked jurisdiction, the dismissal was correct and typically
would be affirmed. Because, however, the matter is before us in McKinnon’s other
appeal, we will simply dismiss these two. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1551779/ | 412 B.R. 868 (2008)
In the Matter of SEA BRIDGE MARINE, INC., Debtor.
Claude C. Lightfoot, Jr., as Chapter 7 Trustee of the Bankruptcy Estate of Sea Bridge Marine, Inc., Complainant
v.
Amelia Maritime Services, Inc., et al., Defendants.
Bankruptcy No. 05-17400. Adversary No. 07-01125.
United States Bankruptcy Court, E.D. Louisiana.
November 24, 2008.
*871 Eric J. Derbes, The Derbes Law Firm, LLC, Metairie, LA, Michael D. Rubenstein, Liskow & Lewis, Houston, TX, for Debtor.
MEMORANDUM OPINION
ELIZABETH W. MAGNER, Bankruptcy Judge.
The Chapter 7 Trustee, Claude C. Lightfoot, Jr. ("Trustee"), filed this adversary proceeding to avoid and recover three alleged preferential payments made by the debtor, Sea Bridge Marine, Inc., ("Sea Bridge" or "Debtor") to the defendant, Praxis Energy Agents, LLC, ("Praxis") totaling $195,000.00. Praxis asserts that the payments fall under the ordinary course of business exception set forth in 11 U.S.C. § 547(c)(2) and the subsequent new value defense of § 547(c)(4). On August 1, 2008, the Court conducted a trial and the parties were given until September 29, 2008, to file post-trial briefs.
Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 1334, and this is a core proceeding under 28 U.S.C. § 157(b)(2)(F).
Facts
Debtor was a marine cargo carrier and chartered vessels as a part of its business operations. Praxis is a bunker trader that supplies fuel to shipowners, charterers, and ship managers.[1] The parties began their business relationship in April, 2004, and Praxis sold Debtor twenty-one (21) bunkers from that time until Debtor filed bankruptcy on August 25, 2006. During the span of their business relationship, Sea Bridge made thirty-one (31) payments to Praxis; the last three being the subject of this adversary. The final three payments were: 1) a $100,000.00 wire transfer made on June 24, 2005; 2) a $25,000.00 wire transfer made on July 15, 2005; and 3) a $70,000.00 wire transfer made on August 5, 2005. The parties, in the Joint Pretrial Order, stipulated that the three payments in question satisfy the elements of 11 U.S.C. § 547(b), and barring any applicable defenses, are avoidable as preferential payments.[2] During the preference period, Praxis delivered one bunker of fuel to the M/V African Star in Mobile, Alabama, worth $50,593.75.
Discussion
Bankruptcy Code Section 547 allows a trustee to recover transfers or payments on an antecedent debt, made by the debtor within the ninety-day period preceding the *872 filing of the bankruptcy petition. The Fifth Circuit explained the policy behind the preference provision:
The theory is that when the preferential payments are returned, all creditors can share ratably in the debtors' assets, and the race to the courthouse, or the race to receive payment from a dwindling prebankruptcy estate, will be averted. Because some creditors, however, receive payments for shipping supplies that enable the debtor to continue doing business, to that extent they act to forestall an ultimate bankruptcy filing. Congress enacted several affirmative defenses against preference recovery in order to balance the competing interests.[3]
The only issues before the Court are the applicability of the defenses raised by Praxis.
A Ordinary Course of Business Exception
Praxis asserts that the disputed payments were made in the ordinary course of business, and therefore may not be voided and recovered by the Trustee. Under the Bankruptcy Code, an otherwise preferential payment need not be returned to the debtor's estate if the transfer was:
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms.[4]
Praxis must prove all three statutory elements by a preponderance of the evidence.[5] The first element is not at issue as Sea Bridge incurred its debts to Praxis in the ordinary course of business; the purchase of fuel to supply its cargo transportation operations. The Trustee does not dispute this finding. The Court, therefore, turns to the remaining two elements.
1. Were the transfers made according to the ordinary business affairs of the parties? The "subjective" prong of the ordinary course of business defense typically requires consideration of:
(1) the length of time the parties were engaged in transactions prior to the preference period;
(2) whether the amount or form of tender differed from past practices;
(3) whether the creditor engaged in any unusual collection or payment activities prior to the transfers; and
(4) the circumstances under which the transfers were made.[6]
The defense is narrowly construed *873 [7] and a critical element in the analysis is whether the transactions between the debtor and the creditor before and during the ninety-day period are consistent.[8]
1. Length of Time. Before the preference period, Sea Bridge and Praxis conducted business between themselves for approximately 13 months. During this time, the parties completed seventeen bunker sales and Sea Bridge made twenty-eight payments on account. This pre-preference history provides the basis for comparison with the parties' preference period transactions.
2. Payment Amounts and Form of Tender. Daniel Yasosky, General Manager of Praxis, testified that company policy required full payment of any invoice under $100,000.00, within 30 days of delivery. Praxis typically provided payment terms on invoices of $100,000.00 or greater.[9] Praxis charged interest on any invoice not paid within 30 days at the rate of two percent per month.[10]
The parties stipulated to the invoice dates, due dates, and delivery dates for twenty-one bunker sales to Sea Bridge. The parties also stipulated as to the amounts and dates of payment made by Sea Bridge to Praxis.[11]
Throughout 2004, and the early months of 2005, Sea Bridge purchased twenty bunkers of fuel ranging in price from $12,475.00 to $412,342.50. The bunkers purchased for less than $100,000.00 were invoiced and generally paid within thirty (30) days. Invoices over $100,000.00 were subject to prearranged installment payments on terms generally followed by Sea Bridge.
In early 2005, Sea Bridge began extending its time to repay. A February 28, 2005, invoice for $84,282.00 was not paid until May 4, 2005. A second invoice dated March 30, 2005, was not paid until May 19, 2005. Payments made during the pre-preference payment period matched the amounts due on specific outstanding invoices. In contrast, during the preference period, Sea Bridge made lump sum payments totaling $195,000.00, which did not match the outstanding invoices. These payments were the only times Sea Bridge forwarded payment to Praxis in amounts that did not correspond to the balance due on a specific invoice. At the time of the payments, multiple invoices were outstanding and Praxis applied the payments at will. This course of conduct varied considerably with the account's history before the preference period.
3. Unusual Collection Activity. The record contains evidence that the final three payments were made due to collection activities outside of the ordinary course of business. A string of emails *874 admitted into evidence[12] shows that Praxis applied increasing pressure and demanded urgent attention as Sea Bridge's delinquency grew. In a June 23, 2005, email sent to Joseph Srour, General Manager for Sea Bridge, Daniel Yasosky stated: "[i]f a payment is not received today in the amount initially scheduled we will have no choice but to turn this matter over to our collections team as I (gen/mgr) have been unable to satisfy my board's guidelines." Sea Bridge made a $100,000.00 payment to Praxis the following day.
On July 29, 2005, Milto Papangelis, an attorney hired by Praxis, sent Sea Bridge a letter demanding payment on its outstanding debt as a "final pre-action warning." [13] He concluded the letter by threatening that Praxis would take "judicial steps against you/your assets in order to secure and enforce their undisputed and long outstanding claim ..."[14]
Mr. Srour testified that towards the end of the first quarter of 2005 Sea Bridge was having cash flow problems.[15] As a result, he became the person within the company to negotiate with vendors for extensions of credit.[16] Cash was so tight that payments were only forwarded to vendors from whom additional services or goods were needed. This was a departure from the company's previous practices.[17] Bunker suppliers were some of the largest creditors of the company and Praxis was in the top six. Because they were important to operations, bunker suppliers were favored when payments on payables were made.[18] Sea Bridge believed that the greater the size of the payable, the more likely that a bunker supplier would take legal action.[19] When Praxis began making demands for payment on the past due account and threatened to seize the vessels[20] Sea Bridge took the threat seriously and made the payments in question.
Praxis' threat to turn Sea Bridge's account over to a collection team and the demand letter sent by Mr. Papangelis are evidence that it utilized collection activities to obtain the payment. The Court concludes that payments made in response to these demands were not in the ordinary course of business.
4. Circumstances Under which Payments were Made. As previously discussed, the $100,000.00 payment on June 15, 2005, was made after Praxis threatened collection or legal action. The $25,000.00 payment, made on July 15, 2005, was a part of a payment plan proposed by Sea Bridge and agreed to by Praxis.[21] Under the terms of the repayment plan, Sea Bridge was to pay $25,000.00 per week. Sea Bridge made only one payment before breaching the terms of the agreement. This plan was the first of its kind between the parties. Payments made pursuant to a payment plan do not fall under the ordinary business exception where no such arrangements existed prior to the preference period.[22]
The $70,000.00 payment, made on August 5, 2005, was made in exchange for a *875 delivery of additional fuel. Praxis agreed to supply a bunker of fuel, but only if Sea Bridge tendered $70,000.00.[23] Before this transaction, Praxis had never withheld delivery of a bunker for payment.[24] A debtor who makes payment in response to a cancellation of service cannot be deemed to have made the payment in the ordinary course of business.[25]
The three payments made during the preferential period were not made in the ordinary course of business. The amount and application of the final three payments differed from those made before the preference period. The circumstances under which the payments were made were unique to the preference period because they were made under threat of legal action, a repayment plan, or to obtain delivery of additional fuel. Therefore, the Court finds that payments made during the preference period are not consistent with those made prior to the preference period.[26]
2. Were the transfers made according to ordinary business terms? Often described as the objective prong of the ordinary course of business test,[27] the third prong compares the credit arrangements between other similarly situated debtors and creditors in the industry to determine if they are consistent with the payment practices at issue.[28] The Fifth Circuit determined that "the judge must satisfy himself or herself that there exists some basis in the practices of the industry to authenticate the credit arrangement at issue. Otherwise the practice cannot be considered an `ordinary' way of dealing with debtors."[29] Furthermore, "for an industry standard to be useful as a rough benchmark, the creditor should provide evidence of credit arrangements of other debtors and creditors in a similar market, preferably both geographic and product."[30]
Praxis failed to meet its burden under the third prong of the ordinary course of business exception because it did not produce sufficient objective evidence as to the prevailing credit arrangements between debtors and creditors within the marine fuel market. Praxis' only expert witness, J.C. Tuthill, a certified public accountant, was retained to determine whether the three payments that occurred during the preference period were made in accordance with industry practices. In preparing her report, Tuthill spoke with a representative of another bunkering company, audited the public financial statements of approximately ten shipping and bunkering companies, and reviewed wholesale trade information produced by Risk Management Associates.[31] Tuthill never worked in the maritime industry, nor did she review the financial statements of Sea Bridge. The Court accepted her as an *876 expert witness in analyzing financial statements, but not in the maritime fuel supply industry.
Tuthill's analysis and expert report focused on the number of days it took Sea Bridge to pay Praxis on each invoice during and prior to the preference period. She then compared the number of days businesses in the maritime industry took to pay or collect receivables.[32]
Tuthill testified that other companies averaged between 44 and 135 days in days to pay, and between 29 and 89 days to collect receivables.[33] Tuthill only spoke with a representative of one company, and otherwise relied upon publically published year-end financial information. This information did not give her sufficient detail to determine the "days to pay" parameters for any of the companies in question. She also failed to obtain information on extensions of credit, repayment programs, or collection activities common within the industry. This one-dimensional analysis is not sufficient to establish the industry practice with regard to marine fuel supply credit arrangements.
As Praxis failed to establish a benchmark within the industry, the Court finds that Praxis has not met its burden of proof under the third prong of § 547(c)(2)(C). The Court will next consider Praxis' assertion that a portion of its payments are not preferential because it provided new value to Sea Bridge.
B, New Value Exception
Praxis argues that it provided subsequent new value to Sea Bridge within the preference period and is entitled to reduce the Trustee's recovery by the amount of the new value. Under § 547(c)(4), a trustee may not avoid an otherwise preferential payment to or for the benefit of a creditor, to the extent that, after such transfer, the creditor gave new value to the debtor
(A) not secured by an otherwise unavoidable security interest; and
(B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor.
New value is defined in § 547(a)(1) of the Bankruptcy Code as:
money or money's worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation.
The purpose of this exception is to "encourage creditors to continue their revolving credit arrangements with financially troubled debtors, potentially helping the debtor avoid bankruptcy altogether."[34] Transfers that are protected under this section are "not unfair to the other creditors of the bankrupt debtor because the preferential payments are replenished by the preferred creditor's extensions of new value to the debtor."[35] The creditor must provide new value after it receives an otherwise preferential payment in order to qualify for the exception. The Fifth Circuit has rejected the "net result" rule that would allow a creditor to offset the total *877 payments against the new value advances given during the preferential period.[36]
The transaction at issue revolves around a bunker delivery to the M/V African Star. Praxis agreed to sell Sea Bridge a $50,593.75 bunker for the ship on the condition that Sea Bridge make a $70,000.00 payment toward its outstanding debt. The payment and sale both occurred on August 5, 2005. Daniel Yasosky testified that Sea Bridge wired the payment and Praxis released the bunker after it confirmed receipt of the funds.[37] This transaction falls within the new value exception because the bunker was not secured by an otherwise unavoidable security interest and Sea Bridge did not repay the new value by means of an otherwise unavoidable transfer.
The Trustee argues that Praxis should not be entitled to claim the new value exception because the M/V African Star's charter was cancelled shortly after the bunker was delivered. The Trustee asserts that the new value did not benefit the estate because Sea Bridge was not able to complete the voyage.[38]
Whether new value has been given is determined at the time goods are delivered to a debtor.[39] A supplier is not a guarantor of a debtor's success. In In re Furr's Supermarkets[40] the debtor returned expired baked goods, considered valueless at the time of return, to its creditor. The goods were worth approximately $90,000.00 when delivered to the debtor. The trustee attempted to reduce the amount of creditor's new value exception by arguing that the goods did not replenish the estate because the debtor did not sell the goods. The court disagreed and held that the creditor was entitled to a new value exception at their original delivery value. The defense applied because the goods were of value to the debtor when delivered.[41]
Since new value is calculated at the time Sea Bridge received the bunker, Praxis is entitled to retain the value of the bunker, or $50,593.75.[42]
Conclusion
Praxis has failed to demonstrate that the three payments made during the preference period fall within the ordinary course of business. The amount, application, and size of the payments differ from those made by Sea Bridge before the preference period. Additionally, the evidence and testimony show that Sea Bridge made the payments in response to unusual collection activities.
Praxis, however, has shown that Sea Bridge made the final $70,000.00 payment before Praxis provided new value in the form of a bunker valued at $50,593.75. Therefore, Praxis is entitled to a *878 $50,593.75 exemption from the Trustee's preference claims. The Trustee is entitled to recover the remaining $144,406.25 in preferential payments made by Sea Bridge, plus legal interest from August 18, 2007.[43]
NOTES
[1] "Bunker" is an industry term for marine fuel. Bunkers are where ships used to store coal to be burned as fuel, and the term was carried over to describe fuel oil after coal became obsolete as a fuel. August 1, 2008, Trial Transcript ("Tr.T.") 20:19-21:3.
[2] The parties have stipulated that the disputed payments were made to Praxis on account of an antecedent debt owed by Sea Bridge before the transfer was made. They also stipulated that the payments were made while Debtor was insolvent, within the ninety days before the petition date, and that the payments enabled Praxis to receive more than it would have if the transfer had not been made and if it were to receive distribution under the provisions of title 11 of the United States Code.
[3] In re SGSM Acquisition Co., LLC, 439 F.3d 233, 238 (5th Cir.2006).
[4] 11 U.S.C. § 527(c)(2). This statute was amended in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), however, the prior version of the statute is applicable in this case as Sea Bridge filed its bankruptcy before October 17, 2005; the effective date of BAPCPA. See, In re SGSM Acquisition Co., LLC, 439 F.3d 233, 237 n. 1 (5th Cir.2006).
[5] Id. at 239, citing Gulf City Seafoods, Inc. v. Ludwig Shrimp Co. (In re Gulf City Seafoods), 296 F.3d 363, 367 (5th Cir.2002).
[6] In re Sunset Sales, Inc., 220 B.R. 1005, 1020-21 (10th Cir.BAP1998), see also, Sulmeyer v. Suzuki (In re Grand Chevrolet, Inc.), 25 F.3d 728, 732, (9th Cir.1994), Logan v. Basic Dist. Corp. (In re Fred Hawes Org., Inc.), 957 F.2d 239, 244 (6th Cir.1992), and In re Moltech Power Systems, Inc., 327 B.R. 675, 680 (Bankr.N.D.Fla.2005).
[7] In re Sunset Sales, Inc., 220 B.R. 1005, 1020 (10th Cir.BAP1998).
[8] Official Plan Committee v. Expeditors International of Washington, Inc. (In re Gateway Corp.), 153 F.3d 915, 917 (8th Cir. 1998).
[9] Tr.T. at 61:21-62:22. He also testified that the first couple of invoices allowed Sea Bridge 45 days to pay, but that policy was short-lived. The Joint Pretrial Order reflects that only the first invoice provided Sea Bridge with 45 days to pay.
[10] Tr.T. at 33:11-20.
[11] The Joint Pretrial Order did not include three payments listed on the Sea Bridge account history, Exhibit 92, maintained by Praxis. The account history omitted an interest payment made on August 23, 2004 in the amount of $669.33, an interest payment made on September 2, 2004, in the amount of $671.01, and an installment payment made on December 6, 2004, in the amount of $116,778.90.
[12] Exhibit 85.
[13] Exhibit 87.
[14] Id.
[15] Tr. T. at 158:8-18.
[16] Tr.T. at 160:5-11.
[17] Tr. T. at 162:9-24
[18] Tr. T. at 163:23-164:17.
[19] Tr. T. at 164:21-165:1.
[20] Tr. T. at 166:8-167:16.
[21] Exhibit 85. July 13, 2005, email from Joseph Srour to Jenny Tsagli.
[22] In re Access Air, Inc., 314 B.R. 386, 394 (8th Cir. BAP 2004)
[23] Tr. T. at 106:2-15.
[24] See, e.g., Exhibit 85. May 31, 2005, email from Daniel Yasosky to Joseph Srour.
[25] In re Access Air, Inc., at 393.
[26] Because the Court did not award any relief under Praxis' ordinary course of business defense, it need not consider whether Praxis is "double dipping" by benefitting from more than one preference defense. See, SGSM Acquisition, 439 F.3d at 243, n. 7.
[27] SGSM Acquisition 439 F.3d at 239.
[28] Gulf City Seafoods, 296 F.3d at 368.
[29] Id. at 369.
[30] Id.
[31] Tr.T. at 117:11-123:12. Risk Management Associates (RMA) publishes a report of operating statistics of companies that report to the RMA. The report provides information that would be found in a financial statement, such as operating expenses, cost of sale, revenues, and receivables that can be translated into day sales outstanding or days payable in payables. The RMA report does not break down payments by specific groups of clients and customers.
[32] Tr.T. at 141:1-10.
[33] Tr.T. at 141:4-25, see also, Expert Witness Report, Exhibit 94.
[34] Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1091 (5th Cir.1994).
[35] Id.
[36] Id. at 1092.
[37] Tr.T. at 50:3-54:2 and Exhibits 51 and 80.
[38] The owner of the M/V African Star, Bremen Overseas Chartering and Shipping, gave Sea Bridge a $34,187.88 credit for the bunker that was on the ship, however the Trustee argues that the credit was of no value to the estate because the ship's owner offset the $34,187.88 against other outstanding debt. Tr.T 9:10-11:13 and Exhibit 93.
[39] Rushton v. E & S Int'l Enters., Inc. (In re Eleva, Inc.), 235 B.R. 486, 489 (10th Cir. BAP 1999); In re Furr's Supermarkets, Inc., 317 B.R. 423, 428 (10th Cir. BAP 2004); Excel Enters., Inc. v. Sikes, Gardes & Co. (In re Excel Enters., Inc.), 83 B.R. 427, 431 (Bankr. W.D.La.1988).
[40] 317 B.R. 423 (10th Cir. BAP 2004).
[41] Id. at 429.
[42] The Court notes that the Trustee filed an adversary, case number 07-1124, against BOCS, seeking to recover preferences and fraudulent transfers. The adversary was resolved when, on April 14, 2008, this Court entered an Order Approving Compromise.
[43] The general rule is that interest is calculated from the date of demand for the return of the property, not from the date of the preferential transfer. See, In re L & T Steel Fabricators, Inc., 102 B.R. 511, 520 (Bankr.M.D.La. 1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551802/ | 412 B.R. 688 (2009)
In re Ronnie G. HERB, Sr. and Lisa A. Herb, Debtors
Lawrence G. Frank, Trustee Movant
v.
Ronnie G. Herb, Sr. and Lisa A. Herb, Respondent.
No. 1-08-bk-01138.
United States Bankruptcy Court, M.D. Pennsylvania.
June 18, 2009.
Frank E. Garrigan, Garrigan and Targonski, Shamokin, PA, Lisa A. Herb, Coal Township, PA, for Debtors.
*689 Lawrence G. Frank, Harrisburg, PA, Trustee.
OPINION
JOHN J. THOMAS, Bankruptcy Judge.
Ronnie and Lisa Herb filed a Chapter 7 bankruptcy on April 1, 2008. Prior to the filing, on December 4, 2006, Lisa Herb allegedly injured her knee in an automobile accident. In the last amended bankruptcy Schedule C, (Doc. # 41), the Debtors exempted their interest in the personal injury claim in the amount of $11,200 under 11 U.S.C. § 522(d)(5), $20,200 under 11 U.S.C. § 522(d)(11)(D), and $500,000 under § 522(d)(11)(E). In the Debtors' last amended Schedule B, the Debtors valued this claim as having a value of "unknown." (Doc. # 14.)
On December 11, 2008, the Chapter 7 Trustee, Lawrence Frank, filed an Objection to the exemption on the grounds that it was "not in compliance with the terms and conditions of 522(d) of the Bankruptcy Code." The Trustee added that exemptions under § 522(d)(11)(D) and § 522(d)(11)(E) are mutually exclusive.
Actually, the Debtors do not disagree that subsections (D) and (E) are exclusive. They admit same in their pleadings, (Answer to Objection to Second Amended Schedule C, Doc. # 48 at ¶ 3), as well as their Brief, (Brief in Opposition to Trustee's Objections to Debtor's Exemptions, Doc. # 52). After all, the exemption options available under § 522(d)(11)[1] are tethered by the conjunctive "or" compelling such a conclusion. Nevertheless, the Debtors argue that to force them now, before culmination of the personal injury claim, to opt for one of those choices may serve them poorly. Therefore, they want to retain their option to choose the most valuable portion of the lawsuit as exempt.
The Trustee, on the other hand, asserts that this whole issue is premature and should not now be decided until the personal injury claim is liquidated. He adds that a decision now by the Court would be nothing more than an advisory opinion. Surprisingly, the parties have not asked for a continuance, making this matter ready for disposition.
While I understand the parties' dilemma, I believe that they both have a misunderstanding of the law.
Because § 522(d)(11) provides for mutually exclusive options, the Debtors are left with no choice but to choose between them. Having said that, later amendments to the exemption claim have been freely allowed and rarely denied. Federal Rule of Bankruptcy Procedure *690 1009. The Trustee's Objection must be sustained.
The Trustee advances that this Objection is not yet ready for disposition because the claim has not been liquidated. While there is a certain attraction to sua sponte postponing this controversy until hard numbers are available, the matter is certainly ripe for adjudication now. Property of the estate is created at the commencement of the case. 11 U.S.C. § 541(a). Exemption claims, too, are determined as of the date of the bankruptcy filing. White v. Stump, 266 U.S. 310, 313, 45 S. Ct. 103, 69 L. Ed. 301 (1924); Zibman v. Tow (In re Zibman), 268 F.3d 298, 302 (5th Cir.2001); Ford v. Konnoff (In re Konnoff), 356 B.R. 201, 204 (9th Cir. BAP 2006). Certainly, unliquidated exemption claims and objections thereto are capable of being adjudicated. See, for example, Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (1992).
The Debtors will be required to file an Amended Schedule C specifying their § 522(d)(11) option. In order to do that, I will allow the Debtors sixty (60) days to file that Amendment or such additional time as the Trustee and Debtors agree, in writing, filed with the Court.
As a reminder to the parties, the personal injury claim is property of the estate and, until an exemption is allowed, remains under the direction of the Trustee.
My Order is attached.
ORDER
For those reasons indicated in the Opinion filed this date, IT IS HEREBY.
ORDERED that the Trustee's Objection to Debtors' Exemptions is sustained.
The Debtor's shall file an Amended Schedule C specifying their § 522(d)(11) option on or within sixty (60) days of the date of this Order or within such additional time as the Trustee and Debtors agree, in writing, filed with the Court.
NOTES
[1] 11 U.S.C. § 522(d)(11)
(d) The following property may be exempted under subsection (b)(2) of this section:
(11) The debtor's right to receive, or property that is traceable to
(A) an award under a crime victim's reparation law;
(B) a payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(C) a payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(D) a payment, not to exceed $20,200, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or
(E) a payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. [Footnote omitted.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602453/ | 8 So.3d 950 (2008)
G. Thomas SURTEES, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue
v.
VFJ VENTURES, INC., f/k/a VF Jeanswear, Inc.
2060478.
Court of Civil Appeals of Alabama.
February 8, 2008.
*955 Troy King, atty. gen., and Jeff Patterson, deputy atty. gen., Montgomery, for appellants.
Joseph B. Mays, Jr., Bruce P. Ely, Christopher R. Grissom, and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham for appellee.
Bruce J. Fort, Washington, D.C., for amicus curiae MultiState Tax Commission, in support of the appellants.
Susan E. Kennedy and Pamela B. Slate of Slate Kennedy LLC, Montgomery, for amici curiae Alabama Education Association, Auburn University, and the Board of Trustees of the University of Alabama, in support of the appellants.
THOMPSON, Presiding Judge.
VFJ Ventures, Inc. ("VFJ"), f/k/a VF Jeanswear, Inc., filed an appeal in the Montgomery Circuit Court ("the trial court") pursuant to § 40-2A-7(b)(5)b., Ala. Code 1975, challenging a decision of the Alabama Department of Revenue assessing against VFJ an amount representing additional corporate income tax purportedly owed the State; it also named the commissioner of the Department as a defendant.[1] We refer to the two named defendants collectively as "the Department."
The Department responded, arguing that the assessment should be upheld. The Department later filed a motion for a partial summary judgment, which the trial court denied. The trial court conducted a lengthy trial at which evidence was presented ore tenus and numerous exhibits submitted. The trial court also accepted posttrial briefs from the parties. On January 24, 2007, the trial court entered a judgment in favor of VFJ. The Department timely appealed to this court pursuant to § 12-3-10, Ala.Code 1975.
VFJ manufactures and sells jeanswear sold under the Lee® and Wrangler® brand names in the United States. VFJ has two distribution facilities and a "cutting" facility in Alabama. Those facilities employ approximately 600 people. In 2001, the tax year at issue in this case, VFJ's gross sales were approximately $2.1 billion; only a portion of VFJ's gross sales were attributable to its activities in Alabama. "Under both the Due Process and the Commerce Clauses of the [United States] Constitution, a state may not, when *956 imposing an income-based tax, `tax value earned outside its borders.'" Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 164, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983) (quoting ASARCO, Inc. v. Idaho State Tax Comm'n, 458 U.S. 307, 315, 102 S.Ct. 3103, 73 L.Ed.2d 787 (1982)). Thus, only that part of VFJ's income that was fairly attributable to its presence in Alabama is subject to taxation in this state.
When a corporation such as VFJ has manufacturing facilities or operating facilities or performs activities in more than one state, a formula known as an "apportionment factor" is used to determine how much income is attributable to each state. The apportionment factor is used to determine the portion of the corporation's income that is subject to income tax in each of the states in which the corporation has activity. See Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 778, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992) ("Because of the complications and uncertainties in allocating the income of multistate businesses to the several States, we permit States to tax a corporation on an apportionable share of the multistate business carried on in part in the taxing State."). In this case, the Department and VFJ seem to have agreed on the application of a common three-part apportionment factor that has been approved by the United States Supreme Court. See Container Corp. of America v. Franchise Tax Bd., 463 U.S. at 170, 103 S.Ct. 2933 ("[N]ot only has the three-factor formula met our approval, but it has become ... something of a benchmark against which other apportionment formulas are judged.").
Alabama, like a number of other states, has adopted the apportionment factor referenced in Container Corp. of America v. Franchise Tax Bd., supra, for determining the portion of a multistate corporation's income that may be taxed in this state. The apportionment factor is set forth in § 40-27-1, Art. IV, ¶ 9, Ala.Code 1975, as a part of Alabama's adoption of the Multistate Tax Compact. The Multistate Tax Compact creates a uniform system for taxing entities such as VFJ, who have operations or are active in more than one state. State Dep't of Revenue v. MGH Mgmt., Inc., 627 So.2d 408, 408-09 (Ala.Civ.App. 1993) ("The [Multistate] Tax Compact provides for the allocation and apportionment of income of taxpayers doing business in more than one state in such a manner as to avoid duplicative taxation.").
In opening statements during the trial of this matter, one of the attorneys accurately summarized Alabama's apportionment factor for the trial court as follows:
"You take the ratio of the property in the state to the property out of state, a ratio of the sales in the state to the sales out of the state, a ratio of the payroll in the state to the sales [sic] out of the state, add them together and divide by three, and that average is your apportionment factor."
For the 2001 tax year, VFJ's apportionment factor for Alabama was 13.9299%. Using that factor, VFJ reported approximately $13,702,000 in income to be apportioned to Alabama on its state corporate income-tax return for the 2001 tax year.
VFJ is a subsidiary of VF Corporation ("VF"), a parent holding company comprising hundreds of subsidiaries worldwide. VF's corporate headquarters is located in Greensboro, North Carolina. Among VF's subsidiaries are numerous intangible management companies ("IMCOs") that own and manage trademarks, most of which are used by other VF subsidiaries. All the IMCOs are Delaware corporations.
A treatise on state taxation has explained the function of IMCOs like those in the VF corporate family as follows:
"One of the standard tax-planning devices corporations employ to reduce taxable *957 income in states where they conduct their operations is to transfer their trademarks or trade names to an intangibles holding company ([IMCO]) and license back the trademarks or trade names for a royalty. The royalty, which is deductible to the operating company, reduces its income in the states where it carries on its business. The [IMCO], on the other hand, ordinarily pays no tax on its royalty income because it is taxable or at least taxpayers so contend only in a state that does not tax such income (e.g., Delaware)."
J. Hellerstein & W. Hellerstein, State Taxation ¶ 9.20[3][j] (2007 Cum.Supp.).
Two of the IMCOs in the VF corporate family are the H.D. Lee Company, Inc. ("Lee"), and the Wrangler Clothing Corporation ("Wrangler"), which own and manage trademarks for Lee® and Wrangler® brands, respectively. Lee and Wrangler license their respective trademarks to VFJ and other VF subsidiaries, as well as to third parties. It is undisputed that VFJ and the other subsidiaries of VF, including Lee and Wrangler, are "related members" as that term is defined for the purpose of determining Alabama's corporate income tax.[2] Testimony at trial indicated that Lee and Wrangler generally charge a 5% royalty rate to both related-member and third-party licensees. In 2001, the tax year at issue, approximately 78% of Lee's income came from licensing agreements with related members. For that same year, approximately 97% of Wrangler's licensing income was derived from licensing agreements with related members.
In Delaware, IMCOs such as Lee and Wrangler are subject to taxation only under limited circumstances. See Del.Code Ann. tit. 30, § 1902. Because the royalty payments are generally deductible expenses as to the licensee operating companies, the royalty payments made by related-member licensees that comprise the corporate income of the IMCOs escape taxation on the state level. Accordingly, the creation of the Delaware IMCOs created significant state-tax savings for VFJ and other subsidiaries of VF by effectively shifting income out of states that do impose corporate income tax to a state that does not impose such a tax.
To illustrate this process, the record indicates that in 2001 VFJ paid Lee $36,220,000 in licensing royalty fees for its use of the Lee® trademarks on its products, and it paid Wrangler $66,420,000 for the use of its Wrangler® trademarks. On its 2001 federal income-tax return, VFJ deducted those royalty payments as ordinary and necessary business expenses, see 26 U.S.C. § 162, thereby reducing the amount of its federal taxable income. Because federal taxable income is the starting point for the calculation of taxable income in Alabama, see § 40-18-33, Ala. Code 1975, the deduction of those royalty payments as business expenses also served to reduce VFJ's taxable income in Alabama. Thus, the royalty payments VFJ made to Lee and Wrangler for the use of their trademarks in its operating facilities in Alabama and other states worked to transfer funds out of this state, which has a corporate income tax, to the Delaware IMCOs, thereby ensuring that those royalty payments could not be subjected to taxation on the state level. In the 2000 tax year, the use of the practice of making royalty payments to the related-member *958 IMCOs resulted in a total state-tax savings for VFJ (for its total operations, not just those in Alabama) of approximately $5.5 million. VFJ's 2001 state-tax savings as a result of royalty payments to the related-member IMCOs was approximately $6 million.
The payment of royalty fees to a related member located in a jurisdiction that does not impose a state corporate income tax works to avoid state taxation only in states known as "separate-entity" or "separate-reporting" states. In those states, including Alabama, each entity in a corporate group that has activity in the state must file a separate corporate income-tax return in the state. The basis of taxation is the amount of income earned within the state by the individual corporate entity. In a separate-reporting state, "each part of an affiliated group of corporations is treated as a separate entity" for the purpose of determining the amount of taxable income to be apportioned to that state. E.g., Bridges v. Autozone Props., Inc., 900 So.2d 784, 792 (La.2005). Other states allow a practice known as "combined reporting," pursuant to which a taxing state treats a group of commonly owned companies, such as VF and its subsidiaries, as a single taxpayer. In a combined-reporting state, the incomes of the various members of the group are combined and a formula is applied to determine what portion of the entire group's income is attributable to, and therefore taxable in, that state. See Citizens Utils. Co. of Illinois v. Department of Revenue, 111 Ill.2d 32, 40, 488 N.E.2d 984, 987, 94 Ill.Dec. 737, 740 (1986) (containing a thorough discussion of the difference in the methods of taxation of combined-reporting states and separate-entity states). In combined-reporting states, transactions between related members do not work to shift income because all income from the various members of the corporate group (including IMCOs) is included in the determination of taxable income for that state.
The difference between combined-reporting states and separate-entity states has been aptly illustrated as follows:
"Intercompany arrangements of this type [IMCOs] do not reduce state income taxes in `combined reporting' states, that is, states which require an affiliated group of corporations engaged in a common enterprise (a `unitary business'), part of which is conducted in the state, to file a combined income tax return. In those states, the [IMCO] ordinarily must be included in the combined return, and the intercompany transactions are eliminated....
"In `separate reporting' states, that is, states in which each corporation [even within a corporate family] files a separate income tax return, a number of state tax administrators have attempted to tax the income of out-of-state [IMCOs] that were not physically present in the state but earned income from licensing intangible assets to related corporations that conducted business in the state."
James A. Amdur, State Income Tax Treatment of Intangible Holding Companies, 11 A.L.R. 6th 543, 553 (2006).
As indicated earlier, Alabama is a separate-reporting state. Alabama requires certain adjustments to the federal taxable-income amount in order to determine the amount of state taxable income. § 40-18-33, Ala.Code 1975. The Alabama Legislature created one such adjustment when it enacted Act No. 2001-1088, Ala. Acts 2001, which amended § 40-18-35, Ala.Code 1975, to add subsection (b). Subsection (b) of § 40-18-35 is now referred to as Alabama's "add-back" statute.[3]
*959 Alabama's add-back statute restricts the deductibility of certain intangible and interest expenses for the purpose of calculating state taxable income. Although Alabama's add-back statute was enacted in December 2001, the Alabama Legislature specified that the statute was effective "for all tax years beginning subsequent to December 31, 2000." See Act No. 2001-1088, § 10. Therefore, the add-back statute applied to the 2001 tax year.
Alabama's add-back statute provides, in relevant part:
"(b) Restrictions on the deductibility of certain intangible expenses and interest expenses with a related member.
"(1) For purposes of computing its taxable income, a corporation shall add back otherwise deductible interest expenses and costs and intangible expenses and costs directly or indirectly paid, accrued, or incurred to, or in connection directly or indirectly with one or more direct or indirect transactions, with one or more related members, except to the extent the corporation shows, upon request by the commissioner, that the corresponding item of income was in the same taxable year: a. Subject to a tax based on or measured by the related member's net income in Alabama or any other state of the United States, or b. subject to a tax based on or measured by the related member's net income by a foreign nation which has in force an income tax treaty with the United States, if the recipient was a `resident' (as defined in the income tax treaty) of the foreign nation. For purposes of this section, `subject to a tax based on or measured by the related member's net income' means that the receipt of the payment by the recipient related member is reported and included in income for purposes of a tax on net income, and not offset or eliminated in a combined or consolidated return which includes the payor.
"(2) The corporation shall make the adjustments required in subdivision (1) unless the corporation establishes that the adjustments are unreasonable, or the corporation and the Commissioner of Revenue agree in writing to the application or use of alternative adjustments and computations. Nothing in this section shall be construed to limit or negate the commissioner's authority to otherwise enter into agreements and compromises otherwise allowed by law.
"(3) The adjustments required in subdivision (1) shall not apply to that portion of interest expenses and costs and intangible expenses and costs if the corporation can establish that the transaction giving rise to the interest expenses and costs or the intangible expenses and costs between the corporation and the related member did not have as a principal purpose the avoidance of any Alabama tax and the related member is not primarily engaged in the acquisition, use, licensing, *960 maintenance, management, ownership, sale, exchange, or any other disposition of intangible property, or in the financing of related entities. If the transaction giving rise to the interest expenses and costs or intangible expenses and costs, as the case may be, has a substantial business purpose and economic substance and contains terms and conditions comparable to a similar arm's length transaction between unrelated parties, the transaction will be presumed to not have as its principal purpose tax avoidance, subject to rebuttal by the Commissioner of the Department of Revenue."
§ 40-18-35(b).
Thus, Alabama's add-back statute requires that a corporation add back into its taxable income expenses and costs related to intangibles such as trademarks that are paid to a related member. In this case, the Department contends that, subject to § 40-18-35(b), the royalty payments VFJ made to Lee and Wrangler during the 2001 tax year must be added to VFJ's federal taxable income for the purpose of calculating VFJ's taxable income in Alabama.
It is undisputed that the royalty payments VFJ made to Lee and Wrangler in 2001 for the use of the IMCOs' trademarks were the type of intangible expenses referenced in Alabama's add-back statute. VFJ deducted those royalty payments from its federal taxable income, and, therefore, those deductions flowed through to the starting point of corporate net income subject to taxation in Alabama. Accordingly, unless one of the three exceptions set forth in § 40-18-35(b)(1), (2), or (3), applies, Alabama's add-back statute requires that those deductions for intangible expenses paid to the related IMCOs be added back into the calculation of VFJ's taxable income for Alabama.
In calculating and paying its Alabama corporate income tax for the 2001 tax year, VFJ did not add back into the calculation of its taxable income the intangible expenses required to be added by Alabama's add-back statute. The Department conducted an audit of VFJ's corporate tax return for the 2001 tax year. Thereafter, the Department issued a notice of final assessment to VFJ, demanding payment of an additional $1,019,899 in state taxes. The vast majority of that assessment was attributable to the Department's inclusion, based on the add-back statute, in the Department's determination of VFJ's taxable income of the royalty payments VFJ made to Lee and Wrangler for the use of the trademarks of those IMCOs. VFJ has challenged only the portion of the assessment attributable to the add-back statute.
In the trial court, VFJ challenged that part of the Department's assessment that was based on the application of the add-back statute. VFJ argued that the add-back statute should not apply, based on certain exceptions contained in the statute. Specifically, VFJ maintained that the royalty payments had been subject to taxation in another jurisdiction, see § 40-18-35(b)(1), and that the application of the add-back statute was unreasonable because the royalty payments to Lee and Wrangler had a legitimate business purpose and economic substance, see § 40-18-35(b)(2). VFJ also challenged the constitutionality of Alabama's add-back statute. The Department responded and insisted that the assessment was valid. Later, in its motion for a partial summary judgment, the Department argued that VFJ's argument regarding the business purpose and economic substance of the IMCOs was not relevant to a determination of unreasonableness under § 40-18-35(b)(2).
The trial court received ore tenus evidence and heard the arguments of the *961 parties during a four-day trial. In addition, each party submitted numerous exhibits. Much of the evidence pertained to VFJ's attempt to demonstrate that the Lee and Wrangler IMCOs had legitimate business purposes and economic substance, and, therefore, according to VFJ's argument, application of the add-back statute would be unreasonable. Some of the evidence presented at the trial was summarized by the trial court in its judgment as follows:
"At trial, VFJ established several other purposes [other than the avoidance of state taxation] for segregating the ownership and management of [VF's] trademarks into the IMCOs. Centralization of trademarks increased efficiency by concentrating management in one group of employees instead of being spread throughout the various operating subsidiaries around the world. Centralization also allowed the employees to develop the expertise necessary to maintain the necessary registrations and monitor and combat infringement worldwide. The centralization and specialization also reduced duplicative efforts, costs, and reliance on outside counsel, increasing efficiency. VF was able to save at least $60,000 per month in fees paid to outside counsel when it began its centralized trademark management.
"Centralization of trademark management allowed third party licensing efforts to be coordinated and managed. It also allowed easier monitoring of expenses and revenues associated with the intangible assets. Furthermore, centralization of intangible property was also part of a larger effort by [VF] in the 1990s to begin sharing common services (such as data processing, information technology, payroll, treasury, employee benefits and legal services) to capitalize on economies of scale.
"The parties vigorously disputed at trial whether segregation of the different families of trademarks into different IMCOs facilitated the ease of sale of VF companies or lines of business. I find that the evidence established that in VF's history of both selling and purchasing several lines of business, such sales were facilitated by having the intangibles owned by an IMCO, thereby avoiding the need to transfer and assign each trademark, which could require thousands of assignments and filings around the world. VF in fact sold two IMCOs, Healthtex Apparel Corp., and Jantzen Apparel Corp., to third party purchasers in recent years and found that the IMCO structure facilitated the transfer of the intangibles.
"Segregating the intangible assets into separate management companies provided a more flexible business structure in other ways as well. For example, this structure would give the affiliated group more options in the case of a hostile takeover. It also became easier for the affiliated group to borrow money when it could demonstrate that the IMCOs had valuable assets as potential collateral and steady streams of income, without potential for unforeseen liabilities. The use of several different IMCOs ensured clean title to the different families of trademarks, and segregated the liabilities of the operating companies from the very valuable intangible assets. It also made it easier to track the profitability of the different families of trademarks.
"There were also several advantages to incorporating the IMCOs in Delaware. Delaware has advanced and favorable corporate law, and the U.S. District Court of Delaware has developed a specialty in intellectual property law. Delaware has an experienced workforce with experienced service providers in the intellectual property area.
*962 "[VFJ] did an excellent job during the course of this trial convincing the Court that Lee and Wrangler are not merely `shell' corporations, but carry on substantial activities. The Court had the benefit of watching a videotape which set out the entire operation in Delaware. They had 3,200 square feet of office space in Wilmington, Delaware. Lee currently has at least fifteen employees, including two trademark attorneys, six trademark paralegals, one licensing paralegal, three trademark assistants, controller, staff accountant, and receptionist. These employees perform work for Wrangler as well. There was no question that this is a `working office,' not just an empty space with a post office box.
"The [IMCO] employees monitor and maintain thousands of trademark registrations throughout the world. They license trademarks to VF affiliates like VFJ and also to numerous third parties. In 2001, approximately 22% of Lee's royalty income and 3.2% of Wrangler's royalty income were derived from third parties. Helen Winslow, assistant general counsel of Lee, reviews license applications from third parties and has the authority to turn down a license application from a potential licensee whose products might tarnish a brand's image or raise liability issues. Ms. Winslow can and often does require a test period for a new licensee or grant a license only in a certain geographic territory. Ms. Winslow engages in negotiations with the licensee, licensee's counsel, and usually a representative from a VF manufacturing company in order to set the terms of the license. Ms. Winslow, a past president of the Delaware State Bar Association, does not merely rubber stamp any paper brought to Lee by a related company.
"The IMCOs generally charged the same arm's-length rates for intercompany license agreements as third-party license agreements. The general rule was a flat 5% license or royalty fee, as determined by industry standards.
"... The IMCOs then negotiated with potential licensees in order to ensure the quality standards were sufficiently high that the licensees' use of the trademarks would not harm their value. If the standards were acceptable, the IMCO adopted those quality standards for the license; if the potential licensee would not agree to sufficiently high quality standards, no license was granted.
"In order to ensure compliance with the standards, the IMCOs entered into `Technical Assistance and Know-How Agreements' with related VF manufacturing companies. In these agreements, the manufacturing entity agreed to provide certain technical assistance to the entities to which the IMCOs licensed particular trademarks. The assistance included provision of technical know-how and expertise with respect to the design, manufacture, quality control, promotion, marketing and distribution of the branded products. In exchange, the IMCOs reimbursed the manufacturing company for all costs associated with such consulting plus 5%.
"The IMCOs monitored all licenses, both VF and third-party, for proper trademark usage. In addition, the IMCOs hired third parties to investigate licensees' factories and ensured that the affiliated group's centralized audit group also investigated factories for quality control. The inspection program also ensured proper quality control over the goods manufactured by [the] licensees.
"Lee and Wrangler also engaged in monitoring for potential trademark infringements. The IMCO staff received and reviewed `watch service' reports daily to monitor for trademark applications claiming rights in trademarks that resembled *963 Lee's or Wrangler's trademarks. They also reviewed weekly the Official Gazette, a publication of the U.S. Patent and Trademark Office that lists all approved trademark applications. If an IMCO discovered a potential infringement, it took steps to protect its trademarks, including filing court proceedings against the potential infringers if necessary.
"VFJ entered into license agreements with Lee and Wrangler that governed the licensing arrangement; these agreements contained terms comparable to those in the IMCOs' agreements with third parties. There is no dispute that the 5% royalty rate was an arm's length rate. Pursuant to these license agreements, VFJ paid royalties in cash to Lee and Wrangler for the use of their trademarks based on the amount of VFJ's sales. VFJ transferred cash to Lee and Wrangler when making royalty payments."
In addition to the foregoing, VFJ presented the testimony of Professor Richard Pomp, an expert witness in the area of state and local taxation, who testified that there are no add-back statutes of which he approves. He characterized Alabama's add-back statute as "overbroad [and] overreaching." Pomp testified that royalties on intangibles are business expenses that should be deducted in determining taxable income regardless of whether the royalty payments are made to a related-member company. In Pomp's opinion, the appropriate inquiry in determining whether the application of an add-back statute is unreasonable is whether the deduction is truly one for a legitimate or ordinary and necessary business expense.
According to Pomp, the determination of whether it is unreasonable to require a corporation to comply with the add-back statute should focus on whether there is a legitimate business purpose or economic substance to the royalty-payment transactions. On cross-examination, Pomp acknowledged that states have other methods of preventing those deductions that lack a legitimate business purpose or economic substance, also known as "sham" deductions. Therefore, Pomp also conceded that add-back statutes are not limited to the prevention of sham deductions.
The Department presented the testimony of witnesses who spoke in support of the add-back statute. Dr. Alan Shapiro, a professor of finance at the University of Southern California, testified that add-back statutes attempt to "cure some of the distortions" that arise in separate-reporting states because of transactions between related corporations. Dr. Shapiro explained that Alabama operating companies add value to their products through the use of intangibles for which royalties are paid and that the add-back statute is an attempt to allocate some of that value or income to Alabama.
Peter Enrich, a law professor from Northeastern University who specializes in state and local taxation, testified that add-back statutes are not designed to address the issue of sham deductions. Enrich stated that he believed that unreasonableness exceptions to add-back statutes, such as the one in § 40-18-35(b)(2), are designed to avoid situations in which the resultant tax on the corporation would be out of proportion to the corporation's activity in the taxing state.
Joe Garrett, the Department's administrator of tax policy, testified that in August 2003 the Department adopted a regulation ("the add-back regulation") that interprets the provisions of the add-back statute. See Rule 810-3-35-.02, Ala. Admin. Code (Department of Revenue). In essence, that regulation, in part, interprets the unreasonableness exception to apply when there is "no fair relation" to the corporate taxpayer's activities in Alabama. It is undisputed, *964 however, that the add-back regulation does not apply to this case because it was adopted by the Department after this dispute arose.
Garrett's testimony indicated that on numerous occasions during the 14-month interim between the December 2001 enactment of the add-back statute and the August 2003 adoption of the add-back regulation, the Department had granted exceptions pursuant to § 40-18-35(b)(2). Garrett explained that the Department had granted exceptions both on the basis of the unreasonableness exception to the add-back statute and as an alternative adjustment by the commissioner. See § 40-18-35(b)(2). Garrett testified that a large number of taxpayers had sought to avoid the add-back statute by asserting that the unreasonableness exception set forth in subsection (b)(2) applied to the transactions at issue because of business purpose or economic substance and that the Department has denied those requests.
According to Garrett, the Department has applied the unreasonableness exception to those situations in which a corporation's tax as a result of the application of the add-back statute would be "out of proportion with what could reasonably be said to be attributed to the State." Garrett stated that the add-back regulation was formulated in response to questions concerning the interpretation of the add-back statute. Garrett testified that the provisions of the add-back regulation pertaining to the unreasonableness exception were consistent with the interpretation the Department had followed from the date the add-back statute was enacted. Garrett also stated that the adoption of the add-back regulation had not resulted in a change in the manner in which the Department had interpreted or applied the unreasonableness exception to the add-back statute.[4]
VFJ also presented expert testimony to support its claim that the subsection (b)(1) exception, known as the "subject-to-tax exception," of the add-back statute exempted it from the statute's application. That evidence is set forth in the section of this opinion addressing VFJ's claim with regard to the subject-to-tax exception.
Judgment
In its judgment, the trial court concluded that the unreasonableness exception to the add-back statute contained at § 40-18-35(b)(2) applied, and, therefore, it reversed the Department's assessment. In concluding that the add-back statute did not apply because the unreasonableness exception disposed of the case, the trial court found it unnecessary to resolve VFJ's claim regarding the subject-to-tax exception found in § 40-18-35(b)(1) and VFJ's constitutional challenges to the add-back statute.[5] The Department timely appealed.
*965 As an initial matter, this court must resolve a conflict in the manner in which the parties interpret the trial court's judgment. In making its arguments to this court, the Department asserts that the trial court's judgment was based on a finding that the application of the add-back statute would be unreasonable because the royalty payments to the IMCOs had a business purpose and an economic substance. In contrast, VFJ contends that the trial court based its judgment on a determination that the application of the add-back statute would result in a distortion of VFJ's income attributable to Alabama.
In reaching its legal conclusions, the trial court stated, in pertinent part:
"Because add-back in VFJ's circumstances effectively denies it a deduction for a necessary cost of doing business in Alabama, thereby resulting in a calculation of taxable income that includes income fairly attributable to other states, add-back is unreasonable and thus not required for VFJ.
"States have rightfully been concerned about taxpayers taking advantage of IMCO structures by setting up `shell' or `sham' corporations in low-tax jurisdictions such as Delaware or Nevada or several other states and shifting substantial portions of their income to low-tax jurisdictions without any real business activity taking place in those other states. See, e.g., Syms Corp. v. Commissioner of Revenue, 765 N.E.2d 758 (Mass.2002). In response to taxpayers generating large deductions from these sham or shell corporations, several states passed statutes intended to deny taxpayers tax benefits from these sham corporations. Alabama's add-back statute is one of these statutes.
"Lee and Wrangler, however, are not sham or shell corporations. There were several business purposes for their creation and continued viability. They carry on substantial activities that are vital to the business operations of the VF group. VFJ had a business purpose for making the royalty paymentsit needed the use of these valuable trademarks in its operations. The payments also had economic substancethey were made in cash and conferred on VFJ the right to use the trademarks.
"Deductions for the cost of doing business are an essential part of any tax on net income. Recognizing this, Alabama has long allowed deductions for `the expenses of carrying on such business.' Subdivision 5, § 454, Code of Alabama (1886). Alabama encourages such deductions for ordinary and necessary business expenses, `[t]he theory being, *966 presumably, that the spending of money to make money should be encouraged to the end that taxes will be paid on the net accomplished.' Boswell v. Bonham, 297 So.2d 379 (Ala.Civ.App.1974).
"An expense is an `ordinary' business expense when it is normal, common, and accepted under the circumstances by the business community. Welch v. Helvering, 290 U.S. 111, 113-115 (1933). The testimony revealed that payment of royalties to IMCOs (both related and non-related) is normal, common, and accepted in the business community. An expense is a necessary business expense when it is `appropriate and helpful' in developing the taxpayer's business. Welch v. Helvering, 290 U.S. [at] 113... (also noting that courts `should be slow to override [the taxpayer's] judgment' as to whether an expense is `necessary'). The royalty payments made by VFJ in 2001 were thus ordinary and necessary in its business, giving VFJ the right to manufacture jeanswear with the valuable Lee and Wrangler trademarks.
"`Unreasonable' is not defined in the statute; it thus should be interpreted in accordance with the legislature's intent in enacting the statute. State Dep't of Revenue v. Amerada Hess Corp., 788 So.2d 179 (Ala.Civ.App.2000). Since the purposes of the add-back statute are to prevent abusive deductions and to ensure that income fairly attributable to Alabama is taxed in Alabama, it is unreasonable to require add-back when these purposes would be frustrated by add-back. Add-back is unreasonable in VFJ's case because VFJ's royalty payments are not abusivethey have economic substance and business purposeand represent real and necessary costs of doing business in Alabama, and to disallow these deductions would distort the amount of VFJ's income fairly attributable to this state.
"Accordingly, considering the language and purpose of the add-back statute, Alabama public policy allowing deductions for business expenses in determining net income, and the particular facts of this case, I find that it would be `unreasonable' to require add-back to VFJ's royalty payments."
(Emphasis added.)
After reviewing the legal conclusions in the trial court's judgment, we agree with the Department's characterization of the nature of the trial court's determination with regard to the unreasonableness exception to the add-back statute. The trial court's judgment sets forth a finding that VFJ's income would be distorted by the application of the add-back statute. However, the language of the judgment indicates that the trial court interpreted the unreasonableness exception as being largely dependent on whether there is business purpose or economic substance to the royalty-payment transactions. Specifically, the judgment indicates that the trial court concluded that so long as a plausible business purpose for the royalty payments exists or the royalty deductions are not abusive, any refusal to allow the deduction for those royalty payments would result in a distortion of VFJ's income attributable to Alabama.
As further support for this conclusion, it should be noted that other than some very general testimony, VFJ presented no evidence tending to support a finding that the application of the add-back statute would distort its income attributable to Alabama. VFJ has asserted generally that disallowing the deduction for royalty payments to a related member distorts its income by not allowing it to deduct that expense as an ordinary and necessary cost of doing business in Alabama. As discussed later in this opinion, however, states may fashion their own income-tax formulas and are *967 not required to grant all the deductions allowed by the federal taxing scheme. VFJ did not challenge the Department's calculation of the amount of income to be added back under § 40-18-38(b), nor did it present any evidence tending to support a conclusion that the amount of tax resulting from the application of the add-back statute would result in its paying an amount of tax disproportionate to its presence and operations in Alabama. Thus, the trial court's finding that the application to VFJ of the add-back statute would "distort the amount of VFJ's income fairly attributable to this state" is based upon its interpretation of the general effect of the application of the add-back statute. We next address the arguments presented by the parties with regard to the unreasonableness exception of the add-back statute, which exception is set forth at § 40-18-35(b)(2), Ala.Code 1975.
The Unreasonableness Exception
The Department raises several arguments on appeal to support its contention that the trial court erred in interpreting the unreasonableness exception to Alabama's add-back statute. It contends that the trial court's interpretation of the unreasonableness exception found in § 40-18-35(b)(2) effectively nullifies another exception to the add-back statute, specifically the exception contained in subsection (b)(3). The Department also contends that the trial court's interpretation of the unreasonableness exception renders the add-back statute itself ineffective by giving it no field of operation, or, phrased another way, that the trial court's interpretation allows the exception to "swallow the add-back rule."
As mentioned earlier in this opinion, the unreasonableness exception to the add-back statute provides, in pertinent part, that the costs or expenses related to intangibles owned by related-member corporations are to be added back into the calculation of taxable income "unless the corporation establishes that the adjustments are unreasonable ...." § 40-18-35(b)(2). The term "unreasonable" is not defined in the article governing income taxation contained in the Alabama Code. Our general rule of statutory interpretation is that the commonly accepted definition of a term should be used when the legislature enacts legislation that fails to define the term therein. Our supreme court has explained:
"It is this Court's responsibility to give effect to the legislative intent whenever that intent is manifested. State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958). Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County Health Care Auth., 850 So.2d 332 (Ala.2002)."
Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala.2003).
The term "unreasonable" has been defined as "[n]ot guided by reason; irrational or capricious," see Black's Law Dictionary 1574 (8th ed.2004), and as "not governed by or acting according to reason" or "exceeding the bounds of reason or moderation," *968 Merriam-Webster's Collegiate Dictionary 1371 (11th ed.2003).
The add-back regulation has established guidelines for determining whether the "unreasonableness" exception applies. In essence, that regulation specifies that the application of the add-back statute will be deemed "unreasonable" when the tax resulting from the application of the statute has no "fair relation" to or is out of proportion to the corporation's activities in Alabama.[6] The add-back regulation does not apply to this case because it was not in effect at the time this dispute arose. However, the fact that the add-back regulation does not apply does not mean that we should disregard the Department's interpretation of the provisions of the add-back statute during the period between the enactment of the add-back statute and the adoption of the add-back regulation.
The Department's interpretation of the add-back statute is entitled to deference. See Farmer v. Hypo Holdings, Inc., 675 So.2d 387, 390 (Ala.1996) ("[A]n interpretation placed on a statute by an administrative agency charged with its enforcement will be given great weight and deference by a reviewing court."). The deference to be afforded the Department's interpretation of the add-back statute is based on the Department's expertise in the area of taxation. Hamrick v. Alabama Alcoholic Beverage Control Bd., 628 So.2d 632, 633 (Ala.Civ.App.1993). "[W]hen the highest administrative officials charged with the duty of administering the tax laws have construed a tax statute, their construction should be given favorable consideration." Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d at 517.
"[I]t is well established that in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if that interpretation is reasonable. Ex parte State Dep't of Revenue, [683 So.2d 980 (Ala.1996)] (citing Alabama Metallurgical Corp. v. Alabama Pub. Serv. Comm'n, 441 So.2d 565 (Ala.1983)). Absent a compelling reason not to do so, a court will give great weight to an agency's interpretations of a statute and will consider them persuasive. Ex parte State Dep't of Revenue, supra (citing Moody v. Ingram, 361 So.2d 513 (Ala. 1978))."
State v. Pettaway, 794 So.2d 1153, 1157 (Ala.Civ.App.2001).
The undisputed evidence presented by the Department indicates that the Department had previously interpreted the "unreasonableness" exception in the manner now set forth in the add-back regulation. Garrett's testimony indicated that even before the adoption of the add-back regulation, the Department had consistently interpreted the unreasonableness exception as applying when the resulting tax would be "out of proportion" to the corporation's presence in Alabama. He further testified that on many occasions before the adoption of the add-back regulation, the Department, in evaluating a taxpayer corporation's *969 claim that the add-back statute was unreasonable under subsection (b)(2), had refused to consider whether the transactions paid to a related company had a legitimate business purpose or economic substance. Thus, the Department has consistently interpreted the unreasonableness exception as not being determined by business purpose or economic substance. Further, the foregoing demonstrates that the interpretation of the unreasonableness exception the Department implemented even before the adoption of the add-back regulation is consistent with the commonly accepted definition of the term "unreasonable," i.e., exceeding reasonable limits or clearly excessive. See Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, supra. The remainder of the Department's arguments with regard to the unreasonableness exception strengthen the presumption in favor of its interpretation of that exception.
The Department argues that to interpret the unreasonableness exception as based almost exclusively on a determination of whether transactions pertaining to intangibles between related companies have a business purpose or economic substance would provide the add-back statute with little, if any, field of operation other than to disallow sham deductions. The Department insists that the add-back statute was not enacted in order to address the problem of deductions based on sham transactions, i.e., those transactions that lack a legitimate business purpose or economic substance. The evidence presented at trial referenced on several occasions an example of a classic sham royalty-payment transaction. In that situation, a parent company creates a corporation to which royalty payments or licensing fees are paid. The sham corporation has no employees or business office; its sole function is to receive licensing fees or royalty payments from a related member. Because the sham corporation is located in a state in which that royalty income would not be subject to corporate income tax, the payments escape state taxation.
The parties did not dispute that both before and after the enactment of the add-back statute, Alabama could, without resorting to the add-back statute, investigate and refuse to grant deductions such as those just described on the basis that payments made to sham corporations did not have a legitimate business purpose or economic substance. As indicated earlier, the starting point for determining a corporation's taxable income in Alabama is the amount of federal taxable income. Under the Internal Revenue Code, a deduction is allowed for all "ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business." 26 U.S.C. § 162(a). Alabama can challenge a sham deduction as being not "ordinary and necessary" under 26 U.S.C. § 162. See § 40-18-33, Ala.Code 1975 ("In the case of a corporation ..., the term `taxable income' means federal taxable income without the benefit of federal net operating losses plus the additions prescribed and less the deductions and adjustments allowed by this chapter and as allocated and apportioned to Alabama."); see also Baisch v. Department of Revenue, 316 Or. 203, 850 P.2d 1109 (1993). The parties do not dispute the Department's power to contest sham transactions in this manner, and at trial, all the witnesses who were asked about this matter confirmed that Alabama has the power to challenge sham transactions without reference to the add-back statute.
Given the foregoing, it seems unlikely that the legislature intended the add-back statute to address the problem of sham transactions, a problem that may be addressed in the absence of an add-back statute. It also seems unlikely that in enacting the add-back statute the Alabama *970 Legislature was attempting to create a new method by which it could challenge sham transactions. Rather, the courts should assume that in enacting the add-back statute the legislature had in mind a different purpose and field of operation.
"`This court notes that a statute is presumed to have been enacted with a meaningful purpose. Adams v. Mathis, 350 So.2d 381, 385-86 (Ala.1977). "The legislature will not be presumed to have done a futile thing in enacting a statute." Ex parte Watley, 708 So.2d 890, 892 (Ala.1997).'"
Board of School Comm'rs of Mobile County v. Biggs, 939 So.2d 942, 945 (Ala.Civ. App.2006) (quoting State v. Pettaway, 794 So.2d at 1156).
The title to Act No. 2001-1088, which, in part, created the add-back statute, indicates that the legislature intended, among other things, to "disallow deductions for certain payments for intangible property (patents and copyright) and interest expense to related entities" and "to waive certain interest and penalties ... and the add back of certain interest and intangible expenses." That statement of legislative purpose does not mention any intent to address the issue of sham or fraudulent transactions or deductions.
Rather, in enacting the add-back statute, the legislature evidenced its intent to eliminate, subject to certain exceptions, one type of deduction for ordinary and necessary business exceptions. A state, subject to constitutional limitations, may fashion its own taxing scheme. In doing so, a state is not required to use the same deductions the federal-taxation scheme allows. "[A] statutory tax deduction or exemption is a matter of legislative grace." Ex parte State Dep't of Revenue, 441 So.2d 598, 601 (Ala.1983). In enacting the add-back statute, the Alabama Legislature elected not to extend its "grace" to deductions for transactions between related entities involving royalty payments for intangible assets. Under the general rules of statutory interpretation, which provide that a statute is presumed to have a meaningful purpose, we conclude that Alabama's add-back statute was intended to have the purpose set forth by the legislature in Act No. 2001-1088. Such an interpretation affords the add-back statute both a meaningful purpose and a field of operation.
Each of the exceptions to the add-back statute should also be interpreted as having a meaningful purpose and effect. "`"There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used."'" Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App. 1997)).
Section 40-18-35(b)(3) provides an exception when the corporation can establish, first, that the payments to the related-member IMCO did not have as their primary purpose the avoidance of state taxation, and, second, that the related member to whom the payment was made was not engaged primarily in managing intangible assets. The § 40-18-35(b)(3) exception specifies that a transaction will be presumed not to have tax avoidance as its primary purpose if the transaction has a substantial business purpose or economic substance. See § 40-18-35(b)(3), Ala.Code 1975. However, in order for the existence of a business purpose or economic substance to be relevant, there must also be a showing that the related entity to which the transaction is paid does not have the management of intangible assets as its primary business purpose. § 40-18-35(b)(3).
In this case, VFJ did not seek an exception from the add-back statute under *971 subsection (b)(3). Lee and Wrangler, the related members to whom VFJ made its royalty payments, are undisputedly engaged primarily in managing intangible assets, as specified in § 40-18-35(b)(3), so that subsection could not apply to the facts of this case. However, the trial court seems to have focused on the first part of the subsection (b)(3) exception in determining that the application of the add-back statute in this case was unreasonable because the royalty-payment transactions had a substantial business purpose or economic substance. Interpreting the unreasonableness exception of subsection (b)(2) in that manner, however, nullifies the effect of the subsection (b)(3) exception by eliminating the need for that exception. As the Department points out, the trial court's interpretation "would ensure that the [unreasonableness exception in § 40-18-35(b)(2) would] apply in every case in which the (b)(3) exception might apply." In other words, to construe the unreasonableness exception in subsection (b)(2) as requiring only a showing of a business purpose or economic substance would effectively render ineffective the exception set forth in § 40-18-35(b)(3), which requires a similar showing as well as a showing that the related company to whom the payment is made does not manage an intangible asset. We must presume that the legislature did not, in enacting subsection (b)(3), create a redundant exception to the add-back statute. Ex parte Uniroyal Tire Co., supra (it must be presumed the legislature did not intend to enact a superfluous provision).
The rules of statutory construction require that each statute or part thereof be given effect when possible. Ex parte Uniroyal Tire Co., supra. Accordingly, in order for the unreasonableness exception to have its own effect or field of operation that is not duplicative of the subsection (b)(3) exception, the unreasonableness exception must be interpreted not to focus on a showing of business purpose or economic substance.
The Department has interpreted the unreasonableness exception as being concerned with whether the add-back statute results in taxation that is out of proportion to the corporation's activities in Alabama. That interpretation, which was later formalized in the add-back regulation, is consistent with the common-usage definitions of the term "unreasonable" as "irrational," "capricious," or "exceeding the bounds of reason or moderation." Black's Law Dictionary 1574; Merriam-Webster's Collegiate Dictionary 1371. "Absent a compelling reason not to do so, a court will give great weight to an agency's interpretations of a statute and will consider them persuasive." State v. Pettaway, 794 So.2d at 1157 (citing Ex parte State Dep't of Revenue, 683 So.2d 980 (Ala.1996), citing in turn Moody v. Ingram, 361 So.2d 513 (Ala. 1978)). VFJ has presented no "compelling reason" that leads this court to disagree with the arguments submitted by the Department or its interpretation of the unreasonableness exception to the add-back statute. Accordingly, we hold that the Department's interpretation of the unreasonableness exception is appropriate and is the correct interpretation that should govern the disposition of this matter.
The parties have disputed only the interpretation of the add-back statute. They did not present any evidence regarding whether the facts of this case justify the application of the subsection (b)(2) exception to the add-back statute. There is no specific evidence showing a possible distortion of VFJ's income if the add-back statute is applied, and there is no evidence indicating that the amount of tax to which VFJ is subject under the add-back statute is out of proportion to VFJ's activities in Alabama. In other words, the record does not demonstrate that the application of the *972 add-back statute to VFJ for the tax year in question was unreasonable under the proper interpretation of the exception in subsection (b)(2) of the statute. Given the arguments and evidence presented, we must reverse that part of the trial court's judgment that concluded that the application of the add-back statute to VFJ was unreasonable under § 40-18-35(b)(2).
It is well settled that an appellate court may affirm a judgment if the judgment is correct for any reason, even one not argued. Tucker v. Nichols, 431 So.2d 1263, 1264-65 (Ala.1983); see also Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So.2d 1013, 1017 (Ala.2002); Boykin v. Magnolia Bay, Inc., 570 So.2d 639, 642 (Ala.1990); Bennett v. Bennett, 454 So.2d 535, 538 (Ala.1984); and Upchurch v. Universal Underwriters Ins. Co., 610 So.2d 1163, 1167 (Ala.Civ.App.1992). Accordingly, we next consider whether the trial court's judgment in favor of VFJ may be affirmed on the basis of VFJ's alternate claim that the exception found in § 40-18-35(b)(1), Ala.Code 1975, exempts it from the application of the add-back statute. See Steele v. Walser, 880 So.2d 1123 (Ala. 2003) (noting the rule that an appellate court may affirm a judgment based on an issue that is rejected by the trial court by considering an alternative argument asserted by the appellee).
The Subject-to-Tax Exception
VFJ argued at trial that the subject-to-tax exception found in subsection (b)(1) of the add-back statute precluded the Department from imposing its assessment. We reiterate the specific language of the subsection (b)(1) exception:
"(1) For purposes of computing its taxable income, a corporation shall add back otherwise deductible interest expenses and costs and intangible expenses and costs directly or indirectly paid, accrued, or incurred to, or in connection directly or indirectly with one or more direct or indirect transactions, with one or more related members, except to the extent the corporation shows, upon request by the commissioner, that the corresponding item of income was in the same taxable year: a. Subject to a tax based on or measured by the related member's net income in Alabama or any other state of the United States, or b. subject to a tax based on or measured by the related member's net income by a foreign nation which has in force an income tax treaty with the United States, if the recipient was a `resident' (as defined in the income tax treaty) of the foreign nation. For purposes of this section, `subject to a tax based on or measured by the related member's net income' means that the receipt of the payment by the recipient related member is reported and included in income for purposes of a tax on net income, and not offset or eliminated in a combined or consolidated return which includes the payor."
§ 40-18-35(b)(1).
VFJ filed a corporate income-tax return in North Carolina, a separate-reporting state, for the tax year in question. For reasons not fully explained in the record, Lee and Wrangler also filed corporate income-tax returns in North Carolina, although each IMCO filed that return "under protest." Joseph McGraw, VF's manager of state taxes, opined that Lee and Wrangler did not have a sufficient nexus with North Carolina to require those IMCOs to pay corporate income tax in that state. The testimony at trial showed that the IMCOs may have filed the returns in North Carolina in order to benefit VFJ and other VF subsidiaries. Pursuant to North Carolina's add-back statute, VFJ and other VF subsidiaries with activity in North Carolina would not have to add back the royalty *973 payments they made to the IMCOs if the IMCOs also filed corporate income-tax returns in North Carolina. See N.C. Gen. Stat. § 105-130.7A(c).
In calculating taxable income in North Carolina, each IMCO listed its federal taxable income on its North Carolina corporate tax return. Lee reported federal taxable income of $73,021,142, and Wrangler reported $69,644,967 in federal taxable income. Each IMCO applied its apportionment factor to determine the amount of income attributable or apportionable to North Carolina. Therefore, neither IMCO paid North Carolina state income taxes on the full amount of its federal taxable income. For the 2001 tax year, Lee's apportionment factor for North Carolina was 2.8783%, and Lee paid $143,480 in North Carolina corporate income tax. For the 2001 tax year, Wrangler's apportionment factor for North Carolina was 3.9415%, and it paid $190,155 in corporate income tax in that state.
With regard to the specific facts of this case, the subject-to-tax exception applies if Lee and Wrangler (the "related members" under the subject-to-tax exception) "reported and included" the royalty payments from VFJ (the taxpayer corporation) "for purposes of a tax on net income" in another state (in this case, North Carolina). See § 40-18-35(b)(1), Ala.Code 1975. The parties dispute the proper interpretation of the "reported and included" language of the subject-to-tax exception.
VFJ argues that the subject-to-tax exception should be interpreted to mean that the entire amount of federal taxable income the IMCOs listed on their respective North Carolina corporate income-tax returns was "subject to tax," even if only a small part of that was actually apportioned to North Carolina and taxed in that state. According to VFJ, the entire amount of federal taxable income for each of the IMCOs was both "reported" and "included," as those terms are used in § 40-18-35(b)(1), on their respective North Carolina corporate income-tax returns. Thus, according to VFJ's argument, all the IMCOs' income was "subject to tax," and the subsection (b)(1) exception applies and prohibits this state from adding back into the calculation of its taxable income any of the royalty payments it made to the IMCOs.
The Department, on the other hand, argues that the subject-to-tax exception excludes from the application of Alabama's add-back statute only that income the IMCOs apportioned to North Carolina. In other words, the Department argues that only 2.8783% of Lee's income and 3.9415% of Wrangler's income, the amounts those IMCOs apportioned to North Carolina, should be considered "subject to tax" in that state. According to the Department, the remainder of the IMCOs' income, i.e., that income not apportioned to North Carolina, is not "reported and included" as that term is used in the subject-to-tax exception to Alabama's add-back statute. Under the Department's interpretation, even considering the subject-to-tax exception, the Department could add back the royalty payments to VFJ's federal taxable income and apply the Alabama apportionment factor to that part of VFJ's income that was not apportioned to North Carolina. In other words, the Department argues that the subject-to-tax exception should apply only on what is known as a "post-apportionment" basis, and VFJ contends that the subject-to-tax exception should be applied on a "pre-apportionment" basis.
Professor Pomp's testimony concerning the subject-to-tax exception supported the interpretation advanced by VFJ. Pomp testified that any income that is listed on an income-tax return should be subject to *974 a tax, regardless of whether an apportionment factor would result in only a minimal taxation of the related member for a large amount of reported federal taxable income.
Professor Enrich testified that a number of states that have add-back statutes do not have a subject-to-tax exception because an add-back statute itself requires only that income that can be properly apportioned to that state be included in calculating taxable income. In Enrich's opinion, the logical reason for some states' inclusion in their add-back statutes of a subject-to-tax exception is "really nothing more than an abundance of caution." Enrich also stated that the Department's interpretation achieves a reasonable result, given that the purpose of an add-back statute is to ensure that income is taxed in some state.[7] Further, Enrich pointed out that to interpret the subject-to-tax exception in the manner advocated by VFJ would render the add-back statute practically meaningless because it would be relatively simple for a corporation to find a way in which to pay a minimal amount of state tax in one state for the specific purpose of avoiding taxation in states with subject-to-tax exceptions in their add-back statutes.
Richard Henninger, the director of individual and corporate income tax for the Department, testified that during the interim between the enactment of the add-back statute and the adoption of the add-back regulation, the Department had always applied the subject-to-tax exception on a post-apportionment basis. Joe Garrett, the administrator for tax policy for the Department, also testified that the Department had consistently applied the subject-to-tax exception on a post-apportionment basis.
The add-back regulation, adopted after this dispute arose, interprets the definition of "subject to a tax" as referring to income that is "reported and included in post-allocation and apportionment income for purposes of a tax applied to the net income apportioned or allocated to the taxing jurisdiction." Rule 810-3-35-.02(3)(f), Ala. Admin. Code (Department of Revenue). The evidence presented at trial indicates that, similar to the Department's interpretation of the unreasonableness exception, the Department has consistently interpreted the subject-to-tax exception in the manner eventually adopted in the add-back regulation and that there was no change in the Department's actions with regard to the subject-to-tax exception when the add-back regulation was ultimately adopted. Thus, since the enactment of the add-back statute, the Department's interpretation of the subject-to-tax exception has been consistent. As stated earlier in this opinion, the interpretation of the add-back statute by the Department, the agency charged with the enforcement of the statute, is entitled to deference. Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, supra; Farmer v. Hypo Holdings, Inc., supra; and Hamrick v. Alabama Alcoholic Beverage Control Bd., supra.
*975 The research conducted by the parties and by this court has failed to uncover any caselaw that has addressed the application of an exception similar to the one at issue here. Therefore, we must turn to the specific language of the subsection (b)(1) exception and apply the general rules of statutory construction in interpreting that exception.
"The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute." IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). Where possible, the legislature's intent in enacting the statute should be discerned from the language of the statute. Perry v. City of Birmingham, 906 So.2d 174, 176 (Ala.2005). Further,
"`"[i]f the statute is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the statute and examine results that will flow from giving the language in question one particular meaning...."
"`In deciding between alternative meanings ..., we will not only consider the results that flow from assigning one meaning over another, but will also presume that the legislature intended a rational result, one that advances the legislative purpose in adopting the legislation, that is "workable and fair," and that is consistent with related statutory provisions.'"
Ex parte Berryhill, 801 So.2d 7, 10 (Ala. 2001) (quoting John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala.1988)).
The language of the subsection (b)(1) exception specifies that the add-back statute does not apply "to the extent the corporation shows ... that the corresponding item of income was ... [s]ubject to a tax based on or measured by the related member's net income in Alabama or any other state of the United States." § 40-18-35(b)(1) (emphasis added). The subject-to-tax exception goes on to define "subject to a tax based on or measured by the related member's net income" as meaning "that the receipt of the payment by the recipient related member is reported and included in income for purposes of a tax on net income, and not offset or eliminated in a combined or consolidated return which includes the payor." Id. (emphasis added).
Thus, the legislature specified that for items of income to be "subject to ... tax," they must be both "reported and included in income for purposes of a tax on net income." § 40-18-35(b)(1) (emphasis added). Therefore, this court must assume that the legislature intended that the terms "reported" and "included" have different meanings. The courts must presume that in enacting the add-back statute, the legislature intended that each word of the statute have effect, and we must also presume that the legislature did not include meaningless language or redundancies in the statute. Ex parte Children's Hosp. of Alabama, 721 So.2d 184, 190-91 (Ala.1998); see also Board of School Comm'rs of Mobile County v. Biggs, supra. Accordingly, under the subsection (b)(1) exception to the add-back statute, the items of income are to be reported by the corporation for which those payments constitute income, and that income must be "included in income for the purposes of a tax on net income."
We hold that for the purposes of the subject-to-tax exception, the term "included in income for the purposes of a tax on net income" means that the income at issue is actually taxed as a part of a tax on net income. Stated another way, we interpret the subject-to-tax exception set forth in subsection (b)(1) of Alabama's add-back statute to apply on a post-apportionment, rather than on a pre-apportionment, basis.
*976 We believe that this holding is consistent with the intention of the legislature in enacting the add-back statute and that it advances the purpose of the legislature in enacting the add-back statute. See Ex parte Berryhill, supra; John Deere Co. v. Gamble, supra. As Professor Enrich pointed out in his testimony, interpreting the subject-to-tax exception to apply on a pre-apportionment basis would effectively negate the operation of the add-back statute. Under a pre-apportionment interpretation, a corporation could easily avoid the application of an add-back statute that contains a subject-to-tax exception by paying corporate income tax in a state in which its apportionment factor is relatively insignificant. This case is an example of that possibility. Although each IMCO reported significant federal taxable income, Lee had a state-tax burden in North Carolina of approximately .0019% of its federal taxable income, and Wrangler paid state tax of approximately .0027% of its federal taxable income.[8] Based on its argument that that modest level of taxation met the requirements of the subsection (b)(1) exception to Alabama's add-back statute, VFJ sought to avoid the application of that statute.
An interpretation of the subject-to-tax exception that, in most cases, would result in a taxpayer's ability to avoid the application of the add-back statute would be "unreasonable, and, consequently, [it cannot] be considered to be the intent of the legislature." John Deere Co. v. Gamble, 523 So.2d at 100. Such an interpretation would also serve to place Alabama back in the position it was in before the enactment of the add-back statute. "The legislature surely did not intend such a nonsensical result." Ex parte State Dep't of Revenue, 441 So.2d at 604. We will presume that the legislature "`intended a rational result.'" Ex parte Berryhill, 801 So.2d at 10 (quoting John Deere Co. v. Gamble, 523 So.2d at 100). Because we conclude that the trial court erred in its interpretation of the unreasonableness exception in entering a judgment in favor of VFJ, and because we cannot affirm the trial court's judgment on the basis of the subject-to-tax exception, we reverse the trial court's judgment. See Steele v. Walser, supra; see also Fidelity Nat'l Title Ins. Co. of Tennessee v. Jericho Mgmt., Inc., 722 So.2d 740, 743-44 (Ala.1998) (declining to affirm a trial court's order based on other arguments asserted by the appellee); Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160, 1165 (Ala.1998) (same).
Constitutionality
This court has rejected the other bases VFJ has advanced in support of the trial court's judgment in its favor. Therefore, because the case cannot "`"be settled on non-constitutional grounds,"'" see Chism v. Jefferson County, 954 So.2d 1058, 1063 (Ala.2006) (quoting Lowe v. Fulford, 442 So.2d 29, 33 (Ala.1983)), we will consider VFJ's constitutional challenges to the add-back statute.
"`"In reviewing [a question regarding] the constitutionality of a statute, we `approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.'" Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 159 (Ala.1991) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)). Moreover, "[w]here the validity of a statute is assailed and there are two possible interpretations, by one of which *977 the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it." McAdory, 246 Ala. at 10, 18 So.2d at 815. In McAdory, this Court further stated:
"`"[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law."
"`246 Ala. at 9, 18 So.2d at 815 (citation omitted). We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits. Id.'"
Kirby v. State, 899 So.2d 968, 972-73 (Ala. 2004) (quoting Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000)).
In the trial court, VFJ alleged that the add-back statute violates both the Due Process Clause and the Commerce Clause of the United States Constitution. Although on appeal VFJ purports to challenge the statute only on the basis that it violates the Commerce Clause, we note that at least one part of its argument on the issue of constitutionality intertwines with concepts that are related to both the Commerce Clause and the Due Process Clause. The United States Supreme Court has stated:
"Article I, § 8, cl. 3 [the Commerce Clause], of the Constitution expressly authorizes Congress to `regulate Commerce with foreign Nations, and among the several States.' It says nothing about the protection of interstate commerce in the absence of any action by Congress. Nevertheless, as Justice Johnson suggested in his concurring opinion in Gibbons v. Ogden, 9 Wheat. 1, 231-232, 239 (1824), the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well. The Clause, in Justice Stone's phrasing, `by its own force' prohibits certain state actions that interfere with interstate commerce. South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)."
Quill Corp. v. North Dakota, 504 U.S. 298, 309, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). The "negative sweep" of the Commerce Clause referenced above, known as "the dormant Commerce Clause," has been interpreted by the United States Supreme Court as prohibiting a state from imposing taxation on income that is not attributable to that state. Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 179-80, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995); Quill Corp. v. North Dakota, supra.
The United States Supreme Court has established precedent for determining the constitutionality of a state-imposed tax on entities or activities that involve interstate commerce. In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), the State of Mississippi imposed a tax on motor vehicles manufactured outside that state. The Supreme Court upheld the tax. In doing so, the Court rejected its prior decisions that held that a state could not tax income from activities that were part of interstate commerce. See, e.g., Spector Motor Serv. v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951), and Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265 (1946). Instead, the Court relied on other decisions that held that the Commerce Clause was not designed to relieve those engaged in interstate commerce from the burden of state taxation but was instead intended to allow a state to impose taxation *978 only on the state's fair share of the income derived from interstate activity. See, e.g., General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964), and Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823 (1938). In reaching its holding, the Supreme Court adopted language from cases in which it
"considered not the formal language of the tax statute but rather its practical effect, and ... sustained a tax against Commerce Clause challenge when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State."
Complete Auto Transit, Inc. v. Brady, 430 U.S. at 279, 97 S.Ct. 1076 (citing in a footnote General Motors Corp. v. Washington, supra; Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959); Memphis Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948); and Wisconsin v. J.C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267 (1940)) (emphasis added). The foregoing four factors have become known as "the Complete Auto test" and are used to determine the validity of a tax on income derived from activity involving interstate commerce.
Two of VFJ's arguments regarding the constitutionality of Alabama's add-back statute address the elements of the Complete Auto test. First, VFJ contends that "the add-back statute is effectively an attempt" to tax the income of Lee and Wrangler and that Alabama lacks a sufficient nexus with those IMCOs to justify the imposition of that tax. See Complete Auto, supra; see also Quill Corp. v. North Dakota, supra (discussing the requirement that a state have a "sufficient nexus" with a taxpayer in order for the taxpayer to be subject to taxation).
The requirement of a sufficient nexus between the state and the taxpayer has been explained as follows:
"The Due Process and Commerce Clauses of the Constitution do not allow a State to tax income arising out of interstate activitieseven on a proportional basisunless there is a `"minimal connection" or "nexus" between the interstate activities and the taxing State, and "a rational relationship between the income attributed to the State and the intrastate values of the enterprise."' Exxon Corporation v. Wisconsin Dept. of Revenue, [447 U.S. 207,] 219-220 [(1980)], quoting Mobil Oil Corp. v. Commissioner of Taxes, [445 U.S. 425], 436, 437 [(1980)]."
Container Corp. of America v. Franchise Tax Bd., 463 U.S. at 165-66, 103 S.Ct. 2933.
This court's research has revealed some examples in which a state has attempted to tax income received by an IMCO from a corporation required to pay income tax in that state. In Comptroller of the Treasury v. SYL, Inc., 375 Md. 78, 106, 825 A.2d 399, 415 (2003), the Maryland Court of Appeals addressed two companion cases in which tax audits by Maryland's comptroller of the treasury sought to require a Delaware IMCO to pay taxes on franchise fees paid to it by a related-member corporation with activities in Maryland. The tax court had held in each case that there was not a sufficient nexus between the IMCO and the State of Maryland to justify the imposition of the tax on the IMCO. SYL, Inc. v. Comptroller of the Treasury, (No. C-96-0154.01, April 26, 1999) (Md. Tax Ct.1999) (unpublished opinion); see also Comptroller of the Treasury v. SYL, Inc., supra. In each case, the Circuit Court for Baltimore City affirmed the tax court's reversal of *979 the tax assessment, and the comptroller again appealed. The Maryland Court of Appeals reversed and upheld the tax assessments, concluding that "an appropriate portion" of each IMCO's income was taxable in Maryland. Comptroller of the Treasury v. SYL, Inc., supra. In reaching its holding, however, the Maryland Court of Appeals did not focus on the issue of nexus. Rather, the court based its decision on its determination that neither of the IMCOs at issue had any real economic substance and that the predominant reason for the creation of each IMCO was the avoidance of state taxation. Comptroller of the Treasury v. SYL, Inc., 375 Md. at 106-07, 825 A.2d at 415-16.
In Geoffrey, Inc. v. South Carolina Tax Commission, 313 S.C. 15, 437 S.E.2d 13 (1993), the South Carolina Tax Commission took the position that an IMCO was required to pay corporate income tax in that state on income it had received from royalty payments made by a related-member corporation with activities in South Carolina. The South Carolina Supreme Court held that the IMCO had a sufficient nexus with that state to justify the taxation at issue under both the Due Process Clause and the Commerce Clause of the United States Constitution. Id.
In the cases discussed above, each state, pursuant to its interpretation of its taxation statutes, specifically sought to impose a tax directly on the out-of-state IMCOs rather than on the corporations that actually conducted activity within the state. Alabama's add-back statute does not expressly impose a tax on Lee and Wrangler, nor has the Department sought to impose a tax directly on those IMCOs. VFJ contends, however, that the add-back statute does effectively impose a tax on the IMCOs. We conclude that the add-back statute does not implicitly (or "effectively") impose a tax on the IMCOs. Rather, the add-back statute disallows a deduction sought by the taxpayer, VFJ, which does have activities in Alabama sufficient to justify its paying corporate income tax in this state. As stated earlier in this opinion, deductions are a matter of legislative grace. Ex parte State Dep't of Revenue, 441 So.2d at 598. We do not agree with VFJ that disallowing a deduction for an expense it pays constitutes a tax on the entities to whom it paid that expense, in this case Lee and Wrangler. Accordingly, we decline to affirm the trial court's judgment on this basis.
We next turn to VFJ's argument that Alabama's add-back statute results in a tax that is not fairly apportioned to Alabama and, therefore, that it fails to meet the third element of the Complete Auto test. In discussing this element, the Supreme Court has stated:
"For over a decade now, we have assessed any threat of malapportionment by asking whether the tax is `internally consistent' and, if so, whether it is `externally consistent' as well. See Goldberg [v. Sweet, 488 U.S. 252,] 261 [(1989)]; Container Corp. [of America v. Franchise Tax Board], ... 463 U.S. [159], at 169 [(1983)]. Internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear. This test asks nothing about the degree of economic reality reflected by the tax, but simply looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate. A failure of internal consistency shows as a matter of law that a State is attempting to take more than its fair share of taxes from the interstate transaction, since allowing *980 such a tax in one State would place interstate commerce at the mercy of those remaining States that might impose an identical tax. See Gwin, White & Prince[, Inc. v. Henneford,] 305 U.S. [434], at 439 [(1939)]....
"External consistency, on the other hand, looks not to the logical consequences of cloning, but to the economic justification for the State's claim upon the value taxed, to discover whether a State's tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State. See Goldberg, supra, at 262; Container Corp., supra, at 169-170. Here, the threat of real multiple taxation (though not by literally identical statutes) may indicate a State's impermissible overreaching."
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. at 185, 115 S.Ct. 1331 (emphasis added).
In this case, VFJ has maintained that the add-back statute lacks external consistency, i.e., that it attempts to tax activity beyond that that is fairly attributable to its activity in Alabama. Oklahoma Tax Comm'n v. Jefferson Lines, Inc., supra. In support of its argument, VFJ cites Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879 (1931). In that case, the evidence indicated that between 17% and 21% of the taxpayer's income was attributable to its activities in North Carolina. However, the statutory tax provision the taxpayer challenged had allocated approximately 80% of the taxpayer's income to North Carolina for the purpose of imposing a tax on that income. The Supreme Court invalidated the tax, concluding that North Carolina had exceeded its authority in imposing the tax. In so holding, the Supreme Court determined that the evidence demonstrated that the tax "operated unreasonably and arbitrarily" as applied to the taxpayer and that it was "out of all appropriate proportion to the business transacted by the [taxpayer] in [North Carolina]." Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. at 135, 51 S.Ct. 385.
Another case to which VFJ refers this court addresses the issue of fair apportionment. In Hunt-Wesson, Inc. v. Franchise Tax Board of California, 528 U.S. 458, 120 S.Ct. 1022, 145 L.Ed.2d 974 (2000), the taxpayer challenged as unconstitutional the State of California's limitation of a deduction allowed under its tax code. Under the provision at issue in that case, California (a unitary or combined-reporting state) allowed a corporate taxpayer to deduct interest expenses to the extent that the interest expense exceeded other, unrelated income, e.g., income that did not arise out of the taxpayer's activities in California. 528 U.S. at 461-62, 120 S.Ct. 1022. The Supreme Court concluded that, under the facts of that case, the limitation on the deductibility of interest expenses was not a true limit on a deduction but was instead more in the nature of an impermissible tax.
The Supreme Court noted that had California demonstrated that the limitation "reflected the portion of the expense properly related to nonunitary income, the limit would not, in fact, be a tax on nonunitary income" but would instead be a "proper allocation of the deduction." 528 U.S. at 465, 120 S.Ct. 1022. The Supreme Court held that the provision at issue was "not a reasonable allocation of expense deductions to the income that the expense generate[d]," and, therefore, it concluded that the provision violated the Due Process Clause and the Commerce Clause. Hunt-Wesson, Inc. v. Franchise Tax Bd. of California, 528 U.S. at 468, 120 S.Ct. 1022. In reaching its holding, the Supreme Court, quoting Container Corporation of America v. Franchise Tax Board, 463 U.S. at 165-66, 103 S.Ct. 2933, noted that a state may *981 not impose a tax in the absence of a nexus between the state and the interstate activities or in the absence of a "rational relationship" between the income properly attributable to the state and the "intrastate values of the enterprise." Hunt-Wesson, Inc. v. Franchise Tax Bd. of California, 528 U.S. at 464, 120 S.Ct. 1022.
We find the facts of this case to be distinguishable from those that would necessitate holdings similar to the holdings of Hans Rees' Sons, Inc. v. North Carolina, supra, and Hunt-Wesson, Inc. v. Franchise Tax Board of California, supra. The Department, pursuant to the add-back statute, seeks to disallow the deduction of that part of the royalty payments VFJ made to Lee and Wrangler that is attributable to Alabama.[9] In other words, the Department seeks to apply VFJ's Alabama apportionment factor to that part of the royalty payments that was not subject to taxation in North Carolina as part of the IMCOs' taxable income in that state. Accordingly, we conclude that the Department's interpretation of the add-back statute is consistent with the requirements of a nexus between Alabama and the interstate activities, i.e., the royalty payments. See Hunt-Wesson, Inc. v. Franchise Tax Bd. of California, supra; Container Corp. of America v. Franchise Tax Bd., supra.
Further, the evidence did not demonstrate that the application of the add-back statute has resulted in taxation that is out of proportion to VFJ's activities in this state. The United States Supreme Court has established that it is the burden of VFJ, as the taxpayer, to establish "'by "clear and cogent evidence"'" that, as a result of the application of Alabama's add-back statute, "`the income attributed to [Alabama] is in fact "out of all appropriate proportions to the business transacted in [Alabama]," or has "led to a grossly distorted result."'" Container Corp. of America v. Franchise Tax Bd., 463 U.S. at 170, 103 S.Ct. 2933 (quoting Moorman Mfg. Co. v. Bair, 437 U.S. 267, 274, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978)) (internal citations omitted). In this case, there has been no showing that the tax resulting from the application of Alabama's add-back statute was out of proportion to VFJ's activities in Alabama or that the resulting tax reached "beyond that portion of value that is fairly attributable to economic activity within the taxing State [(i.e., Alabama)]." Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. at 185, 115 S.Ct. 1331; see also Container Corp. of America v. Franchise Tax Bd., supra. Under the facts of this case, we conclude that there exists a rational relationship between the income the Department seeks to add back pursuant to § 40-18-35(b) and the income that is to be included in the determination of VFJ's taxable income. See Hunt-Wesson, Inc. v. Franchise Tax Bd. of California, supra; Container Corp. of America v. Franchise Tax Bd., supra. Accordingly, we hold that VFJ has not demonstrated that the add-back statute results in taxation of income that is not fairly attributable to Alabama.
VFJ also asserts that the add-back statute impermissibly discriminates against interstate commerce. It is well settled that "`[a] state may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.'" Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, *982 342, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992) (quoting Armco, Inc. v. Hardesty, 467 U.S. 638, 642, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984)). VFJ contends that under the subject-to-tax exception the income-tax burden imposed by the add-back statute "depends upon where the recipient IMCO is located" and, therefore, that it results in differential treatment that rises to the level of unconstitutional discrimination.
In support of its argument, VFJ cites only to authority discussing facially discriminatory statutes. See South Cent. Tel. Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997); Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996); and AT & T Corp. v. Surtees, 953 So.2d 1240, 1245 (Ala.Civ.App. 2006). In order to determine whether a statute is facially discriminatory, "the text of the statute must treat in-state economic interests differently from out-of-state economic interests in such a way as to benefit the in-state economic interests and burden the out-of-state economic interests." AT & T Corp. v. Surtees, 953 So.2d at 1245 (also setting forth examples of cases in which the United States Supreme Court found state statutes to be facially discriminatory).
The subject-to-tax exception of Alabama's add-back statute specifies that the exception applies when the related member's income is taxed "in Alabama or any other state of the United States." § 40-18-35(b)(1) (emphasis added). Thus, the subject-to-tax exception challenged by VFJ is implicated regardless of which state imposes a tax on the related member's income. The language of the subject-to-tax exception clearly indicates that, with regard to that exception, the application of Alabama's add-back statute does not benefit in-state corporations to the detriment of, or disproportionately to, out-of-state corporations. Accordingly, we must conclude that the add-back statute does not, as VFJ contends, discriminate against interstate commerce on the ground that the subject-to-tax exception results in differential tax treatment between states.
Alternatively, VFJ has asserted in its brief submitted to this court an argument concerning the foreign-jurisdiction portion of the subject-to-tax exception as it relates to the Commerce Clause. See § 40-18-35(b)(1), Ala.Code 1975. However, VFJ presented no evidence demonstrating that the facts of this case implicate that part of the subsection (b)(1) exception.
"A party establishes standing to bring a challenge under the Commerce Clause when it demonstrates the existence of (1) an actual, concrete and particularized `injury in fact'`an invasion of a legally protected interest'; (2) a `causal connection between the injury and the conduct complained of'; and (3) a likelihood that the injury will be `redressed by a favorable decision.' Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party must also demonstrate that `he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.' Warth [v. Seldin], 422 U.S. [490] at 518, 95 S.Ct. 2197 [(1975)]."
Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala.2003). VFJ, because it has not shown that the foreign-jurisdiction portion of the subsection (b)(1) exception applies in this case, has failed to demonstrate sufficient injury so as to confer standing with regard to this argument. See Muhammad v. Ford, 986 So.2d 1158, 1162 (Ala.2007) (in the absence of a legal injury, "there is no *983 case or controversy for a court to consider").
In addressing the issue of the constitutionality of Alabama's add-back statute, this court has addressed only those arguments VFJ has asserted in an effort to support the trial court's judgment in its favor. We decline to address any other arguments that might have been made regarding the alleged unconstitutionality of Alabama's add-back statute. As the Alabama Supreme Court has explained:
"In passing on the validity of a statute it must be remembered that the legislature, except insofar as specifically limited by the state and federal constitutions, is all-powerful in dealing with matters of legislation; that a legislative act is presumed to be constitutional and valid, and all doubts are to be resolved in favor of its validity; that a statute, if reasonably possible, must be so construed as to sustain its validity and will not be declared invalid unless the court is clearly convinced that it cannot stand; that all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which the courts have no concern."
Jansen v. State ex rel. Downing, 273 Ala. 166, 168, 137 So.2d 47, 48 (1962).
We reverse the trial court's judgment in favor of VFJ, and we remand the case to the trial court for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMAS and MOORE, JJ., concur.
PITTMAN and BRYAN, JJ., concur in the result, without writings.
NOTES
[1] VFJ named "Dwight Carlisle, in his official capacity as the commissioner of the Department of Revenue" as a defendant; it later substituted G. Thomas Surtees as a defendant in place of Carlisle when Surtees came to hold the office of commissioner of the Department of Revenue. See Rule 25(d), Ala. R. Civ. P.
[2] Section 40-18-1(18), Ala.Code 1975, defines the term "related member" as:
"A person that, with respect to the taxpayer any time during the taxable year, is a related entity as defined in this section, a component member as defined in 26 U.S.C. § 1563(b) of a controlled group of which the taxpayer is also a component, or is a person to or from whom there is attribution of stock ownership in accordance with 26 U.S.C. § 1563(e)."
[3] In addition to Alabama, the following separate-reporting states also have add-back statutes: Arkansas, see Ark.Code Ann. § 26-51-423(g)(1); Connecticut, see Conn. Gen.Stat. § 12-218(c); District of Columbia, see D.C.Code § 47-1803.02; Georgia, see Ga. Code Ann. § 48-7-28.3; Illinois, see 35 Ill. Comp. Stat. 5/203(a)(2); Indiana, see Ind. Code § 6-3-2-20; Kentucky, see Ky.Rev.Stat. Ann. § 141.205; Maryland, see Md.Code Ann., Tax-Gen. § 10-306.1; Massachusetts, see Mass. Gen. Laws ch. 63, § 31I; Michigan, see Mich. Comp. Laws § 208.1201; Mississippi, see Miss.Code Ann. § 27-7-17; New Jersey, see N.J. Stat. Ann. § 54:10A-4.4; New York, see N.Y. Tax Law § 208; North Carolina, see N.C. Gen.Stat. § 105-130.7A; Ohio, see Ohio Rev.Code Ann. § 5733.042; South Carolina, see S.C.Code Ann. § 12-6-1130; Tennessee, see Tenn.Code Ann. § 67-4-2006(b); and Virginia, see Va.Code Ann. § 58.1-402(B).
[4] Garrett testified, in part:
"[GARRETT:] Well, wewe told our people our people meaning primarily our audit staff, people who reviewed returns from early on, as soon as returns came in with the add-back issues on them, particularly with regard to the exceptions we're talking about here today, what our interpretation was.
"THE COURT: Right.
"[GARRETT:] .... And at least with respect to the unreasonableness exception, that business purpose, economic substance, arm's length pricing was not enough.
"THE COURT: Okay.
"[GARRETT:] And so we didn't really we didn't have to go backward and do anything differently after the reg came about."
[5] We conclude that the trial court's judgment is final. The trial court disposed of the case based on one of the exceptions to the add-back statute claimed by VFJ; accordingly, it was unnecessary for it to address the other claimed exception. The trial court was not required to address the constitutional challenges VFJ had asserted, because, once the trial court had ruled in favor of VFJ on another basis, it was not necessary to reach the constitutional issues. Our supreme court has explained:
"`"A court has a duty to avoid constitutional questions unless essential to the proper disposition of the case."' Lowe v. Fulford, 442 So.2d 29, 33 (Ala. 1983) (quoting trial court's order citing Doughty v. Tarwater, 261 Ala. 263, 73 So.2d 540 (1954); Moses v. Tarwater, 257 Ala. 361, 58 So.2d 757 (1952); and Lee v. Macon County Bd. of Educ., 231 F.Supp. 743 (M.D.Ala.1964)). `"Generally courts are reluctant to reach constitutional questions, and should not do so, if the merits of the case can be settled on non-constitutional grounds."' Lowe, 442 So.2d at 33 (quoting trial court's order citing White v. U.S. Pipe & Foundry Co., 646 F.2d 203 (5th Cir.1981)). `"No matter how much the parties may desire adjudication of important questions of constitutional law, broad considerations of the appropriate exercise of judicial power prevent[] such determinations unless actually compelled by the litigation before the court."' Lowe, 442 So.2d at 33 (quoting trial court's order citing Troy State Univ. v. Dickey, 402 F.2d 515 (5th Cir.1968))."
Chism v. Jefferson County, 954 So.2d 1058, 1063 (Ala.2006).
[6] With regard to the unreasonableness exception to Alabama's add-back statute, the add-back regulation specifies:
"(h) The [add-back statute] will be considered unreasonable if:
"1. The taxpayer establishes that, based on the entirety of the taxpayer's particular facts and circumstances, the adjustments have increased the taxpayer's Alabama income tax liability to an amount that bears no fair relation to the taxpayer's Alabama presence, or
"2. The taxpayer establishes that the interest or intangible expense was paid to a related member that passed through the interest or intangible payment via a corresponding interest or intangible expense payment to an unrelated third party...."
Rule 810-3-35-.02(3)(h), Ala. Admin. Code (Department of Revenue).
[7] Professor Enrich explained:
"The ambition of the add-back statute is to make sure that all of the income is subject to tax somewhere, that it's all apportioned out and that each state is able to tax or not tax as it chooses the share that is attributed to it.
"If the statute were read to say, well, if some one state to which some, perhaps quite small, portion of the income is attributable, if that state taxes it, then nobody else canor we can't attribute our fair share to us would be a nonsensical reading of the statute, whereas to say, well, to the extent that one state does tax some, we'll just apportion the rest, is going to achieve the statutory purpose of making sure that all the income is attributed to some place that can choose whether to tax it or not."
[8] Lee reported $73,021,142 in 2001 in federal taxable income, and it paid $143,480 for state taxes in North Carolina. Wrangler reported $69,644,967 in 2001 in federal taxable income, and it paid $190,155 for state taxes in North Carolina.
[9] With regard to the issue of fair apportionment, VFJ has challenged only the Department's interpretation and application of the add-back statute. It has not argued that the add-back statute does not contain a provision requiring fair apportionment. We do not attempt to address that issue on its behalf. See, generally, Jansen v. State ex rel. Downing, 273 Ala. 166, 168, 137 So.2d 47, 48 (1962) (quoted infra). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602456/ | 8 So.3d 116 (2009)
Dwight NUNLEY and Pauline Nunley
v.
Dr. Ahmed SHANABLEH and Louisiana Medical Mutual Insurance Company.
No. 08-CA-537.
Court of Appeal of Louisiana, Fifth Circuit.
January 27, 2009.
David A. Abramson Lewis, Kullman, Sterbcow and Abramson, Attorney at Law, New Orleans, Louisiana, for Plaintiffs/Appellants.
Stewart E. Niles, Jr., Bryan J. Knight, Niles, Bourque & Fontana, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
*117 CLARENCE E. McMANUS, Judge.
Plaintiffs appeal from the decision of the trial court granting summary judgment in favor of defendants, dismissing plaintiffs' suit for medical malpractice. For the reasons that follow, we affirm the decision of the trial court.
On June 20, 2003, plaintiffs instituted a medical review panel, alleging that Dr. Shanableh committed medical malpractice in prescribing an excessive dose of Prednisone. On November 17, 2005, the medical review panel rendered a unanimous opinion denying the complaint, finding that "The evidence does not support the conclusion that Ahmad M Shanableh, M.D. failed to comply with the appropriate standard of care[.]"
Plaintiffs filed suit on January 9, 2006 against Dr. Ahmed Shanableh and Louisiana Medical Mutual Insurance Company. In their petition, they allege that on August 1, 2000 Dwight Nunley was referred to a pulmonolgy specialist, Dr. Eugene Rosenberg, for the purpose of evaluation and possible placement into a pulmonary rehabilitation program. At that time, Dr. Rosenberg prescribed a course of Prednisone, 20mg daily, to be tapered to a minimum dose. Plaintiffs contend that Dr. Rosenberg informed Dr. Shanableh, Mr. Nunley's primary care physician that Mr. Nunley should be kept on a small dose of Prednisone. However, Dr. Shanableh continued to prescribe 20mg Prednisone, and supplemented this course of treatment with Celestone injections. On September 21, 2001, Mr. Nunley again saw Dr. Rosenberg, who suggested that the Prednisone dose be lowered.
Plaintiffs contend that as a result of the 20mg dose of Prednisone which he ingested daily for one year, he developed avascular necrosis of his left femoral head resulting in the necessity of a total left hip replacement, bilateral cataracts requiring surgery, right hip pain, right side TMJ, bilateral shoulder pain, bilateral elbow pain, back pain, loss of bone density, mood changes and hormonal changes. He further alleges that his body's ability to produce Cortisol had been suppressed and despite his best efforts to taper down to 5mg, he must now take 9-10mg of Prednisone daily.
Plaintiffs further contend that Dr. Shanableh's actions in continuing to prescribe 20 mg Prednisone, instead of a lesser dose, caused or contributed to his injuries and damages and constituted medical malpractice.
On October 11, 2007 defendants filed a motion for summary judgment. In their motion they alleged that there was no genuine issue of material fact because plaintiffs failed to produce an expert medical witness to prove that Dr. Shanableh deviated from the prevailing standard of care for an internist, and failed to present an expert medical witness to prove that any breach of the prevailing standard of care caused any damage or injury to plaintiff. Plaintiffs opposed the motion, contending that the deposition of one of the medical review panel doctors created a material fact as to whether Dr. Shanableh breached the standard of care, and that the medical records of Mr. Nunley's treatment created an issue of fact as to whether the breach caused Mr. Nunley's injury.
On February 28, 2008, the trial court rendered judgment granting the motion for summary judgment and dismissing plaintiffs' suit. Plaintiffs have appealed from the decision of the trial court.
A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is *118 entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Fat Tuesday Cafe, L.L.C. v. Foret, 06-738 (La.App. 5 Cir. 2/13/07), 953 So.2d 821.
This Court's review of a grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424, (La.4/14/04), 870 So.2d 1002, 1006. This Court asks the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066 (La.7/6/04), 880 So.2d 1.
In a medical malpractice action based on the negligence of a physician, the plaintiff has the burden of proving the applicable standard of care under similar circumstances, breach of that standard of care, and causation between the breach and the injuries. La. R.S. 9:2794(A)[1]; Wilson v. Ochsner Foundation Hosp., 05-953 (La.App. 5 Cir. 4/25/06), 927 So.2d 696, 698, writ denied 06-1446 (La.9/22/06), 937 So.2d 393.
Expert witnesses who are members of the medical profession are usually necessary sources of proof in medical malpractice actions to establish the standard of care under the circumstances and to determine whether the defendant doctor possessed the requisite degree of skill and knowledge or failed to exercise reasonable care and diligence. Hyman v. East Jefferson General Hosp., 04-1222 (La.App. 5 Cir. 3/1/05), 900 So.2d 124, 128.
In this appeal, plaintiffs allege that it was error for the court to dismiss their claim. They contend that the deposition of Dr. Jay Shanes, expert for the defense and a member of the medical review panel, created a genuine issue of material fact to preclude summary judgment. They further contend that there is evidence to create a material issue of fact as to causation.
In support of the motion for summary judgment, defendants offered the results of the medical review panel, a page of Dr. Shames' deposition in which he states that he did not think that Dr. Shanableh deviated from the standard of care[2], and the *119 affidavit of Dr. Shanes in which he averred that he was "still of the opinion that Ahmed Shanableh, M.D. complied with all applicable standards of care in all aspects of his care and treatment of Dwight Nunley."
In opposition to the motion for summary judgment, plaintiffs offered Mr. Nunley's treatment records and a different portion of the deposition testimony of Dr. Jay Shames. In that portion of the deposition, Dr. Shames considered a hypothetical posed by plaintiffs attorney and concluded that there could have been a breach of the standard of care. This hypothetical, it is alleged, was based on facts as sworn to by Mr. Nunley and therefore is expert testimony sufficient to create a material issue of fact. Plaintiffs also offered certified medical records, in which they allege that Mr. Nunley's treating physicians linked his medical issues to his Prednisone use. Plaintiffs did not list any expert witnesses that they intended to call at trial.
In its reasons for judgment, the trial court found that
... this is not a case wherein a lay person can infer a breach in the standard of care. The question of whether mover prescribed the appropriate dosage of prednisone, the length of time plaintiff was on Prednisone, the side effects of it, and whether these issues caused damage to plaintiff and constituted a breach of the due standard of care is a complex medical issue. The plaintiff has not put forth any expert medical testimony to show a breach in the standard of care by mover.
* * *
Even assuming plaintiff could show a breach of the standard of care by mover in not tapering the dosage of prednisone, plaintiff has no expert evidence to prove the causation element of his burden of proof.
In this case, we agree with the trial court's determination that plaintiffs have failed to present any specific evidence showing the existence of a genuine issue of material fact as to the issue of breach of standard of care. Accordingly plaintiffs have not established that they could satisfy their evidentiary burden at trial. Plaintiffs' reliance on the deposition of mover's expert, in which he states that there could have been a breach of care under a hypothetical situation, does not create an issue of fact, especially in light of the medical expert's clear pronunciation, in affidavit in support of this motion, in deposition, and in the medical review panel determination, that Dr. Shanableh's treatment did not fall below the accepted standard of care.
Finding no error in the trial court's determination that defendants were entitled to summary judgment, we affirm the judgment of the trial court. All costs are assessed against appellants.
AFFIRMED.
NOTES
[1] LSA-R.S. 9:2794 provides in part:
A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq ...., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
[2] The page of the deposition attached to the motion for summary judgment does not reflect who was deposed. The brief filed in conjunction with the summary judgment motion states that it is from the deposition of Dr. Shames. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602464/ | 361 F.Supp. 603 (1972)
James MOORE et al., Plaintiffs,
v.
LEFLORE COUNTY BOARD OF ELECTION COMMISSIONERS et al., Defendants.
No. GC 71-84.
United States District Court, N. D. Mississippi, Greenville Division.
December 20, 1972.
Frank R. Parker, Jackson, Miss., Johnnie E. Walls, Jr., Greenwood, Miss., David Lipman, Oxford, Miss., for plaintiffs.
R. C. McBee, James W. Burgoon, Jr., Greenwood, Miss., for defendants.
MEMORANDUM OPINION
KEADY, Chief Judge.
Subsequent to the decision of the three-judge court entered October 18, 1971, Moore v. Leflore County Board of Election Commissioners, 351 F.Supp. 848 (N.D. Miss. 1971), the Leflore County Board of Supervisors proceeded to adopt and submit to the court for approval a plan for redistricting the five supervisors' districts in accordance with the one-man, one-vote principle. By a three to two vote the board on March 29, 1972, adopted the plan under present consideration. Thereafter objections were filed separately by the two dissenting board members, Supervisor Robert L. Kyle of District 1 and Supervisor Ray Tribble of District 2, and by plaintiffs suing on behalf of black citizens and residents, black voters and probable black candidates for public office, in the county.
Upon plaintiffs' motion, the three-judge court, originally organized to rule upon the issues of § 5 violation of Voting Rights Act of 1965, 42 U.S.C. §§ 1971 and 1973, was dissolved on September 7, 1972, and the county redistricting issue remanded to the single initiating judge for decision. After extensive discovery, *604 the court conducted a three-day evidentiary hearing. Following submission of briefs and proposed findings of fact in this three-way dispute, the case is now ripe for decision.
Practically all of the salient facts are uncontradicted or at least not in serious dispute. By the 1970 official census, Leflore County has 42,111 residents, of whom 24,373 (58%) are black, 17,550 (42%) are white and 188 (less than .1%) are of other races. The old supervisors' districts were badly malapportioned largely because of the inclusion of the county's only large municipality, Greenwood (22,400) in populous Beat 3, giving that particular district a population almost twice as great as the other four districts combined.[1] Greenwood's city population is divided almost equally between the races: 11,118 whites and 11,130 blacks. The black population of Greenwood is mainly centered in 11 enumeration districts situated in a 5 square mile area in the southeast portion of Greenwood; this section of the city has a total black population of 10,763, or 44.2% of the black population in the entire county. No other area of the county is so populated with blacks.
The plan adopted by the board was largely the handiwork of W. L. Kellum, Supervisor of District 3. Kellum resides in Greenwood, is engaged in the gasoline distributing business, and holds B. S. and B. A. college degrees. The hiring of an outside professional consultant to develop a redistricting plan was voted down by the board majority. The two members of the board who favored Kellum's plan, James D. Green and James M. Hooper, Jr., were convinced of his capability to do the work and relied upon him to devise the redistricting proposal, which the board officially adopted, whereby population close to the one-fifth norm (8,422 persons) was assigned to each of the new districts, to-wit:
Beat No. 1 8,479 20.13%
2 8,409 19.97
3 8,485 20.15
4 8,346 19.82
5 8,392 19.93
______ ______
42,111 100%
Kellum relied upon the 1970 census data, including enumeration districts, and his population allocations are essentially correct. He failed to obtain census office separations of all enumeration districts which were split and relied upon house counts to that extent. Nevertheless, this method did not affect the accuracy of the foregoing calculations.
In fashioning district lines, however, Kellum completely ignored land area and road mileage as planning objectives and utilized narrow corridors to bring into southeast Greenwood the lines of four districts (Beats 1, 2, 3 and 5), whereby the concentrations of black residents heretofore in Beat 3 were broken up and placed in those several districts. Mr. Kellum frankly testified on the witness stand that his intent was to bring into each of the new districts the same racial ratio, i. e., 58% black to 42% white, as existed for the county as a whole, and certain enumeration districts were allocated, and in some instances divided, in order to achieve that approximate result. This was also admitted by the board's answers to interrogatories filed in the cause. No consideration was given by the board to the voting age population, or its racial composition and distribution among the new districts, but the lines were purposely drawn so as not to pit the incumbent supervisors against each other in future elections.
Prior to the adoption of the plan, the board conducted no public hearings, it did not seek the views of any former supervisors or other officials experienced in county government, and made no purposeful contact with members of *605 the white or black communities to solicit their views. Supervisors Kyle and Tribble, however, continued to register objections to the board's plan and sought the advice of separate counsel. One of the admitted and basic features which Kyle and Tribble found objectionable was the total failure to consider either land area or road mileage as legitimate planning factors. Under the board's plan, Beat 3 was reduced to a land area size of 23 square miles (3.9% of the county as a whole), with road mileage of 28 miles (4.1%), in sharp contrast to Beat 1 with 195 square miles (33.2%) and 203.5 road miles (29.6%). Beats 2, 4 and 5 were assigned land area and road mileage of varying but generally similar proportions to Beat 1.
Other defects in the plan are readily apparent. The small hamlets of Money, Schlater and Shellmound, which are homogeneous communities, are split or divided between new Beats 1 and 2. The county road which divides the proposed Beats 1 and 2 is wholly within Beat 2, although most of the residents abutting the road reside in Beat 1. It is obvious from a casual glance at maps that Beats 1 and 2, when compared to Beat 3, would require a great deal more time and effort of a supervisor to discharge the duties of his office for supervising the district. The undisputed proof shows that the road mileage and land area for each proposed beat were computed by the county engineer after the boundaries were determined by the board majority, and no effort was made to correlate such data with the plan adopted.
Moreover, the plan is seriously lacking in compactness of the proposed districts structured only with population in mind. For example, Beats 1 and 2, when measured from within their respective boundaries, almost equal the entire length of the county, with each such district being of irregular formation. Laying aside from consideration the fact that Leflore County's road and bridge maintenance funds have been heretofore divided equally among the county's five districtswhereby Beat 1 has maintained 133.7 road miles on the same amount of money as Beat 3 has obtained for maintaining only 84.6 road miles the proposed plan (203.5 miles for Beat 1 and 28 miles for Beat 3) is shockingly inequitable in that regard.[2] At the time of trial, the board majority, although recognizing the inequity, had refused to commit themselves to change from a beat system to a county-wide system of road and bridge maintenance but deferred resolution of that issue until it was evaluated and determined to be "economically beneficial."
The board's plan in fact physically redistricts only two of the county's five beats. Beats 4 and 5 remain substantially unchanged from their prior boundary lines except each has a "finger" extending into Greenwood to obtain requisite population. Beat 3 was merely reduced in size to remove excess population, leaving the remainder of the district exactly as it presently exists. In contrast, Beats 1 and 2 were drastically changed with proposed Beat 1 now including a large part of the land area that was formerly in Beat 2, and Beat 2 incorporating most of the territory heretofore belonging to Beat 3. Historic boundaries and traditional groupings in those two beats, as well as in east Greenwood, were destroyed.
Prior to the passage of the 1965 Voting Rights Act only a few blacks in the county were registered to vote, and the majority of black citizens were registered to vote for the first time by federal registrars. With a background of fear and civil rights repression, blacks have minimally engaged in political activity, and no black person has been elected to public office in Leflore County. The only black resident who ever ran for the office of supervisor was a candidate who opposed Mr. Kellum in 1966. The black candidate led in the *606 first primary of the Democratic party but lost in the runoff. The following year the board of supervisors changed to at-large elections, and no black person has since sought the office.
Although each new district has a black majority, the extent of that majority, by the board's plan, is materially decreased in every district other than Beat 3.[3] The evidence indicates that of the 24,374 blacks, 11,544 are under 18 years of age, leaving a voting population of 12,830, or 50% of the total black population. Of the 17,550 whites, 5,704 are under 18 years of age, leaving 11,846 whites constituting 67.5% of the total white population. However innocent may have been the board's aim in distributing concentration of black population into the various districts, the net result has been to dilute and fractionate the black voting strength in the election of public officials chosen in district balloting.
The defendant supervisors contend that their plan is meritorious and should be approved since it achieves a division of the total population in as near equal proportions for each district as possible in faithful compliance with the one-man, one-vote rule, the sole criterion for constitutional redistricting. The plaintiffs contend that the plan blatantly violates both the Fourteenth and Fifteenth Amendments since it is racially motivated and inspired by white incumbents who desire to be reelected as county supervisors from districts clearly having white voting majorities.[4] Objectors Kyle and Tribble agree with plaintiffs' contention that the plan was racially motivated but further urge that it is without merit also because it was not based on, or correlated with, road mileage and land area as legitimate factors in planning, although subordinate to the goal of population equality; they further charge that the plan ignored historic boundaries, homogeneous communities and other considerations affecting the welfare of both rural and urban residents, taking into account the duties and responsibilities of a member of the board of supervisors. The dissenting supervisors move the court to reject the board's plan and appoint, under Rule 53 of F.R.Civ.P., a special master, qualified in county redistricting matters, to formulate and submit a constitutionally acceptable plan in accordance with the court's instructions and guidelines.
Before reaching the serious questions in this case, the court will first deal with several peripheral matters. The claim by Kyle and Tribble that they were not given adequate opportunity by the other members of the board to study pertinent datafrom January 1, 1972, when they took office until March 29, when the board took final actionis not well founded. The board was under a court order to act promptly and it was incumbent upon all members of the board, including the dissenters, to be diligent and eschew slow-moving, lackadaisical methods. Kellum did not intentionally withhold any data from the dissenters. While this case may demonstrate the lack of wisdom in not engaging a disinterested and qualified consultant to assist in redistricting, the board of supervisors is not precluded by law from undertaking the task itself and without outside help, provided, of course, it satisfies the well-known overriding constitutional requirements. Plaintiffs' criticism that Kellum split some enumeration districts and, to a degree, relied on house count estimates does not invalidate a statistically accurate plan. The board's plan, therefore, should not be condemned merely because of the mechanical *607 procedures utilized, and the court proceeds to consider the plan on the basis of its merit or lack thereof.
The one-man, one-vote principle for making equal representation for equal number of people a fundamental goal, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (state legislative reapportionment), and Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) (county redistricting), may not be viewed in isolation and to the exclusion of other facets of the Equal Protection Clause of the Fourteenth Amendment, or of discrete constitutional provisions. Courts must require that consideration be given to the Constitution as a whole. "As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion." Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Even though equality of population has been achieved, the board's plan cannot pass muster where it is the product of racial gerrymandering violative of the Fourteenth and Fifteenth Amendments. This principle was clearly established in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110 (1960), a case relating to a statute redefining the boundaries of the City of Tuskegee whereby no white voters and all but a few negro voters were removed from the city limits. The purpose and effect of the proposal was to fence negro citizens out of the town so as to deprive them of their preexisting municipal vote. In invalidating the legislative act, the Supreme Court said: "The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281, 1287." By equal protection standards, systematic and intentional diluting of black voting strength by gerrymandering is just as discriminatory as complete disenfranchisement or total segregation of negroes. Sims v. Baggett, 247 F.Supp. 96 (M.D.Ala.1965, 3-judge court). The overall criteria for valid redistricting were well summarized recently by Chief Judge West in Bussie v. Governor of Louisiana, 333 F.Supp. 452 (E.D.La.1971), affirmed as modified 457 F.2d 796 (5 Cir. 1971), vacated sub nom. Taylor v. McKeithen, 407 U.S. 191, 92 S.Ct. 1980, 32 L.Ed.2d 648 (1972), which concerned a reapportionment plan for the Louisiana Legislature. The Court stated, 333 F.Supp. at page 456:
"Therefore, any plan of apportionment, to be constitutionally acceptable, must pass certain basic tests. It must, within reason, conform to the one man, one vote rule. It must not be so designed as to dilute the voting strength of any person or group. And it must not employ the devise of gerrymandering in order to favor any person or group. When possible, the plan should follow parish and ward lines as well as historical and natural boundaries. But the use of such boundaries cannot be tolerated if either the purpose or the result is to deprive the people of the benefit of the one man, one vote principle or to deprive them of the anti-dilution principle now firmly established in the law."
Since it is evident that both the purpose and effect of the board's plan was to divide the black population and dilute the black vote in Leflore County, the plan must be rejected for that reason alone. Indeed, it would be difficult to visualize a clearer case of racial gerrymandering with the result of invidious discrimination than obtains in the instant case. Plaintiffs have therefore carried the burden of showing that the plan, although based on equality of population, is a constitutionally impermissible one. In so holding, this court does not place its imprimatur upon concentrating blacks within one or more districts to emphasize their voting strength, but only that the race of people cannot be considered in reapportionment. "The Federal Constitution is color blind. It is equally as unconstitutional to discriminate against a white man as it is to discriminate against a colored man . . . ." Dixon v. Duncan, 218 F.Supp. 157 (E.D.Va.1963). *608 See Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).
Furthermore, the dissenting supervisors raise substantial objections to the plan which are valid. Without doubt, factors other than numerical equality are important considerations in a county's redistricting. An instructive case relied upon by all parties is the recent Fifth Circuit decision, Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5 Cir. 1972), which approved the supervisors' redistricting plan for Adams County, Mississippi. Because of analogous facts, that case is directly applicable here. As counsel for the dissenting supervisors point out, certain basic facts are common to both cases:
(a) The population concentration of each county is located within a single municipalityNatchez (64%) in Adams and Greenwood (53%) in Leflore;
(b) The total population of each county is nearly the sameAdams 37,730 and Leflore 42,111;
(c) The racial makeup of each county is roughly 1 to 1, with concentrations of black population in Natchez and Greenwood;
(d) The populous municipality of each county is located on or very near a county lineNatchez on the western edge of Adams, and Greenwood near the eastern boundary of Leflore;
(e) Large, sparsely rural areas comprise most of the land mass of each county.
In Adams County, the board engaged an outside consultant, Comprehensive Planners, Inc. (CPI), to prepare a redistricting plan taking into account not only population but road mileage, land area and other factors designed to equalize the responsibilities of each supervisor. Describing the plan, the Court stated:
"As the new plan was developed, therefore, each district converged in spoke-like fashion from a broad rural base into the City of Natchez. This dissection of the population concentration of the county resulted in an equal allocation of the population of Natchez among the new districts. Under the population figures available to CPI in 1970, prior to the publication of the 1970 census, the result was a plan in which substantial equality of population was reached in districts that reflected cross sections of urban and rural land areas." at 456.
The Fifth Circuit approved this approach by holding:
"Equality of population in electoral districts was a primary goal of the revision. Another objective, however, was the equalization of the responsibilities of each Supervisor in exercising their traditional function of highway and bridge maintenance. Thus, the Board instructed CPI not only to equate, as best it could, the population of the districts, but also the mileage of roads for county maintenance, and the square mile area of each district. With its land area largely rural, and its population concentrated in one urban area, the realization of these legitimate planning objectives dictated a plan which would consolidate urban and rural areas into each district." at 456 (Our emphasis).
A correlation of road mileage and land area, with equality of population thus assigned upon rational considerations, was sufficient to withstand an attack by black citizens that the Adams County redistricting plan was the product of racial motivation.
Since the Fifth Circuit has given high values to what it regards as "legitimate planning objectives", this court cannot overlook or excuse the failure of the Leflore County Board of Supervisors to make any effort to correlate road mileage, bridge maintenance, land area, with population or to consider natural boundaries and compactness of each district along with equality of functions on the part of each supervisor and law enforcement personnel. Adams County, decided January 6, 1972, was a sure guide that *609 the board's majority chose not to follow. The board, by considering only equality of population, took a highly superficial view of the redistricting which did not come to grips with the needs of the area and improving the structure of county government. Obviously, gross inequality in the responsibility exercised by individual supervisors among the five districts of the county, which inheres in the board's plan, is unworkable and not in the county's best interest; such a result is almost as undesirable as having malapportioned districts which ignore the rule of equal representation for an equal number of people. There is no evidentiary basis for concluding that Leflore County presents any unique or peculiar problems that preclude the use of several legitimate planning objectives other than equality of population in developing a meritorious plan. With the Adams County case as unmistakable precedent, a person qualified in redistricting matters should have little difficulty in developing a proposal that reflects cross sections of urban and rural land areas with substantial equality of population assigned to each district, and without racial gerrymandering. We may add that in proper planning, only minimal, if any, consideration is to be given the residence of incumbent supervisors in drawing district lines, since the object of redistricting is to benefit the people and not perpetuate the incumbents in office.
Finally, we conclude the motion of the dissenting supervisors that the court appoint a special master under Rule 53, F.R.Civ.P., to formulate a redistricting plan which satisfies constitutional requirements is well taken. Because no plan is before the court which can be approved, there is a need for the court to obtain expert assistance in redistricting Leflore County. Qualified expert assistance is readily available, and at reasonable cost to the county. Hence, as part of its order, the court shall appoint a special master with appropriate instructions for the development, formulation and submission of a constitutionally acceptable redistricting plan in accordance with the views herein expressed.
Let an order be entered accordingly.
NOTES
[1] No. 1 2,536
2 2,999
3 27,651
4 5,515
5 3,410
______
42,111
[2] Half of Beat 3's 28 miles are located within the corporate limits of Greenwood and are city maintained.
[3] Beat 1 reduced 78% to 58%
Beat 2 reduced 74% to 60%
Beat 4 reduced 76% to 55%
Beat 5 reduced 69% to 57%
Beat 3 increased 49% to 55%
[4] Plaintiffs at the trial submitted a redistricting plan of their own, which the court refused to consider other than in impeachment of the board's plan, because of the unexcused failure of plaintiffs to file their alternate plan within the time allowed by the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602475/ | 577 So.2d 1074 (1991)
Rolf R. SCHROEDER
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, et al.
Consolidated With
Rolf R. SCHROEDER, Individually and as Administrator of the Minor Andrew E. Schroeder, Andrew E. Schroeder, Continental Casualty Company, Safeco Insurance Company,
v.
The CONTINENTAL INSURANCE COMPANY, the Fidelity and Casualty Company of New York and Board of Supervisors of Louisiana State University.
Nos. CA 89 2018, CA 89 2019.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
Writ Granted June 14, 1991.
*1075 Boris Navratil, Baton Rouge, for plaintiff-appellee Rolf Schroeder.
Frank Fertitta, Baton Rouge, for defendant-appellee Safeco Ins. Co.
Dermot McGlinchey, New Orleans, for defendant-appellant Board of Sup'rs, LSU Fidelity & Cas. Co. of New York Continental Ins.
Ramon G. Jones, New Orleans, for defendant-appellee Continental Cas. Co.
Before LOTTINGER, SHORTESS and CARTER, JJ.
LOTTINGER, Judge.
This is an appeal by defendants, the Board of Supervisors of Louisiana State University (LSU), Continental Insurance Company (Continental), and Fidelity and Casualty Company of New York (Fidelity), from the granting of summary judgment in favor of plaintiffs, Rolf and Andrew E. "Eric" Schroeder, and plaintiffs in intervention, Safeco Insurance Company (Safeco), and Continental Casualty Company (CNA). In granting summary judgment the trial court held that Andrew E. "Eric" Schroeder was an additional insured under the policies of insurance issued by the defendant insurers to LSU, and that those policies provided coverage to the Schroeders for any liability incurred by them as a result of the auto accident which is at the crux of these proceedings.
PROCEDURAL HISTORY
The instant consolidated proceedings are the offspring of litigation which arose out of an automobile accident in which a young woman was seriously injured. Following the accident the young woman, Ms. Lee, and her parents (the Lees) sued the driver *1076 of the other vehicle involved, Eric Schroeder, and his parents,[1] together with the Schroeder's liability insurer and their own (the Lee's) underinsured motorist carriers, Safeco and CNA.
After a trial on the merits, a judgment in excess of one and a half million dollars was rendered in favor of the Lees and against the Schroeders and their liability insurer, and Safeco and CNA as the Lee's underinsured motorist carriers. Safeco and CNA ultimately paid the lion's share of this judgment and obtained a third party judgment against the Schroeders in that amount. We modified and affirmed these judgments on appeal. Lee v. USAA Casualty Insurance Company, 540 So.2d 1083 (La.App. 1st Cir.), writ denied, 542 So.2d 514, 515 (La.1989), reconsideration denied, 544 So.2d 384, 385 (La.1989).[2]
The Schroeders then filed the first of the instant consolidated proceedings against LSU, Continental and Fidelity, alleging that LSU was vicariously liable through Eric Schroeder for Ms. Lee's injuries. Safeco and CNA intervened to recoup from LSU the amounts they paid to the Lees.
The Schroeders then brought a separate declaratory judgment action against Continental, Fidelity, and LSU seeking to have Eric Schroeder declared an additional insured under the business auto policies issued to LSU by Continental and Fidelity. Safeco and CNA again intervened asserting that if Eric Schroeder is covered under Continental's and Fidelity's policies for his liability to the Lees, then he is not underinsured, and therefore, since their (Safeco and CNA) liability is only as underinsured motorist carriers, they should not have been held liable to the Lees and are entitled to reimbursement from LSU's insurers. The vicarious liability and declaratory judgment actions were then consolidated.
The Schroeders, Safeco, and CNA then filed a joint motion for summary judgment, seeking to have Eric Schroeder declared an additional insured and covered for his liability stemming from the accident under the Continental and Fidelity policies issued to LSU.[3] LSU, Continental, and Fidelity responded with a cross motion for summary judgment, seeking a declaration that Eric Schroeder is not covered under their policies. These cross motions for summary judgment were decided in favor of the Schroeders, Safeco, and CNA and against Continental, Fidelity, and LSU, who then perfected the instant appeal.
FACTS
On Saturday, October 29, 1983, Eric Schroeder drove his father's car to "Sadie Hawkins Day" at the University Laboratory School (U. High) on the LSU campus in Baton Rouge.[4] On the way to the event he picked up Bradley Aucoin, a classmate. Eric then purchased a six pack of beer and two hamburgers before proceeding to school. When the boys, who were both seniors at U. High, arrived at the school at approximately 12:30 p.m., they remained in the parking lot while Eric drank several of the beers and ate the hamburgers. The *1077 boys then participated in the "Sadie Hawkins Day" events.
"Sadie Hawkins Day" is an annual fund raising event for the senior class at U. High. It is an official school sponsored event. U. High teachers supervise and act as chaperons, and all of the school's rules and regulations apply and are enforced by the teachers present. "Sadie Hawkins Day" consists of two separate events: a carnival from approximately 2:00 p.m. until 5:00 p.m., and a dance from 8:00 p.m. until 11:30 p.m. Students from grades 6 through 12 can participate in the carnival activities during the day, and students in grades 9 through 12 can participate in the dance.
Since the purpose of these events is to raise funds for the senior class, all of the senior class members are required to participate and are assessed a fine for not doing so. The senior class is responsible for most of the planning, setting up, decorating, and other "legwork" necessary for the event, but all plans and assignments are first approved by U. High faculty member "sponsors," of which there were four for this particular "Sadie Hawkins Day".
Near the end of the carnival part of the event, Ms. Gayle Ater, a teacher at U. High, senior class sponsor, and LSU employee, asked Bradley Aucoin if he knew which student was supposed to get the ice for the dance that evening. Bradley did not know, but volunteered to go and get it. Ms. Ater gave him money from the event funds to buy the ice and directed him to get the ice from an ice house several miles away.[5] Ms. Ater assumed that Bradley would use a vehicle to get the ice, but did not know what vehicle he would use.
Bradley then asked Eric to take him to get the ice. Ms. Ater did not know that Eric was going with Bradley to get the ice or that they were going in Eric's father's car. However, Ms. Ater stated that she would not have had any objection to Eric going with Bradley if she had known of it. Ms. Ater did not know that Eric drank beer prior to the day's events.
On the way back to school after picking up the ice, Eric and Bradley stopped and bought another six pack of beer. As they were returning to school with the ice, the accident which forms the basis of liability in this suit occurred.
THE INSURANCE POLICIES AT ISSUE
Continental's business auto policy issued to LSU and in effect at the time of the accident here at issue provides that Continental will pay all damages the insured is legally liable for arising from an accident resulting from the ownership, maintenance, or use of a covered auto. It provides coverage up to five hundred thousand dollars ($500,000.00) for liability purposes. Specifically this policy provides under "Part IV Liability Insurance":
A. WE WILL PAY.
1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.
For liability purposes this policy defines covered auto as "any auto." Therefore, the dispositive issue is whether Eric Schroeder is an insured within the meaning of the policy.
Part IV(D) of the policy defines an insured for liability purposes as follows:[6]
D. WHO IS INSURED.
1. You are an insured for any covered auto.
2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow except:
a. The owner of a covered auto you hire or borrow from one of your employees or a member of his or her household.
*1078 b. Someone using a covered auto while he or she is working in a business of selling, servicing, repairing or parking autos unless that business is yours.
c. Anyone other than your employees, a lessee or borrower or any of their employees, while moving property to or from a covered auto.
3. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability. However, the owner or anyone else from whom you hire or borrow a covered auto is an insured only if that auto is a trailer connected to a covered auto you own.
Under the terms of this policy, Eric Schroeder is an insured for liability purposes if he was driving an auto borrowed by LSU, and he had LSU's permission to do so.
The policy issued by Fidelity to LSU is a "form following" umbrella policy with limits of twenty million dollars ($20,000,000.00) over the limits of the underlying policies listed therein. Continental's policy is listed as an underlying policy in the Fidelity policy. Therefore, if Eric Schroeder is an insured under the Continental policy, then he is also insured under the Fidelity policy.
ISSUES ON APPEAL
The trial court granted summary judgment in favor of the Schroeders, Safeco and CNA, holding that Eric Schroeder was an insured under the Continental and Fidelity policies for his liability arising out of the accident at issue. The trial court denied appellants' cross motion for summary judgment on the same issue. LSU, Continental and Fidelity have appealed, arguing that the trial court erred in granting summary judgment because genuine issues of material fact existed; or alternatively, that the trial court erred in finding that LSU borrowed the Schroeder vehicle or gave permission to Eric Schroeder to drive it, and, therefore, summary judgment should have been granted in their favor.
SUMMARY JUDGMENT
A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. The burden of proving that there is no genuine issue of material fact in dispute is upon the mover. Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 435 So.2d 1058 (La. App. 1st Cir.1983); Munson v. Safeco Insurance Company, 411 So.2d 578 (La.App. 1st Cir.1982). Any doubt concerning the existence of genuine issues of material fact should be resolved against the granting of summary judgment as it is no substitute for a trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La. 1980).
In order to prevent the rendition of summary judgment, allegedly disputed issues must be both genuine and material. Formal allegations without substance or disputed issues which are patently insubstantial are not genuine issues that will preclude summary judgment. Aydell v. Charles Carter and Company, Inc., 388 So.2d 404 (La.App. 1st Cir.), writ denied, 391 So.2d 460 (La.1980); Jones v. American Bank and Trust Company, 387 So.2d 1360 (La.App. 1st Cir.1980); City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir.1979).
A fact is material if it is essential to plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigants' ultimate success, or determine the outcome of a legal dispute. Eads Operating Company, Inc. v. Thompson, 537 So.2d 1187 (La.App. 1st Cir.1988), writ denied, 538 *1079 So.2d 614 (La.1989); Swindle v. Haughton Wood Company, Inc., 458 So.2d 992 (La. App. 2nd Cir.1984); Sanders v. City of Blanchard, 438 So.2d 714 (La.App. 2nd Cir. 1983). Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can only be seen in the light of the substantive law applicable to the case. Sun Belt Constructors, Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5th Cir. 1988); Williams v. South Central Bell Telephone Company, 516 So.2d 1309 (La. App. 2nd Cir.1987); Sanders, 438 So.2d at 717.
The appellants contend that there are two disputed material issues of fact which should have precluded the granting of plaintiff's motion for summary judgment. Appellants first contend that there is a dispute over whether the Sadie Hawkins Dance was a school sponsored event and whether the act of obtaining ice benefitted LSU.[7] Appellants point to their answers to interrogatories and requests for admission as evidence of this dispute.[8]
However, it is abundantly clear from the depositions of Ms. Ater, Mr. Fox and Mr. Smith,[9] all witnesses controlled by the appellants, that the Sadie Hawkins Day events were indeed school sponsored events and that obtaining the ice did in fact benefit LSU.[10] Additionally, at the hearing on the cross motions for summary judgment, the attorney representing the appellants admitted that the Sadie Hawkins Day events were school sponsored. Therefore, these allegedly disputed factual issues are patently insubstantial and will not preclude summary judgment.
The appellants next contend that there is a dispute concerning whether Ms. Ater knew that Eric Schroeder was going with Bradley Aucoin to get the ice or that the Schroeders' car would be used. The appellants are correct. There is a factual dispute over whether Ms. Ater knew that Eric Schroeder was going to get the ice in his father's car. The deposition testimony of Eric Schroeder, Bradley Aucoin, and Gordon McKernan, another U. High student, indicates that Ms. Ater did know that Eric was going to get the ice. Ms. Ater's deposition testimony, on the other hand, is that she did not know these things.[11]
Appellees admit that this is a disputed issue. However, they contend that it is not a material issue. Indeed, at the hearing on the motions for summary judgment, the appellee's attorney stated that he was going to accept the facts least favorable to appellees, and maintained that on the basis of those facts, i.e. that Ms. Ater did not know Eric Schroeder was going with Bradley Aucoin or what car was going to be used, that summary judgment in favor of plaintiffs was appropriate.[12]
*1080 As stated above, the law applicable to the plaintiff's cause of action determines whether a fact is material or not. In this case the question to be answered is: were the plaintiffs entitled to judgment as a matter of law given the facts as stated most favorably to appellants, i.e. that Ms. Ater did not know that Eric Schroeder was going to get the ice or that the Schroeder's vehicle was going to be used?[13]
If the trial court was incorrect as a matter of law in holding that there was coverage under the insurance policies at issue given the facts as stated by the appellants, but such a ruling would be correct given the facts as testified to by Eric Schroeder, Bradley Aucoin, and Gordon McKernan, then summary judgment was not proper, as this dispute would be over material facts. However, if the trial court was correct as a matter of law in holding that there was coverage under the policies at issue given the facts as stated by appellants, then the disputed facts are not material and summary judgment was appropriate.
DID LSU "BORROW" THE SCHROEDER VEHICLE?
In order for Eric Schroeder to be considered an insured under the policies at issue, LSU must have borrowed the Schroeder vehicle. The trial court held that since "borrow" was not defined in the policy, and that since it is susceptible of more than one meaning, it must be interpreted liberally in favor of coverage. The trial court then interpreted the word "borrow" to mean gaining the use of something, whether or not exercising dominion or control. Based on this interpretation of borrow, the trial court held that LSU borrowed the Schroeder vehicle when Ms. Ater sent Bradley Aucoin to get the ice because she knew that a vehicle would be used for the benefit of LSU.
The appellants object to the liberal construction rule used by the trial court. They contend that although as a general rule ambiguous provisions should be interpreted against the insurer, the rule does not apply when determining who is an insured under the policy. They claim that an exception is made in the case of a third party to the insurance policy and that the rule of liberal construction does not apply to those not insured under the policy. Appellants cite only Federal and out of state cases in support of this proposition.
A review of the applicable Louisiana law and jurisprudence reveals that undefined words in an insurance policy are generally accorded their prevailing meaning and usual significance. La.Civ. Code art. 2047. However, if a word is susceptible of more than one meaning it must be understood in the sense that renders the obligation effective, and doubtful or ambiguous language is construed against the insurer and in favor of coverage. La.Civ.Code art. 2049; Credeur v. Luke, 368 So.2d 1030 (La.1979); Albritton v. Fireman's Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953).
We can find no support for an exception to this rule when determining whether one is an insured under the terms of an insurance policy. In fact, we have found several cases where the liberal interpretation rule was used to determine whether or not a person is an insured under an insurance policy. Westerfield v. LaFleur, 493 So.2d 600 (La.1986); McLemore v. Fox, 565 So.2d 1031 (La.App. 3rd Cir.), writ denied, 569 So.2d 966 and 968 (La.1990). The trial court was correct to use the rule of liberal construction.
The appellants next object to the meaning given to the word "borrow" by the trial court. Appellants claim that in order to borrow something, the borrower must have physical possession of the thing, or dominion and control over it. Appellants cite Black's Law Dictionary; Sturgeon v. Strachan Shipping Co., 731 F.2d 255 (5th Cir.), cert. denied, 469 U.S. 883, 105 S.Ct. 251, 83 *1081 L.Ed.2d 188 (1984); Liberty Mutual Insurance Company v. American Employers Insurance Company, 556 S.W.2d 242 (Tex. 1977); and Prudhomme v. Vancouver Plywood Co., 240 So.2d 587 (La.App. 3rd Cir. 1970); in support of this interpretation.[14]
Black's defines "borrow" as follows: "[t]o solicit and receive from another any article of property ... with the intention and promise to ... return it.... [R]eceiving something from another for one's own use." Black's Law Dictionary 167 (5th ed. 1979).
Sturgeon, Liberty Mutual, and Prudhomme, all address the issue of whether the unloader of a truck borrows the truck when unloading it. Sturgeon and Liberty Mutual both held that in order to be the borrower of a vehicle, use and possession are required.[15] This is one interpretation of the term "borrow."
Although arriving at the same result, the Prudhomme court utilized the law of bailment and the civil code articles dealing with deposit to conclude that the unloader had not borrowed the truck. The pertinent policy language in Prudhomme was "bailee or borrower" and the court apparently treated this phrase as meaning only one thing and not as encompassing two distinct situations. Thus the Prudhomme case does not really define who is a borrower, but rather defines who is a bailee.
The California case relied on by the trial court, Travelers Indemnity Company v. Swearinger, 169 Cal.App.3d 779, 214 Cal. Rptr. 383 (3 Dist.1985)[16], involved an insurance policy with provisions identical to those at issue here. In that case, a school district implemented a policy whereby visiting students attending a basketball tournament were provided room and board by approved families of students of the host school. It was understood that the host family would provide transportation to and from the games. An accident occurred while the host student and a visiting student were on the way to a basketball game in the host family's car.
The issue in Swearinger was whether the host student/driver was an insured under the school's insurance policy. The case turned on whether the school district had "borrowed" the host family's car. After citing the California rule of liberal construction, which is identical in theory to the rule in Louisiana, the Swearinger court examined the possible meanings of the term "borrow" in the insurance policy there at issue.[17]
The Swearinger court first noted the word "borrow" appears in the definition of "insured" and in an exception thereto. (D.2. and D.2.a. above). The court found that excluding the owner of a vehicle from the class of insured when that vehicle has been borrowed by the named insured from one of its employees or a member of his household, (D.2.a above), implies that a borrowing can occur whenever the named insured properly gains the use of a third party's (the employee or member of his family) vehicle for its purposes, no matter who has dominion or control of the car. Swearinger, 214 Cal.Rptr. at 386.
The Swearinger court next referred to The Oxford English Dictionary which includes "to make temporary use of (something not one's own) ..." as one of the definitions of "borrow." The court found this definition to be the one best suited to the insurance policy at issue because the purpose of the policy is to provide indemnification *1082 for damages arising from the use of covered vehicles.
The Swearinger court also noted that "hire" and "borrow" are juxtaposed in the policy language. The court found that borrow can be distinguished from hire only by the absence of renumeration, and that a vehicle can be hired by one not physically exercising dominion or control, i.e., one hires a taxicab even though not taking physical control of it.
The Swearinger court adopted this interpretation of borrow and held that the school district had "borrowed" the host family's car, since it properly gained the use of the vehicle for its purposes. Dominion and control or physical possession are not requisites to this interpretation of the term "borrow."
In the instant case, Bradley Aucoin "volunteered" to get the ice after LSU's employee, Ms. Ater, asked him who was supposed to go and get it. Ms. Ater provided him with directions to the ice house and money to buy the ice. She knew that Bradley was going to use a vehicle to get the ice.
We agree with the trial court that a vehicle can be "borrowed" by one not exercising physical control over the vehicle when it is being used in furtherance of the borrower's interests and the borrower purposefully derives a benefit from the use of the vehicle. Since the term "borrow" is not defined in the policy,[18] the trial court was correct to afford this broad meaning to the word in order to effectuate coverage.
DID ERIC SCHROEDER HAVE LSU'S PERMISSION TO DRIVE BRADLEY AUCOIN TO THE ICE HOUSE?
Whether or not a particular person was operating an automobile with the express or implied permission of the named insured is to be determined according to the circumstances of the particular case. Malmay v. Sizemore, 493 So.2d 620 (La.1986); American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (La.1969). In the instant case, LSU's representative, Ms. Ater, did not know that Eric was going with Bradley to get the ice. She did know that Bradley had to use an automobile, but didn't inquire as to whose he would use. Therefore, Ms. Ater, and thus LSU, impliedly approved of, or granted implied permission to Bradley to use an automobile to get the ice. The crucial question then becomes, did LSU also impliedly consent to Bradley recruiting Eric to drive him to the ice house?
A second permittee such as Eric Schroeder generally is said to have the implied permission of the named insured only where it is reasonably foreseeable from the named insured's point of view that the first permittee, here Bradley Aucoin, would allow someone else to drive. Czarniecki, 230 So.2d at 257; Southern v. State Farm Mutual Automobile Insurance Company, 496 So.2d 1349, 1351-52 (La.App. 3rd Cir.1986). Thus, implied permission arises from a course of conduct by the named insured which indicates an acquiescence in, or lack of objection to, the use of the vehicle by the second permittee. Francois v. Ybarzabal, 483 So.2d 602, 605 (La.1986).
In the instant case, Ms. Ater was looking for a student to go get ice. She was not primarily concerned about sending or not sending a particular student. She candidly admitted that she would not have had any *1083 objection to Eric going to get the ice, but that she just ran into Bradley first. Under these circumstances, we cannot say that Eric did not have the named insured's implied permission to drive Bradley to get the ice.
This conclusion is bolstered by the fact that where a second permittee is seeking to invoke the coverage afforded by the omnibus clause in the named insured's policy based on the implied permission of the named insured, and absent an express denial of permission, recovery is generally allowed where the original permittee is riding in the car with the second permittee at the time of the accident, or where the second permittee is serving the purpose of the first permittee in his use of the vehicle. Jones v. Breaux, 289 So.2d 110 (La.1974)[19]; Anderson v. Adams, 148 So.2d 347 (La. App. 1st Cir.1962). Even where the second permittee is using the vehicle contrary to the express wishes of the named insured, he is said to be using it with "permission" where the use of the vehicle serves some purpose of the named insured, or he derives an advantage or benefit from such use. Anderson, 148 So.2d at 352.
In the instant case, the first permittee (Bradley Aucoin) was in the vehicle with the second permittee (Eric Schroeder), and the purpose of both the named insured and the first permittee was being served at the time of the accident. Therefore, we are of the opinion that Eric Schroeder was driving his father's car on the mission to get the ice with the implied permission of LSU, and the trial court was correct for so holding.
CONCLUSION
Since, under the facts most favorable to the appellants, the trial court was correct in holding that LSU borrowed the Schroeder vehicle and that Eric Schroeder had implied permission to drive it, the factual dispute as to whether or not Ms. Ater knew that Eric Schroeder was going with Bradley Aucoin to get the ice is not a material one. Appellants' claim that the "Sadie Hawkins Day" event was not a school sponsored event and that LSU did not benefit from having students go get the ice is without substance and not a genuine issue. Summary judgment was properly granted in favor of appellees.
Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellants' costs.
AFFIRMED.
NOTES
[1] Both Ms. Lee, and Eric Schroeder, the drivers of the vehicles involved in the accident, were minors at the time the accident occurred.
[2] Following our disposition as to the amount owed to the Lees, a dispute arose as to the ranking of Safeco's and CNA's UM policies. The Lees filed a rule to show cause in the trial court to determine the ranking of the policies. The trial court's ruling was reversed and modified by this court on supervisory writs, following which certiorari was granted by the Louisiana Supreme Court. The supreme court reinstated the trial court's ruling that Safeco is liable to the Lees for $500,000.00 plus interest, and that CNA is liable for the remaining $906,000.00 plus interest. Lee v. USAA Casualty Insurance Company of America, 571 So.2d 127 (La.1990).
[3] Inasmuch as the Schroeders, Safeco, and CNA filed actions for declaratory judgment subsequent to a judgment on the merits, their motion for summary judgment was proper because it would grant all the relief requested.
[4] University Laboratory School is a part of the LSU system. It comprises a department in the College of Education at Louisiana State University on the Baton Rouge campus. The principal of University Laboratory School is the equivalent of a department chair in the College of Education, and all of the teachers there are LSU employees. Grades K through 12 are taught at the school. The part of the school comprised of grades 9 through 12 is commonly referred to as University High, or U. High.
[5] Ms. Ater found out from the school secretary sometime during the prior week where the ice could be purchased.
[6] "You" and "your" in this section refers to the named insured, LSU.
[7] Appellants contend that obtaining the ice benefitted only the senior class at U. High and not LSU.
[8] Appellants initially admitted that the Sadie Hawkins Day events were school sponsored and that obtaining the ice benefitted LSU. These admissions were withdrawn by amended answers to the interrogatories and requests for admission. At the hearing on the cross motions for summary judgment counsel for appellees agreed to waive his objection to the amended answers for the purpose of deciding the motions.
[9] Ms. Ater is a teacher at U. High and was a senior class sponsor whose responsibility it was to supervise the Sadie Hawkins Day events, Mr. Fox is the principal of U. High, and Mr. Smith is the Dean of the college of education at LSU. All are employees of LSU.
[10] Strictly speaking, whether or not obtaining the ice benefitted LSU is not a factual determination, but a conclusion which must be drawn from the circumstances and events surrounding the procurement of the ice. A dispute over such a conclusion will not preclude summary judgment. Bouterie v. Kleinpeter, 289 So.2d 163 (La.App. 1st Cir.1973), writ refused, 293 So.2d 169 (La.1974). It is clear even from the appellant's version of the circumstances and events surrounding the procurement of the ice that LSU did benefit from sending students to get the ice. This can be seen from the fact that Ms. Ater had to go and get the ice when the students did not return with it.
[11] Ms. Ater's deposition testimony is accurately reflected in the part of this opinion under the heading "facts" above.
[12] We are convinced from the transcript of the hearing on the cross motions for summary judgment and the trial court's oral reasons for judgment that the trial court was very concerned about whether there were any facts in dispute and that he granted the summary judgment in favor of appellees based on the facts as asserted by the appellants.
[13] See, Sizeler Property Investors, Inc. v. Gordon Jewelry Corporation, 550 So.2d 237, 242 (La.App. 4th Cir.), writ denied, 551 So.2d 1327 (La.1989); and Whitney National Bank v. Palermo, 505 So.2d 95, 97 (La.App. 4th Cir.1987).
[14] Appellants also cite Imburgia v. Salem Township Rescue Squad, Inc., 114 Wis.2d 159, 337 N.W.2d 467 (App.) review denied, 114 Wis.2d 603, 340 N.W.2d 202 (1983); and Juve v. Home Indemnity Co., 301 N.W.2d 554 (Minn.1981). However after reviewing these decisions, we find that they interpret the word "hired" and offer little guidance on the meaning of "borrow."
[15] In Sturgeon, decided under Louisiana law, the fifth circuit relied on the Texas Supreme Court's decision in Liberty Mutual after the Louisiana Supreme Court denied certification of the question of what the term "borrow" meant in an insurance policy.
[16] In 215 Cal.Rptr. 854, 701 P.2d 1172 (1985) the California Supreme Court granted writs in Swearinger. However, the case was dismissed on motion of the parties prior to that court's ruling.
[17] The policy language in the policy at issue in Swearinger is identical to the policy language before us in this case.
[18] We point out that it would be relatively simple to include a definition of the word "borrow" in the policies at issue which would require physical possession by the named insured before a vehicle is considered "borrowed." We further note that the insurance industry is well aware of the possible expansive interpretation of the word "borrow" by the courts. In a Fire, Casualty & Surety Bulletin, (an insurance industry publication), appended to one of appellees' memoranda in the court below, and listed as exhibit 1 to this appeal, the discussion dealing with "persons insured" under the policy here at issue contains the following warning concerning the exception of "borrowers" of a covered auto from the loading/unloading exclusion of the policy (D.2.c above): "[t]he problem in interpreting this provision is that the policy does not clearly define what is meant by a `borrower' of the covered auto. Consequently, courts may be inclined to interpret the term `borrower,' and therefore the entire provision, broadly in the insured's favor."
[19] We only cite Jones for its discussion of implied permission. Jones also held that a provision in a rental car agreement which attempted to limit the applicability of the omnibus clause in the lessor's insurance policy by restricting insurance coverage to only the named lessee was invalid as being a violation of La.R.S. 22:628. This statute provided at the time that an insurance policy could not be modified by any agreement not made a part thereof. The Jones court then went on to hold that there was coverage under the lessor's policy because the driver of the leased vehicle had the permission of the lessee to drive the vehicle. It is for this discussion of permission which we cite Jones.
In Hearty v. Harris, 574 So.2d 1234 (La.1991), the Louisiana Supreme Court questioned the continuing validity of Jones' treatment of the modification of the omnibus clause due to the amendment of La.R.S. 22:628 which allowed insurance policies to incorporate the terms of another policy by reference. That is not an issue in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602487/ | 577 So.2d 1004 (1991)
Verner A. TEEFT, Appellant,
v.
LUNA CHEESE CORPORATION OF FLORIDA, Appellee.
No. 90-129.
District Court of Appeal of Florida, Fifth District.
April 18, 1991.
William L. Townsend, Jr., of Walton, Townsend & McLeod, Palatka, for appellant.
Jason G. Reynolds of Coble, Barkin, Gordon, Morris & Reynolds, P.A., Daytona Beach, for appellee.
PETERSON, Judge.
Verner A. Teeft appeals the denial of his motion for new trial. We reverse and remand for a new trial.
Luna Cheese Corporation of Florida (Luna) alleged in its complaint against Teeft and two other defendants a violation of the odometer disclosure requirements of Title XV, United States Code, section 1988, when he participated in a sale of a truck to Luna. The court recessed following the presentation of each party's case in this non-jury trial. During the recess and without the knowledge, consent, or presence of any of the parties or their attorneys, the trial judge requested that a witness who had testified earlier return for a meeting in chambers. During the meeting, the judge copied several documents from the witness' file that might be evidence of Teeft's participation in the sale.
After announcement of the court's verdict and entry of judgment against Teeft alone for $15,683.35, the trial court ordered that the documents he had received during the secret meeting be placed into a sealed envelope. The envelope was marked in a manner so that it could not be opened, except by the state attorney, without the judge's permission.
Later, Teeft learned about the meeting and the sealed documents and moved for a new trial. During the hearing on the motion, which was held before a different judge, Teeft elicited the following testimony from the witness who met with the trial judge:
Q Okay. Now, explain again, if you would, why was why did Judge Perry say he was looking for these documents?
A He asked me if I had anything that would tie Mr. Teeft to this particular let me think how he said that he asked me if I had anything that would tie Mr. Teeft to this particular case concerning the sale of the vehicle and his association with the corporation or any tie-in to the corporation to sell that unit for them.
The judge who presided over the hearing denied the motion for a new trial. In the order of denial, the judge, citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), indicated that the conduct of a trial is within the discretion of the presiding judge and that this judge could not substitute its conclusions for those of the trial judge.
Applegate stands for the proposition that the absence of a record on appeal precludes *1005 a reviewing court from properly resolving underlying factual issues that the trial court's judgment is not supported by the evidence or by an alternative theory. Applegate is not applicable in this instance since the question raised by Teeft does not involve an underlying issue of fact, that is, a fact proving or disproving an allegation of Luna's complaint. The motion for new trial concerned the conduct of the trial judge while not in the arena of litigation. It is not surprising that no record exists of the meeting between the witness and the trial court since none of the attorneys or parties who would secure a court reporter were apprised of the meeting. The proceedings on the motion for new trial were recorded, however, and are before this court.
The Florida Supreme Court considered Canon 3(A)(4) of the Code of Judicial Conduct in In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394 (Fla. 1987). The Canon states that a judge should neither initiate nor consider ex parte communications concerning a pending or impending proceeding. The canon further states, "This canon implements a fundamental requirement for all judicial proceedings under our form of government." A secret meeting between a witness who has finished testifying and the trial judge before whom the witness has appeared is fundamentally unfair to the parties to the action.
While the ex parte interrogation was most likely motivated by an overwhelming desire to arrive at a correct decision in the matter, a trial judge who initiates a secret meeting with a witness for the purpose of obtaining evidence aiding in the determination of the case before him denies the parties due process and a fair and impartial hearing in that case. See Safie v. Safie, 414 So.2d 623 (Fla. 3d DCA 1982).
On remand, we direct that the underlying case be heard de novo.
REVERSED and REMANDED.
W. SHARP and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3345342/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM ON PLAINTIFF'S EXCEPTIONS TO FINDINGS OF STATE TRIAL REFEREEDATED AUGUST 24, 1995 INCLUDING OBJECTION TO PLAINTIFF'S MOTION DATEDSEPTEMBER 5, 1995
CT Page 11096
Plaintiff has filed "exceptions" to the court's findings in this case and seeks to correct the "report" of the State Trial Referee under Practice Book § 439.
Plaintiff appears to confuse the difference between a report of an attorney trial referee and a judgment of a state trial referee exercising the powers of the Superior Court. See Practice Book § 430. Oral argument on this question would serve no useful purpose. The court rules are perfectly clear.
In essence plaintiff's Exceptions merely repeat her claims made in her motion to correct dated August 7, 1995 and previously ruled upon by the court. The only remedy plaintiff has from the court's judgment is by timely appeal.
Defendant's Objection and Motion to Strike plaintiffs' Exception is granted.
BY THE COURT,
GEORGE A. SADEN STATE TRIAL REFEREE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1602725/ | 577 So.2d 1131 (1991)
In re ARBITRATION BETWEEN U.S. TURNKEY EXPLORATION, INC. AND PSI, INC.
No. 90 CA 1640.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
Writ Denied May 24, 1991.
*1132 John Hutchison, Lafayette, Brian Bro, and Stephen D. Ingram, Houston, Tex., for plaintiff-appellee U.S. Turnkey Exploration, Inc.
Douglas F. Pedigo, Lafayette, for defendant-appellant PSI, Inc.
Before EDWARDS, WATKINS and LeBLANC, JJ.
WATKINS, Judge.
PSI, Inc. (PSI) appeals the trial court judgment in favor of U.S. Turnkey Exploration, Inc. (U.S. Turnkey) confirming the arbitration award and dismissing PSI's motion to vacate the award.
The instant dispute arose when PSI accepted an assignment of a turnkey drilling contract between U.S. Turnkey and Senior G & A Operating Co., Inc. After the assignment of the drilling contract was made to PSI, a dispute arose over the method of payment for services rendered by U.S. Turnkey under the contract. U.S. Turnkey contended that PSI had agreed to allow U.S. Turnkey to proceed on a "daywork" basis, beginning on November 18, 1988, rather than on a "turnkey" basis. On the other hand, PSI contended that it never agreed to any "daywork" charges. The parties entered into the following stipulation of facts:
The dispute between U.S. Turnkey and PSI was arbitrated pursuant to a Turnkey Drilling Contract, which provided expressly as follows:
25. ARBITRATION AND GOVERNING LAW:
Any dispute, claims or controversies connected with, arising out of or related to this Contract, or the breach thereof, shall be settled by Arbitration to be conducted in accordance with the Rules of Arbitration of the American Arbitration Association. Judgment upon an award rendered pursuant to such Arbitration may be entered in any court having jurisdiction, or application may be made to such court for a judicial *1133 acceptance of the award and an order of enforcement, as the case may be. The place of Arbitration shall be Lake Charles, Louisiana. All questions arising out of this Contract or its validity, interpretation, performance or breach shall be governed by the laws of the State of Louisiana.
By agreement of the parties, the place of the arbitration was changed from Lake Charles to Baton Rouge, Louisiana.
The matter was tried before a panel of three arbitrators of the American Arbitration Association commencing on March 5, 1990 and ending on March 16, 1990. On April 18, 1990, the arbitration panel issued its Award in which it ordered PSI to pay U.S. Turnkey the sum of One Million Nine Hundred Seventy Thousand Two Hundred Thirty-Nine and 00/100 ($1,970,239.00) Dollars, plus Five Thousand Four Hundred Thirty-Four and 32/100 ($5,434.32) Dollars in administrative expenses.
U.S. Turnkey filed with the district court a Motion to Confirm the Award pursuant to LSA-R.S. 9:4201 et seq. PSI filed a Motion to Vacate the Award pursuant to LSA-R.S. 9:4210. The Motions were heard on May 25, 1990. The trial court denied the Motion to Vacate and granted the Motion to Confirm. The trial court signed appropriate judgments on that date.
PSI contends that the trial court erred in refusing to vacate the arbitration award based on LSA-R.S. 9:4210. PSI argues that the arbitration award was made in manifest disregard of the law of Louisiana; that the arbitrators were clearly or evidently partial and engaged in misbehavior which prejudiced its rights. Because two of PSI's assignments of error deal directly with specific language in the Arbitration Award, we attach the award as Attachment # 1.
The Louisiana Arbitration Law, LSA-R.S. 9:4201-4217, requires that a challenged arbitration award be vacated in any of the following cases:
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
LSA-R.S. 9:4210.
PSI contends that the arbitration award was made in manifest disregard of the laws of Louisiana under two different theories. First, PSI contends that because the arbitration panel made the factual finding that there was "no apparent meeting of the minds as to whether the drilling operation on any given day would be in `standby' `daywork' or `turnkey' status" they were legally precluded from awarding daywork charges to U.S. Turnkey under Louisiana law. PSI alleges that the parties cannot be bound by the terms of a contract until the requisites for formation of a contract have been satisfied pursuant to Louisiana Civil Code Art. 1927.
Secondly, PSI disputes the panel's denial of its counterclaims against U.S. Turnkey for negligent drilling practices. PSI contends that the panel failed to apply the preponderance of the evidence standard on this issue because the panel stated in its reasons that the evidence and testimony as to the `drilling practices' of U.S. Turnkey were "inconclusive". From this statement, PSI reasons that the panel required it to prove conclusively that U.S. Turnkey engaged in negligent drilling practices.
"Arbitration is a mode of resolving differences through the investigation and determination of one or more individuals appointed for that purpose. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action." Firmin v. Garber, 353 So.2d 975, 977 (La.1977) (citing *1134 Housing Authority v. Henry Ericsson Co., 197 La. 732, 2 So.2d 195 (1941)). When parties agree to arbitration, they are presumed to accept the risk of procedural and substantive mistakes of either fact or law. Therefore, the arbitration award is presumed to be valid unless an error charged to the arbitrators fits one of the statutorily described deficiencies. Errors of fact or law do not invalidate a fair and honest arbitration award. See National Tea Co. v. Richmond, 548 So.2d 930 (La.1989). See also St. Tammany Manor, Inc. v. Spartan Building Corporation, 509 So.2d 424 (La. 1987). A court cannot substitute its conclusions for that of the arbitrators. Firmin v. Garber, 353 So.2d 975 (La.1977).
PSI asserts that we should accept the judicially created theory of manifest disregard of the law which has been developed in the federal courts, as an additional ground for vacating an arbitration award. Manifest disregard of the law was explained in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933 (2d Cir.1986), as follows:
`Manifest disregard of the law' by arbitrators is a judicially-created ground for vacating their arbitration award, which was introduced by the Supreme Court in Wilko v. Swan, 346 U.S. 427, 436-37, 74 S.Ct. 182, 187-88, 98 L.Ed. 168 (1953). It is not to be found in the federal arbitration law. 9 U.S.C. § 10. Although the bounds of this ground have never been defined, it clearly means more than error or misunderstanding with respect to the law. The error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover, the term `disregard' implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it. (Citations omitted.)
It appears that this theory has been previously accepted by Louisiana courts as set forth in I.D.C., Inc. v. Natchitoches Development Company, 482 So.2d 958, 960 (La. App. 3d Cir.1986), quoting Allen v. A & W Contractors, Inc., 433 So.2d 839 (La.App. 3d Cir.1983), writ denied, 438 So.2d 578 (La.1983).[1]
[T]he award of the arbitrators cannot be set aside for errors of law or fact except where those errors are so gross as to suggest fraud, misconduct, bad faith, a failure to exercise honest judgment, or partisan bias, or so great as to prevent a full and fair exercise of the judgment of the arbitrators, or where, in the case of an error of law, it clearly appears from a statement of the basis of the award that the arbitrators meant to decide the case according to law. (Emphasis added.)
A review of the instant case leads us to the conclusion that the legal errors of which PSI complains do not constitute the type of legal errors which would justify vacating the arbitration award. Neither alleged error suggests fraud, misconduct, bad faith, etcetera. Furthermore, we cannot say that the arbitrators understood Louisiana law and deliberately disregarded it when they stated that there was apparently "no meeting of the minds" as to daywork charges. This statement does not necessarily preclude an award in favor of U.S. Turnkey under Louisiana law. See LSA-C.C. art. 2292. Therefore, we do not find that the award was in manifest disregard of the law.
Furthermore, the assertion that the panel must have imposed the wrong burden of proof because it stated that the evidence was "inconclusive" is merely speculation. The weight and sufficiency of the evidence are matters which are within the power of the arbitrators to decide, and we are without authority to substitute our conclusions for those of the arbitrators. Firmin, 353 So.2d 975.
Finally, we consider PSI's contention that the transcript of the arbitration proceeding demonstrates evident partiality on *1135 the part of the arbitrators or, alternatively, that one or more of the arbitrators engaged in statutory misbehavior such that the award should be vacated pursuant to LSA-R.S. 9:4210 B and C.
PSI contends that the arbitrators displayed partiality to U.S. Turnkey's counsel, manifested by suggestive hints on how Turnkey could prove its case, interruptions of questioning by counsel for PSI, and statements of opinions.
"To constitute evident partiality, it must clearly appear that the arbitrator was biased, prejudiced, or personally interested in the dispute."[2]Firmin, 353 So.2d at 978. Proof of evident partiality requires more than an "appearance of bias." A challenging party must show that a reasonable person would have to conclude that an arbitrator was partial to the other party to the arbitration. Morelite Const. v. N.Y.C. Dist. Council Carpenters, 748 F.2d 79 (2d Cir.1984).
It is also a general rule that a party must object to an arbitrator's partiality at the arbitration hearing, when he knows the reasons supporting the objection, before such an objection will be considered. Apperson v. Fleet Carrier Corp., 879 F.2d 1344 (6th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2206, 109 L.Ed.2d 533 (1990), and cases cited therein. A review of the record reveals that PSI did not object to all the alleged misconduct of the arbitrators which it cites in its brief. We therefore confine our review to those instances where PSI made a formal objection during the hearing.
PSI asserts that the conduct of the arbitrators should be judged by the same standard expected in judicial proceedings.[3] We disagree. In the instant case the parties agreed to arbitrate any dispute according to the rules of the American Arbitration Association (AAA). Because the AAA rules were not entered into evidence we are unable to review them. However, it is clear that the parties did not agree that the procedure and rules of evidence applicable to proceedings in the courts of the State of Louisiana would apply to the proceedings of arbitration.
Unless a mode of conducting the proceedings has been prescribed by the arbitration agreement or submission, or regulated by statute, arbitrators have a general discretion as to the mode of conducting the proceedings and are not bound by formal rules of procedure and evidence, and the standard of review of arbitration procedures is merely whether a party to an arbitration has been denied a fundamentally fair hearing. National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834 (6th Cir.1985).
Although the arbitrators actively participated in the arbitration by questioning witnesses and suggesting where the evidence was lacking, it does not appear that PSI was denied a fair hearing.
It is to be expected that during the course of an arbitration hearing that an arbitrator may develop an opinion and perhaps even express it. Fairchild & Co., Inc. v. Richmond, F. & P.R. Co., 516 F.Supp. 1305 (DDC 1981). Furthermore, since the advantages of arbitration are speed and informality, an arbitrator should be expected to act affirmatively to simplify and expedite the proceedings before him. Id. at 1313.
While an arbitrator's legitimate efforts to move the proceedings along expeditiously may be viewed as abrasive and disruptive, they do not constitute grounds for vacating an arbitration award unless the conduct strikes at the fundamental fairness *1136 of the hearing. Id. We find no such conduct in this case. Although the arbitrators were perhaps overzealous in their attempts to clarify the evidence and correctly apply the law, their conduct did not deny PSI a fair hearing.
After a review of the record in the instant case we do not find that the trial court erred in concluding that the record does not reveal that the arbitrators were biased, prejudiced or personally interested, or that they deliberately disregarded Louisiana law. Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.
AFFIRMED.
*1137
ATTACHMENT #1
AMERICAN ARBITRATION ASSOCIATION
CONSTRUCTION INDUSTRY ARBITRATION TRIBUNAL
In the Matter of the Arbitration between
U.S. Turnkey Exploration, Inc.
-AND-
PSI, Inc. Lake Charles, LA
CASE NUMBER: 71 198 00243 89 ADMINISTRATOR: Kimberly L. Emerson
AWARD OF ARBITRATORS
WE, THE UNDERSIGNED ARBITRATORS, having been designated in accordance with
the arbitration agreement entered into by the above-named parties, and dated
September 26, 1988, and having been duly sworn and having duly heard the
proofs and allegations of the parties, AWARD as follows:
The Panel has determined that PSI, Inc. ("PSI") agreed to become a party to
the "Turnkey Drilling Contract" dated September 26, 1988, with U.S. Turnkey
Exploration, Inc. ("USTE") as the Contractor. The date PSI became such a
party was November 18, 1988.
Although PSI and USTE were bound for contractual purposes relative to the
drilling of the East Cameron Block 34 Well, neither party abided by their
respective duties and responsibilities under the contract, especially with
regard to seemingly necessary communications with the other party. Yet USTE
recommenced operation under the drilling contract on November 18, 1988 with
there being no apparent meeting of the minds as to whether the drilling
operations on any given day would be in "standby", "daywork" or "turnkey"
status. Each party hoped to ultimately receive pecuniary benefits by going
forward with the operations: USTE compensation under the drilling
contract; and PSI revenued from production. The Panel has determined that
on February 26, 1990, the day the placement of the casing in the hole was
completed, USTE reentered "turnkey" status and that this is not seriously
disputed by the evidence. Since USTE did not accomplish the turnkey
objective after this date, it is not entitled to compensation after this
date.
There is conflicting evidence as to the status of drilling efforts from
November 18, 1988 to February 26, 1989, and the Panel believes both parties
contributed to this unresolved status. Meanwhile, USTE had commenced and
continued to drill in good faith during this time period. The Panel also
determined that the evidence and testimony as to the "drilling practices" of
USTE (possibly more properly La JFP) is inconclusive. Although there may
be, on a "backwards looking" basis, some concern about USTE not circulating
from the bottom of the hole during the November 15-30, 1988 period, there
was apparently no expression of dissatisfaction with this practice by PSI
which was being kept adequately informed about the operations at the well
site.
USTE contends its compensation under the drilling contract should consist of
dayrates from November 18, 1988 to March 31, 1990 plus interest thereon,
third party charges (with a 15% reimbursement factor), and attorney fees,
all totaling some $9,587,125.14. PSI contends USTE is entitled to no
compensation since USTE never was in "daywork" status after November 17,
1988, and never achieved the second phase turnkey objective.
*1138
CASE NUMBERR: 71 198 00243 89
U.S. Turnkey Exploration, Inc. -AND-
PSI, Inc. Lake Charles, LA
PAGE 2 of 3
Considering the contributing factors of each party's conduct herein, the
Panel has determined that USTE should be compensate herein on a dayrate
basis for the period of November 18, 1988 to February 26, 1989, but that it
should receive only one-half of this compensation because of its failure to
adequately communicate its contended drilling status to PSI. PSI should
bear one-half of such compensation because of its failure to adequately
communicate its contentions relative to drilling status, drilling practices
and its responsibilities under the contract. Therefore, the Panel concludes
that PSI shall pay USTE the sum of One Million Nine Hundred Seventy Thousand
Two Hundred Thirty-Nine Dollars and No Cents ($1,970,239.00), itemized as
follows:
For "dayrate" status from November 18, 1988 to $ 880,000.00
February 26, 1989 (100 days × $17,600.00 less ½)
For third party charges with sufficient proof of 935,771.00
record ($1,871,542.00 less ½)
Attorney fees and costs:
Fees on hourly basis ($155,250.00 less ½) 77,625.00
Costs (100%) 76,843.00
Total Award to USTE $1,970,239.00
The Panel determined the following claims submitted by USTE are hereby
denied:
1) Interest on third party charges (the lack of sufficient
invoicing by USTE to establish a due date);
2) 15% factor on "operator" invoices (invoices never paid by
USTE and are, therefore, not reimbursements); and
continued...
*1139
CASE NUMBER: 71 198 00243 89
U.S. Turnkey Exploration, Inc. -AND-
PSI, Inc. Lake Charles, LA
PAGE 3 of 3
3) Turnkey contract price (second phase turnkey objective never
achieved and par. 17.6 of contract not applicable because"
turnkey" status commenced on February 27, 1990, which
is before hole was lost).
The counterclaim submitted by PSI is hereby denied.
The administrative fees and expenses of the American Arbitration Association
totaling $26,318.65 shall be borne equally. Therefore, PSI shall pay to
USTE the sum of $5,434.32.
The compensation and expenses of the arbitrators totaling $39,984.44 shall
be borne equally and paid from deposits previously advanced by the parties.
Upon closing of the file, the Association will refund the sum of $11,645.28
to USTE, and the Association will refund the sum of $11,645.28 to PSI.
These sums represent unused deposits.
This Award is in full settlement of all claims and counterclaims submitte
to this Arbitration.
DATE: SIGNED:
DATE: SIGNED:
DATE: SIGNED:
DATE:
STATE OF )
)
COUNTY OF ) SS:
On this day of , 19 , before me personally came and
appeared , to me known and to
me known to be the individual(s) described in and who executed the foregoing
instrument, and he acknowledged to me that he executed the same.
NOTES
[1] Another ground for vacating an arbitration award based on legal error was established in Matter of Standard Coffee Service Co. and Theordore W. Preis, 499 So.2d 1314 (La.App. 4th Cir.1986), writ denied, 501 So.2d 232 (La.1987), wherein the court found that the contract which was the subject of the arbitration was void as a matter of public policy.
[2] The Supreme Court in National Tea Co. v. Richmond, 548 So.2d 930 (La.1989), noted in dicta that "evident partiality" requires more than just a showing of a disclosed business relationship between a partisan arbitrator and one of the parties.
[3] Both of the cases cited by PSI in support of this contention involve the misconduct of trial court judges not arbitrators. See American Motorists Ins. Co. v. Napoli, 166 F.2d 24 (5th Cir. 1948); U.S. v. Welliver, 601 F.2d 203 (5th Cir. 1979), overruled in part on other grounds, United States v. Adamson, 700 F.2d 953 (5th Cir.1983), cert. denied, 464 U.S. 833, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602728/ | 577 So.2d 936 (1991)
Raymond KENDRICK, et al., Petitioners,
v.
ED'S BEACH SERVICE, INC., Respondent.
No. 76114.
Supreme Court of Florida.
February 14, 1991.
Rehearing Denied April 26, 1991.
Robert B. Staats of Staats, Overstreet, White & Clarke, Panama City, for petitioners.
Clifford W. Sanborn of Barron, Redding, Hughes, Fite, Bassett & Fensom, P.A., Panama City, for respondent.
BARKETT, Justice.
We have for review Kendrick v. Ed's Beach Service, Inc., 559 So.2d 334 (Fla. 1st DCA 1990), based on an asserted conflict with Mazzeo v. City of Sebastian, 550 So.2d 1113 (Fla. 1989).[1] We quash the decision of the First District Court of Appeal.
Petitioner Raymond Kendrick was a paying guest at the Edgewater Beach Resort in Panama City Beach, Florida, on July 30, 1985, when he dove from a lifeguard stand into the resort's pool and struck his head on the bottom. Kendrick severely injured his neck and was rendered a quadriplegic. Kendrick and his wife, Susie, filed suit against numerous parties, including respondent, Ed's Beach Service, Inc., ("EBS"), the firm that provided lifeguard services to the *937 resort.[2] In their amended complaint, the Kendricks alleged that the defendants named below, either jointly or individually, created and maintained "dangerous and hazardous conditions" by (a) negligently and improperly constructing the pool so as not to provide for the proper depth; (b) providing deep water in the center or middle, far removed from the sides where people enter; (c) not providing ropes to separate the deep and shallow portions; (d) failing to post adequate depth markers; (e) failing to provide the proper depth of water at the sides of the pool; (f) failing to post warning signs; (g) failing to provide sufficient personnel at poolside and failing to adequately train and supervise the personnel who were in attendance; and (h) designing the pool in such a manner to allow patrons to dive into the shallow areas. EBS asserted the defenses of comparative negligence and assumption of the risk.
Part of Kendrick's theory of the case is that EBS breached its duty to maintain safe conditions at the pool. Evidence adduced in preparation for trial showed that Raymond Kendrick dove into an area where the clear water was three and one-half feet deep, although he believed the water was at least six feet deep. No lifeguard occupied the lifeguard chair when the accident occurred, and there was some testimony that Kendrick would not have sustained the injury had a lifeguard been present in the chair. Other evidence was presented to show that no warning signs were visible, and had warning signs been posted, Kendrick may not have made the dive. There was a conflict about whether depth markers had been present, and if so, where they were located.
EBS moved for summary judgment, claiming that "[t]he danger to which Raymond Kendrick subjected himself was open and obvious, and Ed's Beach Service had no duty to warn Raymond Kendrick of the danger associated with diving from a lifeguard stand into shallow water." The trial court granted EBS's motion for summary judgment, and the First District Court affirmed, holding that "the testimony here is clear as to what appellant knew or should have known before he dove into the water. Because the record clearly demonstrates the cause of the injuries to be the plaintiff's intentional conduct, the nexus between any claimed negligence and injury is broken." Kendrick, 559 So.2d at 335.
Assuming the facts as true for the purpose of deciding a summary judgment question, the issue here is whether the district court properly applied the principles of assumption of the risk and comparative negligence as announced in Mazzeo. Mazzeo is the latest in a line of cases in which we explained the common law defenses of assumption of the risk and comparative negligence. The leading case on which Mazzeo relied is Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), where the Court explored the concepts of implied and express assumption of the risk and their relationship to comparative negligence. In Blackburn, we held that implied assumption of the risk is inapplicable as an affirmative defense to bar all recovery in a negligence case. Instead, the principles of comparative negligence must be applied to apportion damages where the facts show the injured party may have contributed to the injury. We followed Blackburn in Kuehner v. Green, 436 So.2d 78 (Fla. 1983), which held that the affirmative defense of express assumption of the risk may totally bar recovery if the injured party actually consented to a known risk. In that case, we concluded that voluntary participation in a contact sport, with full knowledge and appreciation of the danger and risk inherent in that kind of activity, constituted express assumption of the risk.
However, we limited the application of express assumption of the risk in Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla. 1986), and again in Mazzeo. In Ashcroft, we held that express assumption of the risk totally bars recovery only for those risks inherent in the contact sport itself. Thus, even though a jockey expressly assumed certain risks because they were *938 inherent in horse racing, he did not assume the risk that the race track would negligently maintain its facilities through the negligent placement of an exit gap. In Mazzeo, we declined to extend the total bar of express assumption of the risk to aberrant conduct in noncontact sports, specifically diving.
The facts in Mazzeo are strikingly similar to those under review here. Mazzeo injured herself when she dove into the shallow water of an artificial lake maintained by the City of Sebastian. The jury found the city liable, but also found that Mazzeo assumed the risk because she knew the water was shallow but voluntarily and deliberately exposed herself to the danger by diving. The court entered judgment against Mazzeo on the ground that assumption of the risk barred recovery, and the district court affirmed. However, we quashed the decision, holding that express assumption of the risk was inapplicable as a total bar to recovery even though the injured party actually appreciated the danger and acted in an unreasonable manner. We said:
Accepting the jury's findings as representing the true facts, there is little doubt that Mazzeo engaged in foolhardy conduct by diving into four feet of water. On the other hand, it seems equally clear that she did not dive with the intention of injuring herself, and she did not expressly agree to absolve the city of any liability if she did. While recognizing the danger, she dived in the improvident belief that she would be able to avoid being hurt. Under Blackburn, Mazzeo's conduct is properly characterized as implied secondary assumption of risk which is unreasonable (qualified) in nature, analogous in some respects to the tenant who rushes [negligently into the] burning house to retrieve his hat. As such, Mazzeo's conduct must be evaluated by the jury under principles of comparative negligence.
Mazzeo, 550 So.2d at 1116-17.
Our decision in Mazzeo rested on the understanding that even when a person engaging in a noncontact sport such as diving knows of an open and obvious danger, the person may still recover damages under the principles of comparative negligence if the elements of the tort have been proven. In such cases, assumption of the risk may not be invoked as a total bar to recovery. The district court's decision in Kendrick clearly misapplied this principle, resting its decision on the basis that despite knowing the dangerous conditions, Kendrick intentionally assumed the risk.
Respondent EBS argues that Mazzeo does not control because its claim involves proximate cause rather than assumption of the risk. Essentially, we construe EBS's argument to boil down to a claim that Kendrick's assumption of the risk broke the chain of causation. We cannot accept that argument because such a holding would defeat the principles made clear in Blackburn. In Blackburn, the Court sorted out the often confusing and overlapping principles involved in negligence, comparative negligence, and assumption of the risk. The overlap is so great, the Court said, that the doctrine of primary-implied assumption of the risk has been totally "subsumed in the principle of negligence itself," Blackburn, 348 So.2d at 291, and the doctrine of secondary-implied assumption of the risk has been merged into the principles of comparative negligence. Id. at 292-93. EBS's argument would have us muck up the legal waters again by holding that while implied assumption of the risk may not be asserted as an affirmative defense to totally bar recovery, it may be asserted as an ordinary defense to break the chain of legal causation. Our decision in Mazzeo inferentially rejected that view, and we expressly do so here. Although a party may be able to refute the element of proximate cause with other facts, evidence of assumption of the risk is wholly inapplicable for that purpose.
We quash the decision of the district court and remand with instructions to have the circuit court vacate its order granting summary judgment for the reasons expressed above, and to conduct further proceedings consistent with this opinion.
It is so ordered.
*939 SHAW, C.J., and GRIMES and KOGAN, JJ., concur.
McDONALD, J., concurs specially with an opinion, in which OVERTON, J., concurs.
McDONALD, Justice, specially concurring.
I concur with the result in this case because there was an issue of fact on whether Kendrick knew the depth of the water where he dived and also whether he knew or appreciated the danger of diving into the water where he did. As I stated in my dissent in Mazzeo, I still believe that if the record clearly demonstrates that the sole cause of injury is the injured party's intentional conduct, the nexus between claimed negligence and injury is broken and the plaintiff is not entitled to recover. This is the way the district court of appeal construed the record. I believe its legal conclusion correct, but its factual conclusion incorrect.
OVERTON, J., concurs.
NOTES
[1] We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.
[2] Both the district court's decision and our review here concern only one of the parties named as defendants in the lawsuit, respondent Ed's Beach Service, Inc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602734/ | 577 So.2d 1193 (1991)
STATE of Louisiana, Appellee,
v.
Richard M. LEE, Appellant.
No. 22333-KA.
Court of Appeal of Louisiana, Second Circuit.
April 3, 1991.
*1194 J. Spencer Hays, Bossier City, for appellant.
*1195 William J. Guste, Jr., Atty. Gen., James M. Bullers, Dist. Atty., David Griffith, Asst. Dist. Atty., for appellee.
Before SEXTON, NORRIS and VICTORY, JJ.
VICTORY, Judge.
Richard M. Lee, charged with aggravated burglary and armed robbery but convicted of aggravated burglary and first degree robbery by a jury on February 7, 1990, appeals his concurrent twenty year hard labor sentences, one of which is without benefit of parole, probation or suspension of sentence. We amend and affirm as amended.
FACTS
On June 2, 1989, Deatra Collins, at her home in Bossier City, put her two children to bed and fell asleep watching television in her living room. Around 3:00 a.m. she was awakened to find a nude man sitting on her back with a knife pointing in her side. At first she tried to escape, but the assailant grabbed the sheet on which she was lying and tried to choke her.
Realizing her efforts were futile, she stopped resisting and the assailant bound her with the sheet so that she could hardly see or speak. Using a brassiere, he tied her hands behind her back. In the process of tightening her bonds, the assailant put his knife in a position where Ms. Collins was able to see it from under the veil of the sheet. She stated the knife was about twelve inches long and double edged. Ms. Collins never saw the assailant, but said he had a low, scratchy voice and knew he was a man.
The assailant rummaged through the house in the dark, opening and closing doors and cabinets. After being questioned about its location, Ms. Collins told him where he could find her purse. All remained quiet until the assailant took Ms. Collins into her bedroom, threw her down on the bed and pulled off her pajama bottoms. The baby, hearing its mother's muffled screams for help, began to cry. Thereafter the assailant locked Ms. Collins in her bedroom closet and tied the door shut before leaving. The house was undisturbed except for about $120.00 missing from Ms. Collins' purse and a brassiere left by the assailant. Ms. Collins managed to get loose and go to her sister's house two houses away. The police responded to the call almost immediately.
Detective Fred Gregory from the Bossier City Police Department inspected the crime scene and found no sign of forced entry. He took a statement from Ms. Collins, who listed several people she thought might have committed the crime, including the twenty-nine year old defendant, Richard Lee, a man she had met on three occasions through mutual friends. She did not know the defendant personally, had never seen him outside these three occasions and stated he had never been in her home.
Crime Scene Investigator William Ray, called in to dust for fingerprints, found a latent palm print on the inside window sill which he compared to the prints of suspects named by the victim. Ray found defendant's prints matched those found at the crime scene.
On June 7, 1989, defendant was arrested. A warrant was issued two days later to search his residence for the knife described by Ms. Collins, but it was never found. Police never determined who owned the brassiere and no other physical evidence was obtained from the scene.
At trial the State's prime evidence consisted of the defendant's palm print found inside Ms. Collins' house. The defense called Blaine Loughlin, defendant's friend, and Trudy Lee, defendant's mother, as alibi witnesses in an attempt to establish that defendant was home when the crime was committed in the early morning hours of June 2. James Lee, defendant's brother, testified he saw defendant on June 2 about 8:00 a.m. when they went fishing, and noticed nothing peculiar about him.
ADMISSIBILITY OF FINGERPRINTS
Investigator Ray, accepted by the trial court as a fingerprint expert, testified he matched the latent palm print found on the window sill to defendant's inked prints, Exhibit *1196 S-2, on file at the Bossier City Police Department. Over defense counsel's objection that the foundation for admissibility of the inked prints was lacking because Ray had not personally taken the inked prints from defendant, the trial court admitted Exhibit S-2 into evidence.
The initial consideration of admissibility is whether the fingerprints fall within an exception to the hearsay rule.
Historically, the public records exception is based on the principles of necessity and the probability of trustworthiness and is founded primarily on the presumption that an individual entrusted with a duty will do his duty and make a correct statement. State v. Nicholas, 359 So.2d 965 (La.1978).
The Louisiana Code of Evidence, effective January 1, 1989, governs the admissibility of evidence in this case. Art. 803 of the Code provides in relevant part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * * * *
(8) Public records and reports.
(a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:
(i) Its regularly conducted and regularly recorded activities; [or]
(ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report;
* * * * * *
Every criminal justice agency, such as the Bossier City Police Department, is burdened with the duty to collect the fingerprints of persons lawfully arrested for felonies, and to submit them to the Louisiana Bureau of Criminal Identification. LSA-R.S. 15:590-592. Refusal of any person being booked for a crime to submit to fingerprinting is a misdemeanor. LSA-R.S. 14:133.2.
Consequently, Exhibit S-2, the defendant's inked prints, falls within subsection (a)(ii) of the public records exception found in C.E. Article 803(8) because the Bossier City Police Department had a duty to take the prints and report them.
Further, fingerprints taken from persons being booked are activities "regularly conducted and regularly recorded" in records at the police department. Therefore, the fingerprint card would also qualify under subsection 803(8)(a)(i) of the Louisiana Code of Evidence. In State v. Nicholas, supra, and State v. Woodard, 387 So.2d 1066 (La.1980), both pre-code cases, the Louisiana Supreme Court held fingerprints on file with a police agency fell within the public documents exception to the hearsay rule. Similarly, in United States v. Dancy, 861 F.2d 77 (5th Cir.1988), the Fifth Circuit held that fingerprints on file from a police agency qualified as an exception to the hearsay rule under Federal Rule 803(8), worded much like the Louisiana rule. See Comment (b) of the Comments to Exception (8), La.C.E. Art. 803.
The second consideration in determining admissibility of the inked fingerprints is authentication.[1] Louisiana C.E. Art. 901 on authentication provides in relevant part as follows:
A. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication *1197 or identification conforming with the requirements of this Article:
* * * * * *
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
* * * * * *
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept."
* * * * * *
(Emphasis added.)
The fingerprint card, Exhibit S-2, is the original fingerprint card. It purports to bear the signatures of "Ricky Lee," the person being printed, and "C. Benefield," the official taking the prints. On its face the exhibit indicates the prints were taken on June 8, the day after defendant was arrested for these crimes. Additionally, the fingerprint card form, printed by M.L. Bath Company, is marked as "BCPD form no. 85", clearly referring to "Bossier City Police Department." The fact that it is an original card, bearing original signatures, and having other distinctive characteristics, such as the M.L. Bath form number for the Bossier City Police Department and the date taken, provides additional reasons why the court could find Exhibit S-2 is, in fact, what the state claims it to be, i.e., an original inked impression of the defendant's fingerprints taken by the Bossier City Police Department in connection with the defendant's arrest for this incident. C.E. Article 901 A and B(4).
Although little testimonial evidence was adduced at trial concerning Exhibit S-2, Investigator Ray stated the prints of the Bossier City Police Department were maintained under his supervision and that of three other technicians. C.E. Article 901B(7) allows authentication by evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Ray's testimony proves Exhibit S-2 was a writing authorized by law to be recorded and filed at the Bossier City Police Department. Compare State v. Tillman, supra.
This evidence is sufficient to support a finding that Exhibit S-2 was properly authenticated under the Louisiana Code of Evidence.[2] Therefore, the court was not in error by admitting it into evidence as an exception to the hearsay rule.
SUFFICIENCY OF EVIDENCE
Defendant contends there is insufficient evidence to uphold his conviction. The sufficiency of evidence standard in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), provides that the reviewing court must determine whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, irrational decisions to convict will be overturned, while rational decisions to convict will be upheld and the fact-finder's discretion will be impinged only to the extent necessary to guarantee the fundamental protection of due process. The same standard applies even though the evidence considered is circumstantial. State v. Eason, 460 So.2d 1139 (La.App.2d Cir.1984), writ denied 463 So.2d 1317 (La.1985). Where the key issue is identity of the perpetrator, the state is required to negate any reasonable probability of misidentification *1198 in order to carry its burden of proof. State v. Smith, 430 So.2d 31 (La.1983).
The existence of the defendant's palm print on the inside window sill of Ms. Collins' residence is a very damning piece of evidence. The evidence proves the defendant had not been in Collins' home before June 2, 1989. The alibi defense was weak at best. Therefore, the jury could have reasonably reached the conclusion that the defendant was the assailant in the victim's home on the night of the crime. We hold the evidence was sufficient to support the jury's findings of guilt.
EXCESSIVE SENTENCE
Defendant next contends the sentences he received were excessive. In determining whether a sentence is excessive, the test imposed by the reviewing court is twopronged. First, the record must show the trial court took cognizance of the factors set forth in C.Cr.P. Art. 894.1 which enumerates criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983), writ denied 435 So.2d 438 (La.1983).
The trial court need not articulate every aggravating and mitigating circumstance outlined in C.Cr.P. Art. 894.1, but the record must reflect the court adequately considered those guidelines in particularizing the sentence to the defendant. State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983), writ denied 438 So.2d 1112.
Important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and likelihood of rehabilitation. State v. Hudgins, 519 So.2d 400 (La.App.2d Cir.1988), writ denied 521 So.2d 1143.
After determining whether the provisions of C.Cr.P. Art. 894.1 have been complied with, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant.
The sentencing court is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Square, 433 So.2d 104 (La.1983).
Constitutional excessiveness, a violation of La.Const.1974, Article 1, § 20, is implicated when the sentence imposed is grossly out of proportion to the severity of the offense or nothing more than the needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock the sense of justice. State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied 435 So.2d 433.
In the instant case the trial court noted this twenty-nine year old defendant's previous felony conviction of possession of a controlled dangerous substance where he received a probated two year hard labor sentence, and further pointed out he was divorced, had never graduated from high school, and had a sketchy employment record. Considering the brutality of what the defendant did, we cannot say that these 20 year concurrent sentences are grossly out of proportion to the severity of the crimes such as to shock our sense of justice, although such sentences might be held excessive for aggravated burglary and/or first degree robbery under different circumstances. We hold the trial judge adequately complied with sentencing guidelines and did not impose excessive sentences.
ERROR PATENT
The trial judge failed to give defendant credit for time served. In accord with our earlier opinion of State v. Sweet, 575 So.2d 937 (La.App.2d Cir.1991), we recognize the failure to give credit as an error patent. Such an allowance is mandatory with no discretion. C.Cr.P. Art. 880. Accordingly, we amend defendant's sentences to allow credit for time served.
*1199 CONCLUSION
We affirm defendant's convictions, and his sentences are amended in accordance with this opinion to give credit for time served.
CONVICTIONS AFFIRMED; SENTENCES AMENDED, AND AS AMENDED, AFFIRMED.
NOTES
[1] In State v. Tillman, 356 So.2d 1376 (La.1978), a pre-code case, the supreme court in denying admission of prints held "it should clearly appear in evidence that the person authenticating an original by custody or certifying a copy has been entrusted with legal custody of the original document by the original official custodian."
In State v. Woodard, supra, another pre-code case, the supreme court allowed a file fingerprint into evidence where the supervisor of the identification and records division testified he had not taken defendant's prints and could not say whether the prints were taken on the stated days for the listed offenses. Woodard is factually distinguishable because the defendant was printed in court during a recess.
[2] The identical federal provision on authentication was discussed in United States v. Lopez, 758 F.2d 1517 (11th Cir.1985), where an expert witness testified fingerprints on a bag containing cocaine were defendants. Defendant objected to admission of the fingerprint card contending the government failed to offer any evidence identifying the source of the prints. The prosecutor advised the court that the F.B.I. had obtained a court order to take the prints, and the prints on the card matched the evidence. The court admitted the card into evidence holding there was ample circumstantial evidence to show defendant's prints were on the card. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602747/ | 577 So.2d 1002 (1991)
Rajeev JAIN, Appellant,
v.
STATE of Florida, Appellee.
No. 90-01687.
District Court of Appeal of Florida, Second District.
April 12, 1991.
David P. Rankin of Freeman, Lopez & Kelly, P.A., Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Donna A. Provonsha, Asst. Atty. Gen., Tampa, for appellee.
HALL, Judge.
The appellant, Rajeev Jain, was charged with possession of cocaine with intent to sell or deliver. He challenges the denial of his motion to suppress, asserting that Detective Bowlin did not have a founded suspicion to stop and search him and, therefore, his motion to suppress should have been granted. We agree.
Several months prior to stopping the appellant, Detective Bowlin made two indirect purchases of cocaine from the appellant through a Donald Meeker. At the time of these transactions, Meeker identified the appellant as his supplier. Prior to these transactions, a confidential informant had advised Detective Bowlin that the appellant was regularly putting cocaine in his vehicle when he was not at his apartment and visiting various lounges within Hillsborough County with cocaine on his person for sale.
About one month prior to stopping and arresting the appellant, Detective Bowlin went on leave, returning to work on January 4, 1990. On that date, the confidential informant advised the detective that he had seen the appellant dealing in cocaine at some point in time prior to January 4 and that the appellant was continuing to follow his pattern and method of selling cocaine.
In response to this information, Detective Bowlin and his partner went to the appellant's apartment complex. The appellant's vehicle was not at the complex, but after waiting a short time, the detectives observed a woman approach the appellant's residence, knock on the door, receive no response, and return to her vehicle and wait. Subsequently, the appellant drove up to his apartment, exited his vehicle, and walked over to a set of mailboxes at the southeast corner of the complex. At that time, the detectives approached the appellant, identified themselves, and told him they had information that he was transporting cocaine. The appellant stated that he did not have any cocaine. The detectives then asked to pat down the appellant and had him put his hands on the hood of the car. During the search, cocaine was discovered in the appellant's right front pocket.
A law enforcement officer may temporarily detain a person if the officer has a founded suspicion that the person has committed, *1003 is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1989); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989).
Detective Bowlin's testimony at the suppression hearing reveals that he did not possess the founded suspicion necessary to stop the appellant. The information possessed by Detective Bowlin only revealed the appellant had participated in a crime two or three months previously. Even if we consider the information received by the detective the day he stopped the appellant, he could not remember how recently the confidential informant stated he had seen the appellant selling cocaine. Also, Detective Bowlin testified that the appellant was not committing any crime when he was stopped.
The use of stale information will not create the founded suspicion necessary to support a Terry stop. Since the stop of the appellant was illegal, the cocaine found during the ensuing search must be suppressed.
Accordingly, we reverse and remand with directions to grant the motion to suppress.
SCHOONOVER, C.J., and PATTERSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602770/ | 577 So.2d 1234 (1991)
John WATSON
v.
CITY OF PASCAGOULA.
No. 07-CA-59370.
Supreme Court of Mississippi.
March 6, 1991.
Rehearing Denied April 24, 1991.
Margaret P. Ellis, and C.R. McRae, McRae & Ellis, Pascagoula, for appellant.
*1235 Melvin Mitchell, Pascagoula, for appellee.
Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.
HAWKINS, Presiding Justice, for the Court:
John Watson was discharged from the police force of Pascagoula and appealed to the circuit court of Jackson County. His appeal was dismissed because Watson failed to request an administrative appeal with the Pascagoula Civil Service Commission within ten days as required by Miss. Code Ann. § 21-31-23.
We find that the city failed to give Watson a requested administrative pretermination hearing by the city manager after being told he could have one, and reverse.
FACTS
W. Shelton Smith, city manager of Pascagoula, wrote Watson the following letter January 30, 1987:
It has come to my attention that you mailed to Mr. Gregg Smith a tape on which you had recorded excerpts from another tape. The other tape is a recording of an act of sexual intercourse which you and Ms. Rita VonKanel had. I understand that in this tape you threatened to give copies of the first tape to the parents of Ms. VonKanel if Ms. VonKanel does not end a romantic relationship with Mr. Smith. This is clearly conduct that is both immoral and tends to injure the public service in accordance with the provisions of Section 21-31-17, Mississippi Code of 1972.
Therefore, I intend to terminate you from City employment effective February 6, 1987.
You may respond in writing to this notice prior to the date of discharge. Furthermore, if you desire, I will meet with you prior to said termination date to hear any explanation or defense that you may have to the above information.
Should you respond in writing or ask for a hearing with me, I will take your written response and the matters developed within that hearing into consideration and will notify you in writing of my final decision.
Watson's attorney responded by letter dated February 2, making a number of charges and requests for documents. One sentence in this two and a half page letter states, however: "We have no choice but to request a hearing even though you have already instructed that John Watson be terminated." The attorney also informed Smith that he would be out of the country until March 1.
On February 9 Smith again wrote Watson, the first paragraph repeating precisely what was stated in the first paragraph of the letter of January 30. The letter then concluded: "Therefore, you are terminated from City employment effective today."
On March 5 Watson's attorney wrote John E. Rednour, chairman of the city civil service commission:
As Chairman of the Civil Service Commission we are herewith filing with your office today the Appeal and Request For Investigation in the wrongful discharge of John Watson. We had advised the City Manager that we would be out of the country for several weeks and asked that the hearing be held after we returned. Mr. Watson had been previously suspended by the Chief of Police under the direction of Mr. Smith, the City Manager. We therefore respectfully request said investigation and hearing in order that this matter may be resolved.
Attached to the letter was an instrument headed "Appeal and Request for Investigation."
On March 12 Rednour wrote the attorney as follows:
According to our records Patrolman John Watson was terminated on February 9, 1987.
Section 21-31-23, Mississippi Code of 1984 states that a demand for investigation by the Civil Service Commission be filed within ten (10) days of the termination. Your request for an investigation or hearing was dated March 5, 1987. *1236 It appears to the Commission that you did not comply with the legal requirements in asking for a hearing.
If you feel we are in error or have overlooked something, please let us know.
On April 7 Watson filed a petition of appeal to the circuit court. The court dismissed the appeal because of noncompliance with the requirement of Miss. Code Ann. § 21-31-23 that an appeal to the city civil service commission be filed within ten days.
Watson has appealed.
LAW
Miss. Code Ann. § 21-31-23 in pertinent part states:
§ 21-31-23. Removal, suspension, demotion, and discharge.
No person in the classified civil service ... under the provisions of sections 21-31-1 to 21-31-27,... shall be removed, suspended, demoted or discharged, or any combination thereof, except for cause, ...
In the absence of extraordinary circumstances or situations, before any such employee may be removed or discharged, he shall be given written notice of the intended termination, which notice shall state the reasons for termination and inform the employee that he has the right to respond in writing to the reasons given for termination within a reasonable time and respond orally before the official charged with the responsibility of making the termination decision. Such official may, in his discretion, provide for a pretermination hearing and examination of witnesses, and if a hearing is to be held, the notice to the employee shall also set the time and place of such hearing... . After the employee has responded or has failed to respond within a reasonable time, the official charged with the responsibility of making the termination decision shall determine the appropriate disciplinary action, and shall notify the employee of his decision in writing at the earliest practicable date.
... .
Any person so removed, suspended, demoted, discharged or combination thereof may, within ten (10) days from the time of such disciplinary action, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation... . After such investigation the commission may, if in its estimation the evidence is conclusive, affirm the disciplinary action, or if it shall find that the disciplinary action was made for political or religious reasons, or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which such person was removed, ...
... The findings of the commission shall be conclusive and binding unless either the accused or the municipality shall, within thirty (30) days from the date of the entry of such judgment or order on the minutes of the commission and notification to the accused and the municipality, appeal to the circuit court of the county within which the municipality is located... .
Regardless of the charges against Watson, he was entitled to a hearing of some kind at some stage. Miss. Code Ann. § 21-31-23 first provides that the city official might "in his discretion, provide for a pretermination hearing." Smith's January 30 letter stated that Watson could have such hearing. Watson's attorney by letter of February 2 requested the hearing.
Having offered Watson a hearing, the city manager was obligated to honor Watson's request for one. Instead, knowing Watson's attorney was out of the country, Smith wrote Watson on February 9 terminating him.[1]
The city successfully argued before the circuit judge that Watson had not perfected his appeal to the civil service commission within ten days following the city manager's notice he was firing him, that neither *1237 the commission nor the circuit court had jurisdiction to hear his appeal. There was no necessity to address this question, however, because the city manager was without authority to terminate Watson on the grounds stated without giving him a pretermination hearing, after he had obligated the city to give him one upon request, and a request for such hearing was promptly made by Watson's lawyer. Tennant v. Finane, 227 Miss. 410, 86 So.2d 453 (1956), is distinguishable. In that case Tennant was not misled by the city's failure to follow statutory procedures. Watson was misled, and the city's conduct was a material factor in preventing Watson from complying with the statute. The city cannot have it both ways, and is estopped from denying him a pretermination hearing.
This cause is remanded to the City of Pascagoula to afford Watson a hearing in compliance with the statute.
REVERSED AND REMANDED.
ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and BANKS, JJ., concur.
McRAE, J., not participating.
ON PETITION FOR REHEARING
BANKS, Justice, concurring:
Today we deny the petition for rehearing filed on behalf of the City of Pascagoula, and I take this opportunity to note an additional basis for according Watson the relief he is given in our original opinion.
The Civil Service Commission of the City of Pascagoula published rules and regulations which provide that an employee shall have thirty (30) days in which to request an investigation. Watson requested an investigation within the thirty-day period provided by the rules. The commission rejected the filing as untimely in contravention of its own rule. The City asserts that this is an administrative rule which is adverse or repugnant to the statute, Section 21-31-23, Mississippi Code Annotated (Supp. 1990), which provides that a request for investigation shall be demanded within ten days of the adverse action.
Section 21-31-9 provides that civil service commissions shall have the duty to make "suitable rules and regulations not inconsistent with the provisions of sections 21-31-1 to 21-31-27... which may be considered desirable to further carry out the general purposes" of those sections. It is at least arguable that the thirty-day period is consistent with the provisions of the civil service statutory scheme. The purpose of the statutes is to assure that employment decisions are based on merit, that adverse employment actions are based on good cause, and that the manner in which these decisions are made and reviewed accords due process. Increasing the time period in which an investigation may be requested by an aggrieved employee might reasonably be "considered desirable to further carry out the general purposes" of the statutes and not inconsistent with their provisions.
We need not decide that issue here, however. Watson does not challenge the rule. The city argues with itself. The civil service commission is an agency of the City of Pascagoula. McLeod v. Civil Service Commission, 198 Miss. 721, 21 So.2d 916 (1945), overruled on other grounds, Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951). Elementary fairness dictates the conclusion that the city cannot lead its employees to believe that they have thirty days in which to appeal and then assert that its own rule is unlawful after having induced reliance. If the city fathers have a quarrel with the regulations adopted by the commission, it is incumbent upon them to see that those regulations are declared unlawful by a court or other competent authority. Failing that, the city is at least required to warn its employees that it considers itself bound only by the statute and not the regulations it promulgates through its civil service commission. Here Pascagoula did neither. Accordingly, it should be estopped to assert the unlawfulness of its regulation.
*1238 ROY NOBLE LEE, C.J., HAWKINS, P.J., and ROBERTSON, SULLIVAN and PITTMAN, JJ., join this concurring opinion.
NOTES
[1] Under Miss. Code Ann. § 21-31-23, there was no discretion in giving Watson the right to "respond orally" before the city manager prior to termination. This likewise was denied him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602510/ | 577 So.2d 1094 (1991)
Paul F. O'BRIEN, Jr., et al.,
v.
ALCUS LANDS PARTNERSHIP TRUST, et al.
No. CA 89 2111.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
*1095 Victor A. Sachse, III, Baton Rouge, for plaintiffs Paul F. O'Brien, Jr., Priscilla Alden O'Brien Mertz and Ernest O. O'Brien, appellees.
James M. Field, Baton Rouge, for defendant John C. Bonfiglio and Renate Bodensteiner Bonfiglio, et al. appellants.
R. Ryland Percy III, Gonzales, for defendants Robert R. Philippe, Sr., Viola Braud Philippe appellees.
Neal Harmon, Port Allen, for defendants Thomas E. Robertson and Marilyn Bergeron Robertson.
Dale M. Maas, Baton Rouge, for defendants Frank A. Messina and Curley Messina appellees.
Before LOTTINGER, SHORTESS and CARTER, JJ.
LOTTINGER, Judge.
This is an appeal by several defendants[1] from a judgment in a petitory action recognizing the plaintiffs as owners of the property in question by means of acquisitive prescription and ordering the clerk to erase those acts of sale purporting to transfer ownership of the property to the defendants. The plaintiffs have answered the appeal urging ownership by title in the event this court should find that the plaintiffs have not acquired the property by acquisitive prescription.
On June 25, 1985, Paul F. O'Brien, Jr, Paul F. O'Brien, III, Priscilla Alden O'Brien Mertz, and Ernest O. O'Brien (hereafter collectively "plaintiffs") filed this petitory action against the defendants seeking to be recognized as owners of the undivided 9/10 interest in the following described property:
Lots 1 and 2 (less portions sold by their predecessors to John Omar, C.O.B. 55, folio 328; Arthur Ashton, C.O.B. 55, folio 325; and Williams, C.O.B. 55, folio 324) *1096 and the SW/4 of the SW/4 of Section 10, Lot 5 of Section 9, the NW/4 of the NW/4 of Section 15, all in T9S, R4E, Ascension Parish, Louisiana.
The plaintiffs-appellees claim the property as heirs of Paul F. O'Brien and Clara D. O'Brien. This appeal relates only to that portion of Lot 5 in which the defendants-appellants claim an interest.
By deed dated December 1, 1945, Paul F. O'Brien, the plaintiffs' immediate predecessor in title, acquired an undivided one-half interest in this property from the heirs of Joseph Hebert. On December 8, 1945, Mr. O'Brien purported to acquire the remaining undivided one-half interest of the successors in title of John P. Salassi. Both of these acts of sale erroneously described the property as being located in the E ½ of the SW ¼. The property is actually located in the E ½ of the SE ¼ as reflected in the correction deeds recorded on July 5, 1956 and March 28, 1957.
The defendants' divergent line of ownership of this property manifested as a result of acts entered into by Joseph Hebert and the Salassis in March 1928. On March 2, 1928, Joseph Hebert and the Salassis sold timber from their undivided 9/10's interest in this property to De-Hass Eby Lumber Company (hereafter "De-Hass"). Three days later, Alice Salassi St. Amant sold her entire undivided 1/10 interest in this property to De-Hass. On December 20, 1931, De-Hass purported to sell the entirety of this disputed property to S.T. Alcus & Co., Ltd. Diversion Isles, Inc. (hereafter Diversion) purchased this property from S.T. Alcus & Co. on October 22, 1975. The property was divided by Diversion and sold to the defendants or their predecessors (hereafter defendants) during 1976 (less than 10 years prior to this suit). Upon purchasing these subdivided lots, the defendants continuously exercised acts of corporeal possession by constructing camps, wharfs, and et cetera.
On July 16, 1956, the plaintiffs' immediate predecessor granted rights of way to Ascension and Livingston Parish Police Juries for construction of the Diversion Canal. These rights of way were granted following the July 5, 1956 correction deed by the Heberts but prior to the March 28, 1957 correction deed by the Salassis. The construction of the Diversion Canal was completed in 1964. This canal crosses part of Lot 5.
The trial court found that the defendants were currently in possession of the property. Discrepancies in the property description in the various acts of sale occurring prior to the 1956 and 1957 corrections rendered it impossible for the trial court to determine which property was being conveyed. Therefore, the trial court found that the plaintiffs failed to trace their title back to the previous owners, the Salassis and the Heberts.
The plaintiffs and their predecessors in title paid the taxes on the property in question from 1929 to 1986. In addition, they granted rights of way to LP & L for the construction of a power line and to Ascension and Livingston Parish Police Juries for the construction of the Diversion Canal. The court found that plaintiffs proved that they had taken corporeal possession of the disputed property by granting servitudes to LP & L and the Parishes of Livingston and Ascension. The court concluded that these acts were sufficient to supply the foundation of ten year acquisitive prescription.
The trial court found that it would be impossible for the plaintiffs and their predecessors to have exercised possession over 9/10 of the land without exercising possession over the remaining 1/10 which was actually sold to De-Hass. Therefore, the trial court found that the plaintiffs were owners by acquisitive prescription of the entire disputed property. Furthermore, the trial court ordered that the Clerk of Court of Ascension Parish erase from the conveyance records those acts transferring property to the defendants to the extent that they purport to transfer all or part of the described property.
ASSIGNMENT OF ERROR
The defendants-appellants contend that the trial court erred in holding that the plaintiffs proved ownership of the property by acquisitive prescription.
*1097 There are four requisites for 10 year acquisitive prescription: (1) possession for ten years, (2) good faith, (3) just title, and (4) a thing susceptible of acquisition by prescription. La.Civ.Code art. 3475. Only two of these requirements are at issue in this case: just title and possession for 10 years.
JUST TITLE
Ordinarily, the title conferred by acquisitive prescription extends only to that property which has been actually possessed. However, when one possesses under just title, possession as to any part of the immovable constitutes constructive possession as to those parts under such title that have not been actually possessed. A title is just for purposes of acquisitive prescription when the deed is regular in form, is valid on its face, and would convey the property if executed by the owner. See, La.Civ.Code art. 3483.
The paper title relied upon by one seeking to establish a ten year prescription must sufficiently describe the property so as to transfer its ownership. One must be able to identify and locate the property from the description in the deed itself or from other evidence which appears in the public records. See, Pure Oil Company v. Skinner, 284 So.2d 608, 611 (La.App. 2d Cir.1973), rev'd on other grounds, 294 So.2d 797 (La.1974).
The disputed property is located in the E ½ of the SE ¼ of § 9, Township 9 South, Range 4 East, Ascension Parish, Louisiana. The 1945 deeds which purported to transfer the disputed property to the plaintiffs incorrectly described the property as being located in the E ½ of the SW ¼ of § 9. The Heberts executed a correction deed on July 5, 1956 for the undivided ½ interest that had been sold to the plaintiffs. The Salassis executed a correction deed for the sale made of the remaining undivided ½ interest on March 28, 1957.
Assuming that plaintiffs possessed the disputed property prior to the recordation of the two correction deeds, they did not possess under just title; therefore, they could not have acquired title by ten year acquisitive prescription prior to 1966. At the earliest, ten year prescription could not have commenced until the plaintiffs acquired just titles to the disputed property on July 5, 1956 and March 28, 1957, respectively. Smith v. King, 192 La. 346, 188 So. 25, 30 (1939); Bagby v. Clause, 251 So.2d 172, 179 (La.App. 1st Cir.), writ denied, 259 La. 773, 252 So.2d 669 (1971).
The combined acts of the Heberts and the Salassis purported to transfer all of Lot 5 to the plaintiffs' predecessors. There was no mention in these acts of the outstanding undivided 1/10 interest that had been sold to De-Hass. Therefore, in addition to acquiring just title to the undivided 9/10 interest owned by the Heberts and the Salassis, the plaintiffs acquired just title to the undivided 1/10 interest that was owned by De-Hass. See, Succession of Seals, 243 La. 1056, 150 So.2d 13 (1963).
The question to be decided is whether or not the plaintiffs have exercised sufficient possession pursuant to the corrected description to toll the commencing of ten year acquisitive prescription.
POSSESSION
A possessor must have corporeal possession of the immovable, or civil possession preceded by corporeal possession to acquire an immovable by prescription. La.Civ.Code art. 3476. Any person asserting ownership by acquisitive prescription must prove that someone corporeally possessed the property on their behalf. Corporeal possession is defined as "the exercise of physical acts of use, detention, or enjoyment over a thing." La.Civ.Code art. 3425. Once a person ceases to possess corporeally, his possession continues in the form of civil possession. See, La.Civ.Code art. 3476.
The degree of corporeal possession required in a particular case is governed by the nature of the land and the use to which the land is put. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). The evidence proves that the disputed property constitutes primarily swamp land which is useful for little more than timber cutting and perhaps *1098 hunting, fishing, and trapping. Whether or not the activities conducted by or on behalf of the plaintiffs constitute corporeal possession is a question of fact to be decided based on the circumstances of this particular case. Clifton v. Liner, 552 So.2d 407 (La.App. 1st Cir.1989).
The plaintiffs and their predecessors in title exercised the following acts of ownership: (1) 1928 sale of timber; (2) 1929 grants of right of way to LP & L; (3) 1956 grants of right of way to Ascension and Livingston Parishes; and (4) payment of taxes from 1929 to 1986. The assessment and payment of taxes and the granting of servitudes without evidence of physical possession by the grantee is simply a manifestation of the possessors intent to possess as owner. Such actions do not satisfy the requisite amount of corporeal possession required to support the plea of prescription. These acts constitute civil possession rather than corporeal possession. Blanchard v. Norman-Breaux Lumber Co., 220 La. 633, 57 So.2d 211 (1952).
For purposes of determining whether the plaintiffs have acquired ownership by ten year prescription, we must look first to those acts of corporeal possession that took place after the plaintiffs acquired just title to the property in 1956 and 1957. Since the plaintiffs are seeking to prove acquisitive prescription through the acts of Ascension and Livingston Parishes, they must show (1) that servitudes were granted and (2) that they, as grantees, exercised corporeal possession of the property. See, McPherson v. Roy, 390 So.2d 543 (La.App. 3d Cir.1980), writ denied, 396 So.2d 910 (La. 1981).
The plaintiffs have shown that their predecessors granted rights of way to the parishes of Ascension and Livingston in 1956 following the recordation of the first correction deed. The payment of taxes and the granting of these servitudes would be sufficient to commence the running of ten year prescription provided proof of the grantees' physical acts on the property has been shown. The plaintiffs contend that the parishes of Ascension and Livingston commenced the construction of the Amite River Diversion Canal following the granting of the 1956 servitude. The right-ofway for this canal was cleared, and the canal was ultimately constructed over part of the disputed property.
The defendants contend that although plaintiffs presented evidence purporting to establish that the parishes of Livingston and Ascension were precarious possessors of the property, they failed to present evidence that these parties undertook acts of corporeal possession. This court agrees that the plaintiffs failed to set forth the precise time frame in which each specific act was performed by the grantees in constructing the canal. However, the undisputed evidence establishes that (1) the canal was in fact constructed across the disputed property, (2) construction of the canal was completed in 1964, and (3) the canal remains on the property today. Based on the nature of the property involved, the performance of construction acts by the plaintiffs' grantees was sufficient to constitute corporeal possession over that portion of the disputed property. Since a portion of the disputed tract was actually possessed on behalf of the plaintiffs, the plaintiffs are deemed to have possessed the remainder of the property under the theory of constructive possession. La.Civ.Code art. 3426.
Under the law, these grants of servitude, followed by actual operations pursuant to the grants, were sufficient to initiate the running of the ten year acquisitive prescription. Zylks v. Kaempfer, 189 La. 609, 180 So. 425 (1938). Even though the evidence fails to establish the exact point at which construction of the canal began, there is evidence in the record to support the fact that a portion of the canal was constructed over the disputed property during the interval between 1956 and 1964. Absent any evidence of adverse possession within the 10 years following completion of the canal, we find that the trial court did not abuse its discretion in finding that the plaintiffs were owners by ten year acquisitive prescription.
Therefore, for the above and foregoing reasons the judgment of the trial court is *1099 affirmed at the defendants-appellants' costs.
AFFIRMED.
NOTES
[1] The defendants in this matter are:
Edwin R. Feig, Mary M. Feig Bordelon, Francis M. Feig, John L. Feig, John C. Bonfiglio, Renate B. Bonfiglio, Wilfred J. Matherne, Vivian M. Matherne, Gilbert J. Matherne, Sr., Elizabeth W. Matherne, Thomas E. Robertson, Marilyn B. Robertson, Mary Anne D. Schexnayder, Sherry Schexnayder, Angela Schexnayder, Brandon Schexnayder, Reynaud A. Berthelot, Evelyn V. Berthelot, Warren M. Harris, Josephine G. Harris, Jerry W. Broussard, Carolyn O. Broussard, Deryl M. Broussard, Janice W. Broussard, Robert R. Aydell, Edna R. Aydell, Gary L. Aydell, Gwen C. Aydell and Ann M. Williams. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602511/ | 8 So.3d 398 (2009)
Valerie M. HINGSON, Appellant,
v.
MMI OF FLORIDA, INC., a Florida Corporation, and Magnecel Services, L.C., a Florida limited liability company, Appellees.
No. 2D07-5215.
District Court of Appeal of Florida, Second District.
March 18, 2009.
Rehearing Denied May 6, 2009.
*399 John P. Holsonback of Fuller Holsonback & Malloy, Tampa, for Appellant.
Arnold D. Levine and Robert H. MacKenzie of Levine, Hirsch, Segall, MacKenzie & Friedsam, P.A., Tampa, for Appellees.
SILBERMAN, Judge.
Valerie M. Hingson appeals an order on motions for attorney's fees and a final judgment of attorney's fees that award attorney's fees to her and to her former employers, MMI of Florida, Inc., and Magnecel Services, L.C. (the Employers).[1] We reverse the attorney's fees awarded to the Employers and remand for the trial court to add prejudgment interest to the attorney's fees awarded to Hingson from the date the trial court determined entitlement. We affirm without discussion the trial court's decision not to apply a contingency *400 multiplier in determining Hingson's attorney's fees.
The Employers hired Hingson as an account executive to sell medical equipment and maintenance services. She signed a written employment agreement prepared by the Employers, with an effective date of December 1, 2002. The employment agreement contains a provision for attorney's fees to the Employers if they prevailed "[i]n any legal action or other proceeding involving, arising out of or in any way relating to this Agreement."[2]
In her amended complaint, Hingson claimed that she was terminated without cause on January 30, 2004, and that she was not paid commissions or bonuses that were due her, "including but not limited to, amounts due on transactions with Radiology & Imaging Specialists of Lakeland and Dimensional Imaging Sarasota." In count I, she asserted the Employers' breach of the employment agreement, and in count II, she alleged an alternative claim for unjust enrichment. The Employers answered and asserted four affirmative defenses, including that Hingson was terminated for failing to perform as called for in the employment agreement, that she was paid in excess of what was due to her, and that she was not entitled to any commissions or other monies. The Employers did not assert any counterclaims.
After a nonjury trial, the trial court entered an amended final judgment in Hingson's favor, noting that it had also ruled in Hingson's favor on the Employers' affirmative defenses. The court determined that the Employers "breached their employment agreement with [Hingson] by not paying her compensation due upon termination for the sale to Radiology and Imaging Specialists of Lakeland and for the first payment received for asset management services from such customer." The trial court awarded Hingson damages of $31,659.50, plus prejudgment interest of $10,447.64 and costs of $4,273.25, for a total of $46,380.39. In light of its decision on count I, the trial court found Hingson's unjust enrichment claim in count II to be moot.
Both parties filed motions for fees and costs. Hingson sought fees pursuant to the employment agreement and pursuant to section 448.08, Florida Statutes (2003), which allows awards of attorney's fees and costs to successful litigants in actions for unpaid wages. The Employers sought fees pursuant to the agreement. The Employers argued that Hingson had claimed commissions on the full value of sales to customers but that the trial court had ruled she was only entitled to a commission on monies the Employers had received at the time of her termination.
Following a hearing, the trial court stated that Hingson "was asking for several hundred thousand dollars, maybe $200,000, and actually got a judgment for $31,000 plus the interest" and that "a significant part of the claim was denied." The trial court determined that under the employment agreement, the Employers prevailed on the significant issues in the litigation. In its written order entered on April 25, 2007, the court concluded that Hingson was entitled to fees under section 448.08 as the prevailing party. The court further concluded that the Employers were entitled to an award of attorney's fees as the prevailing party under the employment agreement based upon Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla.2005).
*401 After a hearing to determine the amount of the fees, the trial court entered a final judgment of attorney's fees, finding that Hingson incurred reasonable attorney's fees of $112,000 and that the Employers incurred reasonable attorney's fees of $56,000. The court then awarded net attorney's fees of $56,000 in Hingson's favor. The trial court refused Hingson's request to award interest on the fee award from April 25, 2007, the date the court had determined entitlement to fees. On appeal, Hingson argues that because the trial court found that the Employers had breached the employment agreement and because it entered a judgment in her favor for unpaid commissions, the court erred in awarding attorney's fees to the Employers, which offset part of her fee award.
Pursuant to section 448.08, the trial court properly awarded fees to Hingson. Section 448.08 provides, "The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney's fee." Unpaid commissions are considered wages for purposes of section 448.08. See Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 367 (Fla. 2d DCA 1984); D.G.D., Inc. v. Berkowitz, 605 So.2d 496, 498 (Fla. 3d DCA 1992). The policy behind section 448.08 is to provide "a means to equalize the disparate positions of employees in attempting to collect for the fruits of their labors." Tampa Bay Publ'ns, Inc. v. Watkins, 549 So.2d 745, 747 (Fla. 2d DCA 1989). The fact that Hingson did not recover all the commissions she sought does not alter her status as prevailing party under section 448.08. Although she recovered less than the amount that she claimed, she established, and the trial court found, that the Employers breached the employment agreement and that she was entitled to damages and her statutorily authorized attorney's fees as a result of that breach.
Regarding the trial court's award of fees to the Employers, we conclude that the trial court erred. As noted previously, the court awarded fees to the Employers based on Lashkajani, 911 So.2d 1154, stating that for purposes of the fee provision in the employment agreement, the Employers were the prevailing party.
In Lashkajani, the circuit court awarded attorney's fees of $117,022.42 to the wife in a dissolution action pursuant to section 61.16, Florida Statutes (2001), based on the parties' relative financial inequality. The court also awarded attorney's fees of $63,022.92 to the husband for his successful defense of the parties' prenuptial agreement, based on the prevailing party provision in the agreement. The supreme court stated that it was only addressing the narrow issue of "whether a prenuptial agreement may contract away a future obligation to pay attorney's fees and costs during the marriage by providing for prevailing party attorney's fees in actions seeking to enforce the agreement." 911 So.2d at 1156. The court held "that prenuptial agreement provisions awarding attorney's fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable." Id. at 1160. The court did not otherwise address the circuit court's separate fee awards to the parties.
In Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), the Florida Supreme Court discussed the test that should be used to determine the prevailing party for purposes of recovering attorney's fees in a breach of contract action. The court determined "that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees." Id. at *402 810.[3] There, the trial court found that the plaintiffs had breached the contract and that the defendant partially prevailed on its counterclaim. The supreme court stated, "It is apparent from the record that the trial judge concluded that [the defendant] prevailed on the significant issues in the case because it did not breach the contract and, consequently, should not be required to pay attorney's fees to the parties who did not prevail on their complaint and only partially prevailed on their defense to the counterclaim." Id.
Here, the Employers denied all liability for any unpaid commissions and raised four affirmative defenses. The Employers did not file a counterclaim. Hingson brought her claim for unpaid commissions, albeit under alternative theories of breach of the employment agreement and unjust enrichment. The trial court specifically found that the Employers breached the employment agreement. The court also ruled in Hingson's favor on the Employers' affirmative defenses. Although Hingson did not recover the total amount that she sought, she prevailed as to her claim that the Employers breached the agreement and were liable to her for damages, and the Employers did not prevail in any affirmative relief. Based on this record, we conclude that the trial court erred in its application of Lashkajani to award attorney's fees to the Employers and in determining that the Employers were the prevailing parties on the significant issues in the breach of agreement claim. Therefore, we reverse the award of attorney's fees to the Employers.
With respect to Hingson's claim that the trial court should have awarded prejudgment interest on her fee award from the date that the court determined that she was entitled to recover her attorney's fees, we agree. See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929, 930-31 (Fla.1996) (concluding that "interest accrues from the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination, even though the amount of the award has not yet been determined"); Nat'l Portland Cement Co. v. Goudie, 718 So.2d 274, 275-76 (Fla. 2d DCA 1998) (determining that an employee was entitled to prejudgment interest on a fee award from "the date of the trial court's order awarding attorney's fees and costs"). Thus, we reverse the trial court's decision to deny prejudgment interest to Hingson. On remand, we direct the trial court to award prejudgment interest on Hingson's fee award from April 25, 2007.
Accordingly, we affirm the award of fees to Hingson, reverse the award of fees to the Employers, and reverse the denial of prejudgment interest to Hingson on her fee award. We remand for the trial court to enter an amended final judgment of attorney's fees that is consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
LaROSE, J., and PALMER, WILLIAM D., Associate Judge, Concur.
NOTES
[1] The Employers filed a notice of cross-appeal but did not raise or argue any cross-appeal issues in their brief, thereby abandoning their cross-appeal.
[2] Section 57.105(6), Florida Statutes (2002), which applies to contracts entered into on or after October 1, 1988, makes this provision reciprocal. The statute has since been renumbered and the reciprocity provision is now contained in section 57.105(7). See Ch. 2003-94, § 9 at 472, Laws of Fla.; § 57.105(7), Fla. Stat. (2003-2008).
[3] In Prosperi v. Code, Inc., 626 So.2d 1360, 1363 (Fla. 1993), the court held that the Moritz test also applied to determine who is the prevailing party for the purposes of awarding fees on a statutory claim brought under section 713.29, Florida Statutes (1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602520/ | 577 So.2d 1281 (1991)
HUNTSVILLE AVIATION CORPORATION
v.
Thomas S. FORD and Madison Investment Company, Inc.
89-898.
Supreme Court of Alabama.
March 29, 1991.
Randy Myers and Richard Jordan, Montgomery, for appellant.
*1282 Gary C. Huckaby, Stuart M. Maples and J. Jay Cheatwood of Bradley, Arant, Rose & White, Huntsville, for appellees.
ALMON, Justice.
Huntsville Aviation Corporation appeals from a summary judgment against it on its claims against two defendants, Thomas S. Ford and Madison Investment Company, Inc., for damages based on an alleged breach of a lease or for the value of the defendants' use and occupation of its premises. Its claims against a third defendant, Aviation Services, Inc., remained pending when this appeal was taken.[1] Ford is the majority stockholder of Madison Investment and the sole stockholder of Aviation Services. The principal question is whether Huntsville Aviation should be held to have dealt solely with Aviation Services and so to have recourse solely against that corporation, or whether, under the evidence submitted, Aviation Service's separate corporate existence might be disregarded and Huntsville Aviation allowed to recover against Ford and Madison Investment. The complaint also included claims alleging that Huntsville Aviation was a third-party beneficiary to a contract between Madison Investment and the Huntsville-Madison County Airport Authority ("the Airport Authority") and that it was a victim of fraud committed by Ford, and Huntsville Aviation also appeals from the judgment against it on those claims.
Huntsville Aviation is a fixed-base operator[2] at the Huntsville-Madison County Airport and rents a hangar and other space from the Airport Authority. Aviation Services was incorporated on January 17, 1984. Beginning about that time, Ford did business with Huntsville Aviation concerning a Cessna 182 airplane, primarily purchases of fuel and repairs. Ford asserted in deposition that those purchases were made through Aviation Services, which owned the airplane, but William Whatley, the vice president and general manager of Huntsville Aviation, stated in deposition that "We had a separate account set up for him for Madison Investment Company that we billed his fuel and maintenance on his airplane to that account."
The present controversy had its origins in 1986, when Ford proposed starting an avionics shop at the Huntsville-Madison County Airport. After initial negotiations to lease a hangar directly from the Airport Authority were unsuccessful, Ford began discussing with the officers of Huntsville Aviation the possibility of subleasing space in Huntsville Aviation's hangar. On March 24, 1986, Ford and Gary Fuller, who was to be the primary avionics technician at the proposed shop, sent Whatley a letter on stationery with a typed "Aviation Services, Inc.," letterhead. The letter included the following:
"Dear Bill:
"This letter will serve as our proposal to sublease space in Huntsville Aviation's hangar for the purpose of operating an Avionics Sales and Service Center.
"We propose to rent hangar space from you and to add leasehold improvements to operate the sales and service center. I have attached a drawing of the addition which we would propose to make. We would propose to pay for the addition and to rent the hangar space from you on the following terms:
"Lease Start Date: July 1, 1986 (construction of the improvements to start immediately upon execution of the lease).
"Lease Term: 5 years or to the term of Huntsville Aviation's lease including all renewal terms.
"Rental Rate: $500.00 per month.
"Lessee: Aviation Services, Inc., an Alabama Corporation wholly owned by Thomas S. Ford.
*1283 "Guarantors: Thomas S. Ford will personally guarantee the first year's rent.
"....
"I have attached a copy of our statement of purpose which has been put together by Gary Fuller. Gary will be Vice President and General Manager of Aviation Services, Inc. I have also attached a copy of Gary's resume showing the experience that he has had in avionics and electronics. I will provide the financial backing for the project personally or through other partners. I have attached a copy of my personal financial statement. In the event that you need to check on our banking relations you may call Mr. Dean O'Ferrell or Mr. Bill Morrow with SouthTrust Bank.
"I have also attached a copy of the list of equipment which we intend to purchase for the center. All of the items on this list have been located and we have been guaranteed delivery by May 1, which would give us adequate time to install the equipment by the start of the lease date.
"....
"Sincerely,
"s/Thomas S. Ford
"Thomas S. Ford
"President
"s/Gary W. Fuller
"Gary W. Fuller
"Vice President"
(Emphasis added.) The attached financial statement showed the net worth of Ford and his wife to be $1,716,757, including ownership of 1000 shares of Madison Investment valued at $994,676.
Without a written lease other than as exhibited by the above-quoted letter, Aviation Services began subleasing from Huntsville Aviation office space for the avionics shop and hangar space for its airplane. The rent of $500 per month for the office space and $750 per month for the hangar space was paid regularly.
Negotiations continued among the officers of Huntsville Aviation, officers of the Airport Authority, and Ford and Fuller about the proposed addition to Huntsville Aviation's building for the avionics shop. On June 24, 1987, Richard Tucker, acting executive director of the Airport Authority, sent a letter to Ford in his capacity as president of Madison Investment:
"Re: Fixed Base Facilities Improvements Avionics Shop Addition
"Dear Tom:
"This confirms our meeting yesterday with Mr. Tom Joyce [the architect] and Mr. Gary Fuller, wherein we reached the following agreement in an effort to move the stated project to completion:
"....
"Rent structure will be $1000.00 per month to the Airport Authority (through Huntsville Aviation) based on $85,000.00 total project cost.... In the event total project costs exceed $85,000.00, the $1000.00 per month rent will be increased proportionally.
"....
"Please acknowledge your concurrence with the agreement as set forth above in the space provided below in order that we can proceed with necessary revisions and advertisements for bids scheduled to be received July 21, 1987."
(Emphasis added.) At the end of the letter, under the word "ACCEPTANCE," was a blank space for Ford's signature as president of Madison Investment. He signed and dated the letter on June 29, 1987, and the Airport Authority received the accepted copy on June 30.
On September 8, 1987, Huntsville Aviation[3] and the Airport Authority executed the following addendum to their lease:
"WHEREAS, HUNTSVILLE-MADISON COUNTY AIRPORT AUTHORITY, *1284 hereinafter referred to as `Authority,' and MONTGOMERY AVIATION CORPORATION, hereinafter referred to as `Company,' are presently related by the herein lease, its terms and conditions, and
"WHEREAS, Company is desirous of operating or subletting a regional Avionic sales and service center on the premises the subject of said lease, and
"WHEREAS, all the parties are desirous of providing a building for the operation of said sales and service center.
"NOW, THEREFORE, the herein lease is amended as follows:
"Authority shall construct a facility on the property presently leased to Company as per the attached plans and specifications which said building and improvements shall become a part of the leased property under the same terms and conditions as set out in the hereto original lease and Company shall pay to Authority $1,273.19 per month additional rent [based on increased expected cost of the building] to begin on the next ensuing rent payment date subsequent to the completion of said building.
"The said sales and service center is anticipated to be sublet. The subletting shall require approval of Authority as set out in the original lease.
"Notwithstanding the foregoing, this agreement does not, nor shall it be construed to, obligate Company to establish or operate an Avionics sales and service center in the facility to be constructed by Authority. This agreement does, however, obligate Company to pay the additional rent referred to hereinabove regardless of whether the facility is or is not utilized as an Avionics sales and service center."
(Emphasis in original.)
Construction commenced on the avionics shop addition and was completed in time for the avionics shop to move in by January 1988. Under the formula, accepted by Ford as president of Madison Investment, for establishing the amount of rent according to actual cost of the building, Huntsville Aviation's lease addendum was amended to increase the additional rent to $1,334.60, effective January 1, 1988.
On April 11, 1988, Ford, as president of Aviation Services, wrote the Airport Authority, requesting it to "consider rescheduling the lease payments" because Aviation Services was operating at a loss and needed time to establish its business. The financial statement attached to that letter contained the following:
"The Corporation has entered into a lease with Huntsville Aviation, Inc. for a 1400 sq. ft. (approx.) office and maintenance facility, hangar space, tie down slots and parking lot. The lease is for a period [of] 8 years at monthly payments of $1,356.00 [sic] for the building and $750.00 for the hangar space, tie down slots and parking lot."
The Airport Authority responded by saying that its lease was with Huntsville Aviation and that Ford would have to request relief from Huntsville Aviation.
About June 1988, Aviation Services began falling behind in its payments to Huntsville Aviation. Whatley stated in his deposition that, at that time, Ford repeatedly reassured him that he would pay the rent. For example, the deposition includes the following excerpt:
"A. I remember one of the conversations we had along toward theI'd say toward the end.... But Tom [Ford] came into my office, and I called Dave Goodwin, our assistant manager, into my office, and I wanted him to be there, because I was putting a lot of pressure on Tom to bring his account up to date. And Tom told me then that, `I would be personally responsible for this, and I will see that you get paid.'
"Q. And how many times had he said that prior to that time?
"A. I can't tell you the number, but it was more than one.
"Q. And what was your response?
"A. We wouldn't let him stay there if I hadn't believed him.
"Q. The first time that he told you that, as you say, he would be personally responsibleand did he use those words, *1285 `I will be personally responsible for these debts; I will guarantee these debts'?
"A. I can't say that those were the exact words that he used, but that's what I understood.
"Q. Was there a possibility that you misunderstood?
"A. Negative."
Goodwin confirmed, saying "I can remember at least twice Mr. Ford assuring Mr. Whatley that the rent would be paid, that he would guarantee him that the rent would be paid."
In September 1988, Ford met with Robert P. Hudgens, the president of Huntsville Aviation; William T. Hudgens, the secretary of Huntsville Aviation; and Goodwin. Goodwin stated in deposition that Ford "again assured the Hudgenses, much in the same way that he had assured Mr. Whatley in the two previous meetings in his offices, that, you know, he was committed to this thing and that he was going to pay the bills." Robert Hudgens stated that "the thing that I remember most is that Tom said he was going to see that we got paid." William Hudgens's deposition included the following:
"At this meeting, he laid out that Aviation Services was just not doing well. And we already knew that, because I think at this point he had already gotten to where he wasn't paying rent anymore. And by `rent,' I mean the 750 for some of the hangar and tie-down and parking area, and then the 13 hundred and some-odd dollars that was supposed to pass through us to the Airport Authority for the new building. And he asked my father to give him some relief, and I can remember my father saying, `Well, you have already taken relief. You are not paying.' And we worked out at that point taking this tug of his on and giving him credit for that tug. And I recall that I got right frustrated at that meeting and ended up walking around outside and coming back. Either before I left or after I got back, he did make the statement: `I am going to pay you what I owe you.'
"Q. And that was referring in the past tense, as to what was owed?
"A. Well, when he said, `I am going to pay you what I owe you,' I took it to mean that he was going to pay what he had committed to pay, and in my mind, he had committed to pay for the building and the rent from us for the term of this project, the 10-year amortization. That's whatwhen he started this thing, he knew that's what he owed, and as it went along that is what he knew he owed.
"Q. You are reflecting on what he knew he owedyou just got that from conversations that you had with Mr. Whatley or with your father?
"A. Yes, and then at some point during all this, I would see copies of letters floating around, back and forth, and documents back and forth, between the Airport Authority and Tom Ford and us and Aviation Services, and I think there has even been one on Madison Investment letterhead. But in one of those documents he did lay out that he was going to be personally responsible or back this project. And that's where I have been coming from all this time. There was not any question in our mind that he had personally committed to back this thing up.
"Q. And that letter would have been a letter to Huntsville Aviation or to the Airport Authority?
"A. I don't recall who the letter was to.
"Q. Do you recall that that letter put any limitations or stipulations upon Tom Ford's personal involvement?
"A. I do recall that he mentioned rent, and he mentioned a one-year personal guarantee on some rent. And I recall that elsewhere in the letter he talked about the project, andI would have to see the document again to get more specific, but I am under the impression right now, from memory, that the project related to the building rather than renting space or renting land or renting an area.
*1286 "Q. But that is an interpretation that you have put on it orhow did you arrive at that interpretation?
"A. From the way the letter was written, it looked to me like that's what it said, that he was going to personally stand forand I think the word that was used was the `project.' I think that would be the building."
William Hudgens was shown a copy of the March 24, 1986, letter quoted at the beginning of this opinion and was asked if it was the letter he recalled. He answered that it was, and his deposition continued:
"Q. Now it says over here what he personally guarantees, does it not, on the first page?
"A. ... [I]n my mind, he was proposing to rent space, and then he says, `to add leasehold improvements.' And he says here, `We would propose to pay for the addition, and to rent.' So in my mind, the addition is the project, and rent is some hangars and maybe the ground rent and things like that. But in our mind it wasyou know, we realize there is an issuethere is this building that somebody is going to stick up there, andWe didn't want it; we didn't need it. So that's how we were interpreting this.
"Q. But you didn't have any discussions with Mr. Ford about that letter?
"A. No, sir.
"Q. And an equally valid interpretation of that clause would be that he was going to provide capitalization for Aviation Services; is that correct?
"....
"A. Well, I am not enough of a legal mind or a judge or jury to determine that. That's not how I interpreted it, but what I interpreted may or may not matter."
In reference to Huntsville Aviation's execution of the addendum to its lease, William Hudgens stated:
"We did sign this document that did obligate us to make those payments. And the reason we did that was Tom Ford had personally said, `I am going to do this.' So we didn't feel that we were at risk, is the truth of the matter. We felt like we were being the conduit, and we signed what we said we would sign, and then we turned it over to him, and he started not signing."
Huntsville Aviation filed this action on February 7, 1989, originally stating only two causes of action, one for breach of the agreement "to pay rent on the newly constructed addition for the term of Plaintiff's lease, including all renewal terms, or ten years, whichever is less," and the other as third-party beneficiary of the letter agreement between Madison Investment and the Airport Authority.
Ford's deposition was taken on April 24, 1989, and he denied having made any statements indicating that he would personally guarantee payment for the addition or that he was "good for the payment of that rent." Thereafter, on May 17, 1989, Huntsville Aviation amended its complaint, adding a count seeking the value of the defendants' use and occupation of the premises since they stopped paying rent in June 1988, and a count alleging fraud, as follows:
"27. In the Fall of 1988, Defendant Ford represented to agents of the Plaintiff that he would be personally liable for the rent due under the lease agreement as hereinabove described, and relying on said representations the Plaintiff continued to allow the Defendants to occupy the avionics shop and hangar space.
"28. Defendant Ford knew or should have known the Plaintiff would rely upon said representations in allowing the Defendants to continue occupying the avionics shop and hangar space.
"29. Said representations were false and were made intentionally and with knowledge of their falsity."
On June 23, 1989, Huntsville Aviation filed an unlawful detainer action and, pursuant thereto, Aviation Services was evicted from the premises. Discovery continued in this action, and the trial court later entered the summary judgment at issue.
Summary judgment should be entered only if the materials submitted in *1287 support of, and those in opposition to, the motion for summary judgment "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." Rule 56(c), Ala.R.Civ.P.
In order to determine whether Huntsville Aviation's claims based on breach of the lease and on unlawful use and occupation of the premises will lie against Ford or Madison Investment, we turn to the law with respect to the disregarding of separate corporate existence.
Ordinarily, a corporation's separate existence will be recognized so that liability for the corporation's debts will be limited to the corporate assets. Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So.2d 37 (Ala. 1988); Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). On the other hand, "the legal fiction of separate corporate entity should not be so extended `as to enable the corporation to become a vehicle to evade just responsibility.'" Kwik Set Components, Inc. v. Davidson Industries, Inc., 411 So.2d 134, 136 (Ala.1982), quoting Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 27, 29 So.2d 298, 300 (1947).
"A separate corporate existence will not be recognized when a corporation is so organized and controlled and its business so conducted as to make it a mere instrumentality of another or the alter ego of the person owning and controlling it.... A corporation and the individual or individuals owning all its stock and assets can be treated as identical, even in the absence of fraud, to prevent injustice or inequitable consequences."
Barrett v. Odom, May & DeBuys, 453 So.2d 729, 732 (Ala.1984), citing Woods v. Commercial Contractors, Inc., 384 So.2d 1076 (Ala.1980), and Cohen v. Williams, supra.
The evidence set out above shows that a fact question was presented on the question of whether Ford so conducted the business of Aviation Services as to be the alter ego of the corporation. The statement in the March 24, 1986, letter that "I will provide the financial backing for the project personally or through other partners" might suffice on its own to make Ford personally liable for the payments necessary to amortize the cost of the building addition.[4] It is especially significant in light of the deposition testimony of William Hudgens that the letter conveyed to him a distinction between "rent," such as for Huntsville Aviation's existing hangar space or the office space to be used until the addition was completed, and "the project," which he took (and which reasonably could be taken) to mean the addition to the building.
In addition to that letter, the evidence indicated that Ford acted as the alter ego of Aviation Services and used his corporations interchangeably. Setting aside for the moment the question of fraud, we note that the deposition testimony of the Huntsville Aviation employees that Ford repeatedly assured them that he would be responsible for the debts of Aviation Services presents a jury question on the "breach of lease" and "use and occupation" claims as against Ford. Ford raised a defense of the Statute of Frauds, Ala.Code 1975, § 8-9-2, asserting that the alleged promise was a promise to pay the debt of another. That defense can be answered by two points: one, the March 24, 1986, letter did provide written evidence of the promise, and two, if the jury were to accept the evidence that Aviation Services was merely Ford's alter ego, the promise would be to pay his own debt, not that of another.
On November 10, 1988, after the meeting described above, Ford wrote a letter on Madison Investment stationery to Robert Hudgens, stating that he was considering whether to put more money into Aviation Services or to close the shop, and he signed the letter simply as "president." This is susceptible to the interpretation that Ford was holding himself out as transacting the *1288 business at hand with Huntsville Aviation in his capacity as president of Madison Investment.
There was also evidence that, in obtaining credit from suppliers of equipment for the avionics shop, Ford used Madison Investment's credit to secure the goods and referred to Aviation Services as a "captive leasing company of Madison Investment." Gary Fuller executed the following affidavit:
"I worked with Tom Ford and Aviation Services, Inc., during 1987 and through May of 1988. During the time that I worked with Tom Ford and Aviation Services, Inc., Tom Ford was the sole stockholder of Aviation Services, Inc., and exercised complete control over the corporation.
"During the time that I worked for Tom Ford and Aviation Services, Inc., money was transferred from another corporation owned by Tom Ford, Madison Investment Co., Inc., to pay bills. To my knowledge, no notes or other instruments were signed for said transfers. In addition, in order to obtain credit, letters similar to the letter attached hereto as Exhibit `A' were sent to creditors."
The exhibit "A" mentioned in the affidavit was a letter to a supplier requesting credit for Aviation Services based on Madison Investment's financial statement and credit rating.
For the foregoing reasons, Huntsville Aviation's claims against Ford and Madison Investment based on breach of the lease and seeking the value of the use and occupation of the premises should have withstood the summary judgment motions.
Huntsville Aviation should also be allowed to proceed with its claim against Madison Investment as a third-party beneficiary to the agreement between Madison Investment and the Airport Authority.
"[O]ne for whose benefit a valid contract is made, although he is not a party to the contract and does not furnish the consideration therefor, may maintain an action on the contract against the promisor."
Mutual Benefit Health & Acc. Ass'n of Omaha v. Bullard, 270 Ala. 558, 563, 120 So.2d 714, 719 (1960).
"To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached."
Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99, 101-02 (Ala.1987) (citations omitted); Collins Co. v. City of Decatur, 533 So.2d 1127 (Ala. 1988).
Madison Investment contends that its contract was not made for the benefit of Huntsville Aviation. However, Huntsville Aviation's increased liability in its lease addendum was based on Madison Investment's contract with the Airport Authority. Later, the amendment to the addendum further increased the rent based expressly on Madison Investment's agreement that the amortization rent would increase proportionally to increases in the cost of the building. Although the contract between Madison Investment and the Airport Authority did not expressly refer to Huntsville Aviation's increased rent obligation, that agreement did lead directly to Huntsville Aviation's becoming obligated to pay for a building that it did not propose to use and for which Madison Investment had contracted. The heading of the agreement stated that it regarded "Fixed Base Facilities Improvements/Avionics Shop Addition." A jury could find, therefore, that it was within the contemplation of the parties that Huntsville Aviation would have primary responsibility for improvements to its facilities and that, by agreeing to make payments "through" Huntsville Aviation, Madison Investment was conferring a direct benefit on Huntsville Aviation. Madison Investment's promise to make the payments "through Huntsville Aviation" could clearly be found to have been made for Huntsville Aviation's benefit, that is, to relieve it of the obligation that it was undertaking for Madison Investment's sake. Thus, the trial court erred in entering summary judgment on this claim.
*1289 Finally, Huntsville Aviation argues that the trial court erred in entering summary judgment for Ford on the fraud claim. The alleged fraud involved a promise to perform an act in the future. Therefore, it involved, in addition to the usual elements of reliance on a fraudulent misrepresentation to the plaintiff's detriment, the elements that the promise was made with an intent not to perform the act promised and with an intent to deceive the plaintiff. Porter v. Hook, 554 So.2d 382 (Ala. 1989). The allegation is that Ford assured Huntsville Aviation's officers in the fall of 1988 that he would pay "what he owed." Huntsville Aviation alleges that Ford thereby promised to be personally liable for the amortization payments on the building addition, that he had no intention of making any such payments out of his personal funds, and that he thereby intended to deceive Huntsville Aviation into allowing the avionics shop to remain on the premises.
The materials submitted would support a finding that Ford intentionally implied that he personally would pay the amount owed on the building, or that he would continue to put money into Aviation Services, or that funds in Madison Investment would be used to support the avionics shop. A jury could also find that, while making such promises, Ford intended to make payments only out of funds already at Aviation Services' disposal or funds generated by the business. Thus, a fact question was presented as to whether Ford intended not to perform the promised acts, but rather to deceive Huntsville Aviation into believing that continuance of the avionics shop would be backed by his personal net worth or by the net worth of Madison Investment. Thus, the trial court erred in entering summary judgment on the fraud claim.
For the foregoing reasons, the judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
NOTES
[1] Pursuant to Rule 54(b), Ala.R.Civ.P., the trial court made the summary judgment for Ford and Madison Investment final.
[2] A fixed-base operator is "an individual or firm operating at an airport and providing general aircraft services such as maintenance, storage, ground and flight instructions, etc." Aviation/Space Dictionary, E.J. Gentle, ed. (6th ed. 1980). See Epps Aircraft, Inc. v. Montgomery Airport Authority, 570 So.2d 625 (Ala.1990).
[3] As can be seen, the addendum was actually executed by Montgomery Aviation Corporation, which owns all the stock of Huntsville Aviation. Huntsville Aviation was incorporated after Montgomery Aviation entered into the lease. In 1981, Huntsville Aviation was given all rights held by Montgomery Aviation under the lease, although Montgomery Aviation was still bound by its obligations thereunder. Therefore, for simplicity, we shall refer to Huntsville Aviation as the lessee under the addendum.
[4] Of course, Ford contends that he intended to provide financial backing only in the capitalization of Aviation Services and the purchase of the equipment mentioned in the letter. The letter is not necessarily subject to that interpretation, however, so Ford's contentions do not support the summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602523/ | 8 So.3d 469 (2009)
ABERDEEN PROPERTY OWNERS ASSOCIATION, INC., Petitioner,
v.
BRISTOL LAKES HOMEOWNERS ASSOCIATION, INC., Respondent.
No. 4D08-4467.
District Court of Appeal of Florida, Fourth District.
April 22, 2009.
*470 Diran V. Seropian, Barry A. Postman, and David A. Core of Cole, Scott & Kissane, P.A., and St. John, Core, & Lemme, P.A., West Palm Beach, for petitioner.
Ronald E. D'Anna of McClosky, D'Anna & Dieterle, LLP, Boca Raton, for respondent.
PER CURIAM.
Aberdeen Property Owners Association, Inc., the defendant below, filed a petition for writ of prohibition seeking to prohibit Palm Beach County Circuit Court Judge David French from continuing to preside over a lawsuit filed against it by Bristol Lakes Homeowners Association, Inc. We grant the petition.
Plaintiff is a sub-association within the defendant's master association, which was created by the Declaration of Covenants and Restrictions for Parkwalk Planned Unit Development and Parkwalk Planned Commercial Development (the Declaration). The complaint challenged the validity of several amendments to the Declaration, which imposed a requirement that, effective October 30, 2004, all new owners taking title to property in subdivisions of Defendant lying west of Jog Road, including Bristol Lakes, become members of the Aberdeen Country Club.
After the trial court granted the plaintiff's motion for summary judgment and *471 denied the defendant's motion for summary judgment, the defendant moved for reconsideration and rehearing. While that motion was pending, the defendant moved to disqualify Judge French. The motion for disqualification was based on the defendant's becoming aware, on October 3, 2008, of a potential conflict of interest, bias, or prejudice on Judge French's part, based on Judge French's involvement with a similar dispute with his own homeowners association in connection with the Hamlet Country Club. The defendant argued that the judge should have disclosed his personal dispute and critical opinions on the matter and disqualified himself. The defendant contended that Judge French had a personal bias and prejudice against homeowners associations with respect to mandatory club memberships, because of his own involvement in a factually similar dispute, and that he had prejudged this matter based on his prejudices and biases.
In support of disqualification, the defendant's representative, the president of its board of directors, attached two letters written by Judge French to his affidavit. In the first letter, which was addressed to the Hamlet Country Club, Judge French referred to his resignation from the country club board, putting his house up for sale, and his intention "of leaving the community and club forever." Within the letter, he stated that a bylaw amendment of that club had been passed "to comply with the promises made by the pro-mandatory forces and the then acting board of directors who were attempting to appease those people including myself who had concerns that the mandatory membership could severely affect the future alienation of our properties."
In the second letter, which was addressed to the treasurer of Hamlet Country Club, Judge French stated that he had made it clear to the board that its settlement with anti-mandatory forces "would only postpone the day of reckoning regarding the legality of the mandatory vote." The representative provided details as to when he had become aware that Judge French was in a dispute with the Hamlet Country Club over the status of his membership and the amount he owed for unpaid dues and other charges. The Hamlet Country Club was claiming that Judge French owed it over $39,000. Defendant's representative believed this potential liability prejudiced Judge French against mandatory club membership for residents of country club communities. He believed Judge French was biased against defendant's position in the instant litigation and that anyone in defendant's position would lack confidence in Judge French's impartiality. After Judge French denied the motion as legally insufficient, the defendant filed this petition for writ of prohibition.
Rule 2.330(f) requires a judge to enter an order granting disqualification if the motion to disqualify is "legally sufficient." The motion is legally sufficient if it shows the party's well-grounded fear that the party will not receive a fair trial. See Enter. Leasing Co. v. Jones, 789 So.2d 964, 968 (Fla.2001); Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling. See Goines v. State, 708 So.2d 656, 659 (Fla. 4th DCA 1998) ("[T]he facts underlying the well-grounded fear must be judged from the perspective of the moving party."), disagreed with on other grounds by Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007), quashed, 990 So.2d 482 (Fla.2008); Wargo v. Wargo, 669 So.2d 1123, 1124 (Fla. 4th DCA 1996). Of course, the party seeking disqualification has the burden of showing that the party *472 has a well-grounded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So.2d 357 (Fla. 1st DCA 1992).
Whether a motion is legally sufficient is a question of law that is reviewed by the appellate court de novo. Barnhill v. State, 834 So.2d 836, 843 (Fla.2002), cert. denied, 539 U.S. 917, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003); Chillingworth v. State, 846 So.2d 674, 676 (Fla. 4th DCA 2003). If a judge's prejudice is "predicated on grounds with a modicum of reason," the judge should promptly recuse. Hayslip v. Douglas, 400 So.2d 553, 555 (Fla. 4th DCA 1981).
Defendant contends Judge French also should have disclosed the foregoing facts himself, as they constitute information which a litigant might believe relevant. He cites Canon 3E(1) of the Florida Code of Judicial Conduct:
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.
See In re Frank, 753 So.2d 1228, 1238-39 (Fla.2000) (holding that the standard for disclosure is lower than the standard for disqualification). Defendant argues that Judge French's failure to disclose this information at the outset also militates in favor of his disqualification. Mulligan v. Mulligan, 877 So.2d 791 (Fla. 4th DCA 2004) (granting petition for writ of prohibition, where motion was based in part on judge's failure to disclose his close friendship with opposing counsel).
We agree that the fact that Judge French's personal situation aligns him with the plaintiff's position on the primary issue to be determined in this litigation supports his disqualification. Compare Southeast Bank, N.A. v. Capua, 584 So.2d 101 (Fla. 3d DCA) (holding bank was entitled to disqualification of judge who was guarantor of another note given to same bank on which maker defaulted, identical to the note at issue in the litigation, such that judge might find himself in same posture if bank filed action on that note), cause dismissed sub nom. Royal Trust Tower, Ltd. v. Southeast Bank, N.A., 592 So.2d 682 (Fla.1991), and rev. denied, 641 So.2d 1344 (Fla.1994).
We disagree with plaintiff's position that the defendant has alleged only disagreement with an adverse ruling, compare Barwick v. State, 660 So.2d 685, 692 (Fla. 1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996), receded from on other grounds by Topps v. State, 865 So.2d 1253 (Fla.2004), or a judge's expression of a personal view of an issue of law that is at issue in the case, compare State ex rel. Gerstein v. Stedman, 233 So.2d 142 (Fla. 3d DCA), opinion adopted, 238 So.2d 615 (Fla.1970); State ex rel. Sagonias v. Bird, 67 So.2d 678 (Fla.1953); Rodgers v. State, 948 So.2d 655, 672-73 (Fla.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 59, 169 L.Ed.2d 50 (2007).
We find that the defendant has shown "an actual factual foundation for the alleged fear of prejudice." Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986). There was no need for the defendant to show proof of Judge French's actual prejudice; it needed to show only a well-founded fear of bias. We conclude that it did so.
Petition Granted.
TAYLOR, DAMOORGIAN and CIKLIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602532/ | 786 N.W.2d 291 (2010)
Lance J. JOHNSON, Respondent,
v.
COOK COUNTY, Appellant.
No. A08-1501.
Supreme Court of Minnesota.
July 29, 2010.
Roy J. Christensen, Johnson, Killen & Seiler, P.A., Duluth, MN, for respondent.
*292 Paul D. Reuvers, Susan M. Tindal, Iverson Reuvers, Bloomington, MN, for appellant.
Susan L. Naughton, St. Paul, MN, for amici curiae League of Minnesota Cities, Association of Minnesota Counties, and Minnesota Association of Townships.
OPINION
DIETZEN, Justice.
Respondent Lance J. Johnson brought a declaratory judgment action against appellant Cook County in 2006 alleging that the County erroneously denied his 2001 request to rezone two parcels of real property for commercial use. Subsequently, the County filed a motion for summary judgment, arguing that its decision was reasonable and laches barred review. Johnson responded that his 2001 rezoning request was automatically approved because the County failed to state in writing the reasons for the denial of his request as required by Minn.Stat. § 15.99, subd. 2 (2000). The district court granted the County's motion for summary judgment, and the court of appeals reversed on the ground that the County failed to comply with Minn.Stat. § 15.99, subd. 2. Subsequently, we granted review. Because we conclude that the County's failure to state in writing the reasons for the denial did not result in automatic approval of the request, we reverse.
Johnson owns two contiguous parcels of real property in Cook County, Minnesota, located along Highway 61 between Lutsen and Grand Marais. Johnson acquired the first parcel (parcel A) in January 2001 by warranty deed. Parcel A was zoned for residential use, and had a storage shed that was used commercially to store boats and other equipment on the property. In 2003, Johnson acquired the second parcel (parcel B) by a contract for deed. The west half of parcel B was zoned for residential use, and the east half was zoned for commercial use. Both parcels occupy about 11.45 acres, and are bounded on the south side by Highway 61, on the east side by Isak Hansen Construction & Lumber True Value, on the north side by property owned by Rita's Grandview Ridge, LLC, and on the west side by residential property.
On May 15, 2001, Johnson and his contract vendor for parcel B submitted an application to the Cook County Office of Planning and Zoning, requesting that parcel A and the west half of parcel B be rezoned from residential to general commercial use. The Cook County Planning Commission considered Johnson's application at a public meeting on June 13, 2001. Following the hearing, the Commission issued written findings and a recommendation to deny Johnson's request.
The Cook County Board of Commissioners considered Johnson's application at a public hearing on September 11, 2001.[1] At the hearing, the County Board received testimony from the public as well as Johnson. The County Board voted to deny Johnson's request, but did not state in writing the reasons for the denial of Johnson's request. Johnson continued his commercial use of the storage shed on parcel A by storing boats and other equipment.
In 2005, Rita's Grandview Ridge submitted to the County an application to rezone a portion of its property from commercial to residential and for a conditional use permit to develop a 12-lot planned unit development on the larger portion of the *293 property. The County Board granted both zoning applications.
In 2006, Johnson brought a declaratory judgment action, alleging that the County erroneously denied his 2001 application to rezone parcel A and the west half of parcel B from residential to general commercial use and erroneously granted Rita's Grandview Ridge's zoning applications. He also alleged that the County's zoning decisions resulted in a taking of his property, and therefore he was entitled to just compensation. Cook County moved for summary judgment, arguing that the County's zoning decisions were lawful and proper, that the doctrine of laches barred Johnson's claims, and that Johnson had failed to establish a takings claim. In response, Johnson asserted, among other things, that his 2001 rezoning request was automatically approved due to the County's failure to state in writing the reasons for the denial of his request as required by Minn.Stat. § 15.99, subd. 2.
The district court granted the County's motion for summary judgment, concluding that the County's decision denying Johnson's 2001 zoning application was "reasonable" and that Johnson "lost whatever right to seek review that he had at the time of the 2001 proceeding." Judgment was entered and Johnson appealed.[2]
In an unpublished opinion, the court of appeals reversed the district court, concluding that Johnson's application was automatically approved under Minn.Stat. § 15.99, subd. 2, because the County failed to state in writing the reasons for the denial of the rezoning request. Johnson v. Cook County, No. A08-1501, 2009 WL 2366127, at *3-4 (Minn.App. Aug. 4, 2009). The court of appeals also concluded that since the rezoning request was automatically approved pursuant to statute, Johnson's claim was not barred by the doctrine of laches. Id. at *3. Subsequently, we granted the County's petition for review.
I.
The County argues that the court of appeals erred in concluding that the automatic-approval provision in Minn.Stat. § 15.99, subd. 2, is triggered when a government agency fails to state in writing the reasons for the denial of a zoning request at the time that such request is denied. Rather, the County argues that the automatic-approval penalty is triggered only when the agency does not deny a request within the 60-day deadline of the statute. Johnson responds that Minn.Stat. § 15.99, subd. 2, requires that the agency not only deny the zoning request within the time deadline, but also state in writing the reasons for the denial within the time deadline to avoid the automatic-approval penalty.
We review questions of statutory interpretation de novo. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). The goal of all statutory interpretation is to ascertain the intent of the Legislature. Minn.Stat. § 645.16 (2008). When construing the language of a statute, we must give words and phrases their plain and ordinary meaning. Minn. Stat. § 645.08 (2008). If the language of a statute is clear and free from ambiguity, our role is to apply the language of the statute, and not to explore the spirit and purpose of the law. Minn.Stat. § 645.16; Am. Tower, 636 N.W.2d at 312. But if the language of a statute is ambiguous, then we can go beyond the language at issue to *294 ascertain the intent of the Legislature. Minn.Stat. § 645.16.
With these principles in mind, we turn to the applicable language of Minn.Stat. § 15.99, subd. 2. It provides:
Except as otherwise provided in this section and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning.... Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.
Minn.Stat. § 15.99, subd. 2 (2000) (emphasis added).[3] Subdivision 2 contains three sentences. The first sentence provides that government agencies, including counties, subject to certain exceptions not applicable here, must approve or deny a zoning request within a time deadline. See id.; see also Minn.Stat. § 15.99, subd. 1 (2000). Specifically, it states that "an agency must approve or deny within 60 days a written request relating to zoning." Minn.Stat. § 15.99, subd. 2. The second sentence provides that the "[f]ailure of an agency to deny a request within 60 days is approval of the request." Id. This is the time deadline requirement and penalty provision of the statute. The third sentence provides that if an agency denies a zoning request, it "must state in writing the reasons for the denial at the time that it denies the request." Id. This is the "written-reasons requirement" of the statute. At issue is whether an agency must satisfy both requirementsthe time deadline and written-reasons requirementswithin the 60-day deadline to avoid the automatic-approval penalty provision of subdivision 2.
The parties do not dispute that if the County failed to deny a zoning request within the 60-day response period, the automatic-approval penalty provision of the statute would be triggered. Johnson argues that the written-reasons requirement of the statute is mandatory, and that failure to express written reasons for the denial within the time deadline results in automatic approval. The County argues that the written-reasons requirement of the statute is merely directory. Both parties rely heavily on Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536 (Minn.2007), to support their respective positions.
In Hans Hagen, we concluded that a city's failure to give an applicant a written statement of the reasons for its denial of a zoning request within the time deadline, as required by the 2003 amendments to subdivision 2, did not trigger the automatic-approval penalty provided in Minn.Stat. § 15.99, subd. 2(a) (2004). Hans Hagen, 728 N.W.2d at 539, 544. We observed that "denial is complete when a city votes to deny the application and adopts a written statement of its reasons for denial, whether or not the city provides notice to the applicant." Id. at 540. Johnson relies on this language to argue that the denial of a zoning request is not complete until written reasons are given for the denial. But *295 Johnson ignores a footnote in which we explicitly declined to reach this issue. We stated:
[T]he penalty could be read to apply only where the City has not acted on the request (i.e., has not held a public hearing and taken a vote) before the expiration of the response deadline. But, because the City does not argue for that narrower construction, and the facts before us show that the City did bothacted to deny and stated its reasons for denial in writingbefore the expiration of the response deadline, we will not decide that precise issue and instead leave it for another day.
Id. at 540 n. 1. Here, the County argues for the narrower construction of the statute that was not before us in Hans Hagen. Now, the issue is squarely before us.
Our case law has previously distinguished between mandatory and directory provisions in Minn.Stat. § 15.99 (2000). The County's noncompliance with a mandatory provision in Minn.Stat. § 15.99, subd. 2, would trigger application of the automatic-approval penalty, but noncompliance with a directory provision in the statute would not. See Hans Hagen, 728 N.W.2d at 541-44; see also Benedictine Sisters Benevolent Ass'n v. Pettersen, 299 N.W.2d 738, 740 (Minn.1980) (concluding that a 30-day time deadline in which the health commissioner was required to issue a decision on an application for a certificate of need was directory and the decision was therefore valid regardless of whether it was issued within 30 days). In Hans Hagen, we recognized that "a statute may contain a requirement but provide no consequence for noncompliance, in which case we regard the statute as directory, not mandatory." 728 N.W.2d at 541-42 (concluding that failure to give the applicant a copy of the written reasons for denial in Minn.Stat. § 15.99, subd. 2(a) (2004) was directory). We explained that when a statute requires a government agency to act, "it is reasonable to assume [it] will do so or it could be compelled to do so by mandamus." Hans Hagen, 728 N.W.2d at 541. Therefore, the lack of a consequence for a zoning authority's failure to state in writing its reasons for denying a zoning request does not render the statute ineffective, but instead supports the conclusion that the statute is directory. See id. at 541-42.
We read the second sentence of Minn.Stat. § 15.99, subd. 2 (2000), to unambiguously state that failure of a government agency to deny a request within 60 days is approval of the request. Importantly, the second sentence does not require that a denial must include written reasons within the 60-day period. We may not add words to a statute that the Legislature has not supplied. Genin v. 1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn.2001). And the third sentence of the statute provides that the agency must state in writing the reasons for the denial, but does not provide a consequence for the failure to do so. See Minn.Stat. § 15.99, subd. 2. The Legislature could have easily done so, but it did not. We must interpret the language of a statute, if possible, to give effect to all its provisions. Minn.Stat. § 645.16.
We conclude that the time deadline requirement in the second sentence and the written-reasons requirement in the third sentence of subdivision 2 are separate requirements. The time deadline provision provides a consequence for the failure to act, and therefore is mandatory. See Hans Hagen, 728 N.W.2d at 542. Conversely, the written-reasons requirement does not provide a consequence for failure to act, and therefore is directory. Thus, subdivision 2, read as a whole, supports *296 the conclusion that the written-reasons requirement is directory and not mandatory.
Our construction of Minn.Stat. § 15.99, subd. 2,[4] does not, however, change the consequence to a local zoning authority for failing to record or reduce to writing its reasons for denying a zoning request. Specifically, when a local zoning proceeding "was fair and the record clear and complete," review on appeal is based on the record. Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn.1988). More importantly, when a zoning authority fails to record legally sufficient reasons for the denial of a zoning request that are factually supported in the record, a prima facie case of arbitrariness is established. See Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn.1981) (concluding that when legally sufficient reasons are not recorded or reduced to writing, the zoning authority "runs the risk of not having its decision sustained"). If the zoning authority's decision is arbitrary and capricious, "the standard remedy is that the court orders the permit to be issued." In re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008). But a remand to the zoning authority to articulate its reasons confined to the issues raised in the earlier proceedings is appropriate in limited circumstances. Id. at 333; Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn.1994). Our construction of Minn.Stat. § 15.99, subd. 2, does not preclude an applicant from arguing that the failure to record or reduce to writing legally sufficient reasons factually supported in the record renders the zoning authority's decision arbitrary and capricious, or a zoning authority from proving that a remand is compelled by the circumstances of the case.
We hold that the written-reasons requirement in Minn.Stat. § 15.99, subd. 2, is directory and not mandatory.[5] Consequently, the failure to comply with the written-reasons requirement does not result in the application of the penalty provision of the statute, provided the agency decision is made within the time deadline of the statute. The written-reasons requirement is a directory provision, and therefore, a zoning application is not automatically approved under Minn.Stat. § 15.99, subd. 2, when a government agency fails to state in writing the reasons supporting its denial within the 60-day period.
Reversed.
ANDERSON, PAUL H., J., took no part in the consideration or decision of this case.
STRAS, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
NOTES
[1] The parties have agreed that September 11, 2001, was the County's deadline under Minn. Stat. § 15.99, subd. 2, for addressing Johnson's request. Consequently, the timeliness of the Board's vote to deny the request is not at issue.
[2] In order to facilitate the appeal, the parties stipulated to a dismissal of Johnson's takings claim on the ground that the relevant zoning approval of Rita's Grandview Ridge granted by the County had expired.
[3] It is undisputed that the 2000 version of section 15.99 was in effect when the County denied Johnson's request, and therefore is applicable. The statute was amended in 2003, with the renumbering of subdivision 2 as subdivision 2(a), and with the addition of subdivisions 2(b) and 2(c). See Act of May 13, 2003, ch. 41, § 1, 2003 Minn. Laws 321, 322 (codified as amended at Minn. Stat. § 15.99 (2008)). The amendments did not substantively alter the language at issue. The 2003 amendments do not apply retroactively. See id., § 2, 2003 Minn. Laws 321, 323 ("This act is effective June 1, 2003, for requests submitted on or after that date.").
[4] Because we conclude that the automatic-approval penalty does not apply here, and because Johnson does not challenge the district court's conclusion that the County's decision was reasonable, we do not address whether Johnson's section 15.99 challenge was timely.
[5] Our holding thus overrules the court of appeals' decision in Demolition Landfill Services, LLC v. City of Duluth, 609 N.W.2d 278, 281-82 (Minn.App.2000), rev. denied (Minn. July 25, 2000), in which the court of appeals concluded that the automatic-approval penalty applies when a government agency fails to state in writing the reasons for the denial of a zoning request. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603295/ | 577 So.2d 965 (1991)
Jesse O. PUCKETT, Petitioner,
v.
Richard E. GENTRY, Respondent.
No. 90-2322.
District Court of Appeal of Florida, Fifth District.
March 14, 1991.
Rehearing Denied April 16, 1991.
Jesse O. Puckett, Cross City, petitioner, pro se.
Richard E. Gentry, St. Augustine, respondent, pro se.
COBB, Judge.
The petitioner, Jesse O. Puckett, seeks a writ of mandamus from this court directed to Attorney Richard E. Gentry, who represented him at trial and on appeal in a case wherein Puckett was convicted of murder. Puckett asks that Gentry be compelled to furnish him with "Pre-Trial and Trial Transcript [sic] which have been transcribed via funds from Petitioner" now that the direct *966 appeal has been affirmed. He alleges that, despite repeated requests, Gentry refuses to furnish him these transcripts.
According to the petition, Puckett retained Gentry to represent him at trial and paid him $15,000.00 to do so. He allegedly was told by Gentry that $1,500.00 of this amount was applied to payment for the trial transcript. Subsequent to sentence, Puckett was declared indigent for appellate purposes. He further alleges that Gentry, at the latter's request, was appointed to represent him on appeal "as a court appointed special public defender," and did so. He relies on the case of Dennis v. Brummer, 479 So.2d 857 (Fla. 3d DCA 1985), wherein our sister court ordered a public defender to furnish court transcripts and documents to the client after termination of the case in chief.
Gentry, on the other hand, responds that he is not an official or employee of the State of Florida, has not been paid any attorney fees for the appeal as alleged by petitioner, and has declined to furnish the requested transcripts because his bills and statements to Puckett have been ignored and he would not be reimbursed even costs of copying and shipping a 24-inch thick file to Puckett.
The record reveals no order appointing Gentry as "special public defender" as alleged by Puckett. Rather, at the conclusion of sentencing, the following exchange occurred between the trial court and Attorney Gentry:
THE COURT: ... If you desire to file an appeal, you must file it within a period of 30 days, otherwise, you waive your right to appeal. All right. Okay.
He is adjudicated to be insolvent based upon the affidavit and the Public Defender's Office is appointed to represent him on the appeal.
MR. GENTRY: Your Honor, I would voluntarily continue on the appeal. What I need is the transcript, or I can go to co-counsel with them, that's fine with me.
THE COURT: Mr. Gentry, I can't pay you for representing him on appeal.
MR. GENTRY: I realize that, Your Honor.
THE COURT: If you are willing to do that voluntarily, I will just go ahead and appoint you as the attorney on the appeal, but I can't pay you for it, because the Appellate Courts upheld that it's not a conflict of interest for the Appellate Division of the Public Defender's Office to handle those appeals, and in so far as possible, I must appoint them to do that.
MR. GENTRY: I have no problem. The problem is, we're unable to afford the transcript in this cause.
THE COURT: He's adjudicated to be insolvent and if you want to go forward with the appeal, you're hereby appointed to do so with the understanding we can't pay you for it. Do you agree to do that or not?
MR. GENTRY: That's what I'm doing.
THE COURT: Because I want him to understand he's got a lawyer. He's got a lawyer and I won't have to appoint one for him. Okay. Good.
It is our interpretation of this exchange that Gentry was not appointed special public defender for Puckett on appeal. Despite the trial judge's improvident language in twice referring to his "appointment" of Gentry to represent Puckett on appeal, he had no authority to make such an appointment in the absence of a conflict of interest on the part of the Office of the Public Defender. See § 27.53(3), Fla. Stat. (1989). The trial judge himself recognized that his appointment power was so limited, and expressly acknowledged, at the conclusion of the foregoing colloquy, that appointment of counsel was obviated by private representation "He's got a lawyer and I won't have to appoint one for him." Whether such private representation is obtained for a fee or gratuitously is immaterial. The trial judge recognized Gentry as counsel for Puckett, but he did not appoint him. The inescapable fact is that Gentry represented Puckett as private counsel, not as a special public defender.
We lack original jurisdiction to intercede, via mandamus, in a dispute between *967 private parties involving disputed factual issues. Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law. See, e.g., Pfeifer v. Powell, 498 So.2d 614 (Fla. 5th DCA 1986); City of Winter Garden v. Norflor Const. Corp., 396 So.2d 865 (Fla. 5th DCA 1981); Goodrich & Cove, Mandamus in Florida, 4 U.FLA.L.REV. 535 (1951).
The appropriate remedy for the return of personal property of a private party wrongfully retained by another private party is an action for replevin. Puckett has no right to mandamus relief in this court nor, for that matter, in circuit court. We dismiss the instant petition for lack of subject matter jurisdiction.
DISMISSED.
COWART and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3350446/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: Application to Discharge Mechanics Lien
The plaintiff, Elisa O'Brien, brings this application pursuant to General Statutes § 49-35a to discharge a mechanic's lien placed by the defendant HLI Development Co., Inc. (HLI) on O'Brien's real property located at 40 Prospect Street in Greenwich, Connecticut. The lien is in the amount of $32,440.50.
The scope of the issues in dispute between the parties are best understood by noting that the difference between HLI's claimed lien amount and O'Brien's claim that HLI has been overpaid by more than $9,000 exceeds the original contract amount of less than $40,000. The fact that the experienced business people involved provided differing versions of almost every element of the relationship between them posed a number of credibility issues that the court had to resolve, often on incomplete or sparse information.
HLI performed services at Elisa O'Brien's property in connection with a project to alter a single family residence into multi-family housing. HLI CT Page 4989 contracted with Salem Woods Development Corporation which is run by Donald O'Brien, the husband of Elisa O'Brien. The HLI work included constructing walls, excavating, backfilling and paving.
There were a number of knotty issues raised at the hearing of this application which took place over two days in February. At the outset, O'Brien asserted that the lien was invalid because HLI was not licensed as required by the Home Improvement Act, General Statutes § 20-418
(HIA). O'Brien contended that Salem Woods Development was a construction manager, and her agent. The court ruled against this argument during the course of the hearing on the grounds that the evidence showed that HLI was not a contractor, but a subcontractor, and therefore not subject to HLI. Meadows v. Higgins, 249 Conn. 155 (1999). Salem Woods acted like a general contractor and performed some of the work on the premises. In addition, the written contract prepared by Salem Woods was entitled "subcontractor purchase order".
A second issue involved the above contract. Two versions of the purported written contract were submitted as exhibits. Both versions are signed by representatives of the parties, James Scoli for HLI, and Donald O'Brien for Salem Woods, and the two are identical, except for the critical first page which sets out the scope of work and the contract price. Exhibit J submitted by HLI has a contract price of $38,500 and contains certain important limitations on the scope of work, such as a set square footage for paving and a set length and height for a retaining wall. Exhibit 1 submitted by the plaintiff has a slightly larger contract price but did not have limits as to the scope of work to be accomplished.
Scoli of HLI testified that after negotiations with Salem Woods he retyped the first page of the contract and, after agreement with Salem Woods, substituted the revised page and attached it to the rest of the contract in lieu of the original first page. Both parties then signed the contract. According to Donald O'Brien, while HLI did try to negotiate the terms of the contract Salem Woods had prepared, the terms were not changed. Donald O'Brien stated that the first time he saw the "revised" page one on Exhibit J was at the hearing.
The plaintiff also submitted testimony from Donald O'Brien that a principal of HLI, Paul Siconolfi, had stated during settlement discussions that HLI had substituted the first page on Exhibit J after the contracts had been signed. This testimony, which the court allowed over objection, appears to be a statement admissible under Connecticut Code of Evidence § 4-8 (b) (2). The testimony was not rebutted, although Mr. Siconolfi was present in court. O'Brien contends that under the Salem Woods contract, Exhibit I, almost all of the "extra" work claims by MU should be rejected. CT Page 4990
While the above evidence and lack of rebuttal would in many cases be sufficient to disregard the HLI version of the contract, there are other factors which merit consideration. For instance, shortly after the contract was signed in April 2001, HLI forwarded an invoice for $6,850.00 for chipping and removal of ledge rock claiming it was an "extra" to the contract. Salem Woods paid this bill on the day it was received without requesting a change order or any further documentation. At the hearing, however, O'Brien contended that the ledge rock work was covered by the contract, and not an extra.
Second, HLI continued to send invoices to Salem Woods which continued to make payments to HLI in May and June without any evidence that Salem Wood considered these charges to be extra". Indeed Salem Woods employed several rationales later in the summer to not pay HLI invoices, but never stated the bills were unauthorized extra work. On one occasion it said HLI used the wrong requisition form; on another, it stopped payment on a $15,000 check to HLI for the stated reason that HLI had not provided proof of insurance. O'Brien now claims to have overpaid HLI.
On an application to discharge or modify a mechanic's lien General Statutes § 49-35b places the relatively light burden on the lienor to show probable cause that its lien is valid and the heavier burden on the property owner to prove a right to discharge or reduction of the lien by "clear and convincing" evidence. On the basis of the evidence described in the above two paragraphs, HLI has barely met the probable cause standard. On the other hand, O'Brien has not met her burden with respect to the contention that the contract bars the HLI "extras".
On review of HLI's claim of over $30,000 the court finds that HILT constructed a field stone wall on the rear of the lot and there is no dispute that the project was not included in the original contract, and the agreed price was $9,500. The court also concludes that under the relaxed burden of proof for lienors and heightened burden for land owners that HLI has a viable claim for removal of the ledge rock as an extra in the amount of $6,850. The issues surrounding whether, and to what extent, the construction of a Pisa II Unilock wall were very contested; the court finds that part of HLI's claim is allowable, in the amount of $4,000. The remainder of HTI's claims are not allowable as extras" as they appear to be work within the scope of the written contract, whichever version is employed.
The court decides that O'Brien is entitled to an offset of $1,106 for damages to the water main and $7,500 for paving not completed by HLI.
The original contract, after deleted items came to $35,900. The extras CT Page 4991 noted above bring the total to $56,250. The offsets reduce HLI's amount to $47,644. O'Brien has paid HLI $30,150. Therefore the count finds the HLI lien should be reduced to $17,494.
So ordered.
ADAMS, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1602529/ | 577 So.2d 1117 (1991)
Andrew Anthony HEBERT and Iva Mae Sanchez Hebert
v.
ALLIED SIGNAL, INC. a/k/a Allied Corporation a/k/a Allied Chemical Geismar Works, Travelers Insurance Company, Constitution State Service Company, Gary Mercer, Crum & Forster Commercial Insurance Company and/or United States Fire Insurance Company.
No. 90 CA 0095.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
Writ Denied June 14, 1991.
Leo J. Landry, Jr., Morgan City, for Andrew Hebert.
*1118 Edward P. Lobman, Metairie, for U.S. Fire Ins. Co.
James H. Morgan III, Baton Rouge, for Harless Agency Inc. & Kim Bertrand.
Scott T. Gegenheimer, Baton Rouge, for Gary Mercer.
John L.A. Lefant, IV, Metairie, for Aetna Cas. & Sur. Co.
John W. Perry, Jr., Baton Rouge, for U.S. Fidelity & Guar. Co.
John E. Heinrich, Baton Rouge, for Allied-Signal, Inc.
Before SAVOIE, CRAIN and FOIL, JJ.
CRAIN, Judge.
Andrew Anthony Hebert was injured in the course and scope of his employment while inflating the left rear tire of a dump truck. Hebert was employed by Gary Mercer Construction Services, Inc. (Mercer Construction) and received worker's compensation benefits for his injuries. The truck was owned by Gary Mercer personally and leased to Mercer Construction for use in the business.
Hebert and his wife, Iva Mae Sanchez Hebert, instituted this action for personal injuries against the following defendants: Allied Signal, Inc. A/K/A Allied Corporation, A/K/A Allied Chemical Geismar Works (Allied) which had entered into a construction contract with Mercer Construction; Gary Mercer; Travelers Insurance Company (Allied's insurer); Constitution State Service Company; Crum and Forster Commercial Insurance Company (Crum and Forster) and/or United States Fire Insurance Company (U.S. Fire), which issued a business automobile policy on the dump truck; and United States Fidelity & Guaranty Company (U.S.F. & G), which issued a comprehensive general liability policy.
Mercer instituted a third party demand against U.S.F. & G., Crum & Forster and U.S. Fire for refusal to defend; Harless Agency Incorporated, the insurance agency which sold him the policies; and Kim Bertrand, an insurance agent.
U.S.F. & G., Crum & Forster, U.S. Fire and the Heberts filed separate motions for summary judgment. Judgments were rendered in favor of Crum and Forster and U.S. Fire and against the Heberts and Mercer; in favor of U.S.F. & G. and against Mercer; and in favor of Mercer and against plaintiffs.
Plaintiffs appealed alleging as error (1) the trial court's granting of the summary judgment in favor of U.S.F. & G. against plaintiffs; (2) the granting of the summary judgment in favor of Crum & Forster and U.S. Fire; and (3) the granting of the summary judgment in favor of Mercer and against plaintiffs. Mercer appealed the judgments in favor of U.S.F. & G. and U.S. Fire.
WORKERS' COMPENSATION AS EXCLUSIVE REMEDY AGAINST MERCER
A motion for summary judgment should be granted where the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. La.C.C.P. art. 966; Hebert v. Gulf States Utilities Co., 369 So.2d 1104 (La.App. 1st Cir.1979). The existence of any real doubt as to the existence of a genuine issue of material fact should preclude the granting of a summary judgment. Cannon v. Insured Lloyds, 499 So.2d 978 (La.App. 3d Cir. 1986).
In Cormier v. Guilbeaux, 547 So.2d 17, 18 (La.App. 3d Cir.), writ denied, 551 So.2d 633 (La.1989) the court stated as follows:
La.R.S. 23:1032 provides that worker's compensation benefits shall be the exclusive remedy of an injured employee against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal. The statute withholds that immunity, however, as to an officer, director, stockholder, partner or employee of such employer or principal `who is not engaged at the time of the injury in the normal course and scope of his employment.' *1119 Thus, in order to be shielded from liability under La.R.S. 23:1032, in addition to being a director, officer, stockholder or employee of Mercer Construction, Mercer must also have been normally engaged in the fulfillment of his duties in his capacity as a director, shareholder or employee of Mercer Construction at the time of the accident. Crabtree v. Carr, 486 So.2d 921 (La.App. 1st Cir.), writ denied, 488 So.2d 690 (La.1986).
By deposition Mercer testified that Mercer Construction was duly incorporated and that he is a major stockholder, corporate president, administrator and manager of Mercer Construction. On a daily basis, Mercer performed employment duties and tasks for Mercer Construction which were similar to or the same as those performed by employees of Mercer Construction. He further stated that his sole occupation was the construction business and that the truck was leased by him to the corporation for use in that business. Plaintiffs presented no affidavit or deposition or other evidence to controvert these facts.
Plaintiffs contend that although Mercer may be immune from liability as Hebert's employer or co-employee under La.R.S. 23:1032, he may be liable under the dual capacity doctrine. Under very limited circumstances our Supreme Court in Ducote v. Albert, 521 So.2d 399 (La.1988), applied the dual capacity doctrine and held that though otherwise immune from liability under La.R.S. 23:1032, a company physician could be sued in medical malpractice by a company employee. This result was reached by comparing the role of a physician to that of an independent contractor: the employer had no control over the physician's actions. Ducote v. Albert has subsequently been legislatively overruled by La. Acts 1989, No. 454, § 2, effective January 1, 1990, which amended La.R.S. 23:1032 to specifically exclude liability under any dual capacity doctrine. Except for the narrow circumstances of Ducote v. Albert, the courts of this state have consistently rejected the dual capacity doctrine. E.g., Nunez v. Canik, 551 So.2d 796 (La.App. 3d Cir. 1989), writ denied, 556 So.2d 57 (La.1990); Deagracias v. Chandler, 551 So.2d 25 (La. App. 4th Cir.1989); White v. Naquin, 500 So.2d 436 (La.App. 1st Cir.1986); Smith v. AMF Tuboscope, Inc., 442 So.2d 679 (La. App. 1st Cir.1983). We see no reason why it should be applied here.
Mercer has established that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. For these reasons we affirm the summary judgment in favor of Mercer.
U.S.F. & G.
Mercer alleges as error the trial court's granting of summary judgment in favor of U.S.F. & G., contending that under the comprehensive general liability policy issued to Mercer, U.S.F. & G. has the duty to defend him in this action. U.S.F. & G. admits in brief that Mercer is the named insured on the policy. However, the insurance policy at issue was omitted from the appeal record. Since the policy is not in the appellate record we are unable to review whether U.S.F. & G. has the duty to defend Mercer in this action. Matlosz v. Goza, 515 So.2d 537 (La.App. 1st Cir.1987). Since it is necessary that we remand this matter for further proceedings in connection with another policy, we deem it in the interest of justice to remand this portion also for inclusion of the policy in the event of another appeal.
CRUM & FORSTER AND UNITED STATES FIRE INSURANCE COMPANY
Mercer assigns as error the rendition of summary judgment in favor of U.S. Fire. In written reasons for judgment the trial court found that Mercer Construction, not Mercer, was the named insured under the business auto policy issued by U.S. Fire which covered the dump truck. It further found that even if Mercer was the named insured, coverage of Hebert's injuries would be excluded under the terms of the policy.
The policy at issue specifically excludes coverage for obligations for which the insured is liable for worker's compensation benefits; bodily injury to an employee of *1120 the insured arising from the course and scope of his employment; and bodily injury to a fellow employee of the insured.
The named insured on the U.S. Fire policy is listed as Gary Mercer (in bold type) Construction Service, Inc. (handwritten). The portions of Mercer's deposition included in the appeal record refer to a conversation between Mercer and his insurance agent regarding coverage and whether the policy should be issued to Mercer or Mercer Construction. A factual controversy regarding the named insured on a liability policy is material to insurance coverage and the duty of U.S. Fire to defend Mercer in this action, thus precluding the granting of a summary judgment in favor of U.S. Fire. We reverse that portion of the trial court's judgment and remand for further proceedings on the duty of U.S. Fire to defend.
The Heberts allege that the summary judgment in favor of Crum & Forster was erroneously granted. A reading of the insurance policy clearly shows that Crum & Forster is not the insurer nor did it issue the business auto policy. The policy was issued by U.S. Fire. Crum & Forster is described on the policy as a "capital stock company," a separately incorporated holding company comprised of several companies, including U.S. Fire. Crum & Forster submitted an affidavit describing it as such. Opponents presented no evidence to the contrary. Accordingly, we affirm the judgment of the trial court in repsect to Crum & Forster.
The judgment of the trial court is reversed in part and affirmed in part. Costs are assessed jointly between the Heberts, U.S.F. & G. and U.S. Fire.
AFFIMRED IN PART, REVERSED IN PART AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602531/ | 8 So.3d 1 (2009)
Charlen Hill WOMACK
v.
Eva Mae Cathcart STEPHENSON.
No. 08-CA-493.
Court of Appeal of Louisiana, Fifth Circuit.
January 13, 2009.
Janet Moulton, Janet Moulton and Associates, Attorney at Law, Louisiana, for Plaintiff/Appellant.
Richard R. Schulze, Mark J. Mansfield, Elena Perez, Dutel, Tranchina & Tomeny, L.L.C., Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
Panel composed of Judges EDWARD A. DUFRESNE, JR., GREG G. GUIDRY, and MADELINE JASMINE.
MADELINE JASMINE, Judge Pro Tempore.
Plaintiff, Charlen Hill Womack, appeals the trial court's judgment dismissing her Petition of Interdiction regarding her mother, Eva Mae Cathcart Stephenson, the defendant. On appeal, plaintiff argues that the trial court erred in granting the judgment without allowing a hearing in which the parties could present evidence regarding Mrs. Stephenson's condition, and also whether her interests were being protected under the durable power of attorney held by Scott Hill, Mrs. Stephenson's son and plaintiffs brother.[1] Plaintiff also argues that the trial court erred in ruling that a power of attorney "overruled" an interdiction proceeding.
FACTS AND PROCEDURAL HISTORY
On June 28, 2007, appellant and her daughter, Danielle Resseguet, filed a Petition for Interdiction asking that the trial court permanently interdict Mrs. Stephenson, and appoint her and her daughter as curator and undercurator, respectively. Tracy Sheppard was appointed curator to represent Mrs. Stephenson in this litigation. The curator filed Exceptions on October 15, 2007, requesting that the trial court dismiss the Petition. Mr. Scott Hill *2 intervened on October 25, 2007, averring that an interdiction was unnecessary because Mrs. Stephenson's interests were being protected by less restrictive means than interdiction, namely two durable powers of attorney that Mrs. Stephenson executed in 2000.
Previously, on November 13, 2000, Mrs. Stephenson had executed a Conditional Procuration and Power of Attorney in favor of Mr. Hill, and a Medical Power of Attorney in favor of her husband, Warren C. Stephenson, and her son, Mr. Hill.[2] Both powers of attorney were durable powers that would not be revoked by Mrs. Stephenson's subsequent disability or capacity.
The trial for the Interdiction was set for February 12, 2008. On that date, the parties appeared and conducted a pre-trial conference. The parties agreed that Mrs. Stephenson had severe Alzheimer's disease, and currently resided on a locked unit in a nursing home. The curator appeared. Counsel for both parties made legal argument. No sworn testimony was taken. Appellant's counsel indicated that she wished to go forward with the interdiction proceeding, noting her position that this was necessary to address the alleged mismanagement of Mrs. Stephenson's affairs After taking time to attend to other matters on the docket, the trial court returned to this matter and summarily ruled, finding that the case should be dismissed because the power of attorney existed.
ANALYSIS
The appellant's first Assignment of Error is that the trial court erred in finding that the existence of the procuration "trumps" the interdiction proceeding. We agree.
LSA-C.C. art. 389 concerns interdiction and states:
A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.
It is alleged that Scott Hill holds a conditional procuration executed by Mrs. Stephenson. LSA-C.C. art. 2987 provides:
A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.
The procuration may be addressed to the representative or to a person with whom the representative is authorized to represent the principal in legal relations.[3]
LSA-C.C. art. 2989 provides that a procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration. Pertinent to this Assignment of Error, LSA-C.C. art. 3024 holds that both the mandate and the authority of the mandatary terminate upon the interdiction of the principal. The implication of this article is that merely because a person has issued a procuration or a contract of mandate does not mean that person can never subsequently be interdicted. Accordingly, we conclude that the existence of a procuration (or power of attorney) does not moot or "trump" an interdiction proceeding. See also Turk v. Conner, 03-791 (La.App. 5 Cir. 12/9/03), 864 So.2d 672 (mandatary had no power to *3 act on behalf of the mandator where the mandator was subsequently placed under full interdiction).
The appellant next argues that the trial court erred in ruling before the parties were able to present evidence regarding Mrs. Stephenson's infirmity and whether her interests can be protected by the less restrictive means of the procuration to Mr. Hill. We agree.
LSA-C.C. art. 389 contemplates the establishment of two preconditions before an interdiction may be ordered: A determination of the defendant's inability to make reasoned decisions regarding the care of her person and property;[4] AND a determination that her interests cannot be protected by less restrictive means. An example of "less restrictive means" are, among others, limited interdiction as per LSA-C.C. art. 390, and procurations.
The fact that a less restrictive means, the procuration, is in effect does not end the inquiry. Plaintiff alleges, in her Petition, that Mrs. Stephenson's interests in her property are not, in fact, being protected under the procuration in favor of Mr. Hill. Plaintiff is entitled to a hearing to determine whether or not Mrs. Stephenson's interests can be protected by the procuration in favor of Mr. Hill or whether more restrictive means are warranted. The trial court erred in ruling before an evidentiary hearing was held on this issue.
Accordingly, the judgment of the trial court is reversed, and the matter is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
NOTES
[1] Mr. Hill intervened in the suit, opposing the interdiction.
[2] Mr. Stephenson died prior to this litigation.
[3] Conditional procurations are defined by LSA-R.S. 9:3890.
[4] The transcript reveals that the parties were in agreement regarding Mrs. Stephenson's condition. They agreed that she suffers from Alzheimer's disease and cannot presently make reasoned decisions regarding her person and property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602556/ | 361 F.Supp. 537 (1973)
Michael D. REMMERS and Robert Loney, Plaintiffs,
v.
Lou V. BREWER, Warden, et al., of the Iowa State Penitentiary at Fort Madison, Iowa, Defendants.
Civ. No. 72-177-2.
United States District Court, S. D. Iowa, C. D.
July 24, 1973.
*538 Robert Bartels, Iowa City, Iowa, Barry A. Lindahl and Robert N. Clinton, College of Law, U. of Iowa, Iowa City, Iowa, for plaintiffs.
Thomas R. Hronek and Lorna L. Williams, Asst. Attys. Gen., De Moines, Iowa, for defendants.
MEMORANDUM AND ORDER.
HANSEN, Chief Judge.
This is an action brought under 42 U. S.C., Section 1983 by two inmates of the Iowa State Penitentiary at Fort Madison, Iowa, against the Warden and other prison officials. Petitioners aver that as members of the Church of the New Song they are being denied the right to practice their religion in violation of the First Amendment. They furthermore claim that certain practices of the prison's Diagnostic Committee, which makes recommendations to the Parole Board, violate the Establishment Clause of the Constitution.
*539 FINDINGS OF FACT
There is no substantial dispute between the parties concerning the facts which gave rise to this controversy. Plaintiffs Michael Remmers and Robert Loney are both presently incarcerated at the Iowa State Penitentiary, a maximum security institution operated by the State of Iowa. Defendant Brewer is the warden at the prison. Defendant Ray is the Protestant chaplain at Fort Madison and defendant Hoenig is the Catholic chaplain. The two chaplains have primary responsibility for conducting religious programs at the prison, subject to review by the warden. Both chaplains are also members of the prison's Diagnostic Committee, which is composed of seven members of the prison supervisory staff. The Diagnostic Committee meets in rotating groups of three to meet with and interview prisoners prior to their appearance before the Parole Board. Following these interviews, the Diagnostic Committee submits reports to the Parole Board with recommendations as to the prisoner's suitability for parole. It is this participation by the chaplains in the parole process which petitioners claim violates the First Amendment.
In late 1971 or early 1972, plaintiff Remmers was involved in the founding of a group known as T.R.U.T.H., an acronym for To Religious Understanding Through Hope. This organization, in which plaintiff Loney was also involved, apparently functioned as an informal discussion group with religious overtones. Shortly after the founding of T.R.U.T.H., Remmers approached Reverend Ray on behalf of the group and requested permission to hold formal meetings and use prison facilities. This request was denied by Reverend Ray because he felt that T.R.U.T.H. was not a "recognized" religion and had no established counterpart or sponsor outside the prison.
Sometime after this encounter, Remmers and other T.R.U.T.H. members became acquainted with an order known as the Church of the New Song and the teachings of its founder, one Harry Theriault. Following this acquaintanceship, Remmers, Loney, and a number of other inmates became members of the Church of the New Song and carried on correspondence with Bishop Harry Theriault and other Church of the New Song functionaries. Remmers and Loney then again approached Reverend Ray and Father Hoenig. They expressed their belief in the Church of the New Song and indicated to both chaplains that a sizeable number of inmates were interested in the new faith. Their request for meeting facilities and formal scheduling of Church of the New Song activities was denied by the chaplains with the explanation that the church was not a recognized religion. Plaintiffs then pressed their cause directly to Warden Brewer, presenting to him a petition with some 102 signatures of inmates purportedly interested in possibly attending Church of the New Song services. Their request was again denied on the grounds that the Church of the New Song was not a recognized or genuine religion. Plaintiffs claim that the failure of prison authorities to accommodate their beliefs by granting them facilities and time to practice their religion violates rights guaranteed to them under the First Amendment.
Plaintiffs filed a pro se complaint in this Court on August 3, 1972, seeking the following relief: (1) That Warden Brewer be ordered to allow the Church on the New Song membership to fully practice their religion by (a) gathering together for religious meetings and services, (b) receiving and possessing religious literature, (c) being allowed to study and discuss Church of the New Song precepts, (d) being allowed to correspond with other members of their faith; (2) That Warden Brewer be ordered to direct all prison personnel to grant the above rights to Church of the New Song members; (3) That the prison chaplains be enjoined from participating in any manner in Diagnostic Committee interviews or reports which may affect parole eligibility; (4) That the two chaplains be enjoined from submitting *540 oral or written reports to the Diagnostic Committee concerning the religious activities of inmates.
Petitioner's cause was tried to the Court on February 22, 1973 and February 23, 1973. Besides the plaintiffs themselves, three other Church of the New Song members testified on their behalf: Coadjutor Richard Tanner, International Ambassador Becky Hensley, and Dr. Stephen Fox, a professor of Psychology for the University of Iowa. The defense presented as witnesses Warden Lou Brewer, the defendant Reverend Ray, and James Riggsby, a program director at the U.S. Federal Penitentiary in Atlanta, Georgia, where the Church of the New Song was apparently founded.
IS THE CHURCH OF THE NEW SONG A RELIGION?
The threshold determination to be made in this case concerns whether or not the Church of the New Song is a religion so as to come under the protection of the First Amendment. This question has previously been considered by a federal court in Theriault v. Carlson, D.C., 339 F.Supp. 375 (1972). Theriault involved constitutional claims and issues substantially similar to the present case. Inmates at the Atlanta federal pentitentiary claimed that as Church of the New Song members they were being denied the right to freely and meaningfully practice their religion in violation of the First Amendment. The prison authorities defended their actions by asserting that the Church of the New Song was merely a sham and a front to disguise disruptive or revolutionary activities. Since the Church of the New Song had been founded by an inmate at the Atlanta penitentiary, Bishop Harry Theriault, the court in Theriault v. Carlson was in a unique position to review at first hand the foundations and activities of this new faith. The court there concluded that the Church of the New Song was a religion and as such was entitled to the full protections of the First Amendment. After a careful review of the evidence presented at the trial of this cause, this Court agrees with the conclusion of Judge Edenfield in Theriault v. Carlson.
In the first instance, the Court notes that the preferred position of religious freedoms in our constitutional plan demands that a federal court view religious claims with great solicitude lest these vital freedoms be extinguished. Nor is the Court lightly disposed to overturn the finding of a sister court, particularly where that court had the advantage of perspective enjoyed by the court in Theriault v. Carlson, supra.
The term "religion" is not defined in the Constitution. Indeed, a succinct and comprehensive definition of that concept would appear to be a judicial impossibility. The relatively few cases dealing with the subject indicate, however, that the concept is to be given a wide latitude in order to insure that state approval may never become a prerequisite to the practice of one's faith. See Fulwood v. Clemmer, D.C., 206 F. Supp. 370 (1962); Theriault v. Carlson, supra. See also United States v. Seeger, 380 U.S. 163, 177, 85 S.Ct. 850, 13 L.Ed. 2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).
The testimony at the trial of this cause adduced a great deal of information concerning the foundations and precepts of the Church of the New Song, much of which is contained in Theriault v. Carlson, supra, and need not be reiterated here. What the testimony did show, however, is that the Church of the New Song qualifies as a religion even under a narrow construction of that term.
The primary bond between Church of the New Song members appears to be their belief in an inanimate and supreme force or spirit called Eclat, which they believe pervades all things. The Eclatarians apparently believe that Eclat is a unifying and harmonizing spirit which unites all men in brotherhood. Thus Eclat may be seen to occupy roughly the same relative position in the Eclatarian *541 faith as the Christian God or Hinduism's Brahma. Eclatarians view Jesus and other Christian figures as great teachers and spiritual leaders who are nonetheless subordinate to Eclat. Thus plaintiffs do not feel that they are a Christian sect or that their religious needs can be fulfilled under the existing opportunities for Protestant or Catholic services. Important writings in the Eclatarian faith include the Bible and a series of "Demandates" and "Exegetic Missives" issued by the spiritual leader of the faith, Bishop Harry Theriault. These latter writings have been included in a volume or Eclatarian Bible which serves as the primary source of Eclatarian teachings.
The testimony of Richard Tanner and Becky Hensley showed that the Eclatarian movement is no longer confined only to the inmates of two federal penitentiaries, as was the case when the Theriault opinion was written. Rather, the Church of the New Song appears to have spread both within and without penal institutions across the country. According to the testimony of Miss Becky Hensley, International Ambassador of the Church of the New Song, the church has established purlieus (congregations) not only in Fort Madison and Iowa City, Iowa, but in many other states. Furthermore, it was evident to the Court that non-convicts as well as state and federal prisoners are now members of the Church of the New Song. Dr. Stephen Fox, a member of the church and a professor of psychology, testified as to the rehabilitative effects of Eclatarianism on prison inmates in particular and on people in general. The therapeutic value of Eclatarianism was enunciated by Richard Tanner, Special Envoy to the Bishop of Tellus (i.e., Harry Theriault) and a National Co-Adjutor of the Church of the New Song.
While there is no recognized body of dogma for the Eclatarian faith and each member of the Church is apparently free to embrace or reject whatever portions of Eclatarian teaching he or she wishes, the only absolute requirement for membership being a firm belief in Eclat. There was no evidence that any of the tenets of Eclatarianism, such as they may be, includes calls to violence or defiance of authority. Nor was there any evidence presented linking the religious activities of Church of the New Song members at Fort Madison to disruptions or disturbances at the prison.
Although much of the precise meaning of Eclatarianism may escape the Court, and no matter how strange or bizarre its origins and fundamentals may appear to some, it is beyond serious doubt that it possesses many of the characteristics associated with traditional "recognized" religions. The state has not shown the insincerity or fraudulent nature of the petitioners' professed beliefs. Even without the precedential weight of the Theriault decision, the Court would be constrained to find that the Church of the New Song at this time constitutes a religion entitled to the protection of the First Amendment.
The state does not appear to deny this conclusion directly, but argues that in a prison context some initial showing of legitimacy is required for administrative purposes before a group alleging to be a religion is entitled to the protection of the Free Exercise Clause. In support of this position, the state relies on Long v. Parker, 390 F.2d 816, 820 (3rd Cir. 1968); Banks v. Havener, D.C., 234 F.Supp. 27, 29 (1964), and Sostre v. McGinnis, 334 F.2d 906, 908-909 (2d Cir. 1964). Without reviewing the particular statements in these cases from which the state's argument is drawn, it suffices to say that they cannot begin to support the broad and novel principle that is proposed. Moreover, the state's argument suggests that prison administrators have the power to decide which religions are "recognized" and legitimate and which are not. Such a notion strikes directly at the freedom from governmental approval of secular religion which is at the core of the First Amendment's Establishment Clause. See e.g. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). *542 Apart from the fact that the petitioners here have plainly made a prima facie showing of legitimacy, the requirement proposed by the state is patently unsound and cannot stand. The Court is not insensitive to the problems of a prison administrator faced with a profusion of religious claims by those whose faith may appear both strange and incomprehensible, if not downright false and insincere, but that concern cannot justify a voyage into the uncharted hazards of religious censorship. It is neither for a court or a governmental official to rule on the truth or falsity of a religious faith. Such questions are clearly placed beyond the pale of governmental decision-making by the First Amendment. The only appropriate and relevant inquiry is whether or not the Church of the New Song is a religion and whether the plaintiffs possess a sincere and good faith belief in that creed. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); United States v. Seeger, supra.
Although prison authorities and reviewing courts may be naturally reluctant to believe in the sincere religious conversions of those whose past conduct would seem to make such events unlikely, there is simply insufficient evidence to support the contention that plaintiffs' beliefs are not sincere and genuinely felt.
For all the above-mentioned reasons, the Court finds that the Church of the New Song is a religion within the ambit of the First Amendment.
Given these findings, the plaintiffs' remedy at law is clear. When the state seeks to justify the granting or withholding of benefits and privileges based on religious classifications, the Equal Protection Clause of the Fourteenth Amendment demands that the state present a compelling interest which is served by the discrimination.[1] Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The principle is equally applicable in a prison setting. Walker v. Blackwell, 411 F. 2d 23 (5th Cir. 1969); United States ex rel Jones v. Rundle, 453 F.2d 147 (3rd Cir. 1971); Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971). The state has not suggested nor does the Court perceive any compelling state concern which is forwarded by denying to Church of the New Song members the same rights of assembly and worship enjoyed by Protestant and Catholic inmates. It follows that the present non-recognition of the Church of the New Song is unconstitutional. Plaintiffs must be allowed the same rights of assembly, discussion, correspondence, ministerial visits, devotional facilities, etc. which are enjoyed by Protestant and Catholic inmates. See Theriault v. Carlson, supra; Fulwood v. Clemmer, supra; Walker v. Blackwell, supra; and Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967). Of course the privileges allowed Church of the New Song devotees need only be substantially, not literally, equivalent. Prison authorities may properly take into account distinguishing factors such as the size of the group in providing facilities. Church of the New Song members are also subject to the same lawful orders and regulations concerning the internal affairs of the prison as other inmates. What is demanded is that Eclatarians be allowed a fair and meaningful opportunity to freely exercise their religion in the same degree as other inmates, Protestant and Catholic.
The Court is well aware of the possibility that the Church of the New Song may be only a sham religion created to serve as a convenient vehicle for the presentation of political claims. But the as yet unsubstantiated anxieties of this Court cannot justify the possible suffocation of religious freedoms. If the Church of the New Song should *543 prove to be a hoax and front that the state claims it is, that eventuality can be dealt with by both the prison administration and this Court. Nor should it be thought that by granting the Eclatarians religious rights the prison administration is laying itself open to uncontrollable hazards. The prison administration has a strong interest in seeing that the facilities and benefits enjoyed by the Church of the New Song are not abused or used for other than religious purposes. Meetings can be observed or mail monitored to see that this is the case. Given the power vested in prison authorities to take reasonable precautions to prevent potential abuses, any phoney believers should find their jest most unrewarding. See Knuckles v. Preasse, 302 F.Supp. 1036 (E.D.Pa.1969), affirmed 435 F.2d 1255 (3rd. Cir. 1970), cert. den. 403 U.S. 936, 91 S.Ct. 2262, 29 L.Ed.2d 717 (1971) for a discussion of this problem.
THE DIAGNOSTIC COMMITTEE ISSUE
Petitioners allege that the participation by chaplains Ray and Hoenig in the Diagnostic Committee, whereby they may be called upon to submit reports to the Parole Board concerning an inmate's suitability for parole, violates the Establishment Clause of the Constitution.
Certainly the Constitution does not bar the State from providing chaplains in prisons for the spiritual edification of the inmates, so long as no particular religion is fostered thereby. Abington School Dist. v. Schempp, 374 U.S. 203, 296-299, 83 S.Ct. 1560, 1610; 10 L.Ed.2d 844 (1963) (concurring opinion Mr. Justice Brennan); Theriault v. Carlson, supra, 339 F.Supp. at 381; Horn v. People of California, 321 F.Supp. 961, 964 (E.D.Cal.1968). But plaintiffs claim that the submission of parole suitability reports by the chaplains here, whether written or oral, illegally entangles church and state and may influence the inmates' choice of religious activity. The argument essentially is that an inmate desiring a favorable report to the Parole Board may engage in religious services and activities which he would not otherwise take part in.
The involvement of the chaplains in the parole process at Fort Madison is neither direct nor substantial. Since the seven-member Diagnostic Committee meets in groups of three when interviewing prospective parolees, it is doubtful that a chaplain is always on the interviewing team. Nor is it established that the reports prepared by the chaplains deal solely or primarily with religious activities or lack thereof. The Court can find no basis to ban a person from sitting on any public body merely because he is a member of a particular religion or even a minister of that religion. In fact, the Court suspects that most members of public agencies or bodies are members of a particular religion.
If evidence were before the Court that a man's religious activities were determinative of his status of parole eligibility, this would cause concern to the Court if it evolved from the involvement of the chaplains in the parole process. Under this factual setting, there might be a violation of the First Amendment rights of an inmate seeking parole. The mere fact, however, that a Methodist, Catholic, Jew, Buddhist, Eclatarian or person of any other religion sits on a particular board or committee cannot establish a violation of the First Amendment.
The Court also concludes that allowing these chaplains to submit oral or written reports or letters to the Diagnostic Committee does not violate the First Amendment unless it is established that a particular religion is fostered thereby. There is no evidence that an Eclatarian minister may not submit letters or reports to this Diagnostic Committee or that a minister of any faith may not submit information he desires about a particular inmate for any consideration of the Diagnostic Committee and Parole Board. The Court does not feel that the plaintiffs have made an adequate showing that a particular religion is being favored in the present parole *544 process or that the involvement of the chaplains in the parole process at the Penitentiary is otherwise improper.
ORDER FOR JUDGMENT
In accordance with the Findings of Fact and Conclusions of Law stated herein, it will be ordered that the defendants shall grant to the Church of the New Song members at the Fort Madison Penitentiary the right to exercise their religion equally with other religions. It will be further ordered that the portion of the cause of action seeking to restrict the activities of the chaplains in the parole process is dismissed.
It Is Ordered that the above shall constitute the Findings of Fact, Conclusions of Law, and Order for Judgment in this cause of action.
NOTES
[1] It is probable that the result in the instant case would also be demanded by the principle of government neutrality in religious affairs, wherein the state may not favor one religion over the other, or nonreligion over religion. See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602578/ | 577 So.2d 448 (1991)
Clayton CARTER, Jr., individually and as administrator of the estate of Christopher Carter
v.
Mary BEAVER.
89-1502.
Supreme Court of Alabama.
March 8, 1991.
*449 George M. Barnett of Barnett, Hundley & Driskell, Guntersville, and Mark W. Lee of Parsons, Lee & Juliano, Birmingham, for appellant.
Harvey B. Morris of Morris, Smith, Siniard, Cloud & Fees, Huntsville, for appellee.
MADDOX, Justice.
This case presents two issues relating to the distribution of the proceeds of a recovery for the wrongful death of a minor:
(1) Is a noncustodial parent entitled to receive one-half of the proceeds from a wrongful death action filed by the custodial parent?
(2) Do the provisions of Ala.Code 1975, §§ 6-5-390 and -391, merely govern the procedure for filing an action based on the wrongful death of a minor, or do they also control the distribution of proceeds received from such an action, in light of Ala. Code 1975, § 43-8-42, which governs the distribution of an intestate's estate?
FACTS
On July 28, 1980, Clayton Carter, Jr., and Mary Beaver were divorced. Pursuant to the judgment of divorce, Beaver was awarded custody of the couple's children. On February 11, 1987, Christopher Carter, their minor son, was killed in an automobile accident. As the custodial parent, Beaver filed a lawsuit in the Circuit Court of Marshall County, Alabama, seeking damages for the alleged wrongful death of Christopher. She received a settlement in the amount of $620,000.
At the time of Christopher's death, Carter had obligations for his support, maintenance, and education, as set forth in the divorce judgment. Those obligations, in addition to the payment of child support, included the payment of all medical and dental expenses incurred by, and for the benefit of, Christopher. Additionally, Carter had the obligation to maintain life insurance on his own life, naming the parties' minor children, including Christopher, as beneficiaries. Carter claims that he was current in all of his obligations, but Beaver says that the record does not support his claim in this regard.
On February 8, 1989, Carter filed a declaratory judgment action, asking the court to declare that any proceeds received by Beaver in the underlying wrongful death action must be distributed in accordance with the laws of descent and distribution as provided for in § 43-8-42. The trial court ruled that Beaver was entitled to all of the proceeds; Carter appeals.
I
Carter's basic argument is that the legislature, when it amended § 6-5-390 in 1979, giving to a father and a mother, provided they are lawfully living together as husband and wife, an equal right to commence an action for the wrongful death of a minor, did not intend that the damages recovered in such an action be distributed only to the parent authorized to bring the action. Carter, in his brief, contends that the proceeds should be "shared equally between the parents" and that "the case law decided prior to 1979, relied upon by Beaver in her briefs supporting her motion for summary judgment, is inapplicable to this case because of the amendment to Section 6-5-390."
II
In order to determine what the legislature intended when it amended §§ 6-5-390 and -391 in 1979, we believe that a brief history of the statutes that authorize the *450 filing of a wrongful death action would be appropriate.
A significant amount of the history of the statutes is contained in Cofer v. Ensor, 473 So.2d 984 (Ala.1985), a case involving a question of whether a one- or a two-year statute of limitations should apply, but we briefly restate some of the history of these statutes for the purpose of deciding the issues here presented.
There was no right of action at common law for the death of a child, and the right to recover damages therefor is purely statutory. Taylor v. City of Clanton, 245 Ala. 671, 18 So.2d 369 (1944). The original act giving the parents a right of action for the wrongful death of a minor was enacted in 1872 and was codified in 1876.[1]
A code commissioner's note to Code 1907, § 2485, quoted in Cofer, 473 So.2d at 989-90, sets out the history of what is now § 6-5-391; that history will not be repeated here, but a summary of it shows that when the original cause of action for wrongful death was legislatively created in 1852, it did not exclude wrongful death of minors, and, as was stated in Cofer, "the statute that gave the right of action for wrongful death of a minor directly to the parent (presently § 6-5-391) did not create a cause of action for wrongful death; it allowed the parents to sue for any child's wrongful death." This Court reasoned: "To conclude otherwise would be to hold that between 1852 and 1876 [sic, 1872] no cause of action existed in Alabama for the wrongful death of a minor."
Based on this history, therefore, prior to 1872, only the personal representative could maintain a cause of action for the death of a minor or of an adult, and when parents were given the right to sue for the wrongful death of a minor child, the legislature made no provision, as it had done in the original wrongful death act, for the distribution of the proceeds from any recovery had in such an action.
Alabama cases discussing the distribution of the proceeds of wrongful death actions based on the death of minor children decided under the unamended version of § 6-5-390 held that "`[w]hen a minor child is killed by the wrongful act of another, and he leaves surviving his father, the damages recoverable [under Title 7, § 119, Code of Alabama 1940, which is now § 6-5-391] are for the benefit of the father, where the suit is by the father personally or by an administrator.'" Jones v. Jones, 355 So.2d 354, 355 (Ala.1978), quoting Peoples v. Seamon, 249 Ala. 284, 287, 31 So.2d 88, 89 (1947). These cases, of course, were decided prior to the adoption of the 1979 amendment.
Sections 6-5-390 and -391 were amended in 1979 to eliminate the priority of right given to the father to bring an action for the personal injury (or wrongful death) of his minor child. Sections 6-5-390 and -391 now give "[a] father or a mother, ... [who] are lawfully living together as husband and wife, ... an equal right to commence an action for an injury to their minor child" or the wrongful death of such a child. These Code sections were also amended to provide that "in the event such mother and father are not lawfully living together as husband and wife, or in the event legal custody of such minor child had been lawfully vested in either of the parties or some third party, then and in either event the party having legal custody of such child shall have the exclusive right to commence such action." The second phrase of the statute is applicable here.
Carter contends that, although the custodial parent has the exclusive right to bring the wrongful death action, that parent does not have the exclusive right to the proceeds from that action. He argues that the proceeds should be distributed according to Alabama's general wrongful death statute, § 6-5-410, which states that all proceeds are to be distributed according to the statute of distribution. If Carter's construction of legislative intent is correct, he would be entitled to receive one half of the proceeds awarded in the wrongful death action. If not, he would be entitled to *451 nothing, the custodial parent being entitled to the complete recovery made.
Before the 1979 amendment that allowed both a father and a mother to recover for the wrongful injury or death of a child, the courts looked to the common law to see who was to receive the benefits awarded in such an action. The common law recognized the obligation of the father touching the maintenance, education, and care of his family, and, in return, the right of the father to the services of the child. In recognition of the father's right to the services of his child, he was given the sole right to bring the wrongful death suit. Because the father had the exclusive right to bring suit, he also had the exclusive right to the proceeds. Mattingly v. Cummings, 392 So.2d 531 (Ala.1980); Jones v. Jones, 355 So.2d 354 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977); Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88 (1947). Prior to the 1979 amendment, when the father was dead, had deserted the family, or had become insane or otherwise unable to perform his parental obligations, he lost the right of action, and a right of action then accrued to the mother. Ex parte Roberson, 275 Ala. 374, 155 So.2d 330 (1963). But the mother had a right of action only when the father had lost his right to bring the action. When the mother accrued the right to bring suit, she also accrued the exclusive right to the proceeds from the action.
The 1979 amendment to § 6-5-391 allows a mother an equal right to bring an action for the wrongful death of her child. A mother no longer has to wait for the father to abandon his right to bring an action before she is allowed to bring suit. The cause of action now belongs to both parents, and if one declines or is unable to commence the action, the other parent may bring the action. Lee v. Lee, 535 So.2d 145 (Ala.1988). However, the amendment also made it clear that, if the parents are not living together, the custodial parent has the exclusive right to bring the wrongful death action. Carter does not dispute that the custodial parent has the exclusive right to bring the action, but he still insists that the legislature intended that he should share in any recovery. He argues essentially that the provisions of § 6-5-410, as they apply to the distribution of wrongful death proceeds, should apply.
It has long been settled that if a deceased child leaves a parent in the exercise of parental care, a wrongful death action based on the child's death is controlled entirely by § 6-5-391, and § 6-5-410, the section providing for an action for the wrongful death of an adult, does not apply. Adkison v. Adkison, 46 Ala.App. 191, 239 So.2d 555, reversed on other grounds, 286 Ala. 306, 239 So.2d 562 (1970); Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88 (1947).
Carter cites Coleman v. Stitt, 514 So.2d 1007 (Ala.1987), and especially the special concurrence of Mr. Justice Beatty in that case, in support of his argument. In Coleman, this Court recognized the fact that a father or a mother, but not both, could bring an action for the wrongful death of a child, and Mr. Justice Beatty, in his special concurrence, did state that "the father and the mother, however, now have an equal right to commence such an action, and, it follows, an equal right to any recovery of the proceeds." Coleman is distinguishable. There, both the father and the mother had a right to bring the action, because they were married and were living together. In this case, it is undisputed that the father and mother were divorced; therefore, the parent having the custody of the minor had the exclusive right to bring the action.
Based upon the history of § 6-5-391, the cases construing that section prior to the 1979 amendment, and the cases decided after the amendment was adopted, we conclude that the legislature, in giving the custodial parent the exclusive right to sue, intended that that party also have the exclusive right to any recovery, and we so hold. The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
NOTES
[1] For reasons not material here, the first act was found to be unconstitutional in Smith v. Louisville & N. R.R., 75 Ala. 449 (1883). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602589/ | 786 N.W.2d 873 (2010)
JENSEN
v.
CITY COUNCIL OF CAMBRIDGE.
No. 09-0697.
Court of Appeals of Iowa.
June 16, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860091/ | Mack
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00344-CR
Fletcher Kevin Mack, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0950544, HONORABLE BOB PERKINS, JUDGE PRESIDING
A jury convicted appellant Fletcher Kevin Mack of capital murder, and the trial
court assessed mandatory punishment of life imprisonment. See Tex. Penal Code Ann.
§ 19.03(a)(2) (West 1994). (1) Appellant challenges his conviction by seven points of error,
primarily arguing that the evidence is insufficient to prove that he committed the predicate offense
of burglary. (2) We will affirm the trial court's judgment of conviction.
THE CONTROVERSY
In the early morning hours of July 19, 1994, appellant entered Tambra McKinley's
apartment without her knowledge or permission, carrying a duffel bag that contained rope and a
large knife. Appellant and McKinley had been dating for approximately two years and had lived
together in the apartment from November 1993 until March 1994, at which time she asked
appellant to move out due to his drinking problem. Although appellant and McKinley continued
to date, he voluntarily moved out of the apartment, removed all of his possessions, stopped paying
rent, surrendered his key to McKinley, and agreed not to visit unless he first called for permission
and arrived sober. Soon after appellant moved out, Adam Shaw, McKinley's friend and former
coworker, moved in. Shaw reimbursed appellant for his share of the deposit and assumed
appellant's portion of the rent and utility payments.
Appellant had trouble accepting his separation from McKinley. He kept a key to
the apartment without McKinley's knowledge. Appellant expressed increasing hostility towards
Shaw between April and July, but Shaw always defused the situation and prevented any violence.
On July 12, appellant violated his visitation conditions by arriving drunk at McKinley's apartment
without prior permission. Before leaving, appellant acted aggressively towards Shaw. Appellant
and McKinley had arguments about their relationship throughout July and, as time passed, she
expressed less interest in spending time with him.
On July 18, 1994, McKinley spoke with appellant on the telephone at 7 p.m.
Appellant did not mention that he planned to visit her later that evening. McKinley went to bed
at 10:30 p.m. and heard Shaw close his door at 11 p.m. At approximately 1:30 a.m., McKinley
awoke when she heard Shaw yelling for help. She attempted to call 911, but could not get a dial
tone. Appellant then burst into McKinley's bedroom and tore the phone from her hands.
McKinley ran out of the apartment and saw Shaw slumped in the driveway. After appellant
forcibly dragged McKinley back into the apartment, she saw blood all over appellant's knife and
the floor. Appellant told McKinley: "It's too late, I've already fucked up." Appellant then shut
McKinley in her bedroom, but she escaped through the window to a neighbor's house and called
the police. When the police arrived, appellant had fled and Shaw had already died. An autopsy
revealed that Shaw had been stabbed approximately twenty times.
The State indicted appellant for capital murder, alleging burglary and kidnapping
as the predicate offenses in two separate paragraphs. See Tex. Penal Code Ann. § 19.03(a)(2)
(West 1994). For the predicate offense of burglary, the State alleged that McKinley was the
owner of the apartment. The State did not seek the death penalty. The trial court granted a
directed verdict in appellant's favor on the predicate offense of kidnapping and submitted only the
burglary predicate to the jury. The jury returned a general verdict finding appellant guilty of
capital murder, and the court imposed a mandatory sentence of life imprisonment. See id.
§ 12.31(a). Appellant now appeals.
DISCUSSION
In his first and second points of error, appellant challenges his conviction by
arguing that the evidence is legally and factually insufficient to prove the predicate offense of
burglary. Appellant argues that the State failed to prove McKinley was the "owner" of the
apartment, as alleged in the indictment. Appellant relies on the fact that he and McKinley signed
the apartment lease together and urges that the lease gave him equal rights of ownership and
possession in the apartment at the time of the offense. Appellant urges that by voluntarily moving
out of the apartment, he did not relinquish his equal right to possess the apartment. Because the
lease remained in force at the time of the offense and he had not been evicted or enjoined from
possessing the premises, appellant argues that the lease gave him the continuing right to recover
possession of the apartment at any time. Appellant reasons that this alleged right to recover
possession prevents McKinley from being considered an "owner" of the apartment under the Penal
Code and, therefore, the evidence cannot support the jury's finding against him on the predicate
offense of burglary.
To prove the offense of burglary, the State must show that the defendant entered
a building "without the effective consent of the owner . . . ." Tex. Penal Code Ann. § 30.02(a)
(West 1994). The Code imparts a specialized and technical meaning to the word "owner,"
defining it as a person who "has title to the property, possession of the property, whether lawful
or not, or a greater right to possession than the actor . . . ." Id. § 1.07(35)(A) (emphasis added).
The Code defines possession as "actual care, custody, control, or management." Id. § 1.07(39).
Therefore, under the burglary statute, anyone with a greater right to the actual care, custody, or
control of the building than the defendant may be alleged as the "owner." Alexander v. State, 753
S.W.2d 390, 392 (Tex. Crim. App. 1988). This "greater right of possession" doctrine applies
to any prosecution for burglary. Id.
Appellant presents us with a question of first impression. The published opinions
in this area present situations in which the defendant had no ownership or possessory interest in
the building but argued that the person alleged as the owner had no greater possessory interest in
the building than the defendant. These cases display a clear trend to classify any person with a
colorable possessory interest in the building as an owner under the greater right of possession
doctrine. See Salas v. State, 548 S.W.2d 52, 54 (Tex. Crim. App. 1977) (hotel manager); Gregg
v. State, 881 S.W.2d 946, 952 (Tex. App.--Corpus Christi 1994, pet. ref'd) (resident of house);
St. Julian v. State, 852 S.W.2d 592, 595 (Tex. App.--Houston [14th Dist.] 1993), rev'd on other
grounds, 874 S.W.2d 669 (Tex. Crim. App. 1994) (U.S. postal inspector investigating apartment
mailroom theft at time of burglary); Hudson v. State, 799 S.W.2d 314, 316 (Tex. App.--Houston
[14th Dist.] 1990, pet. ref'd) (apartment tenant); Alexander v. State, 757 S.W.2d 95, 97 (Tex.
App.--Dallas 1988, pet. ref'd) (neighbor who had been given occasional access to duplex);
Chambers v. State, 630 S.W.2d 413, 418 (Tex. App.--Houston [14th Dist.] 1982, no pet.) (district
court judge responsible for oversight of court office); see also Ex parte Davis, 542 S.W.2d 192,
196 (Tex. Crim. App. 1976) (appellant's wife had greater right to possession of their home
because appellant's possessory interest had been extinguished by injunction).
In this appeal, however, appellant does have an interest in the apartment because
he signed the lease as a cotenant. Appellant distinguishes these prior cases on the ground that his
contractual rights under the lease, standing alone, gave him an equal right of possession without
regard to the fact that he no longer lived in McKinley's apartment at the time of the offense. We
disagree.
Appellant's position cannot withstand, on this factual record, a straightforward
application of the "greater right to possession" doctrine. The record clearly shows that, at the
time of the offense, McKinley had a greater right than appellant to custody and control of the
apartment. Appellant voluntarily moved out, removed almost all of his possessions from the
apartment, and began living with his parents. Appellant stopped paying rent or utilities, and Shaw
repaid him for his portion of the deposit. Appellant agreed not to visit the apartment unless he
first called for permission. Appellant's only remaining claim to an interest in the apartment was
the fact that his name remained on the lease contract. However, the greater right of possession
doctrine does not credit rights that are unrealized at the time of the offense; instead, we must
compare the parties' actual rights to custody and control of the property on the date of the offense.
See Tex. Penal Code Ann. § 1.07(39) (West 1994); Salas, 548 S.W.2d at 54; Ex parte Davis, 542
S.W.2d at 195 n.1. Even if appellant could have regained possession of the apartment by virtue
of his contractual rights, he had voluntarily abandoned those rights on the date of the offense and
had far less right, at that time, to control of the apartment than did McKinley.
If we held otherwise, we would do violence to the statutes that guide our analysis
in this case. Appellant asks us to hold, in effect, that a prosecution for burglary cannot stand if
the defendant has any rights in the property whatsoever. The Penal Code, however, clearly
indicates that a defendant who has some, but less, right to control a building than the alleged
owner may be prosecuted for burglary. See Tex. Penal Code Ann. § 1.07(35)(A) (West 1994).
The touchstone of our analysis is not whether the defendant has any right to possession of the
property at all, but whether the alleged owner's right to possess the property is greater than the
defendant's. We hold that the evidence in the record amply supports the jury's finding that
McKinley had a greater right than appellant to possession of the apartment on the date of the
offense. Accordingly, we overrule appellant's first and second points of error.
In his third and fourth points of error, appellant argues that the evidence is legally
and factually insufficient to support the jury's finding that he entered McKinley's apartment with
the intent to commit a felony. Accordingly, appellant argues, the predicate offense of burglary
cannot be used to convict him of capital murder. We find the argument to be without merit
because the burglary finding is supported by an independent statutory ground that appellant has
not challenged on appeal.
The Penal Code burglary provision provides as follows:
(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation . . . with intent to commit a felony or theft; or
. . . .
(3) enters a building or habitation and commits or attempts to
commit a felony or theft.
Tex. Penal Code Ann. § 30.02(a) (West 1994). The trial court charged the jury under both of
these theories of burglary. On appeal, appellant challenges neither this submission nor the
sufficiency of the evidence to support a finding of burglary under Penal Code section 30.02(a)(3).
The evidence in the record clearly supports a finding that appellant entered
McKinley's apartment and then murdered Shaw, which together qualify as a burglary under Penal
Code section 30.02(a)(3). Therefore, even if appellant were correct that the evidence supporting
the first theory of burglary was legally or factually insufficient, the jury's finding can nevertheless
be independently supported on the second theory of burglary which appellant has not challenged
on appeal. A jury's general verdict may stand if the evidence supports one independent ground
for the conviction even though it does not support conviction on another ground. Fuller v. State,
827 S.W.2d 919, 931 (Tex. Crim. App. 1992), cert. denied, 125 L. Ed. 2d (1993); Aguirre v.
State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (op. on reh'g); Skillern v. State, 890 S.W.2d
849, 877 (Tex. App.--Austin 1994, pet. ref'd). We overrule appellant's third and fourth points
of error.
In his seventh point of error, appellant argues that the trial court committed
fundamental error by instructing the jury that kidnapping could be considered as an underlying
felony to support a finding of burglary. The State indicted appellant for capital murder in two
separate paragraphs, alleging two alternative predicate felony offenses of kidnapping or burglary.
The trial court granted appellant's motion for directed verdict on the paragraph of the indictment
for capital murder alleging kidnapping as a predicate offense. Therefore, the trial court submitted
to the jury only the theory of capital murder alleging burglary as a predicate offense. The trial
court charged the jury with the two statutory definitions of burglary quoted above and then further
charged the jury that, for the purposes of burglary, "murder and kidnapping are felonies."
Appellant argues that the trial court's directed verdict on the kidnapping theory of capital murder
should have prohibited the jury from considering kidnapping as a felony that could support a
burglary finding. Appellant acknowledges that he failed to object to the charge at trial, but argues
that the instruction constitutes fundamental error under the Almanza rule. See Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).
We agree with appellant that the trial court erred in submitting the charge as it did.
By granting the directed verdict, the trial court necessarily ruled that the State failed to prove
attempted or actual kidnapping. See Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). The
charge allowed the jury to find burglary if it found that appellant 1) entered the apartment with
the intent to commit murder or kidnapping or 2) entered the apartment and attempted or
committed either murder or kidnapping. The submission of murder under either theory of
burglary was proper. The submission of kidnapping under the first theory was also proper,
because the jury could have found that appellant intended to commit kidnapping when he entered
the apartment, though the State failed to prove that appellant actually committed or attempted
kidnapping. However, because of the directed verdict, the trial court erred by submitting a charge
that allowed the jury to find that appellant committed burglary by entering and then attempting
or committing a kidnapping.
We reject appellant's argument that this error mandates reversal of his conviction,
however, because the error was clearly harmless. The erroneous submission was only one of four
independent theories for a finding of burglary. By finding appellant guilty of capital murder, the
jury also necessarily found that appellant intentionally murdered Shaw. See Tex. Penal Code
Ann. § 19.03(a) (West 1994). Appellant conceded that he entered the apartment without the
consent of either Shaw or McKinley. Appellant therefore entered the apartment without consent
and murdered one of the occupants, which necessarily proves the State's second, and properly
submitted, theory of burglary. See id. § 30.02(a)(3). Because the jury's verdict necessarily
entailed a finding on this proper theory of burglary, we find beyond a reasonable doubt that the
trial court's error made no contribution to appellant's conviction or punishment and was therefore
harmless. See Tex. R. App. P. 81(b)(2). Accordingly, we overrule appellant's seventh point of
error.
In his fifth point of error, appellant argues that the trial court erred by allowing
McKinley to give opinion testimony about Shaw's peaceful character during the State's case-in-chief. As a threshold matter, we note that appellant objected at trial on the basis that the
admission of testimony regarding the character of the accused was improper at that time.
Generally, any objection at trial that differs from the complaint on appeal preserves nothing for
review. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). However, an otherwise
inadequate objection may nevertheless suffice to preserve error if the grounds were apparent from
the context in the record. See Tex. R. App. P. 52(a). A review of the record indicates that
appellant's trial counsel made a simple misstatement and clearly addressed his objection to the
character evidence concerning Shaw, the deceased, and not the accused. Because appellant's
specific complaint on appeal may be found in the context of the trial record, we will address his
argument on the merits.
During the State's case-in-chief, McKinley testified that, in her opinion, Shaw had
a peaceful character. Appellant argues that the trial court erred in admitting this evidence because
it was offered prematurely, before the issue had been raised by the defense, in violation of Rule
404(a)(2) of the Texas Rules of Criminal Evidence. That rule states, in relevant part:
(a) Character Evidence Generally. Evidence of a person's character or a trait of
his character is not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:
. . . .
(2) Character of Victim. Subject to Rule 412, evidence of a pertinent trait
of character of the victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of peaceable character of the
victim offered by the prosecution in a homicide case to rebut evidence that the
victim was the first aggressor . . . .
Tex. R. Crim. Evid. 404(a)(2) (emphasis added). Because the rule clearly provides that evidence
of the victim's peaceful character may only be offered in rebuttal to defense evidence that the
victim was the first aggressor, we agree with appellant that the trial court erred in admitting
McKinley's testimony prematurely. See Armstrong v. State, 718 S.W.2d 686, 695 (Tex. Crim.
App. 1985).
We find, however, that the error was harmless. Appellant chose to testify in his
own defense. On cross-examination by the State, appellant corroborated McKinley's testimony
that Shaw had a peaceful character, and appellant's counsel did not object to the State's cross-examination. Trial court error due to improper admission of evidence may be rendered harmless
if other evidence at trial is admitted without objection and it proves the same fact or facts that the
inadmissible evidence sought to prove. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.
1991); Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986), cert. dism'd, 496 U.S.
944 (1990). Further, in his direct testimony, appellant testified that Shaw attacked him and
therefore was the first aggressor in their altercation. This testimony would have entitled the State
to properly recall McKinley to offer her opinion of Shaw's character. Therefore, the trial court's
error became one of timing only. Under these circumstances, we find beyond a reasonable doubt
that the trial court's error did not make any contribution to appellant's conviction or punishment
and was therefore harmless. Tex. R. App. P. 81(b)(2). We overrule appellant's fifth point of
error.
In his sixth point of error, appellant contends that the district court erred in limiting
his cross-examination questions aimed at impeaching McKinley's improperly admitted opinion of
Shaw's character. After the trial court overruled appellant's objection to McKinley's testimony,
appellant attempted to impeach her opinion on cross-examination by asking whether she had heard
of incidents in which Shaw had allegedly acted aggressively. The State objected to cross-examination concerning specific instances of conduct, and the trial court sustained the objection.
Appellant argues that the trial court erred because his cross-examination was proper under Rule
of Criminal Evidence 405, which provides:
In all cases in which evidence of character or trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony in
the form of an opinion. . . . In all cases where testimony is admitted under this
rule, on cross-examination inquiry is allowable into relevant specific instances of
conduct.
Tex. R. Crim. Evid. 405(a) (emphasis added).
Again, we agree with appellant that the trial court erred by disallowing his "have
you heard" cross-examination questions, which are specifically permitted by Rule 405(a).
However, we believe that this error was also harmless. It is significant that McKinley's responses
to appellant's disallowed cross-examination would have served only as impeachment evidence and
not substantive evidence. Therefore, appellant lost only the chance to discredit McKinley's
opinion, but did not lose the chance to place substantive evidence before the jury. Furthermore,
as discussed above, appellant corroborated McKinley's opinion of Shaw's peaceful character
during his direct testimony. Under these circumstances we find that the trial court's error in
prohibiting appellant's cross-examination was harmless, and we therefore overrule appellant's
sixth point of error.
CONCLUSION
Having overruled all of appellant's points of error, we affirm the trial court's
judgment of conviction.
Mack Kidd, Justice
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed: July 17, 1996
Publish
1. 1 This offense took place before September 1, 1994, and is governed by the version of the
Penal Code in effect at that time. Because the subsequent amendments to the Code had no
substantive effect on the provisions at issue in this appeal, we cite the current Code for
convenience.
2. 2 Murder may be classified as capital murder when the State proves that the murder was
intentionally committed during the course of certain other felonies, including burglary. Tex.
Penal Code Ann. § 19.03(a)(2) (West 1994).
ggressor, we agree with appellant that the trial court erred in admitting
McKinley's testimony prematurely. See Armstrong v. State, 718 S.W.2d 686, 695 (Tex. Crim.
App. 1985).
We find, however, that the error was harmless. Appellant chose to testify in his
own defense. On cross-examination by the State, appellant corroborated McKinley's testimony
that Shaw had a peaceful character, and appellant's counsel did not object to the State's cross-examination. Trial court error due to improper admission of evidence may be rendered harmless
if other evidence at trial is admitted without objection and it proves the same fact or facts that the
inadmissible evidence sought to prove. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.
1991); Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986), cert. dism'd, 496 U.S.
944 (1990). Further, in his direct testimony, appellant testified that Shaw attacked him and
therefore was the first aggressor in their altercation. This testimony would have entitled the State
to properly recall McKinley to offer her opinion of Shaw's character. Therefore, the trial court's
error became one of timing only. Under these circumstances, we find beyond a reasonable doubt
that the trial court's error did not make any contribution to appellant's conviction or punishment
and was therefore harmless. Tex. R. App. P. 81(b)(2). We overrule appellant's fifth point of
error.
In his sixth point of error, appellant contends that the district court erred in limiting
his cross-examination questions aimed at impeaching McKinley's improperly admitted opinion of
Shaw's character. After the trial court overruled appellant's objection to McKinley's testimony,
appellant attempted to impeach her opinion on cross-examination by asking whether she had heard
of incidents in which Shaw had allegedly acted aggressively. The State objected to cross-examination concerning specific instances of conduct, and the trial court sustained the objection.
Appellant argues that the trial court erred because his cross-examination was proper under Rule
of Criminal Evidence 405, which provides:
In all cases in which evidence of character or trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony in
the form of an opinion. . . . In all cases where testimony is admitted under this
rule, on cross-examination inquiry is allowable into relevant specific instances of
conduct.
Tex. R. Crim. Evid. 405(a) (emphasis added).
Again, we agree with appellant that the trial court erred by disallowing his "have
you heard" cross-examination questions, which are specifically permitted by Rule 405(a).
However, we believe that this error was also harmless. It is significant that McKinley's responses
to appellant's disallowed cross-examination would have served only as impeachment evidence and
not substantive evidence. Therefore, appellant lost only the chance to discredit McKinley's
opinion, but did not lose the chance to place substantive evidence before the jury. Furthermore,
as discussed above, appellant corroborated McKinley's opinion of Shaw's peaceful character
during his direct testimony. Under these circumstances we find that the trial court's error in
prohibiting appellant's cross-examination was harmless, and we therefore overrule appellant's
sixth point of error.
CONCLUSION
Having overruled all of appellant's points of error, we affirm the trial court's
judgment of conviction.
Mack Kidd, Justice
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed: July 17, 1996
Publish
1. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1036012/ | Case: 13-10169 Date Filed: 07/31/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10169
Non-Argument Calendar
________________________
Agency No. A087-389-841
OMAR MALDONADO GELVES,
SANDRA CECILIA ARDILA MARTINEZ,
NICOLAS MALDONADO ARDILA,
SANTALUCIA MALDONADO ARDILA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 31, 2013)
Before CARNES, BARKETT, and MARCUS, Circuit Judges.
PER CURIAM:
Case: 13-10169 Date Filed: 07/31/2013 Page: 2 of 4
Omar Maldonado Gelves 1 seeks review of the Board of Immigration
Appeal’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his
application for asylum, pursuant to 8 U.S.C. § 1158(a). 2 Mr. Gelves and his
family overstayed their visa and thereafter sought asylum and withholding of
removal. Mr. Gelves’s only argument for relief is that he had been kidnapped by
the Revolutionary Armed Forces of Columbia (FARC) and his family faces
ongoing extortion attempts from the FARC. To establish eligibility for asylum, the
asylum applicant must establish that he is a person unable or unwilling to return to
his country of nationality “because of persecution or a well-founded fear of
persecution on account of” any statutorily enumerated protected grounds, which
include the refugee’s political opinion. 8 U.S.C. § 1101(a)(42)(A). To
demonstrate a sufficient nexus between political opinion and alleged persecution,
an alien must show that he has been or will be persecuted “because of” his actual
or imputed political opinion. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
1
Mr. Gelves is the lead petitioner and has named his wife, Sandra Cecilia Ardila
Martinez, and his children, Nicolas Maldonado Ardila and Santalucia Maldonado Ardila, as his
derivative beneficiaries.
2
The BIA’s order also affirmed the IJ’s decision withholding of removal under 8 U.S.C.
§ 1231(b)(3) and withholding of removal under the United Nations Convention Against Torture
(“CAT”), 8 C.F.R. § 208.16(c). Mr. Gelves raises no argument on appeal that the BIA erred in
denying him withholding of removal or CAT relief and therefore he has abandoned these claims.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant
fails to offer argument on an issue, that issue is abandoned.”). We also do not consider Mr.
Gelves’s argument that his family constitutes a particular social group because he failed to seek
relief on this ground before the IJ and thus has failed to exhaust this claim. See 8 U.S.C. §
1252(d) (stating that a court may only review a final order of removal if the alien has exhausted
all administrative remedies available to the alien).
2
Case: 13-10169 Date Filed: 07/31/2013 Page: 3 of 4
890 (11th Cir. 2007) (quotation and emphasis omitted). Being targeted by a
guerilla group for extortion purposes does not, by itself, constitute persecution on
account of political opinion. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821-23
(11th Cir. 2007) (holding that there was no nexus between persecution and political
opinion where the FARC demanded a politically active business owner pay the
FARC’s “war tax,” where the FARC targeted the petitioner (1) for extortion based
on the petitioner’s ability to pay, (2) harmed the petitioner after refusal to pay the
“war tax,” and (3) never demanded that the petitioner cease political activities).
Here, the BIA did not err in affirming the IJ’s denial of Mr. Gelves’s
application for asylum because substantial evidence supported the BIA’s
determination that Mr. Gelves was not persecuted on account of his actual or
imputed political opinion. 3 That evidence includes that the FARC targeted Mr.
Gelves based on his ability to pay extortion demands and not based on his political
views; that in kidnapping Mr. Gelves and threatening him and his family, the
FARC only sought monetary payoffs; and, that the FARC made no demands
regarding Mr. Gelves’s political opinions. Furthermore, the FARC’s threats
against Mr. Gelves after his release from captivity did not constitute persecution on
account of a statutorily protected ground because the threats were in furtherance of
3
We must affirm the BIA’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Lopez v. U.S. Att’y Gen., 504 F.3d
1341, 1344 (11th Cir. 2007) (quotation omitted).
3
Case: 13-10169 Date Filed: 07/31/2013 Page: 4 of 4
extorting money from Mr. Gelves and his family. Moreover, even though Mr.
Gelves claimed that the FARC tried to indoctrinate and recruit him, his refusal to
cooperate with the guerillas was insufficient to establish that he was persecuted
due to his political opinion. See Rodgriguez Morales, 488 F.3d at 890. Mr. Gelves
has failed to establish any of his political beliefs, imputed or personal, drove the
FARC’s persecution of him and his family. Accordingly, because Mr. Gelves did
not establish a nexus between past persecution or a well-founded fear of future
persecution and his actual or imputed political belief, he has failed to establish his
eligibility for asylum.
PETITION DENIED.
4 | 01-03-2023 | 08-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603212/ | 8 So.3d 723 (2009)
Julius B. SELLERS, Jr., Individually, and on Behalf of a Class of Persons with Common Claims
v.
EL PASO INDUSTRIAL ENERGY, L.P., Shell Chemical, LP, Motiva Enterprises, LLC, Motiva Company, BP Amoco Chemical Company, State of Louisiana, Pontchartrain Levee Board.
No. 08-CA-403.
Court of Appeal of Louisiana, Fifth Circuit.
February 10, 2009.
*724 Lawrence D. Wiedemann, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
Charles M. Raymond, David S. Moyer, Cory S. Morton, Chad J. Mollere, Roy J. Rodney, Jr., John K. Etter, Laura Davenport, Attorneys at Law, New Orleans, LA, Mary S. Johnson, Jill T. Losch, Attorney at Law, Mandeville, LA, Thomas M. McNamara, Patrick W. Gray, Attorneys at Law, Lafayette, LA, Mark Marino, Attorney at Law, Destrehan, LA, for Defendant/Appellee.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
FREDERICKA HOMBERG WICKER, Judge.
Plaintiff/Appellant Julius B. Sellers, Jr., representing that he is proceeding in his personal and representative capacity, has taken a devolutive appeal from the judgment of October 10, 2007 that granted the defendants' motions to strike his demand for class action status and to dismiss all class action claims. The judgment also denied Mr. Sellers's[1] motion to certify the class as moot. Defendant/Appellee the Pontchartrain Levee Board (the Board) has filed an answer to the appeal. The Board challenges the trial judge's denial of its exceptions of prescription and no cause of action. The Board has also filed exceptions of prescription and no cause of action in this court. For the reasons that follow, we affirm the judgment denying class action status. We dismiss the Board's answer and exceptions.
Procedural History
On November 22, 2005, Mr. Sellers fax filed a petition for damages in which he alleged the petition was filed on behalf of a class of persons with common claims, against several defendants, including Shell Chemical, L.P., formerly Shell Chemical Company; Motiva Enterprises, LLC; Motiva Company; and, "State of Louisiana, Pontchartrain Levee Board."[2] Thereafter, *725 the Clerk of Court date stamped the petition on November 28, 2005. The Motiva and Shell defendants are hereinafter referred to collectively as "Shell".
Mr. Sellers alleged that the defendants were liable in solido for the "taking" of the putative class members' land, including cost of cleanup and restoration, and punitive damages.
In particular, he claimed that the land in question had been contaminated and polluted by the corporate defendants. He alleged that in 1971, the Board acquired property from Mr. Sellers and members of the class. He further alleged that the acquisition was for the purpose of building a levee along Lake Pontchartrain compatible with the levee in Jefferson Parish. The construction would have insulated the tract from erosion and fostered a residential and commercial development in St. Charles Parish as in Jefferson Parish. But, the levee was never built on the acquired land and the land has never been returned to the plaintiff and the class vendors.
In addition, Mr. Sellers alleged that the defendants conspired to prevent levee construction on the acquired land in order to insulate the chemical industry from development around their plants. The defendants so conspired because they knew development around the plants would result in potential liability because of the chemical companies' unrestrained dumping of hazardous chemicals into the tract. The corporate defendants' knowing pollution as well as the corporate defendants and board's inverse condemnation of the class's property by failing to construct a levee along Lake Pontchartrain north of the class's property rendered the class's property worthless.
Mr. Sellers alleged that he and the class did not discover and could not have discovered the effect of the defendants' actions on the tract until less than a year before the filing of the suit.
In January and February 2006, the case was removed and then remanded to state court. Later that year, the trial judge granted exceptions of vagueness and ambiguity filed by the Board and Shell. He granted the plaintiff leave to amend the petition.[3] In February 2007, Mr. Sellers responded to the judgment by filing his first supplemental and amending petition.
Approximately three weeks later, Shell filed a motion to strike the demand for class relief and dismiss all class action claims under La.C.C.P. art. 592(A)(1) as untimely. Shell also filed a motion to reset its peremptory exception of prescription. Shell reurged its exception of no cause of action and excepted to both the original and supplemental petitions.[4]
On June 18, 2007, Mr. Sellers filed a second supplemental and amending petition, which among other things, added additional defendants. He added Motiva Enterprises, *726 LLC, a partnership between Shell Chemical, L.P. and Armco, Inc., General Partners. He also added Shell Oil Company.
On July 6, 2007, Mr. Sellers filed his third supplemental and amended petition. He added additional defendants Motiva, Enterprises LLC, Texaco Inc., Shell Oil Co. and Saudi refining Inc., a joint venture, in their individual corporate capacities and in their partnerships and joint venture capacities.
On July 24, 2007, Mr. Sellers moved to certify the class.
The Board and Shell moved to dismiss Mr. Sellers's motion to certify the class.
On October 10, 2007, the trial judge rendered judgment, which among other things, denied the class certification. Mr. Sellers filed a petition for devolutive appeal from the judgment denying class action status.
The Board filed a notice of intent to seek a supervisory writ from the October 10, 2007 judgment denying its exception of prescription. This Court denied the writ as untimely. Julius B. Sellers, Jr., Individually And on Behalf of a Class of Persons with Common Claims v. El Paso Industrial Energy, L.P., Shell Chemical, L.P., Motiva Enterprises, L.L.C., Motiva Company, BP Amoco Chemical Company, State of Louisiana, Pontchartrain Levee Board, 08-217 (La.App. 5 Cir. 4/21/00) (unpublished).
The Board timely filed its answer to the appeal and exceptions.
Timeliness
La.C.C.P. art. 592(A) provides for a class certification procedure as follows:
A. (1) Within ninety days after service on all adverse parties of the initial pleading demanding relief on behalf of or against a class, the proponent of the class shall file a motion to certify the action as a class action. The delay for filing the motion may be extended by stipulation of the parties or on motion for good cause shown.
(2) If the proponent fails to file a motion for certification within the delay allowed by Subparagraph A(l), any adverse party may file a notice of the failure to move for certification. On the filing of such a notice and after hearing thereon, the demand for class relief may be stricken. If the demand for class relief is stricken, the action may continue between the named parties alone. A demand for class relief stricken under this Subparagraph may be reinstated upon a showing of good cause by the proponent.
(3)(a) No motion to certify an action as a class action shall be granted prior to a hearing on the motion. Such hearing shall be held as soon as practicable, but in no event before:
(i) All named adverse parties have been served with the pleading containing the demand for class relief or have made an appearance or, with respect to unserved defendants who have not appeared, the proponent of the class has made due and diligent effort to perfect service of such pleading; and
(ii) The parties have had a reasonable opportunity to obtain discovery on class certification issues, on such terms and conditions as the court deems necessary.
(b) If the court finds that the action should be maintained as a class action, it shall certify the action accordingly. If the court finds that the action should not be maintained as a class action, the action may continue between the named parties. In either event, the court shall give in writing its findings of fact and reasons for *727 judgment provided a request is made not later than ten days after notice of the order or judgment. A suspensive or devolutive appeal, as provided in Article 2081 et seq. of the Code of Civil Procedure, may be taken as a matter of right from an order or judgment provided for herein.
It is undisputed that Mr. Sellers filed his initial pleading demanding relief on behalf of a class in November 2005 and that all adverse parties named in that petition were served before January 2006. Mr. Sellers did not file his motion to certify until July 24, 2007, which was well beyond 90 days after January 2006. The record reflects that Mr. Sellers filed his third amended petition on July 6, 2007. He filed his motion to certify 18 days later on July 24, 2007.
In the proceedings below, Mr. Sellers argued that the time limitation was discretionary. He stated he learned on May 10, 2007 from a newspaper article published in The Times Picayune and attached as Exhibit A to his memorandum, that the Shell refinery was operated by the defendants he joined as the defendants in his second supplemental petition. He asserted that he was prevented from moving for class certification under Article 592(A)(3)(a)(i), which requires a hearing, until the partnership had been served with the pleadings or made an appearance and neither of these events had yet occurred. He stated that he would move for class certification within 90 days of service or appearance of the additional defendantsthe partnership and general partners.[5]
In essence, Mr. Sellers argued that Article 592(A)(3)(a) provides that no motion to certify a class action shall be granted prior to a hearing on the motion. And under Section (3)(a)(i), the hearing could not occur until there had been service on all of the defendants. Thus, to file the motion before his amendment to add additional defendants would have been useless. He argued that the 90-day time delay conflicted with Section (3)(a)(i and ii).
In granting the motion to strike, the trial judge found that Article 592(A)(1) clearly states that a class plaintiff has 90 days from service of all adverse parties named in the initial pleading to file a motion to certify a class. The court found that the plaintiff failed to show good cause for filing an untimely motion to certify the class. He granted Shell's motion to strike the demand for class relief and to dismiss all class action claims. He granted the Board's motion to dismiss the plaintiffs motion to certify the class. He denied the plaintiffs motion to certify the class as moot.
Mr. Sellers presents the following arguments on appeal: (1) The denial of his class action status is a vain and useless act and an abuse of discretion. (2) The 90-day period is discretionary and not mandatory. (3) The motion to certify was timely because the supplemental and amending petitions related back to the first petition. (4) He timely filed the motion within the 90-day period provided by Article 592 when he filed his second and third amended petitions where he joined additional defendants. (5) He was prohibited from moving for class certification under Article 592(A)(3) until the partnership and the general partners were served with the pleadings or made an appearanceneither of which occurred as of the date of the hearing.
*728 Mr. Sellers points out that the motions challenging class certification were not filed until approximately 16 and 21 months after he filed his November 2005 petition asserting class action allegations. Mr. Sellers argued in the proceedings below that the defendants were not surprised by his motion to certify class action.
We first point out that pleadings that set forth class claims are distinct from the required motion for class certification. Escoe v. State Farm Fire & Casualty Co., et. al, 2007 WL 2903048, *2 (E.D.La.2007). Article 592(A)(1) clearly envisions an initial pleading that demands relief on behalf of or against a class and a subsequent and separate motion for certification of the class. Id. As explained by Escoe:
[I]f a defendant's knowledge of plaintiffs intention to move to certify the class, based on class allegations in a petition or complaint, served to excuse a timely motion to that effect, the rules would be meaningless; no plaintiff would be required to file a motion within the time limit because a defendant would always be on notice based on allegations in the complaint.
Id.
Mr. Sellers argues that the denial of his class action status is a vain and useless act and an abuse of discretion because another member of the putative class can file a class action petition. Louisiana courts, however, do not use this "vain and useless standard." Instead, the courts use the standard for dismissal that is set forth in the codal provision.
In Eugene v. Marathon Oil Company, 99-61 (La.App. 5 Cir. 5/19/99), 735 So.2d 933, 934, the plaintiffs appealed a judgment that granted the defendant's motion to dismiss their class action. This Court affirmed the judgment. The court applied the 90-day requirement of Article 592(A). In that case, as in the present one, the plaintiffs did not file a motion to certify within the requisite time period. The plaintiffs' sole ground for the basis that the trial judge erred was that their case could be consolidated with another case that was subject to prior Article 592, which did not set forth a 90-day requirement. This Court disagreed and held that the 1997 amendment to Article 592, by 1997 La. Acts, No. 839, § 1 applied to the plaintiffs' case. The court found that the plaintiffs made no showing of good cause why the class action petition should not be dismissed. 99-61 at 2-4, 735 So.2d at 934-35.
In Crader v. Pinnacle Entertainment Inc., 06-136 (La.App. 3 Cir. 5/31/06), 931 So.2d 535, the plaintiffs appealed the trial judge's ruling granting the defendants' motion to dismiss the plaintiffs' class action petition for failure to timely move for certification of the action as a class action under Article 592(A)(1). In that case, the trial judge found no good cause for the delay. The plaintiffs argued on appeal that the trial judge applied the wrong legal standard. 06-136 at 1-2, 931 So.2d at 535. The plaintiffs filed a motion to certify the class action a little over three months after the defendants were served. 06-136 at 2, 931 So.2d at 537. Relying on its earlier pronouncement in Martello v. City of Ferriday, 04-90, p. 2 (La.App. 3 Cir. 11/3/04), 886 So.2d 645, 648, writs denied, 04-2964, 04-2976 (La.2/25/05), 894 So.2d 1147, 1148, the Crader court reaffirmed that the clear wording of Article 592(A)(1) requires that a motion to certify the action as a class action must be filed within 90 days after service on all adverse parties of the initial pleading. 06-136 at 2, 931 So.2d at 537 (Internal quotation marks omitted).
Therefore, pursuant to the clear wording of Article (A)(1), Mr. Sellers' motion to certify was untimely.
*729 In Stefanias v. Certain Underwriters at Lloyd's London, 2007 WL 1827202, *1-2 (E.D.La.2007), the United States District Court for the Eastern District of Louisiana considered Article 592's timeliness provision. The court struck the demand for class action relief because the motion to certify was not timely filed; the parties had not stipulated to an extension of time, and the mover had not shown good cause.
In Escoe v. State Farm Fire & Casualty Co., et. al, 2007 WL 2903048 (E.D.La. 2007), the United States District Court for the Eastern District of Louisiana held that the local rule, which was similar to Article 592, imposed by its plain language a requirement that the plaintiff move to certify the class within 90 days of his amended petition in which he first made class allegations. 2007 WL 2903048, * 2. In that case, plaintiffs motion was untimely. Further, the plaintiff never requested an extension of time in which to file his motion. The court noted that in support of his motion, the plaintiff argued he was delayed in filing for various reasons. The court opined that there was no indication that any such delay posed a significant barrier to filing the motion. 2007 WL 2903048, * 2, n. 1.
Thus, the Stefanias and Escoe courts' strict application of the 90-day requirement is similar to Louisiana jurisprudence applying Article 592.
Furthermore, a plaintiff is required to show good cause why the class action petition should not be dismissed when the defendant files a motion to dismiss based on failure to comply with the procedure set forth in Article 592(A)(1). Crader, supra, citing Eugene, supra with approval. 06-136 at 3, 931 So.2d at 537.
In the present case, Mr. Sellers argues that Article 592(A)(3)(a)(i) prohibited him from filing his motion until he filed the amended petitions because the required hearing could not be held until "[a]ll named adverse parties have been served with the pleading containing the demand for class relief or have made an appearance." Article 592(A)(3)(a)(i). And he moved for class certification on July 22, 2007 within 90 days of the filing of the second supplemental petition joining the partnership and the general partners.
In Martello, supra, the Third Circuit considered the issue of whether, under Article 592(A)(1), additional hearings for certification were necessary when a plaintiff added new defendants and claims to the class action that had been previously certified. The court held that the codal provision does not require a new certification hearing when a previously certified class suit is amended. Thus, the trial court erred in dismissing one of the plaintiffs' claims and three defendants from the class action suit. 04-90 at 2-4, 886 So.2d at 647-48.
We hold that Mr. Sellers was not prohibited from moving for class certification until the partnership and the general partners were served with the pleadings or made an appearance. Article 592 does not require a new certification hearing when a previously certified class suit is amended. Martello, supra, 04-90 at 2-4, 886 So.2d at 647-48.
In Crader, supra, the plaintiff/appellant made the same argument that Mr. Sellers makes herethat Article 592(A)(2) states "the demand for class relief may be stricken" rather than it shall be stricken. In Crader, as in the instant case, the appellants argued that dismissal was not mandated. The Crader court opined that the plaintiffs had failed to file a motion to extend the time delay and also had failed to present evidence showing good cause for the failure to timely file the motion to certify. The court saw no reason why the plaintiffs were prevented from filing a motion *730 for class certification within the 90-day period such that the delay should be extended. The court found no abuse of the trial judge's discretion in failing to find good cause. 06-136 at 3, 931 So.2d at 537
Similarly, we find that Mr. Sellers has failed to show that he was prohibited from filing a motion to certify within the 90-day period. The codal provision did not prohibit him from doing so.
Mr. Sellers argues that his amending petitions "relate back" to his first petition and therefore he timely filed the motion to certify within 90 days of the supplemental petitions.
We are unpersuaded by Mr. Sellers' argument that his motion is timely because it was filed within 90 days of the amended petitions. Article 592(A)(1) clearly states that the motion must be filed within 90 days of service on all adverse parties of the initial pleading demanding relief on behalf of or against a class. If Article 592 were intended to apply to all subsequent amended petitions, it would have so stated. It did not. In Howard v. Gutierrez, 474 F.Supp.2d 41, 54 (D.D.C.Cir.2007), reconsideration denied, 503 F.Supp.2d 392 (D.D.C.2007), the D.C. Circuit Court of Appeals rejected a similar argument in considering its Local Rule 23.1(b)'s 90-day requirement. The court noted that to hold otherwise would essentially render the local rule without its legal effect because the plaintiff could circumvent the timeliness provision by filing amended petitions. Id. at 54-55.
In summary, we conclude that the trial judge did not err in finding the motion to certify was untimely. We also conclude that the trial judge did not abuse his discretion in finding that Mr. Sellers failed to show good cause for the delay.
The remaining issue concerns the Board's answer to the appeal and the exceptions.
Answer to Appeal/Peremptory Exceptions
Mr. Sellers has appealed from that portion of the October 10, 2007 that granted the Board's motion to strike his demand for class action status. That same judgment denied, among other preliminary matters, the Board's exceptions of prescription and no cause of action. That judgment, however, did not decide the merits of Mr. Sellers' claims in whole or in part.
La.C.C.P. art. 1841 provides:
A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.
The October 10, 2007 judgment that denied class action status and overruled the Board's exceptions was an interlocutory judgment. An interlocutory judgment is appealable only when expressly provided by law. La.C.C.P. art. 2083(C). Therefore, unless "expressly provided by law," the denial of the exceptions and the denial of class action status are not appealable.
La.C.C.P. art. 592(A)(3)(b), however, expressly provides jurisdiction to entertain Mr. Seller's interlocutory appeal from the denial of class certification. The article provides for a certification procedure for class actions. It affords "[a] suspensive or devolutive appeal, as provided in Article 2081, et. seq. of the Code of Civil Procedure, [which] may be taken as a matter of *731 right from an order or judgment provided for herein." The order or judgment provided for is one that either grants or denies class certification. La.C.C.P. art. 592(A)(3)(b). On the other hand, the legislature did not include the right to appeal any other interlocutory judgment, such as the peremptory exceptions that were filed in this case. As a result, we have no appellate jurisdiction to consider an appeal from the denial of the exceptions.
But the Board did not appeal the judgment. Instead, it filed an answer to the appeal. So we must first determine whether we have appellate jurisdiction to consider the Board's answer to the appeal since the answer challenges the interlocutory, nonappealable rulings denying the peremptory exceptions.
The Board seeks to modify the October 10th judgment insofar as it denied the exceptions. Under La.C.C.P. art. 2133 an answer to an appeal is in the character of a cross appeal in which the appellee takes advantage of an appeal entered and perfected by an appellant, in the hope of procuring an alteration or amendment of the judgment rendered in a manner beneficial to the appellee. Francois v. Ybarzabal, 483 So.2d 602, 605 (La.1986) (Internal quotations and citation omitted). Thus, the Board's answer is in the character of an appeal on its part from that portion of the judgment rendered against him in favor of the appellant and of which he complains in the answer. As such, we lack appellate jurisdiction to consider what is in essence a cross appeal.
We distinguish, however, the present restricted appeal from an unrestricted appeal. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment from which the party has taken the appeal. Sporl v. Sporl, 00-1321 (La.App. 5 Cir. 5/30/01), 788 So.2d 682, 683-84, writ denied, 01-1926 (La.10/12/01), 799 So.2d 506 (Citation omitted).
In Trahant v. Perez, 02-1414, p. 8 (La. App. 4 Cir. 3/19/03), 843 So.2d 479, 484, the Fourth Circuit considered an authorized appeal pursuant to La.C.C.P. art. 1915(A)(6)an appeal that "imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G)." La.C.C.P. art. 1915(A)(6). In that appeal, the appellant appealed the judgment of the trial court granting the plaintiffs rule for contempt and sanctions against the appellant. However, the appellant also filed the exception of no cause of action in the appellate court. The court found that it lacked jurisdiction to consider the exception and dismissed it. It concluded that since the appeal was a restricted appeal of the contempt judgment, the appellant had no right as of yet to appeal the interlocutory judgment on the exception of no cause of action.
The court also concluded that La. C.C.P. art. 2163, which provides in pertinent part that "[t]he appellate court may consider the peremptory exception filed for the first time in that court," was inapplicable. The court held that the legislative grant of appellate authority to consider peremptory exceptions that are filed for the first in that court "assumes that at the time the exception is filed the appellate court has jurisdiction over the action or proceeding to which exception is taken." 02-1414 at 9, 843 So.2d at 484 (quoting Toledo Bend Proprietors v. Sabine River Authority, 395 So.2d 429, 432 (La.App. 3 Cir.1981), writ denied, 400 So.2d 903 (La.1981)).
Similarly, in this case, the principal demand has not been tried on its merits and no final judgment has yet been rendered. Therefore, in this restricted appeal, we *732 lack jurisdiction to consider the peremptory exceptions. Moreover, the sole issue on appeal is whether the trial judge abused his discretion in granting the motion to strike class certification as untimely. Thus, the peremptory exceptions are unrelated to the issue of timeliness.
This court has discretion to convert an appeal to an application for supervisory writs. Stelluto v. Stelluto, 05-0074, p. 7 (La.6/29/05), 914 So.2d 34, 39. In the present case, the Board attempted to seek supervisory writs from the October 10, 2007 interlocutory ruling. However, the Board's notice of intent was filed on January 9, 2008, beyond the 30-day delay provided for seeking supervisory writs. See, Rule 4-3, Uniform Rules of Court-Courts of Appeal, and La.C.C.P. art. 1914. We denied the untimely writ on the basis that we lacked jurisdiction to review the writ application. Julius B. Sellers, Jr., Individually And on Behalf of a Class of Persons with Common Claims v. El Paso Industrial Energy, L.P., Shell Chemical, L.P., Motiva Enterprises, L.L.C., Motiva Company, BP Amoco Chemical Company, State of Louisiana, Pontchartrain Levee Board, 08-217 (La.App. 5 Cir. 4/21/00) (unpublished).
Moreover, the Board filed its answer to the appeal and exceptions on May 20, 2008, well beyond the 30-day time delay for seeking supervisory writs. If viewed as an application for writs, the application was still untimely. Therefore, under these circumstances, we decline to exercise our discretion to convert the answer to a supervisory writ.
Accordingly, the answer to the appeal is dismissed for lack of jurisdiction.
Our finding that we lack jurisdiction to entertain the answer and exceptions at this time does not, however, preclude the Board from reurging the exceptions in the trial court. These interlocutory rulings do not constitute final judgments. Thus, the Board can reurge the exceptions. Also, once the demand for class certification is stricken, "the action may continue between the named parties alone." La.C.C.P. art. 591(A)(2). Thus, should the other alleged plaintiffs file individual petitions, the Board can, if necessary, reurge the exceptions to these petitions as well.
Decree
Accordingly, for the reasons stated, the judgments granting the defendants' motion to strike class certification and denying the plaintiffs motion for class certification is affirmed. The Board's answer and peremptory exceptions are dismissed.
ANSWER TO APPEAL, EXCEPTIONS OF NO CAUSE OF ACTION AND PRESCRIPTION DISMISSED; JUDGMENT DENYING CLASS ACTION STATUS AFFIRMED.
NOTES
[1] The case has not been certified as a class action despite Mr. Sellers's representation that he is proceeding in his representative capacity. Therefore, because only Mr. Sellers has appealed, it is proper that we solely address his claim.
[2] Pursuant to the plaintiff's motions, defendants BP Amoco Chemical Company, formerly Amoco Chemical Company and El Paso Industrial Energy, L.P., formerly Valero Industrial Gas, L.P., were dismissed on August 28, 2007 and November 2, 2006, respectively.
[3] The trial judge also overruled the exceptions of no cause of action filed by the Board and Shell. The court overruled Shell's exceptions of prematurity and no right of action. The court pretermitted the exceptions of prescription filed by the Board and Shell pending amendment of the petition. The State's exception of no cause of action was continued without date because the State did not appear.
[4] On May 18, 2007, the State of Louisiana and the State of Louisiana, through the Department of Environmental Quality, joined in and adopted Shell's motion to strike the demand for class action, the exception of no cause of action and the exception of prescription.
[5] Shell asserted that Motiva enterprises, LLC, the party that owns and operates the Shell refinery, was named in the original petition and had been served and made an appearance. It is not a partnership and it has no general partners. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602563/ | 8 So.3d 330 (2008)
Michael SALE
v.
STATE of Alabama.
CR-05-1447.
Court of Criminal Appeals of Alabama.
April 4, 2008.
Rehearing Denied June 13, 2008.
*334 M. Hampton Baxley, Dothan, for appellant.
Troy King, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
WELCH, Judge.
Michael Sale was convicted of the murder of his wife, Lynn Sale, made capital because it occurred during the course of kidnapping in the first degree, a violation of § 13A-5-41(1), Ala.Code 1975. After the penalty phase of Sale's trial, the jury unanimously recommended that he be sentenced to death. The trial court then ordered a presentence report. A sentencing hearing was held, after which the trial court accepted the jury's recommendation and sentenced Sale to death.
The evidence adduced at trial tended to show the following. On the night of May 2, 2004, Michael Sale placed a telephone call to 911 and requested help for his wife, Lynn, at their home in Webb, Alabama. Daniel Mercer, one of the paramedics who responded to the call, said they were told the patient's extremities were turning black.
Mercer said that when paramedics arrived at the Sales' home, they found Lynn lying in a twin bed covered with stained, dirty linens. He said that when he pulled down the bed covers to examine Lynn, the odor of urine, feces and decubiti, or dead flesh, "came up on me." (R. 396.) Lynn's hands and feet were black, and she was having trouble breathing. Mercer said that in his opinion, Lynn was going to die if she did not receive treatment immediately. Despite her poor condition, Mercer said, Lynn reacted to pain stimuli.
Mercer said he was concerned about how Lynn had reached such a poor condition and questioned Sale as to whether Lynn had seen a doctor recently. He said that Sale told him that she had seen a doctor two weeks earlier but that the doctor did not know what was wrong with her, it may have been blood poisoning or it may have been cancer. Mercer was still puzzled, so, he said, he asked Sale three times whether Lynn had recently seen a doctor and each time Sale told him she had seen the doctor two weeks earlier. (R. 787.)
Lynn was transported by ambulance to Southeast Alabama Medical Center in Dothan. Dr. Allen Purvis, one of Lynn's treating physicians, testified that Lynn, who was 48 years old, was dehydrated and in renal failure and respiratory failure *335 when she arrived at the hospital. Her extremities, as well as her nose, were turning black because she was suffering from gangrene caused by sepsis, a bacterial infection that enters the blood stream, generally through a cut or break in the skin. The infection can be the result of poor hygiene. Dr. Purvis said that if Lynn had lived, her fingers, nose, and legs below the knees would have had to have been amputated.
Dr. Purvis was concerned about how bad Lynn's condition was before she was brought into the hospital. He testified that she had to have been extremely ill for a number of days to be in as poor a condition as she was when she was first brought in. He added that he had been a physician for 16 years and he had
"never had anybody bring anybody and say they stopped talking three days ago. I mean, if somebody stops talking, that is as basic as it gets. People bring them in right then. If something turns dark or black, people bring them in right then. They don't say their foot turned black three days ago. They don't say they stopped talking three days ago, and we decided to bring mama in today. They just don't do that. We have never in all my time have people come in and delay that. And that is people of any low educational status, maybe somebody who is maybe mentally handicapped. You just know there is something extremely, seriously wrong when someone stops talking."
(R. 685.)
Dr. Purvis said after examining Lynn, he was "fairly convinced" she had been the victim of domestic abuse. (R. 687.) She had a broken rib, black eyes and "cauliflower ear," a term meaning her ear was swollen and misshapen from a blow. Lynn was covered in bruises, human bite marks, scratches and cuts, some of which were fresh and some of which had been healing. Lynn also had significant swelling in her genitalia and pubis region, and there were scratches on her vagina. Given Lynn's condition, hospital personnel did not believe she was capable of having scratched herself.
In addition, medical tests showed that Lynn had suffered a heart attack and several small strokes. Dr. Purvis's opinion was that the heart attack occurred before Lynn was brought into the hospital. Based upon the results of a CAT scan, Dr. Purvis said the strokes had occurred several days before Lynn was brought to the hospital. A CAT scan also showed that Lynn had a tampon in her vagina that had been left there for a number of weeks. She was unable to move her arms and legs. He said that to be in such poor condition, she had to have been ill for some time.
Dr. Purvis said that when they discovered the tampon, doctors immediately suspected that she had toxic-shock syndrome. After running tests, however, they ruled out toxic shock as a cause of Lynn's sepsis, because blood tests revealed that the infection she had was not consistent with toxic shock.
Lisa Nixon, a nurse who treated Lynn, testified that Lynn's toes and fingers were hard and "crispy." (R. 832 and 833.) She said that Lynn's nose was "just like a piece of charcoal sitting up there. It wasn't soft and mushy like a normal nose. It was hard and crispy. We were very afraid to do anything with that [feeding] tube, because we were afraid that part of the nose would fall off." (R. 830-31.) Also, large patches of hair were missing from Lynn's head.
Nixon also testified as to the bruising and cuts Lynn had suffered. According to Nixon, Lynn was feeling pain and would *336 often moan. Nixon said that although Lynn's condition was terminal, she did improve somewhat when she was being treated at the hospital. Three days before Lynn's death on May 17, 2004, Nixon said she was talking to Lynn as she usually did, not expecting an answer. Lynn verbally responded, which "kind of shocked" Nixon. (R. 828.) Nixon asked Lynn a series of questions such as her age, where she was, and whether she had children, all of which Lynn answered correctly. Nixon said she then asked Lynn whether she knew who had hurt her. Lynn said yes, then said, "Michael hurt me, he did this to me." (R. 828.) Shortly afterwards, Nixon said, Lynn stopped being able to move her mouth or to open her eyes. She died three days later.
Nixon also testified as to Sale's demeanor and the inconsistent statements he made when he was at the hospital. When Lynn was first brought into the hospital, Nixon asked Sale how long Lynn had been sick. He told her it had been a couple of days. Nixon asked Sale whether Lynn had been to see a doctor. Sale said that she had and that the doctor thought she had a kidney infection. He also told Nixon that the reason he did not take her to a doctor before was that she refused to go. He then said Lynn had not been able to talk for several days. When Nixon asked him how she had refused to go to the doctor when she could not talk, Sale changed the subject.
On May 3, 2004, the day after Lynn was admitted to the hospital, the hospital notified police of the possibility that she had been the victim of domestic violence. Investigator Bill Rafferty with the Houston County Sheriff's Department testified that he went to the Sales home in Webb to execute a search warrant to determine whether there was any evidence of domestic abuse at the home. In the garbage can outside of the house, they found filthy clothes belonging to Lynn. They also found wads of hair matching Lynn's, and a handwritten note asking, "Do you hurt, yes or no." A long strip of torn sheet, about five feet long and three inches wide was found in the shed outside the house.
Inside the house, law-enforcement officials found a stained mattress on a twin bed that had been covered in baking soda, battered walls, damage to cabinets in the house, weather stripping on an interior bedroom door, blood toward the bottom of that door, and nail holes above the windows and the door framing in that bedroom. The room smelled of urine and feces. Law-enforcement officials found a pair of broken, twisted eyeglasses, and a calendar that had been torn up.
Ryan Sale, Lynn and Sale's oldest son, was 23 years old at the time of the offense. At trial, he testified as to the cause of Lynn's critical condition and eventual death. He said that Sale often physically abused Lynn and that Sale had also hit him. He said he was so afraid of Sale that when Sale hit Lynn, he had wet his pants. He described Sale as controlling the family and said that Sale would not allow Lynn to see her sisters or her parents, all of whom lived in Michigan. Sale, who had his own floor-tiling business, also made Lynn quit her job.
Ryan said that in 2000 or 2001, Lynn finally called the police to report Sale's abuse. On April 17, 2001, Sale was convicted and sentenced to two years prison, to be followed by five years' probation. Sale served 11 months and then was released from prison to begin serving his probation. As a condition of his probation, Sale was subject to a restraining order that prohibited him from having any contact with Lynn, and he was not to go near her.
*337 Ryan said that when Sale got out of prison, he returned to their home, despite the restraining order. Ryan testified that he was more afraid of his father when he got out of prison. Ryan said that he heard Sale tell Lynn that he wanted to "punish her due to all the money that he lost while he was locked up and the downfall the business had taken while he was locked up." (R. 457.) Ryan described Lynn from that point on as being "terrorized." (R. 457.) He described the atmosphere at home as "very scared, fearful." (R. 463.) Although Ryan knew his mother was suffering beatings at the hands of his father, he did not report his father out of fear of what Sale would do to Lynn, Ryan, and his younger brother.
In late March or early April 2004, Ryan said Sale had him remove all of the telephones from the house. The first week of April, Sale moved Lynn out of their bedroom and made her stay in the recreational vehicle ("RV") parked in their backyard. Ryan said the RV was old and had been "gutted." (R. 467.) Lynn slept in a twin bed that had been placed in the RV. At that time, Sale never left Lynn. He even stopped working. Ryan said at that time, he was earning all of the money the family was using. When Ryan asked Sale why Lynn and Sale were staying in the RV, Sale told him they were working on their taxes.
On or about April 10, 2004, Sale moved Lynn from the RV into the shop the Sales had in their backyard. Ryan did not go out to the shop to check on Lynn, and he did not know whether she was being given food or water during that time.
On or about April 15 or 16, 2004, Ryan said, Sale moved Lynn back into the house, but by then, she could no longer walk. She had also lost the ability to raise her arms. Throughout the time Lynn was made to stay in the RV and the shop, Sale made Ryan keep a diary of sorts on the calendar describing Lynn's deteriorating condition. Ryan said after his mother went to the hospital, he could not find the page of the calendar where he had kept track of her condition. When law-enforcement officials searched the house, they found a torn calendar, but they did not find the page for the month of April, which is when Ryan kept the notes.
Ryan said that about eight days before Sale finally called 911, Lynn lost the ability to carry on a conversation, although she was able to moan. She eventually began to have trouble urinating. If she was moved to another room of the house, Ryan said, he and Sale had to pick her up and move her. On the occasions when he saw Sale attempt to feed Lynn, Ryan said, she was unable to keep the food down. She wore only a nightgown that was never washed.
When Lynn was moved back into the house, Ryan said, Sale nailed blankets over the windows of the master bedroom, where she was staying, even though the windows already had blinds. Sale also put weather stripping on the bedroom door, an interior door, making the room even darker. Ryan and his brother were not to go into the room.
Ryan also described the general condition of the house. There were holes in the walls throughout the house; Sale had ripped the oven door off; he had kicked in cabinet doors and "busted up" kitchen drawers; and he had "busted up" furniture, and a door frame. (R. 499-501.)
Ryan said that Sale did not take Lynn to the doctor during this time. When Ryan saw that her nose and fingertips were turning black, he grew concerned that she might have gangrene and did research on the Internet to try to determine what was wrong with her. He told Sale that he *338 believed Lynn had gangrene. When he did, Ryan said, Sale became "very erratic and scared, and that was the night he called the paramedics." (R. 555.)
Ryan also testified that Sale told him that if anyone ever questioned him about Lynn's condition, he was to say that she fell getting out of the RV and bruised her legs, and that she got scratched when Sale tried to catch her as she fell.
I.
Sale contends that the State failed to present sufficient evidence to support either his conviction for capital murder or for the sentence of death imposed. Specifically, Sale says, the State failed to prove kidnapping and that he had the intent to kill or hurt Lynn. This issue was preserved for appellate review by Sale's motions for a judgment of acquittal and for a new trial.
"`"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So.2d 493 (Ala. 1985). `"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App. 1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). `"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App. 1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). `The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
"`The trial court's denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Crim.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Crim.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Crim.App.1983)."
Gavin v. State, 891 So.2d 907, 974 (Ala. Crim.App.2003) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)). See also Ward v. State, 814 So.2d 899, 908-10 (Ala.Crim.App.2000). In addition, it is not the place of an appellate court to invade the province of the jury and to reweigh evidence presented at trial. See Zumbado v. State, 615 So.2d 1223, 1240-1241 (Ala.Crim.App.1993).
"To sustain a conviction under § 13A-5-40(a)(1), Ala.Code 1975, for the capital offense of murder during a kidnapping, the State must prove beyond a reasonable *339 doubt: (1) a kidnapping in the first degree, as defined by § 13A-6-43(a), or an attempt thereof; (2) an intentional murder, as defined by § 13A-6-2(a)(1); and (3) that the murder was committed `during' the course of the `kidnapping or attempted kidnapping.'
Butler v. State, 781 So.2d 994, 997 (Ala. Crim.App.2000).
A person commits the crime of kidnapping in the first degree if he abducts another person with intent to inflict physical injury upon that person or to terrorize him, among other things not pertinent here. § 13A-6-43(4) and (5), Ala.Code 1975.
"`"The abduction element of kidnapping in the first degree is defined at § 13A-6-40(2), [Ala.Code 1975], as follows:
"`"`(2) Abduct. To restrain a person with intent to prevent his liberation by either:
"`"`(a) Secreting or holding him in a place where he is not likely to be found, or
"`"`(b) Using or threatening to use deadly physical force.'
"`"....
"`"Proof of intent, necessary to convict under § 13A-6-43 [first-degree kidnapping], `must be found by the jury and may be inferred from the facts and circumstances attending the whole transaction.' Doss v. State, 23 Ala.App. 168, 180, 123 So. 237, 248 (1929) ...."
"`Owens v. State, 531 So.2d 2, 13-14 (Ala.Crim.App.1986).'
"Broadnax v. State, 825 So.2d 134, 203 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001)."
Kabat v. State, 867 So.2d 1153, 1158 n. 5 (Ala.Crim.App.2003).
"A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct." § 13A-2-2(1), Ala.Code 1975. Furthermore,
"`[t]he question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve.' Rowell v. State, 570 So.2d 848, 850 (Ala.Crim.App.1990), citing Crowe v. State, 435 So.2d 1371, 1379 (Ala.Crim. App.1983). Intent may be `"inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances."' Jones v. State, 591 So.2d 569, 574 (Ala.Crim.App. 1991), quoting Johnson v. State, 390 So.2d 1160, 1167 (Ala.Crim.App.), cert. denied, 390 So.2d 1168 (Ala.1980)."
Butler, 781 So.2d at 997.
In this case, the State presented evidence that Sale sequestered Lynn in a gutted RV, in a shed, and finally in a bedroom in their house, with weather stripping on the interior door to the room and blinds and blankets over the windows. No one could see Lynn in any of the locations. Sale stayed with her 24 hours a day, seven days a week. He had his son Ryan remove all of the telephones from the house. There were times when even Ryan and his brother were not allowed to see Lynn.
When Lynn arrived at the hospital, she was covered in injuries that were healing and in fresh injuries, indicating that her abuse had occurred over a period of time. Medical testimony demonstrated that the detrimental effects of the injuries she sustained were compounded not only by Lynn's inability to clean herself or her surroundingsat the hands of Sale, but also by her weakening conditionthe result of not only the abuse she was taking but also because of her lack of proper nutrition and hydration, once again at the hands of Sale.
*340 Dr. Purvis, Nixon, and Mercer, the health-care providers who treated Lynn, each testified that in their opinions, Lynn had to have been in noticeably poor condition long before Sale called 911 and Lynn was brought to the hospital. Dr. Purvis said he had never seen anyone enter the hospital in Lynn's condition during 16 years of practicing medicine. Nonetheless, Sale did not seek medical help for Lynn until there was nothing left for doctors to do to save her life. The testimony was undisputed that Lynn was able to feel pain throughout her ordeal.
The State also presented evidence indicating that the reason for Sale's exceedingly cruel treatment of Lynn was that she had had him prosecuted for abusing her in the past. Rather than taking responsibility for his wrongful conduct, Sale blamed Lynn for causing him to lose money and business during the time he was incarcerated. Therefore, according to Sale's son, Sale determined that Lynn had to be punished.
The State presented sufficient evidence from which a jury could have reasonably determined that Sale restrained Lynn by keeping her in such a place that she was not likely to be found and that he also used force or the threat of force to keep her from getting away from him to seek help. From the horrific nature of Lynn's condition and the evidence of Sale's conduct, inflicting extreme injury and pain on Lynn and refusing to seek help for her until it was apparent that she was near death, the jury reasonably could have found that Sale intended not only to injure Lynn but that he also intended for her to die.
There is no merit to Sale's contention that the State failed to present sufficient evidence to sustain his conviction. We will address the sufficiency of the evidence to sustain his sentence of death as part of our review of the propriety of that sentence in the discussion in Part V, below.
II.
Sale contends that the trial court erred in failing to declare a mistrial when his lead counsel fell ill during the trial. The record of the trial proceedings does not reflect the absence of Sale's lead counsel, and the issue was not raised until Sale's motion for new trial.
To be timely, a motion for a mistrial must be made immediately after the ground for the motion becomes apparent. See Butler v. State, 659 So.2d 1021 (Ala.Crim.App.1995). Sale did not move for a mistrial, and he raised the issue of whether the trial court should have declared a mistrial only after the judgment had been entered in this case. Therefore, generally we would hold that this issue was not preserved for appellate review. However, that general rule does not apply in cases involving the imposition of the death penalty. Id. Because this is such a case, we review this issue for plain error. Rule 39(a)(2)(D), Ala. R.App. P.
"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App. 1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. *341 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim. App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Crim.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."
Hall v. State, 820 So.2d 113, 121-22 (Ala. Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001).
Alabama law requires that "[e]ach person indicted for [a capital offense punishable by death] who is not able to afford legal counsel must be provided with one court appointed counsel having no less than five years' prior experience in the active practice of criminal law." § 13A-5-54, Ala.Code 1975.
Sale was represented by two attorneys, both of whom, he concedes, met the requirements set forth in § 13A-5-54. Sale contends, without citing any supporting evidence, that one of his two appointed attorneys was "only counsel in a support capacity and therefore, unable to provide the counsel necessary" when the other attorney representing him was ill and unable to attend trial one day. (Sale's brief at p. 17.) Sale fails to present evidence to support his conclusion. As mentioned, the record does not indicate when the attorney who became ill was not present, and Sale does not allege any way in which remaining counsel failed to adequately represent him.
"We have held that § 13A-5-54, Ala.Code 1975, requires only that one attorney meet the statutory requirements. `In Parker v. State, 587 So.2d 1072 (Ala. Crim.App.1991), we held that when a person accused of a capital offense has one attorney whose experience meets that required in § 13A-5-54, the requirements of that section have been satisfied.' Hodges v. State, 856 So.2d 875, 899 (Ala.Crim.App. 2001)." Belisle v. State, [Ms. CR-02-2124, March 2, 2007] ___ So.3d ___, ___ (Ala. Crim.App.2007). Furthermore, a defendant in a capital case is entitled to only one attorney with five years' experience. See Robitaille v. State, 971 So.2d 43, 51-52 (Ala.Crim.App.2005); and Whitehead v. State, 777 So.2d 781, 851 (Ala.Crim.App. 1999).
We note that "a mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice." Ex parte Thomas, 625 So.2d 1156, 1157 (Ala. 1993). Sale was represented throughout his trial by counsel who met the requirements of § 13A-5-54. Therefore, he was at all times represented by the counsel to which he was entitled, see Whitehead and Robitaille, supra; thus, there was no basis upon which to declare a mistrial. Accordingly, there was no error, much less plain error, in the trial court's decision to proceed with the trial of this case on the day one of Sale's attorneys was ill and unable to attend the trial.
III.
Sales contends that the trial court erred when it denied his motion for a change of venue on the ground of what Sale characterized as "prejudicial press coverage." (Sale's brief at p. 17.)
When reviewing a ruling on a motion for a change of venue, we consider the following:
"`"`A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case. The trial court has the best opportunity to evaluate the effects of any pretrial publicity on the community as a whole and on the individual members of the jury venire. The trial court's ruling on a motion for a change of venue will be reversed only when there is a showing *342 that the trial court has abused its discretion. Nelson v. State, 440 So.2d 1130 (Ala.Crim.App.1983).'
"`"Joiner v. State, 651 So.2d 1155, 1156 (Ala.Crim.App.1994)."
"`Clemons v. State, 720 So.2d 961, 977 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999). "The mere fact that publicity and media attention were widespread is not sufficient to warrant a change of venue. Rather, Ex parte Grayson[,479 So.2d 76 (Ala.1985),] held that the appellant must show that he suffered actual prejudice or that the community was saturated with prejudicial publicity." Slagle v. State, 606 So.2d 193, 195 (Ala.Crim.App. 1992). "`Moreover, the passage of time cannot be ignored as a factor in bringing objectivity to trial.'" Whisenhant v. State, 555 So.2d 219, 224 (Ala.Crim.App. 1988), aff'd, 555 So.2d 235 (Ala.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990) (citations omitted) (quoting Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert. denied, 287 Ala. 729, 254 So.2d 443 (1971)).'"
Hyde v. State, [Ms. CR-04-1390, September 28, 2007] ___ So.3d ___, ___ (Ala. Crim.App.2007), quoting Samra v. State, 771 So.2d 1108, 1113 (Ala.Crim.App.1999); see also Jones v. State, [Ms. CR-05-0527, August 31, 2007] ___ So.3d ___ (Ala.Crim. App.2007).
"`"In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated `actual prejudice' against him on the part of the jurors; 2) when there is `presumed prejudice' resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau [v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)]; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985); Coleman v. Zant, 708 F.2d 541 (11th. Cir.1983)."
"`Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994).'
"Samra v. State, 771 So.2d 1108, 1113 (Ala.Crim.App.1999)."
Hyde, ___ So.3d at ___.
A claim of actual prejudicial pretrial publicity requires an initial showing that at least one of the jurors who heard the case entertained an opinion that the defendant was guilty before hearing the evidence. Jones, ___ So.3d at ___, citing Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Sale makes no such claim in this case, and our review of the record found no evidence of actual prejudice on the part of any juror who was chosen to hear Sale's case. Instead, Sale asserts a claim of presumed prejudice, contending that information concerning this case, not all of which was accurate, was so widely publicized in the Houston County area that it made it virtually impossible to draw an impartial jury from the Houston County community.
To prove presumed prejudice, Sale had the burden of establishing that prejudicial pretrial publicity so saturated Houston County
"as to have a probable prejudicial impact on the prospective jurors there, thus rendering the trial setting inherently suspect. This required a showing that a *343 feeling of deep and bitter prejudice exists in [Houston] County as a result of the publicity. Holladay v. State, 549 So.2d 122 (Ala.Crim.App.1988), aff'd, Ex parte Holladay, 549 So.2d 135 (Ala. 1989), cert. denied, [493] U.S. [1012], 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).
"Ex parte Fowler, 574 So.2d 745, 747-48 (Ala.1990)."
Hyde, ___ So.3d at ___.
In Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994), this Court held that for pretrial publicity to be presumptively prejudicial, the defendant must show: 1) that the pretrial publicity was prejudicial and inflammatory and 2) that the prejudicial pretrial publicity saturated the community where the trial was held. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985). This Court adopted the Coleman definition of the "presumptive prejudice" standard as follows:
"`"Prejudice is presumed from pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held." 778 F.2d at 1490 (emphasis added [in Hunt]). See also Holladay v. State, 549 So.2d 122, 125 (Ala. Crim.App.1988), affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).
"`In determining whether the "presumed prejudice" standard exists the trial court should look at "the totality of the surrounding facts." Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The presumptive prejudice standard is "rarely" applicable, and is reserved for only "extreme situations." Coleman v. Kemp, 778 F.2d at 1537. "In fact, our research has uncovered only a very few... cases in which relief was granted on the basis of presumed prejudice." Coleman v. Kemp, 778 F.2d at 1490.
"`... "[T]he burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one." Coleman v. Kemp, 778 F.2d at 1537. "Prejudicial" publicity usually must consist of much more than stating the charge, and of reportage of the pretrial and trial processes. "Publicity" and "prejudice" are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.
"`....
"`.... In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, "the appellant must show more than the fact `that a case generates even widespread publicity.'" Oryang v. State, 642 So.2d 979, 983 (Ala.Crim.App.1993), quoting, Thompson v. State, 581 So.2d 1216, 1233 (Ala.Crim.App.1991), cert. denied, [502] U.S. [1030], 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
"`"`Newspaper articles alone would not necessitate a change in venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844 [1945].'"
"`Thompson, 581 So.2d at 1233, quoting McLaren v. State, 353 So.2d 24, 31 (Ala. Crim.App.), cert. denied, 353 So.2d 35 (Ala.1977).
"`....
*344 "`... To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.' United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.1990)."
Jones, ___ So.3d at ___.
In support of his motion for a change of venue, Sale presented evidence regarding the nature and extent of the news coverage of the crime, including footage and scripts of the television news broadcasts and newspaper articles, and the dates and number of times of those broadcasts and publications.
The record shows that news coverage connected with Lynn's hospitalization, subsequent death, Sale's arrest, and his pretrial court appearances occurred on about 20 days spanning the two years between the crime and the trial of the case. Even if that coverage constituted widespread publicity, widespread publicity alone does not require a change of venue. McGahee v. State, 885 So.2d 191, 211 (Ala. Crim.App.2003). Sale did not present evidence regarding the effect, if any, the new broadcasts and publication of the news articles had on members of the Houston County community as far as any opinions they may have formed based upon that coverage or whether Sale was prejudiced by the information. For instance, he presented no evidence regarding how many people in the community actually followed the coverage. There was no evidence as to how many people in the coverage area may have formed an opinion as to Sale's innocence or guilt or whether members of the community who had followed the coverage would be able to put aside any knowledge they may have had of the case from media sources to give Sale a fair trial. Sale presented no evidence indicating that the media attention given his case so inflamed or saturated the Houston County community that there was an emotional tide against him.
We have carefully examined the evidence Sale presented in support of his motion for change of venue. Sale is correct in his assertion that the media reported a statement attributed to Houston County Sheriff Lamar Glover and to investigators in the case that Lynn "had apparently been tied up so tightly for so long that gangrene had developed in her hands and feet." (CR. 421-24, see also, 425-46, 448-50.) Whether Lynn's gangrene was the result of being tightly bound was not proven at trial. Despite the reporting of what may have been an incorrect conclusion drawn by law-enforcement officials as to the cause of Lynn's development of gangrene, the fact remains that she did develop the condition as a result of Sale's conduct toward her.
A review of the substance of the news reports related to Lynn's injuries and death and Sale's arrest and the subsequent proceedings against him show that those reports were essentially factual and objective rather than accusatory, inflammatory, or sensational. Thus, Sale has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those "extreme situations" that warrant a presumption of prejudice from pretrial publicity.
IV.
Because Sale has been sentenced to death, this Court must review the underlying proceedings for plain error. Rule 45A, Ala. R.App. P., states:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error *345 or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
As mentioned above, when discussing the application of the plain-error standard of review, this Court has stated:
"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App. 1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim. App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Crim.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."
Hall v. State, 820 So.2d 113, 121-22 (Ala. Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001). Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992).
Our review of the record revealed two errors made during the trial court's charge to the juryone during the guilt phase and the other during the penalty phase that must be addressed.
A.
During the trial court's charge during the guilt phase of Sale's trial, the trial court instructed the jury on the lesser-included offense of felony murder, § 13A-6-2(a)(3), Ala.Code (1975), as follows:
"The lesser-included under capital murder is murder, and these are the elements: A person commits the crime of murder if he or she commits kidnapping in the first or second degree: number one, in the course of the crime; number two, in the furtherance of the crime; or, number three, in the immediate flight from the crime he is committing, he or another participant caused the death of any person.
"To convict, the State must prove beyond a reasonable doubt each of the following elements of murder: number one, that Lynn Michelle Sale is dead; number two, that Michael Lynn Sale caused the death of Lynn Michelle Sale by recklessly depriving her of medical attention when she was in need of it due to sepsis; number three, in committing the acts which caused the death of Lynn Michelle Sale, Michael Lynn Sale acted in the course of and in furtherance of the crime of kidnapping in the first degree, or in immediate flight from it; and, number four, in doing the acts which constituted the commission of kidnapping in the first degree, (a), during the course of which, (b), in furtherance of which, or, (c), in immediate flight from which the death of Lynn Michelle Sale was caused by Michael Lynn Sale."
(R. 953-54; emphasis added.)
The trial court initially correctly stated the law regarding the elements of felony *346 murder, as that offense is defined by § 13A-6-2(a)(3). In instructing the jury that, to find Sale guilty of felony murder, it must find that Sale "recklessly" caused Lynn's death by depriving her of needed medical attention, the trial court not only incorrectly inserted a mens rea element into what must be proven to sustain a conviction for felony murder, but it also appeared to confuse the offense of reckless murder with the offense of manslaughter.
Felony murder does not require the specific intent to kill; it requires only the intent to commit the underlying felony. § 13A-6-2(a)(3), Ala.Code 1975; Heard v. State, 999 So.2d 992 (Ala.2007); and Mitchell v. State, 706 So.2d 787 (Ala.Crim. App.1997).
"The absence of an intent to kill, however, is not necessarily an element of felony murder, as contrasted with the intent to kill, which is an element of capital murder. In other words, a felony-murder conviction does not require proof that the defendant unintentionally killed the victim, only that the defendant intended to commit the underlying felony."
Heard, 999 So.2d at 1005 (emphasis in original).
In setting forth the elements of the lesser-included offense of felony murder, the trial court instructed the jury that, to convict Sale of felony murder, it must find that he recklessly caused Lynn's death, plus kidnapping. Reckless murder is not the same offense as felony murder.
"A person commits the offense of reckless murder if, `[u]nder circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.' § 13A-6-2(a)(2), Ala. Code (1975). A charge on reckless murder is not appropriate where the acts resulting in death are directed toward one or more particular people, as was the case here, rather than toward human life in general. Parker v. State, 587 So.2d 1072 (Ala.Crim.App.1991); McLaughlin v. State, 586 So.2d 267 (Ala. Crim.App.1991); Walker v. State, 523 So.2d 528 (Ala.Crim.App.1988); Ex parte McCormack, 431 So.2d 1340 (Ala. 1983); Northington v. State, 413 So.2d 1169 (Ala.Crim.App.1981), writ quashed, 413 So.2d 1172 (Ala.1982)."
Dunaway v. State, 746 So.2d 1021, 1034-35 (Ala.Crim.App.1998). Because Sale's conduct was directed solely toward Lynn, the lesser-included offense of reckless murder would not apply in this case, and the trial court erred in instructing jurors that, to find Sale guilty of murder, they had to find that he acted recklessly.
If the jury determined that Sale caused Lynn's death because he acted recklessly, then the appropriate offense with which to convict him would have been the lesser-included offense of manslaughter. A person commits manslaughter if he recklessly causes the death of another. § 13A-6-3(a)(1). The trial court did instruct the jury on manslaughter.
We find that the trial court erred in instructing the jury that, to convict Sale of felony murder it had to find that he recklessly caused Lynn's death. In fact, the trial court's instruction on murder appeared to erroneously meld elements of three separate offensesfelony murder, reckless murder, and manslaughter. However, our analysis does not end here.
Rule 45, Ala. R.App. P., provides:
"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission *347 or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
In addition, this court has stated:
"`After finding error, an appellate court may still affirm a conviction on the ground that the error was harmless, if indeed it was.' Guthrie v. State, 616 So.2d 914, 931 (Ala.Crim.App.1993), citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). `The harmless error rule applies in capital cases.' Knotts v. State, 686 So.2d 431, 469 (Ala.Crim.App.1995), opinion after remand, 686 So.2d 484 (Ala.Crim. App.1995), aff'd, 686 So.2d 486 (Ala. 1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 137 L.Ed.2d 706 (1997), citing Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983). `In order for a constitutional error to be deemed harmless under Chapman, the state must prove beyond a reasonable doubt that the error did not contribute to the verdict. In order for the error to be deemed harmless under Rule 45, the state must establish that the error did not injuriously affect the appellant's substantial rights.' Coral v. State, 628 So.2d 954, 973 (Ala. Crim.App.1992), opinion after remand, 628 So.2d 988 (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994). `The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.' Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1997), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999)."
McNabb v. State, 887 So.2d 929, 976-77 (Ala.Crim.App.2001).
Here, the trial court began by instructing the jury on the offense of murder made capital because it occurred during the course of kidnapping in the first or second degree. The court told jurors that if they did not find that Sale intentionally murdered Lynn during a kidnapping, they could not find him guilty of capital murder, but that they could then consider lesser-included offenses. In addition to the instruction, albeit erroneous, on the lesser-included offense of felony murder, the trial court properly instructed the jury on intentional murder, manslaughter, criminally negligent homicide, and, if jurors did not believe Sale was culpable for Lynn's death but was culpable for kidnapping only, kidnapping in the first-degree.
The jury rejected each of the properly stated lesser-included charges to capital murder, which ran the gamut from an intentional killing that did not occur during the commission of a kidnapping to kidnapping alone. Given the range of possibilities the jury had before it, the jury's verdict of capital murder makes clear that it determined that Sale intentionally caused Lynn's death and that her death occurred during the course of a kidnapping in the first degree. Therefore, the court's failure to charge the jury that felony murder does not require the defendant to intend to cause the victim's death during the course of committing a separate felony did not injure Sale's substantial rights. Accordingly, the error was harmless. See, e.g., Lewis v. State, 889 So.2d 623, 688 (Ala. Crim.App.2003) (any error in charges as to lesser-included offenses was harmless because the jury was charged on the lesser-included offenses of intentional murder, *348 felony murder, and manslaughter, and the jury found Lewis guilty of the greater capital offenses); Baker v. State, 906 So.2d 210 (Ala.Crim.App.2001) (the trial court's failure to charge the jury on reckless murder and felony murder was, at most, harmless error, where the jury was charged on capital murder, intentional murder, reckless manslaughter, and heat-of-passion manslaughter, and the jury found the defendant guilty of capital murder), rev'd on other grounds, 906 So.2d 277 (Ala.2004); Smith v. State, 756 So.2d 892 (Ala.Crim. App.1997), aff'd, 756 So.2d 957 (Ala.2000) (the trial court's failure to charge the jury on reckless manslaughter was not error, but, even if it was, it was harmless error, where the jury was charged on capital murder, intentional murder, and robbery, and the jury found the defendant guilty of capital murder); and Brown v. State, 623 So.2d 416 (Ala.Crim.App.1993) (the trial court's failure to charge the jury on lesser-included offenses was, at most, harmless error, where the jury was charged on capital murder and felony murder and the jury found the defendant guilty of capital murder).
B.
The trial court also gave an erroneous charge during the penalty phase of the trial. During the course of its instructions regarding the requirement that jurors weigh the aggravating circumstances that were proven against the mitigating circumstances when determining whether to recommend the death sentence or a sentence of life in prison without the possibility of parole, the trial court stated:
"The law also provides which of these two punishments [death or life imprisonment without the possibility of parole] should be imposed upon the defendant depends on whether any aggravating circumstance or circumstances exist, and, if so, whether these aggravating circumstance or circumstances outweigh the mitigating circumstances.
"However, if after a full and fair consideration of all the evidence in the case, you determine that the mitigating circumstances outweigh any aggravating circumstance that exists, your verdict would be punishment for life imprisonment without parole."
(R. 1113-14.)
This instruction improperly states that the jury had to find that the mitigating circumstances had to outweigh the aggravating circumstances before it could return a verdict recommending a sentence of life in prison without the possibility of parole. It does not provide any guidance to jurors regarding what the verdict should be if they find that the mitigating circumstances and the aggravating circumstances are of equal weight.
Sale did not object to these instructions, and on appeal, he does not contend that the instructions as set forth above constituted error. Therefore, we review these instructions for plain error, that is, an error that "`"seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."'" Ex parte Davis, 718 So.2d 1166, 1174 (Ala.1998), quoting Kuenzel v. State, 577 So.2d 474, 489 (Ala.Crim.App.1990), quoting in turn United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.1986).
Alabama's death-penalty statutory scheme provides that "[i]f the jury determines that one or more aggravating circumstances as defined by Section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole." § 13A-5-46(e)(2), Ala. Code 1975 (emphasis added). By providing that if the aggravating circumstances *349 do not outweigh the mitigating circumstances, the statute encompasses those situations in which the jury determines that the aggravating circumstances and the mitigating circumstances are equally balanced.
The trial court's instruction to the jury in this case, however, stated only that a verdict recommending a punishment of life imprisonment without the possibility of parole would be appropriate if the mitigating circumstances outweighed the aggravating circumstances. The instructions did not provide the jury with any guidance as to the proper verdict if it found that the aggravating circumstances and the mitigating circumstances were equally balanced.
The Alabama Supreme Court addressed this issue in Ex parte McNabb, 887 So.2d 998 (Ala.2004). In that case, the trial court instructed the jury as follows during the sentencing phase of the trial:
"[I]f, after a full and fair consideration of all of the evidence in the case, you are convinced beyond a reasonable doubt that at least one aggravating circumstance does exist and you are convinced that the aggravating circumstance outweighs the mitigating circumstances, then your verdict would be: `We, the jury, recommend that the defendant be punished by death, and the vote is as follows ...." However, if after a full and fair consideration of all of the evidence in this case, you determine that the mitigating circumstances outweigh any aggravating circumstance or circumstances that exist, or you are not convinced beyond a reasonable doubt that at least one aggravating circumstance does exist, your verdict should be to recommend the punishment of life imprisonment without parole...."'
McNabb, 887 So.2d at 1001. Thus, just as in this case, the language used in instructing the jury in McNabb did not specifically instruct the jury on what to do if the aggravating circumstances and mitigating circumstances were in balance.
The Alabama Supreme Court held that although the trial court did not instruct the jury as to what to do when the mitigating circumstances and the aggravating circumstances were in balance, "the jury [in McNabb] was not invited to recommend a sentence of death without finding any aggravating circumstance." Id. at 1004. The Supreme Court then held that, in considering the jury charge in its entirety, it could not conclude that "the error `seriously affect[ed] the fairness, integrity or public reputation of [these] judicial proceedings,' Ex parte Davis, 718 So.2d at 1173-74, so as to require a reversal of the sentence." McNabb, 887 So.2d at 1004.
After reviewing the trial court's charge to the jury during the penalty phase in this case, we likewise cannot conclude that the trial court's failure to instruct the jury as to what to do if the aggravating circumstances and the mitigating circumstances were equally balanced seriously affected the fairness, integrity or public reputation of this trial. When charging the jury regarding mitigating circumstances and the weight to be given to them, the court should reiterate that the aggravating circumstances must outweigh the mitigating circumstances in order for a juror to vote to return a verdict recommending death, and that if the aggravating circumstances do not outweigh the mitigating circumstances, which would encompass a situation in which the weight of the aggravating circumstances are equal to the weight of the mitigating circumstances, then a vote recommending life without parole would result. This would make clear to the jury that, in those instances when the mitigating circumstances and the aggravating circumstances are *350 equally balanced, a verdict recommending the death penalty would not be appropriate.
We have searched the record for any error that may have adversely affected Sale's substantial rights and have found none. Therefore, we find no basis for reversal under the plain-error standard of review as to either the guilt or penalty phases of Sale's trial. See Rule 45A, Ala. R.App. P.
V.
Pursuant to § 13A-5-53, Ala.Code 1975, we are required to address the propriety of Sale's conviction and sentence of death. Section 13A-5-53, Ala.Code 1975, requires that we review the propriety of Sale's death sentence to determine whether any error adversely affecting his rights occurred in the sentence proceedings; whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and whether death is the appropriate sentence in the case. In determining whether death is the proper sentence, we must determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether an independent weighing by this Court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
After evidence was presented to the jury during the penalty phase of Sale's trial, the jury unanimously voted to recommend that Sale be sentenced to death. The jury returned a special verdict form indicating that the jurors had unanimously found the existence of three aggravating circumstances: (1) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses; (2) that the capital offense was committed by Sale under a sentence of imprisonment; and (3) Sale intentionally killed Lynn during a kidnapping in the first degree.
Pursuant to § 13A-5-47, Ala.Code 1975, the trial court held a subsequent sentencing hearing to aid it in determining whether it would sentence Sale to death or to life imprisonment. In its sentencing order, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala.Code 1975, and any nonstatutory mitigating circumstance found to exist under § 13A-5-52, Ala.Code 1975, as well as written findings of fact summarizing the offense and Sale's participation in it.
In its findings, the trial court found the existence of the following statutory aggravating circumstances: (1) that Sale intentionally killed Lynn during a kidnapping in the first degree; (2) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses; and (3) that the capital offense was committed by Sale while he was under a sentence of imprisonment.
The trial court found that no statutory mitigating circumstances existed in this case. It did, however, find a number of nonstatutory mitigating circumstances, including the following:
(1) Sale's father left the family when Sale was young.
(2) Sale was emotionally traumatized by his father's departure.
(3) Because Sale's father left the family, his mother had to take on a full-time job and cease being a full-time homemaker.
*351 (4) Sale's mother's work outside the home "deprived Michael Sale and his brothers and sisters of their mother's nurture." (CR. 360.)
(5) Sale's father rejected his attempt to re-establish an emotional bond.
(6) Sale was in special-education classes when he was in school.
(7) Sale has borderline intellectual function.
(8) Sale's first step-father was an alcoholic.
(9) Sale was traumatized by the death of his brother.
(10) Sale never received grief counseling over the death of his brother.
(11) Sale had had a long-term marriage.
(12) Sale helped to rear and support two sons.
(13) Sale ran two successful businesses.
(14) Sale made a good impression on customers.
(15) Sale became dependent upon methamphetamine.
(16) Sale attempted to give Lynn food and liquids when she needed during her final days at home.
(17) Sale gave up the right to be silent when questioned by law enforcement.
(18) Sale behaved appropriately during the trial.
(19) Society would be adequately protected by Sale's serving a sentence of life imprisonment without the possibility of parole.
(20) Sale is a human being.
(21) Any other circumstances arising from the evidence.
The trial court's sentencing order reflects that after considering the jury's advisory verdict, and after weighing the aggravating circumstances against the mitigating circumstances, the trial court found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial court sentenced Sale to death.
Sale was convicted of murder made capital because it occurred during the course of a kidnapping, a violation of § 13A-5-40(a)(1), Ala.Code 1975. He abused his wife, Lynn, and kept her sequestered for about a month, causing her physical condition to deteriorate so completely that she was near death when she was taken to the hospital on May 3, 2004. When she was admitted to the hospital, Lynn was in renal failure and respiratory failure. She died at the hospital about two weeks later, on May 17.
Evidence showed that as a combination of injuries Lynn received from Sale and the filthy conditions in which he kept her, Lynn developed the blood infection sepsis, which, in turn, caused her to develop gangrene in her extremities and her nose. As her condition deteriorated, Sale continued to administer beatings, as evidenced by the fresh bruises, cuts, bite marks and the broken rib Lynn had when she was brought to the hospital. Medical tests showed that, in addition to the beatings Sale had inflicted on Lynn while Sale was holding her captive, she had suffered strokes and a heart attack.
Despite Lynn's poor condition, Sale did not seek medical help for her until it was apparent she would not live. Rather than help Lynn, Sale instructed his son to keep a diary of her deteriorating condition. Sale's brutal treatment of Lynn was meant to punish her because she had had him prosecuted for abuse in the past and, while he was incarcerated, Sales had lost money and his flooring business had taken a downturn.
The record does not reflect that the sentence of death was imposed as the result of the influence of passion, prejudice, *352 or any other arbitrary factor. See § 13A-5-53(b)(1), Ala.Code 1975. Furthermore, after weighing independently the aggravating circumstances and the mitigating circumstances, this Court finds that the aggravating circumstances outweigh the mitigating circumstance, and we are convinced that death was the appropriate punishment in this case.
As required by § 13A-5-53(b)(3), Ala. Code 1975, we must determine whether Sale's sentence was disproportionate or excessive when compared to the penalty imposed in similar cases. Sale committed the murder of his wife during the course of a kidnapping. His sentence was not disproportionate or excessive when compared to penalties imposed in similar cases. See Lewis v. State, [Ms. CR-03-0480, November 2, 2007] ___ So.3d ___, ___ (Ala. Crim.App.2007); Eatmon v. State, 992 So.2d 64 (Ala.Crim.App.2007); Flowers v. State, 922 So.2d 938 (Ala.Crim.App.2005); Eggers v. State, 914 So.2d 883 (Ala.Crim. App.2004); Ziegler v. State, 886 So.2d 127 (Ala.Crim.App.2003); Smith v. State, 838 So.2d 413 (Ala.Crim.App.2002); Ex parte Broadnax, 825 So.2d 233 (Ala.2001); Ex parte Grayson, 824 So.2d 844 (Ala.2001); Smith v. State, 797 So.2d 503 (Ala.Crim. App.2000); and Ingram v. State, 779 So.2d 1225 (Ala.Crim.App.1999).
For the reasons set forth above, Sale's conviction and sentence of death by lethal injection are affirmed.
AFFIRMED.
BASCHAB, P.J., and McMILLAN and WISE, JJ., concur.
SHAW, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602714/ | 577 So.2d 669 (1991)
K.C., a Juvenile, B.C. and R.C., Appellants,
v.
A.P., a Minor Child, by and through His Parents and Natural Guardians, et al., Appellees.
Nos. 89-2428, 89-2444.
District Court of Appeal of Florida, Third District.
April 2, 1991.
Rehearing Denied April 26, 1991.
*670 Walton, Lantaff, Schroeder & Carson and Robert L. Teitler, Miami, for appellants B.C. and R.C.
Ruiz & Chesrow and George W. Chesrow, Coral Gables, for appellant K.C.
Daniels & Hicks and Robert S. Glazier, Miami, for appellees.
Before BASKIN, JORGENSON and GODERICH, JJ.
PER CURIAM.
The defendants, R.C., B.C. [hereinafter collectively referred to as K.C.'s parents] and K.C. appeal from an adverse final judgment entered pursuant to a jury verdict. We reverse in part, affirm in part, and remand for further proceedings.
The plaintiffs, A.P., a minor, and his parents brought an action against K.C.'s parents and K.C., a minor, based upon the alleged sexual abuse committed by K.C. upon A.P. The complaint stated a cause of action against K.C. for negligence and against K.C.'s parents for negligent supervision.
The testimony at trial revealed that A.P. informed his father that K.C. was sexually abusing him. A.P.'s father immediately confronted K.C.'s father regarding the allegation. Upon becoming aware of what was happening, K.C.'s father confronted his son with the allegations. It was then that K.C. told his father that he had been sexually abused by an older boy when he was a young child.
Dr. Raymond C. Armstrong, A.P.'s examining psychologist, testified that neither K.C.'s parents nor A.P.'s parents could have anticipated the specific abusive acts which occurred. Additionally, Dr. Eli H. Neuberger, testified that K.C.'s parents could not have predicted that their minor child was sexually abusing another child unless they knew that their child was sexually abused as a young boy.[1] Dr. Warren Slanger, K.C.'s court-appointed psychiatrist, testified that it is common for children who engage in sexual encounters to keep such acts a secret.
There was evidence presented that past medical expenses were approximately $4,000.00. Additionally, there was evidence as to A.P.'s future medical expenses. Dr. Slanger testified that future medical expenses would range from $49,000.00 to $51,000.00. Mr. Thomas Norris, A.P.'s psychologist, testified that future medical care for A.P. would be "somewhere in the 20 thousands." The plaintiffs' interrogatories stated that they expected future medical expenses would be $25,000.00.
The jury found in favor of the plaintiffs and awarded A.P. $250,000.00 in non-economic damages and A.P.'s parents $150,000.00 for past and future medical expenses.[2] The defendants filed several post trial motions which were not heard by the trial judge because he retired. The successor judge denied the motions because as the successor judge she could not properly rule on the merits of said motions. The defendants also filed a motion to reduce the judgment due to collateral source payments, however, the successor judge has not ruled on this motion.
K.C.'s parents contend that the trial court erred in failing to enter a directed verdict in their favor on the negligent supervision count. We agree.
*671 "[A] parent is not liable for the tort of his minor child because of the mere fact of his paternity." Gissen v. Goodwill, 80 So.2d 701, 703 (Fla. 1955). There are, however, four exceptions:
(1) where the parent entrusts the child with an instrumentality which, because of the child's lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.
Snow v. Nelson, 475 So.2d 225, 226 (Fla. 1985); see also Gissen, 80 So.2d at 703.
The "exception" at issue in the present case is number four. For a parent to be liable under this exception, the parent has to know or should know "that the child had a habit of engaging in [the] particular act or course of conduct which led to the plaintiff's injury." Snow, 475 So.2d at 226 (emphasis added). In the instant case, there was absolutely no evidence which indicated that K.C.'s parents knew that K.C. was sexually abusing A.P. Therefore, the next inquiry becomes whether K.C.'s parents should have known that K.C. had a habit of engaging in the "particular" type of conduct which led to A.P.'s injury.
As stated earlier, Dr. Neuberger testified that K.C.'s parents could not have predicted that K.C. was sexually abusing another child unless they also knew that K.C. was sexually abused as a child. There was no evidence which indicated that K.C.'s parents knew that K.C. had been sexually abused as a young boy. Moreover, Dr. Armstrong testified that K.C.'s parents could not have anticipated that their minor child was sexually abusing another child. Since there was no evidence presented to demonstrate that K.C.'s parents should have known that K.C. was sexually abusing another child, we hold that the trial court erred in failing to enter a directed verdict in K.C.'s parents' favor.
K.C. contends that the trial court erred in entering final judgment in favor of A.P.'s parents for $150,000.00 in damages for past and future medical expenses.[3] We agree.
A jury "verdict should not be disturbed on the ground of excessiveness unless it is manifestly so excessive as to shock the judicial conscience, or unless it is so excessive as to be indicative of prejudice, passion or corruption on the part of the jury, or unless it clearly appears that the jury ignored the evidence... ." Lassitter v. International Union of Operating Eng'rs, 349 So.2d 622, 627 (Fla. 1976) (citing Odoms v. Travelers Ins. Co., 339 So.2d 196 (Fla. 1976)); see also Lincoln v. Miggins, 249 So.2d 88 (Fla. 3d DCA 1971).
The evidence presented at trial as to past and future medical expenses indicate that past medical expenses were approximately $4,000.00 and that future medical expenses would not exceed $51,000.00. In view of the evidence presented, the award of $150,000.00 is clearly excessive. Therefore, the award of $150,000.00 for past and future medical expenses is vacated and remanded for a remittitur to $55,000.00. See Gup v. Cook, 549 So.2d 1081 (Fla. 1st DCA 1989).
Next, K.C. contends that the trial court erred in entering an order which reflects that K.C. is liable to both A.P. and A.P.'s parents for $400,000.00. We agree. The jury awarded $250,000.00 to A.P. for non-economic damages and awarded $150,000.00 to A.P.'s parents for past and future medical expenses. The final judgment is to be amended to reflect that K.C. is liable to A.P. in the amount of $250,000.00 and liable to A.P.'s parents in the amount of $55,000.00.[4]
Finally, K.C. contends that this cause should be remanded to the trial court for an evidentiary hearing on his motion to *672 reduce the judgment due to collateral source payments. On the other hand, the plaintiffs contend that K.C. abandoned this motion since he filed his notice of appeal prior to obtaining a ruling on the motion. We find that the motion was not abandoned and remand to the trial court for an evidentiary hearing.
In the instant case, K.C. filed several post-trial motions including a motion to reduce the judgment due to collateral source payments, a motion for new trial, and a motion for judgment in accordance with prior motion for directed verdict. In doing so, K.C. specifically requested that the successor judge not rule on the motion for new trial and the motion for judgment in accordance with prior motion for directed verdict until the trial court had an opportunity to rule on the motion to reduce the judgment due to collateral source payments. However, on September 15, 1989, the successor judge ruled on the other motions without ruling on the motion to reduce the judgment due to collateral sources. Fearing that the time to file a timely appeal would expire, K.C. filed his notice of appeal without obtaining a ruling on his motion to reduce the judgment due to collateral sources.[5] On December 15, 1989, the trial court heard K.C.'s motion to reduce the judgment due to collateral sources. At the hearing, the successor judge stated that the trial court no longer had jurisdiction over the matter since the notice of appeal had already been filed and agreed that the motion was preserved during the pendency of this appeal.
Under the circumstances, K.C. did not abandon his motion to reduce the judgment due to collateral sources. A notice of appeal must be filed within thirty days of the rendition of the final order to be reviewed. Fla.R.App.P. 9.110(b). An order is rendered when a signed written order is filed with the clerk of the lower tribunal. Fla.R. App.P. 9.020(g). However, Rule 9.020(g) also provides that the timely filing of certain motions will postpone the date of rendition until the motion has been disposed of.[6] A motion to reduce the judgment due to collateral source payments is not one of the specific motions listed, and therefore, in the instant case, the time for filing the notice of appeal commenced upon the disposition of the motion for new trial and the motion for judgment in accordance with prior motion for directed verdict.[7] Unfortunately, the defendants were not able to schedule a hearing on the motion until after the time to file a timely notice of appeal would have expired. Under the facts of this case, the defendants failure in obtaining a ruling on his motion to reduce the judgment due to the collateral source payments was beyond his control, and therefore he will not be penalized. Accordingly, this matter is remanded to the trial court for an evidentiary hearing.
Reversed in part, affirmed in part, and remanded for further proceedings.
NOTES
[1] K.C.'s parents testified that they did not know that their son had been sexually abused as a young boy.
[2] The parties stipulated that if the jury found in favor of A.P., past and future medical expenses would be awarded to A.P.'s parents. Any award to A.P. was limited to non-economic damages.
[3] This issue was also raised by K.C.'s parents, however, in light of our disposition on the prior issue, we do not need to address their remaining points raised on appeal.
[4] K.C.'s liability to A.P.'s parents is $55,000.00, instead of $150,000.00, as a result of the remittitur.
[5] K.C. filed his notice of appeal on October 13, 1989.
[6] Rule 9.020(g) provides as follows:
(g) Rendition (of an Order). The filing of a signed written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, certification, to alter or amend, for judgment in accordance with prior motion for directed verdict, notwithstanding the verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.
[7] "Motions which postpone the date of rendition have been narrowly limited to prevent deliberate delaying tactics. To postpone rendition the motion must be timely, authorized and one of those listed." Committee Notes to Rule 9.020, Florida Rules of Appellate Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602783/ | 786 N.W.2d 269 (2010)
STATE
v.
WILLIAMS.
No. 09-1141.
Court of Appeals of Iowa.
May 12, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602720/ | 418 F.Supp. 1212 (1976)
JUDICE'S SUNSHINE PONTIAC, INC., a corporation of the State of Delaware, and P. John Judice, Plaintiffs,
v.
GENERAL MOTORS CORPORATION, a corporation of the State of Delaware, and General Motors Acceptance Corporation, a corporation of the State of Delaware, Defendants.
Civ. A. No. 75-1155.
United States District Court, D. New Jersey.
July 14, 1976.
*1213 *1214 Pickett & Jennings, by Robert T. Pickett, Newark, N. J., David Berger, P. A., Philadelphia, Pa., of counsel; by David Berger, Warren D. Mulloy, Stanley R. Wolfe, Warren Rubin, Philadelphia, Pa., for plaintiffs.
Carpenter, Bennett & Morrisey, by Thomas L. Morrisey, Newark, N. J., Frazer F. Hilder, Michael J. Basford, Detroit, Mich., Michael S. Waters, John F. Lynch, Jr., Newark, N. J., on the brief, for defendant General Motors Corp.
Morley, Cramer, Tansey & Haggerty, by Carroll A. Morley, Woodbridge, N. J., for defendant General Motors Acceptance Corp.
FINDINGS OF FACT and CONCLUSIONS OF LAW
BROTMAN, District Judge.
Presently before the court is a motion for a preliminary injunction. This application arises in the context of an action by the plaintiffs, Judice's Sunshine Pontiac, Inc. (hereinafter "Sunshine Pontiac") and P. John Judice (hereinafter "Judice") against the defendants, General Motors Corporation (hereinafter "General Motors") and General Motors Acceptance Corporation (hereinafter "GMAC"). The Amended Complaint alleges causes of action under the Sherman Act, Section 1, 15 U.S.C. § 1,[1] the Robinson-Patman Act, 15 U.S.C. § 13,[2] the Automobile *1215 Dealers' Day-in-Court Act, 15 U.S.C. § 1222,[3] the New Jersey Antitrust Act, N.J. S.A. 56:9-3[4] and the common law. Plaintiffs seek treble damages,[5] costs and a reasonable attorney's fee under the federal and state antitrust laws.[6] Declaratory and injunctive relief is also sought.
Fundamentally this is an antitrust action alleging an unlawful conspiracy and combination to restrain trade between General Motors, GMAC and other co-conspirators.[7] Plaintiffs maintain that the overall intent and purpose of the conspiracy and combination was and is to: destroy Judice as a competitor of dealerships owned by General Motors and its co-conspirators; allocate geographic markets among General Motors and its co-conspirators; prevent price competition; and discourage minority group members, such as Judice, from seeking to obtain dealerships and from competing with existing dealers.[8]
No application to enjoin preliminarily the alleged illegal antitrust activities of General Motors is before the court. Rather, plaintiffs' application addresses itself primarily to certain procedural questions: namely, should this litigation continue and if so in whose control and at whose expense? Also involved is Judice's continued status as President of Sunshine Pontiac and as a member of its Board of Directors. Finally the application seeks to clarify the nature of Judice's continuing relationship with General Motors. Specifically plaintiffs' motion seeks to restrain General Motors and the Board of Directors from taking action to:
a. Remove plaintiff P. John Judice from the Board of Directors and as President and chief operating officer [of Sunshine Pontiac];
b. Interfere with the prosecution of this action including representation by existing counsel;
c. Refuse to pay the costs, including counsel fees, in connection with this litigation;
d. Override any decision made by plaintiff, P. John Judice, where said decision directly involves plaintiffs' relationship with General Motors.[9]
Affidavits have been filed in support of and in opposition to the application. Pursuant to Fed.R.Civ.P. 52(a) the court makes the following Findings of Fact and Conclusions of Law:
*1216 FINDINGS OF FACT
1. In the Spring of 1974 Judice expressed an interest in purchasing the dealership assets of Crest Pontiac, Inc., Oaklyn, New Jersey, which were then available for sale. Since Judice did not have sufficient capital to finance the dealership, he contacted Motors Holding Division, General Motors (hereinafter "Motors Holding"), which provides capital financing to prospective dealers who do not otherwise have access to the capital necessary to begin a dealership. Early in July a proposal was put together by Judice and the Zone Manager, Philadelphia Zone, Pontiac Motor Division, whereby Judice would form a dealership corporation to replace Crest Pontiac. This proposal was forwarded to the Pontiac Central Office in Michigan on July 18, 1974. Judice's Sunshine Pontiac, Inc. was incorporated as a Delaware corporation on August 19, 1974. On August 26, 1974 the proposal was tentatively approved by Pontiac Motor Division, subject to an investigation by Motors Holding. Subsequently Judice was notified of Motors Holding's approval. On September 19, 1974 a Pontiac Dealer Sale and Service Agreement was entered into between Sunshine Pontiac and Pontiac Motor Division. Sunshine Pontiac is located at 1200 White Horse Pike, Oaklyn, New Jersey.[10]
2. Judice is President, chief operating officer and a member of the Board of Directors of Sunshine Pontiac. As President of Sunshine Pontiac Judice is charged with the responsibility of running the day-to-day operations of the dealership.
3. When General Motors invests capital in dealerships its investment is channeled through the Motors Holding Dealer Investment Plan. The basic scheme of the Plan is that the dealer will invest all his available commercial investment funds, run the day-to-day operation of the dealership and buy out General Motors within a reasonable period of time, thus assuming sole ownership of the dealership.
4. Motors Holding invested $120,000 in Sunshine Pontiac. This investment consisted of $60,000 in Class A voting shares and $60,000 in a loan taking an unsecured promissory note bearing 6% simple interest. Judice invested $40,000 in Class B non-voting shares. This investment consisted of $7,000 of Judice's personal funds and $33,000 borrowed from Progress Venture Capital Corporation, an investment corporation organized to assist minority persons, such as Judice, a Puerto Rican, in business ventures.[11]
5. By virtue of its exclusive control of the Class A voting stock, General Motors has selected the Board of Directors of Sunshine Pontiac. The members of the Board are W. S. Gonne, Branch Manager, Motors Holding, D. J. Ritter, Regional Manager, Motors Holding, and Judice.
6. Through its complete ownership of Sunshine Pontiac's voting stock and its effective control over the Board of Directors, General Motors seeks to and does in fact secure and preserve its substantial investment in Sunshine Pontiac.
7. Pursuant to the Motors Holding Dealer Investment Plan an Option Agreement was entered into between Judice and General *1217 Motors on September 18, 1974. Judice retains the right under the Option Agreement to purchase all the Class A voting stock owned by General Motors out of stock dividends and bonuses received from Sunshine Pontiac.[12]
8. Judice, acting individually and on behalf of Sunshine Pontiac, commenced this action and engaged counsel to represent him and Sunshine Pontiac. Such action was taken without notice to or consent by Gonne and Ritter, General Motors' representatives on the Board of Directors of Sunshine Pontiac.[13]
9. Plaintiffs' original complaint was filed on June 30, 1975 by the law firm of Pickett and Jennings, Newark, New Jersey. An Amended Complaint was filed by David Berger, P. A., Philadelphia, Pennsylvania, and Pickett and Jennings on September 19, 1975. David Berger, P. A., carries the major responsibility for the litigation of plaintiffs' claims.
10. Prior to the filing of the Amended Complaint a Fee Agreement was entered into between David Berger, P. A., and Judice, individually and on behalf of Sunshine Pontiac, on September 2, 1975. A copy of the Fee Agreement has been supplied to the court, but not to opposing counsel.[14]
11. On October 24, 1975 Gonne delivered to Judice Notice of a Special Meeting of the Board of Directors to be held on October 29, 1975. The purpose of this meeting was to review and act with respect to the filing of this lawsuit, the retention of counsel to prosecute the lawsuit and the disbursement of Sunshine Pontiac's funds, to counsel or otherwise, in connection with the litigation.
12. Judice requested a postponement of the Special Meeting, which was refused. He then moved before the court on October 28, 1975 for a temporary restraining order. The court did not issue such an order. However, it did set the matter down for a hearing on Judice's application for a preliminary injunction, which hearing was held on November 25, 1975. Pending the decision of the court on the instant application, General Motors has held the calling of the Special Meeting in abeyance.
13. If the Special Meeting is held, Gonne and Ritter would vote to terminate the lawsuit on behalf of Sunshine Pontiac, to remove David Berger, P. A., as counsel for Sunshine Pontiac and to refuse to disburse any corporate funds in connection with the prosecution of the lawsuit.
14. Although Article VIII of the Option Agreement provides that General Motors may use its absolute voting power to remove Judice as President and as a director of Sunshine Pontiac, General Motors, through its General Manager, Motors Holding, has represented that it has no present intention to remove Judice.[15]
15. With respect to the present financial condition of Sunshine Pontiac, the court makes no Finding of Fact.[16]
*1218 CONCLUSIONS OF LAW
Several factors may be considered on an application for a preliminary injunction: first, whether the moving party has made a strong showing that it is likely to prevail on the merits of the controversy; second, whether the movant has demonstrated that it would be irreparably harmed if preliminary injunctive relief is not granted; third, whether the grant of a preliminary injunction would substantially harm other parties interested in the controversy; and fourth, whether the public interest would be served by the granting of a preliminary injunction. A. O. Smith Corp. v. F. T. C., 530 F.2d 515, 525 (3rd Cir. 1976); Winkleman v. New York Stock Exchange, 445 F.2d 786, 789 (3rd Cir. 1971); Ammond v. McGahn, 532 F.2d 325, 329 (3rd Cir. 1976); Wuillamey v. Werblin, 364 F.Supp. 237, 241 (D.N.J.1973); Helmsley v. Borough of Fort Lee, 362 F.Supp. 581, 587 (D.N.J. 1973).
It cannot be gainsaid that private enforcement of the antitrust laws is deemed to be in the public interest. Milsen Co. v. Southland Corp., 454 F.2d 363, 366 (7th Cir. 1971); see Hawaii v. Standard Oil Co., 405 U.S. 251, 262, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972); Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1346 (3rd Cir. 1975). Plaintiff's concern to maintain his dealership pendente lite warrants judicial recognition. Cf. Milsen Co., supra at 367. Underlying the application for a preliminary injunction are these legitimate public concerns. Notwithstanding the substantial public interest in private enforcement of the antitrust laws, the central question remains: will Judice suffer irreparable harm if General Motors is not preliminarily restrained?
The moving party bears the burden of demonstrating irreparable harm. A. O. Smith Corp., supra; Joseph Bancroft & Sons Co. v. Shelley Knitting Mills, 268 F.2d 569, 574 (3rd Cir. 1959). It is an ". . . elementary principle that a preliminary injunction shall not issue except upon a showing of irreparable injury." A. O. Smith Corp., supra quoting National Land & Investment Co. v. Specter, 428 F.2d 91, 97 (3rd Cir. 1970). Because the moving party carries such a heavy burden, it is proper to deny relief solely upon a finding that irreparable harm has not been demonstrated. Oburn v. Shapp, 521 F.2d 142, 151 (3rd Cir. 1975), citing Commonwealth of Pennsylvania ex rel. Creamer v. United States Dept. of Agriculture, 469 F.2d 1387, 1388 (3rd Cir. 1972); see Skehan v. Board of Trustees of Bloomsburg State College, 353 F.Supp. 542, 543 (M.D.Pa.1973). Irreparable injury is "substantial injury to a material degree coupled with the inadequacy of money damages." Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 850 (D.N.J.1972); accord, Scott v. Multi-Amp Corp., 386 F.Supp. 44, 57 n. 14 (D.N.J.1974).
Judice seeks in part (a) of the application to restrain General Motors from removing him from the Board of Directors and as President and chief operating officer of Sunshine Pontiac. William Harvey, III, General Manager of Motors Holding, which controls the entire voting stock of Sunshine Pontiac, has made the following representation:
Motors Holding has no present plans to vote its shares or take any other action to remove Mr. Judice as a director or President of Judice's Sunshine Pontiac, Inc. (Affidavit, para. 14).[17]
The Harvey Affidavit stands uncontradicted. Manifestly Judice has made "no clear showing of immediate irreparable injury" such as would warrant the exercise of "the delicate power of injunctive relief." Ammond v. McGahn, supra.[18]
*1219 The threatened harm which plaintiffs[19] seek to restrain in parts (b) and (c) of the application is General Motors' interference in this litigation. Specifically Judice fears that General Motors will use its influence in and control over Sunshine Pontiac to terminate David Berger, P.A., as plaintiffs' counsel and the continued payment by Sunshine Pontiac of costs, including counsel fees. The probability that General Motors will take the threatened action and act to remove Sunshine Pontiac as a party plaintiff is great.[20] Indeed the central focus of General Motors vigorous opposition to plaintiffs' application is the argument that Judice acted in a patently illegal manner when he committed the resources of Sunshine Pontiac to this lawsuit without authorization by its Board of Directors.[21] Notwithstanding the high probability that General Motors will take the threatened action the question remains whether the termination of Sunshine Pontiac as a party plaintiff would constitute irreparable harm.[22] Necessarily involved in the resolution of this issue is Judice's ability to maintain this litigation himself or in a derivative action, since if he is able to do so he will suffer no irreparable harm.
Generally a stockholder of a corporation lacks standing to proceed individually, in his own right, for injuries suffered by the corporation resulting from antitrust violations. Pitchford v. Pepi, Inc., 531 F.2d 92, 96-98 (3rd Cir. 1975), cert. denied, ___ U.S. ___, 96 S.Ct. 2649, 49 L.Ed.2d 387 (1976). Deaktor v. Fox Grocery Co., 475 F.2d 1112, 1115 (3rd Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 65, 38 L.Ed.2d 86 (1973); Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732 (3rd Cir. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971); Vincel v. White Motor Corp., 521 F.2d 1113, 1119 (2nd Cir. 1975); Schaffer v. Universal Rundle Corp., 397 F.2d 893, 896 (5th Cir. 1968); Korn v. Merrill, 403 F.Supp. 377, 384 (S.D.N.Y.1975); Commercial Credit Development Corp. v. Scottish Inns of America, Inc., 69 F.R.D. 110, 116-17 (E.D. Tenn.1975). But the injured stockholder is not without a remedy, since he may proceed by way of a derivative action. Fanchon & Marco, Inc. v. Paramount Pictures, 202 F.2d 731, 733-35 (2nd Cir. 1953); Pitchford, supra; Kauffman, supra at 734; Schaffer, supra; Korn, supra; Commercial Credit Development Corp., supra; see generally Comment, "Federal Antitrust Law-Stockholders' Remedies for Corporate Injury Resulting from Antitrust Violations: Derivative Antitrust Suit and Fiduciary Duty Action," 59 Mich.L.Rev. 904 (1961); Fletcher, 13 Cyclopedia of the Law of Private Corporations (hereinafter Law of Private Corporations) § 5929.[23] A derivative action is a suit to assert the claim of a corporation against an alleged wrongdoer. Papilsky v. Berndt, 466 F.2d 251, 255 (2nd Cir.), cert. denied, 409 *1220 U.S. 1077, 93 S.Ct. 689, 34 L.Ed.2d 665 (1972); Sweet v. Bermingham, 65 F.R.D. 551, 553-54 (S.D.N.Y.1975); see generally, 13 Law of Private Corporations § 5911; Smith v. Sperling, 354 U.S. 91, 99, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957) (Frankfurter, J., dissenting). Fed.R.Civ.P. 23.1 provides the procedural mechanism whereby a derivative action may be brought in federal court.[24]
In this case the gravamen of the complaint lies in General Motors' attempt to drive Sunshine Pontiac, a corporate entity organized under the laws of the State of Delaware, out of business in violation of the antitrust laws. The cause of action, at least on the antitrust claims, would seem to lie with Sunshine Pontiac. But it is obvious (and indeed understandable) that Gonne and Ritter, the controlling directors, will not assert the corporation's claim against General Motors, their employer. This case seems appropriate for the employment of the derivative remedy. Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 522, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); accord, Fanchon & Marco, Inc., supra at 734; Ross v. Bernhard, 396 U.S. 531, 534, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Kenrich Corp. v. Miller, 377 F.2d 312, 314 (3rd Cir. 1967); Sterling Industries, Inc. v. Ball Bearing Pen Corp., 298 N.Y. 483, 491-92, 84 N.E.2d 790, 793 (1949); Papilsky, supra at 255-56; Motor Terminals v. National Car Co., 92 F.Supp. 155, 162 (D.Del. 1949).[25]
The foregoing discussion suggests that Judice's proper remedy for the alleged antitrust violations lies in a derivative action. However, one court has held that an automobile dealer, who is in the process of gradually acquiring complete ownership of the franchise stock, has an individual antitrust remedy against the automobile manufacturer. Kolb v. Chrysler Corp., 357 F.Supp. 504, 506-07 (E.D.Wis.1973). The Kolb Court stated:
The plaintiff's position in this case is sufficiently different from that of an ordinary stockholder in a corporation for him to maintain this action. The agreement between the parties, which led to this controversy, involved more than just the exchange of money for shares of stock. Among other things, defendants promised plaintiff that he could gradually acquire complete ownership of the franchise by buying more stock with his share of the profits. Since plaintiff was the manager, his reputation, as well as his livelihood, was bound up with the success of the franchise. To hold that antitrust violations which injure the franchise cannot be attacked by the franchisee would subvert the remedial purpose of the antitrust laws.[26]*1221 While it is not unrealistic to view the instant action as one involving P. John Judice and General Motors as the real parties in controversy, particularly since Judice is, in practical effect, Judice's Sunshine Pontiac, Inc., cf. Kavanaugh v. Ford Motor Co., 353 F.2d 710, 716 (7th Cir. 1965),[27]Kolb has neither been approved nor disapproved in this Circuit.
Even assuming arguendo that the Kolb rationale were not accepted, Judice would still be able to proceed individually in this lawsuit. Count III alleges a violation of the Automobile Dealers' Day-in-Court Act, 15 U.S.C. § 1222.[28] Under that Act a dealer, such as Judice, who neither owns voting stock in nor otherwise exercises control over Sunshine Pontiac, has a right to proceed individually in his own action. Rea v. Ford Motor Co., 497 F.2d 577, 584 n. 10 (3rd Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974); Kavanaugh, supra at 716-18; York Chrysler-Plymouth, Inc. v. Chrysler Credit Corp., 447 F.2d 786, 790-91 (10th Cir. 1971); see generally Vincel v. White Motor Corp., supra at 1119-20; but cf. Lewis v. Chrysler Motors Corp., 456 F.2d 605, 606 n. 2 (8th Cir. 1972). Future realignment of this action may thus give rise to a hybrid form of action by Judice, part individual and part derivative.
It is unnecessary, however, to determine whether Judice's proper remedy lies in a derivative or an individual action,[29] since no motion is pending to realign this action, the only matter now under consideration being an application for a preliminary injunction. The nature of the derivative and individual remedies have only been explored to demonstrate that, assuming the Board of Directors of Sunshine Pontiac takes action to terminate Sunshine Pontiac as a party plaintiff, Judice's claims may still be vindicated.
Whether Judice continues this action derivatively or individually, it is plain that he may choose to retain David Berger, *1222 P.A., as his counsel. At bottom this application for injunctive relief concerns itself with whether the defendant must assume plaintiff's litigation costs pendente lite. The mere statement of the proposition is a recognition of its dubious validity. See Sterling Industries, supra 298 N.Y. at 493, 84 N.E.2d at 794. Of salient significance here is the existence of statutory authority which would enable Judice to recover his costs and attorney's fees should be prevail in this litigation. If Judice is successful in prosecuting his federal antitrust claims then he is entitled to recover "three-fold the damages . . . sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. § 15.[30] Treble damages are also recoverable under the New Jersey Antitrust Act, as are reasonable attorney's fees and costs. N.J.S.A. 56:9-12(a).[31]
The termination of this lawsuit by the Board of Directors of Sunshine Pontiac would not and should not mark the end of this litigation, since Judice could proceed derivatively or individually with, it may be added, counsel of his own choice. Quite probably it would become more expensive for Judice to maintain this litigation alone.[32] But if this litigation is allowed to run its normal course, Judice will be made whole as will his counsel, assuming, of course, that he prevails on the merits.[33] It follows, therefore, that Judice has failed to demonstrate irreparable harm. As stated in Virginia Petroleum Jobbers Association v. F. P. C., 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958):
Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
See A. O. Smith, supra; Tully v. Mott Supermarkets, Inc., supra.[34]
*1223 Because the moving party has failed, with respect to parts (a), (b) and (c) of the motion, to demonstrate irreparable harm, the application for a preliminary injunction must be denied. E. g. Oburn, supra. This being so, it is unnecessary to consider whether Judice has demonstrated a likelihood of success on the merits. Ammond v. McGahn, supra.
Lastly part (d) of the application wherein Judice seeks an order restraining General Motors from "[overriding] any decision made by . . . Judice, where said decision directly involves plaintiffs' relationship with General Motors," must be considered. Fed.R.Civ.P. 65(d) is dispositive of this request for relief. Rule 65(d) provides that an order granting an injunction "shall be specific in [its] terms" and "shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." This requirement serves the necessary purpose of affording the party to be restrained notice of the proscribed conduct. Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); United States v. Schiavo, 504 F.2d 1, 8 n. 17 (3rd Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974); see generally 7 Moore's Federal Practice ¶ 65.11. Rule 65(d) is "designed to prevent uncertainty and confusion on the part of those faced with injunctive orders." Schmidt v. Lessard, supra.
The order which Judice seeks is neither specific in its terms nor does it describe in reasonable detail the conduct sought to be restrained. The proposed order is so sweeping in its overbreadth "any decision" made by Judice that it would "place the entire conduct of [Sunshine Pontiac's] business under the jeopardy of punishment for contempt for violating" the injunction. Russell C. House Transfer & Storage Co. v. United States, 189 F.2d 349, 351 (5th Cir. 1951); accord, Sanders v. Air Line Pilots Association, International, 473 F.2d 244, 248 (2nd Cir. 1972). Moreover, the proposed order is so vague in its language "decisions directly [involving] plaintiffs' relationship with General Motors" Hartford-Empire Co. v. United States, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322 (1945), citing Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518 (1905), that it fails to afford General Motors notice as to the conduct to be proscribed. Schmidt v. Lessard, supra.
If Judice can in the future point to specific and unlawful conduct by General Motors which "directly" involves his relationship with General Motors, then it would be appropriate for the court to consider ordering injunctive relief, provided, of course, that the traditional criteria for the granting of such relief are satisfied. But as presently framed by the plaintiff, the court finds itself incapable of fashioning an injunctive order which would satisfy the precise requirements of Rule 65(d).
Plaintiffs' request for a preliminary injunction is denied. Counsel for the defendants shall submit an appropriate order.
NOTES
[1] 15 U.S.C. § 1 provides in pertinent part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . ..
[2] 15 U.S.C. § 13(a) provides:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due investigation and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly in any line of commerce; and the foregoing shall then not be construed to permit differentials based on differences in quantities greater than those so fixed and established: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
[3] 15 U.S.C. § 1222 provides:
An automobile dealer may bring suit against any automobile manufacturer engaged in commerce, in any district court of the United States in the district in which said manufacturer resides, or is found, or has an agent, without respect to the amount in controversy, and shall recover the damages by him sustained and the cost of suit by reason of the failure of said automobile manufacturer from and after August 8, 1956 to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer: Provided, That in any such suit the manufacturer shall not be barred from asserting in defense of any such action the failure of the dealer to act in good faith.
"Automobile manufacturer," "franchise," "automobile dealer," "commerce" and "good faith" are defined at 15 U.S.C. § 1221.
[4] N.J.S.A. 56:9-3 provides:
Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, in this State, shall be unlawful.
[5] Plaintiffs allege actual damages in excess of $2,266,000.00. Additionally, punitive damages of $1,500,000.00 are sought under the New Jersey Antitrust Act.
[6] 15 U.S.C. § 15; N.J.S.A. 56:9-12.
[7] The other alleged co-conspirators include certain persons and corporations operating automobile dealerships under licenses granted by General Motors.
[8] Amended Complaint, para. 16.
[9] The relief sought in parts (a), (c) and (d) of the motion for a preliminary injunction is pleaded in the Amended Complaint.
[10] Judice maintains that William S. Gonne, Branch Manager for Motors Holding, was prejudiced against him and attempted in various ways to frustrate Sunshine Pontiac, both during the application stage and subsequent thereto. Supplementary Affidavit of Judice in Support of Plaintiffs' Motion for a Preliminary Injunction, para. 4. See note 11, infra. Gonne denies these assertions. Supplementary Affidavit of Gonne, paras. 2-4. These allegations and their denials are not germane to the disposition of the essentially procedural questions raised by the pending application. Moreover, such factual disputes cannot be resolved on the basis of affidavits alone. Industrial Electronics Corp. v. Cline, 330 F.2d 480, 483 (3rd Cir. 1964); Eutectic Welding Alloys Corp. v. Zeisel, 11 F.R.D. 78, 79 (D.N.J.1950); 7 Moore's Federal Practice ¶ 65.04[3].
[11] The fact that Judice is Puerto Rican is relevant in this action, because it is alleged that the effect of General Motors' actions will be to discourage minority group members from obtaining dealerships and competing with existing dealerships. Amended Complaint, paras. 19(f), 35(g). Sunshine Pontiac is the first Puerto Rican automobile dealership in New Jersey.
[12] Option Agreement, Art. II(A) requires Judice to "use all dividends received on his stock and at least one-half of any bonus received by him from Dealer Company to purchase shares of Investor's stock."
[13] Salient aspects of the procedural history of this case are highlighted in these Findings of Fact inasmuch as the resolution of the pending application turns upon matters of an essentially procedural nature, relating to the continuing prosecution of this lawsuit by the present plaintiffs, Judice and Sunshine Pontiac.
[14] The Fee Agreement, which has not been filed with the Clerk as a matter of record due to its confidential nature, has been modified to the extent that the payment of the retainer has been accelerated. See letter from David Berger, P. A., to the Court, December 2, 1975.
[15] Affidavit of William Harvey, III, para. 14. See text accompanying note 17, infra.
[16] Judice maintains that Sunshine Pontiac is operating and will continue to operate at a profit. Affidavit of Judice in Support of Motion for a Temporary Restraining Order, para. 11. General Motors contends, however, that Sunshine Pontiac has, as of October 1975, lost over $58,000. Affidavit of Gonne, para. 5; Affidavit of Michael F. O'Farrell, Assistant Zone Manager, Philadelphia Zone, Pontiac Motor Division, para. 2. Because the affidavits are in dispute, the court cannot, without more, resolve this factual issue. See note 10, supra.
[17] See Finding of Fact No. 14, supra.
[18] This extreme reluctance to exercise the remedy of an injunction in the absence of immediate and irreparable harm is highlighted in Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614, 618 (3rd Cir. 1969):
We must protect that which is protectable, but, in so doing, we must limit the use of injunctive relief to situations where it is necessary to prevent immediate and irreparable injury. The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat; it may not be used simply to eliminate a possibility of a remote future injury, or a future invasion of rights, be those rights protected by statute or by the common law.
[19] The terms "plaintiff's" (meaning Judice) and "plaintiffs'" (meaning Judice and Sunshine Pontiac) are, in the context of this litigation, terms of art. The present alignment of the parties dictates the proper use of the term "plaintiffs'" herein.
[20] See Finding of Fact, No. 13, supra.
[21] Defendant General Motors states in its Brief In Opposition to the Plaintiffs' Application for Preliminary Injunction at 1:
In this case the minority shareholder of a corporation, Plaintiff, Judice, is suing the majority shareholder with the majority's funds. The majority has committed those funds to a Board of Directors for management in accordance with the purposes of the corporation. In his present Motion, this minority shareholder is asking the Court to approve and perpetuate his conversion of the corporate assets to his personal purposes.
[22] Because of the court's resolution of the issue of irreparable harm, infra, it is unnecessary to determine whether Judice acted improperly in instituting this litigation on behalf of the corporation, see 8 Del.Code Ann. § 141, or whether the interest of the General Motors' directors would preclude them from voting to terminate the action. See 8 Del.Code Ann. § 144.
[23] Even where the plaintiff is the sole stockholder in a corporation the appropriate remedy is a derivative, rather than an individual, action. Schaffer, supra. See Kreager v. General Electric Co., 497 F.2d 468, 472 (2nd Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974).
[24] Fed.R.Civ.P. 23.1 provides:
In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the United States which it would not otherwise have. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.
[25] If this lawsuit were realigned as a derivative action pursuant to Fed.R.Civ.P. 23.1, Sunshine Pontiac, although the real party in interest, would become a named defendant. Judice, the stockholder, would be the nominal plaintiff. Ross v. Bernhard, supra at 538.
[26] An exception to the general rule favoring derivative actions, see e. g., Pitchford, supra; Deaktor, supra; Kauffman, supra at 732, is recognized where the stockholder alleges the violation of a right owed directly to him. Schaffer, supra; Marcus v. Putnam, 60 F.R.D. 441, 444 (D.Mass.1973); Kolb, supra at 506.
[27] It is evident that in processing Judice's application for a dealership, General Motors treated Judice, not Sunshine Pontiac, as the individual applicant. This is understandable since the independent dealer is of paramount and critical importance to the success of Motors Holding Dealer Investment Plan. The Plan states (Harvey Affidavit, Exhibit A, Investment Plan at 2):
General Motors need outlets for the sale and service of its various consumer products in all markets where those products are salable. In the case of its automotive products, that means practically everywhere. Its policy is to distribute such products through independent merchants, who operate with their own capital and for their own profit. Character, capacity, the willingness to work and ambition to progress, as well as the requisite capital, have long been recognized as essential ingredients in the success of any business. The entire history of enterprise demonstrates the futility of expecting success where any of these prime essentials is lacking to an important degree.
Here an obvious distinction exists between the independent dealer deemed so essential to the sale and distribution of General Motors' automobiles and the corporate dealership which is substantially owned and entirely controlled by General Motors and exists to protect the investment of General Motors. The Dealer Investment Plan calls for Judice to own a steadily increasing percentage and eventually all of the voting stock of Sunshine Pontiac, see note 12, supra, and to have full authority for the operation and management of the dealership. Finally, and perhaps most revealing, the dealership was formed in the name of Judice's Sunshine Pontiac, Inc.
[28] The purpose underlying the Act is "to protect a dealer against coercion and intimidation amounting to a lack of good faith as defined by the Act." R. A. C. Motors, Inc. v. World-Wide Volkswagen Corp., 314 F.Supp. 681, 684 (D.N. J.1970); Rea v. Ford Motor Co., 497 F.2d 577, 583 n. 8 (3rd Cir.), cert. denied 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974). Congress recognized the necessity of "[establishing] a balance of power as between manufacturers and dealers in the automobile industry by curtailing the economic advantages of the larger manufacturers and increasing those of the dealers." Swartz v. Chrysler Motors Corp., 297 F.Supp. 834, 839 (D.N.J.1969), quoting Woodard v. General Motors Corp., 298 F.2d 121, 127 (5th Cir.), cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 (1962).
[29] In certain cases "the same allegations of fact might support either a derivative suit or an individual cause of action . . .." Borak v. J. I. Case Co., 317 F.2d 838, 845 (7th Cir. 1963), aff'd, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); see Scott v. Milti-Amp Corp., supra at 69 n. 30.
[30] The reasonable attorney's fees provision is designed to insure that the successful antitrust plaintiff retain his full trebled damages award, a portion of which would, absent such provision normally go to his attorney. Farmington Dowel Products Co. v. Foster Mfg. Co., 421 F.2d 61, 86 n. 57, 88-89 (1st Cir. 1970). Factors which influence the amount of the award include: time spent by counsel, the nature of the legal questions presented and counsel's skill in treating such questions, the traditional fee for services of a similar nature, counsel's standing and recognition in the Bar and, perhaps most important, the beneficial result obtained. ABA Antitrust Section, Antitrust Law Developments 299 (1975). Similar factors govern the granting of counsel fees in a derivative action. Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974), cert. denied, 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975).
[31] Concerning costs, N.J.S.A. 56:9-12(a) provides: "Reasonable costs of suit may include, but shall not be limited to the expenses of discovery and document reproduction."
[32] Assuming, as Judice maintains, that the discovery process would consume more time and expense if Sunshine Pontiac were placed in a position adverse to him, see note 25, supra, such additional injury, if any, would be compensable, 15 U.S.C. § 15; N.J.S.A. 56:9-12(a), and thus reparable. Virginia Petroleum Jobbers Association v. F. P. C., 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958); A. O. Smith, supra; Tully v. Mott Supermarkets, Inc., supra. Although the discovery process may become more difficult, Fed.R.Civ.P. 37 is available to compel discovery wrongfully withheld.
[33] The right to recover counsel fees and costs is less explicit and certain under the Automobile Dealers' Day-in-Court Act, though to be sure the contingent fee agreement which has been entered into between Judice and counsel makes provision in this regard. In any event, should Judice only prevail under the Automobile Dealers' Day-in-Court Act, he still would be compensated to the extent of the injury suffered.
[34] It is possible that Sunshine Pontiac's termination as a party plaintiff may cause Judice to terminate this litigation due to a lack of funds necessary to maintain the litigation pendente lite. Such harm, though seemingly irreparable, Virginia Petroleum Jobbers, supra, is simply not harm of a legally cognizable nature such as would warrant the interposition of the court's extraordinary equitable power. While the Sixth Amendment of the United States Constitution requires that all criminal defendants be afforded the assistance of counsel, at the expense of the State if necessary, e. g. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the engagement of counsel by a civil litigant in the presently existing legal marketplace is principally dependent upon the litigant's financial capabilities. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602724/ | 418 F.Supp. 1320 (1976)
Anton NOTEY et al., Plaintiffs-Petitioners,
v.
Charles J. HYNES, Individually and as Deputy Attorney General of the State of New York and Director of the Office of the Special State Prosecutor for Health and Social Services, Defendant-Respondent.
No. 76C981.
United States District Court, E. D. New York.
August 27, 1976.
*1321 LaRossa, Shargel & Fischetti, New York City, for plaintiffs-petitioners.
Charles J. Hynes, Deputy Atty. Gen., Hauppauge, N. Y., for defendant-respondent.
OPINION AND ORDER
PLATT, District Judge.
PRELIMINARY STATEMENT
This is an action for an injunction and a declaratory judgment restraining the enforcement of Section 190.40 of the New York Criminal Procedure Law and declaring said statute unconstitutional as violative of the Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiffs have moved for a preliminary injunction to restrain the defendants from enforcing a grand jury subpoena duces tecum addressed to Thomas Notey, one of the partners of the Central Island Nursing Home and the South Shore Nursing Home in which the above-named plaintiffs do business as partners, and in connection therewith request the convention of a three-judge court to hear and determine such motion.
Section 190.40 of the New York Criminal Procedure Law provides in pertinent part that:
"1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.
"2. A witness who gives evidence in a grand jury proceeding receives immunity unless:
* * * * * *
(c) The evidence given by the witness consists only of books, papers, records or other physical evidence of an enterprise, as defined in subdivision one of section 175.00 of the penal law, the production of which is required by a subpoena duces tecum, and the witness does not possess a privilege against self-incrimination with respect to the production of such evidence. * * *"
It is not disputed that the nursing homes are "enterprises" as defined in New York Penal Law § 175.00.
The parties agree that the background facts are properly summarized in paragraphs 5 through 14 of the affidavit of the *1322 attorney for the plaintiffs submitted in support of their motion and accordingly such paragraphs are set forth in full herein:
"5. Prior to the issuance of the subject Grand Jury subpoenas, two subpoenas were issued by the defendant pursuant to Section 63(8) of the New York Executive Law. These subpoenas were returnable before the defendant at his offices at the State Office Building Veteran's Highway, Hauppauge, New York, on January 12th, 1976. (Subpoenas attached hereto as petitioners' Exhibits "B" and "C").
"6. The return of the non-judicial subpoenas issued pursuant to Section 63(8) was adjourned by consent of a Special Deputy Attorney General Arthur Friedman, an authorized agent of the defendant, pending the outcome of a motion to quash and vacate these subpoenas, prosecuted before the Hon. F. X. McInerny, Justice of the Supreme Court of the State of New York for the Tenth Judicial District.
"7. On March 3rd, 1976, the abovementioned motion to quash was granted in part and denied in part, to wit; `. . granted as to the production of all records involving doctor-patient and attorney-client relationships. In all other respects, the motions to quash these subpoenas are denied.'
"8. On April 6th, 1976, the plaintiffs-petitioners brought an action pursuant to Title 42, Section 1983, United States Code, seeking to enjoin the defendant from enforcing these subpoenas and thereby depriving them, under color of state law, of their rights, privileges and immunities secured to them by the Constitution and laws of the United States.
"9. On April 8th, 1976, a bi partite hearing was held before the Hon. Henry J. Bramwell, United States District Judge for the Eastern District of New York, to determine whether a temporary restraining order, sought by the petitioners, should issue. Subsequent to that hearing, a temporary restraining order was imposed restraining the defendant from enforcing the two subpoenas duces tecum until April 15th, 1976 pending a hearing for a preliminary injunction to be held before the Hon. Thomas C. Platt, United States District Judge for the Eastern District of New York.
"10. On April 15th, 1976, the plaintiffs-petitioners moved before the Hon. Thomas C. Platt to preclude the defendant from enforcing the subject subpoenas duces tecum, issued pursuant to Section 63(8) of the New York Executive Law. The gravamen of petitioners' action, docketed as No. 76 Civ. 634, was that these subpoenas sought the production of books and records which were protected by the Fifth and Fourteenth Amendments of the United States Constitution. Subsequent to oral argument, in which all parties participated, decision was reserved and the temporary restraining order, formerly imposed by the Hon. Henry J. Bramwell, was ordered to be continued. Pending the decision on the preliminary injunction, counsel for the plaintiffs-petitioners was served, on May 11th, 1976, with a letter by special Deputy Attorney General Arthur Friedman, authorized agent of the defendant. (Letter attached hereto as petitioners' Exhibit "D"). Therein, the petitioners were informed that the office of the Special Prosecutor was:
`Hereby withdrawing, and abandoning all efforts at enforcement of, the previously issued subpoenas duces tecum served upon the Central Island and South Shore Nursing Homes; and
b. Issuing in their stead, two grand jury subpoenas duces tecum which I am enclosing, again pursuant to my understanding with Ron Fischetti.' (Attached hereto as Exhibits "F", "G")
"11. Accordingly, on May 17th, 1976, the matter was brought on before the Hon. Thomas C. Platt. At this time, Special Deputy Attorney General Arthur Friedman notified the Court that he had withdrawn the subpoenas duces tecum which were the subject of the litigation at bar. Mr. Friedman further represented to both Court and counsel that he would never again issue a subpoena pursuant *1323 to Section 63(8) of the Executive Law to any of the parties involved in this litigation.
"12. Deputy Attorney General Friedman was informed at this time that it was the intention of the plaintiffs-petitioners to seek a judicial determination of the validity of the subsequently issued Grand Jury subpoenas duces tecum. At this time, Mr. Friedman stipulated that he would refrain from enforcing compliance with said subpoenas until such time as a decision had been rendered by this Court determining their validity.
"13. In light of the defendant's withdrawal of the previously issued non-judicial subpoenas, plaintiffs-petitioners' complaint, docketed as No. 76 Civ. 634, was dismissed for the reason that there no longer existed a justiciable case or controversy.
"14. The plaintiffs-petitioners assert upon information and belief, that it is the defendant's position that the procedural characteristics of the instant Grand Jury subpoenas will preclude these petitioners from alleging a deprivation of a federally afforded constitutional right before this Court. The Special Prosecutor is proceeding pursuant to Section 190.40 of the New York Criminal Procedure Law in the hope that he may accomplish an `end run' around petitioners previously asserted constitutional claims by depriving them of an opportunity to litigate these issues before such time as they are required to comply."
In addition to the foregoing, plaintiffs' new complaint alleges that the grand jury subpoenas in question commanded the plaintiff, Thomas Notey, as operator and owner of the two nursing homes to produce various books and records listed on the subpoenas duces tecum; that the grand jury subpoenas duces tecum were issued without the advice or consent of the grand jury; that the subject books and records of the two partnerships are maintained as the private records of the individual partners and constitute the personal property of the plaintiffs; that the subject partnerships have been operated as personal and purely private businesses; that the records are held by the plaintiffs as their individual personal records and not in any representative capacity; that the compulsory production of such records would operate to deprive plaintiffs of the rights, privileges and immunity secured to them by the Fifth and Fourteenth Amendments of the United States Constitution; that the aforesaid nursing homes are operated as a three-man family partnership; that failure to comply with these subpoenas will subject the plaintiffs to prosecution for criminal contempt; that the enforcement of the subpoenas will result in the deprivation under color of State law of plaintiffs' rights, privileges and immunity secured by the Constitution and will be in violation of Title 42 U.S.C. § 1983; and that enforcement thereof and compliance therewith will cause irreparable and immediate harm, injury and damage to the plaintiffs.
DISCUSSION
It appears to the Court that there are three principles which preclude granting plaintiffs the relief they request. Collateral estoppel prevents plaintiffs from litigating here a critical part of their claim; the abstention doctrine prevents this Court from acting on their claim; and plaintiffs have not satisfied the requirement, especially severe where we are asked to interfere with the State's criminal process, that irreparable injury be imminent before an injunction is issued.
I
Defendant points out that originally his office issued two administrative subpoenas duces tecum to the Central Island and South Shore Nursing Homes, under the authority of § 63(8) of the Executive Law of the State of New York, that called for the production of the identical documents requested by the grand jury subpoenas duces tecum. Following the service of these original subpoenas, plaintiffs' nursing homes moved in the Supreme Court of the State of New York, Suffolk County, to quash the same, complaining that disclosure of the *1324 subpoenaed records violated their Fifth Amendment privileges. In a decision dated March 3, 1976, Mr. Justice George F. X. McInerney denied petitioners' motion and specifically overruled their claim of privilege in the records of the nursing homes, stating in pertinent part as follows:
"Petitioners move to quash the non-judicial subpoenas duces tecum issued by the deputy attorney general, and in the alternative for a modification of these subpoenas.
"Petitioners assert that these subpoenas are fatally overbroad in their scope, that they fail to demonstrate a requisite showing of relevancy and a proper foundation to justify inquisitional action, that all documents enumerated on Exhibits B and D are privileged, and therefore outside the scope of compulsory process, that many of these documents involve patient-physician privilege and that others are immune from disclosure due to the existence of attorney-client privilege, and that the respondent, Charles J. Hynes, had no statutory authority from section 63(8) of the Executive Law to sustain the issue of the instant non-judicial subpoenas.
"Petitioners contend that the books and records of St. James Nursing Home and the St. James Plaza Health Related Facility have not been shown to be necessary to the investigation.
"Section 63(8) of the Executive Law of the State of New York allows the attorney general, in his discretion and with the approval of the governor, to launch an investigation to `inquire into matters concerning the public peace, public safety, and public justice.'.
"The deputy attorney general contends that by the investigatory work already done, there is ample `basis for inquisitional action'.
"The deputy attorney general, in his affirmation, states that all of the records subpoenaed relate to `management, control, operation and funding of nursing homes, care centers, health facilities and related entities'.
"Apparently each operator has signed a provider agreement with the New York State Department of Social Services wherein he contracts to maintain records (such as the ones being subpoenaed) and make them available for inspection as a prerequisite for the receipt of Medicaid funds. Accordingly the Deputy Attorney General contends that these records have a public character.
"The deputy attorney general contends that none of the documents on the schedule are the result of the physician-patient privilege.
"The deputy attorney general has clearly shown the relevancy and materiality of the records that have been subpoenaed and has clearly and specifically identified said records by his schedules. This is a proper case for the issuance of a subpoena duces tecum. There is nothing stated in this paragraph that is inconsistent with the holdings in Myerson v. Lentini Brothers Moving & Storage Co., Inc., 33 N.Y.2d 250, 351 N.Y.S.2d 687 [306 N.E.2d 804].
"The Court of Appeals in Matter of Sigerty [Sigety] v. Hynes, [38] N.Y.2d [260] [379 N.Y.S.2d 724, 342 N.E.2d 518], dated December 22, 1975, has held that the owner of a nursing home does not possess a fifth amendment privilege in the home's books and records.
"Apparently a nursing home falls within the definition of a `hospital' under Section 2801 of the Public Health Law.
"Matter of Sigerty [Sigety] v. Hynes, is authority for the deputy attorney general having authority in a proper case to issue subpoenas duces tecum under section 63, subd. 8 of the Executive Law. It would appear that Judge Cooke writing for the court intended that section 63 be interpreted in a broad sense.
"Quoting from Sigerty [Sigety] as to the issue of the Fifth Amendment:
`In Slutsky [United States v. Slutsky, D.C., 352 F.Supp. 1105] the test of United States v. White (322 U.S. 694, 701 [64 S.Ct. 1248, 88 L.Ed. 1542]) was applied to determine whether the records of a twobrother *1325 partnership which operated a large resort, known as the Nevele Country Club, were to receive the protection of the Fifth Amendment. Simply, the test is "whether one can fairly say under all the circumstances that a particular type of organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only." Under the factual circumstances, the Slutsky court determined that "(i)f the Nevele were owned by a sole proprietor, there can be no question that the records would be immune from production under the Fifth Amendment. The reason for such protection does not change because there is a shared proprietorship * * * (p. 1107).
`A nursing home is not by its nature a family business which the owners can run in any manner they choose. It falls within the definition of a "hospital" under section 2801 of the Public Health Law and, as such, is subject to extensive state regulation pursuant to Article 28 of said law and title 10 of the Official Compilation of Codes, Rules, Regulations of the State of New York. Additionally, a nursing home receiving medicaid funds must keep and make available to the appropriate State agency records regarding patient care and payments, pursuant to 42 U.S.C., § 1396a (subd. 27). It is for these and similar reasons that a nursing home, albeit family-run cannot rely on Slutsky.'"
In other words, the nursing homes involved here have already sought, with respect to the very same records sought by the grand jury in the matter at bar, a decision from the Supreme Court, Suffolk County, which court held that their record books and records do not enjoy Fifth Amendment protection.
Thus as defendant points out, if, as is the case here, a State court has already determined[1] that the owners of the nursing homes do not possess a Fifth Amendment privilege in the homes' books and records, there can be no basis for the plaintiffs' claim that § 190.40 of the New York Criminal Procedure Law leaves them in doubt with respect to their privilege. That State court decision as to the inapplicability of the privilege binds this Court under the principles of the doctrine of collateral estoppel.[2] Plaintiffs are estopped from further litigating an issue that is critical to their claim, and as a result their claim falls. See Lombard v. Board of Education, 502 F.2d 631, 636-37 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975); Brown v. DeLayo, 498 F.2d 1173 (10th Cir. 1974); Tang v. Appellate Division of the New York Supreme Court, First Department, 487 F.2d 138, 141-43 (2d Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Montagna v. O'Hagan, 402 F.Supp. 178 (E.D.N.Y.1975); Olson v. Board of Education, 250 F.Supp. 1000, 1004 n. 8 (E.D.N.Y.), app. dism'd, 367 F.2d 565 (2d Cir. 1966). Under these authorities, this rule applies even though the Federal action is brought, as is the case at bar, under 42 U.S.C. § 1983.
The issue is critical because plaintiff claims that the vice in Section 190.40 is that, unlike the federal immunity statutes involved in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed.2d 819 (1896), and United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943), which grant *1326 "sufficiently coextensive protection to supplant one's right to be free from self-incrimination", the New York statute leaves a witness in doubt as to whether protection exists where there is a question whether "the witness does not possess a privilege against self-incrimination with respect to the production of such evidence." The latter question, however, and hence also the vice, have been removed in their case by Mr. Justice McInerney's decision. The effect thereof is to provide that the Section "as applied" to these books and records no longer contains any such vice or uncertainty and thus falls squarely within the decisions of the Supreme Court in Brown v. Walker, supra, and United States v. Monia, supra, in which similar statutes were sustained as constitutional.
Because plaintiffs are estopped from litigating this critical issue, their claim is necessarily defeated.
II
Because in this particular case the nursing homes, in which the plaintiffs are partners, have available to them and have availed themselves of a State court "fully competent to adjudicate [their] constitutional claims" (see Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975)), it would appear that in any event this Court should abstain from hearing their claims under the principles enunciated in the Salem Inn, Inc. case and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
It is true that plaintiffs maintain that there is "no criminal proceeding" now pending in New York State, but they cite only Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), in support of this proposition. Neither of these cases, however, is precisely on point, because the question presented here is whether a criminal proceeding is pending when a grand jury has been impanelled and has issued a subpoena duces tecum addressed to one of the partners seeking to quash the same. No such question was discussed in the cited cases.
The United States Supreme Court has held in United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376 (1943), that "[a]n investigation by a grand jury is a criminal case" within the meaning of such words as used in the Fifth Amendment. In addition, the New York State Criminal Procedure Law, § 1.20(18), defines a criminal proceeding as one "which * * (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, * * * or involves a criminal investigation." A "criminal court" is defined under said Law, § 10.10, to include the County Court in Nassau County in which the grand jury in this case was impanelled, and under said Law, § 190.05, the grand jury "constitut[es] a part of said court * * *."
In other words, when a grand jury has been impanelled and is sitting and investigating, there is a "criminal case" and in New York a criminal proceeding, and most significantly there is the State court responsible for and having jurisdiction of such grand jury from which relief from constitutional abuses may be obtained. Interference with such state criminal proceedings would appear clearly to be within the prohibitions contemplated by Younger and its progeny.
From these authorities, and especially in view of the particular facts of this case, it seems clear that there is and has been "an ongoing state criminal proceeding" within the meaning of Younger v. Harris and Doran v. Salem Inn, Inc., and hence this Court must, under the principles of federalism and comity, abstain.
III
Finally, even if this Court were not to abstain, plaintiffs have not shown irreparable injury of the magnitude required to justify the issuance of a federal injunction against the enforcement of a state criminal statute or the continuation of an ongoing criminal proceeding. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d *1327 482 (1975); Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971); Beal v. Missouri Pacific Railroad, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941); Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926). As the Supreme Court said with respect to this issue in Younger v. Harris (401 U.S. at pp. 46, 47, 91 S.Ct. at pp. 751, 752):
"In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is `both great and immediate.' Fenner, supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered `irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e. g., Ex parte Young, supra, 209 U.S. 123 at 145-147, 28 S.Ct. 441 at 447-449, 52 L.Ed. 714. Thus, in the Buck [Watson v. Buck] case, supra, 313 U.S. [313], at 400, 61 S.Ct. [962], at 966 [85 L.Ed. 1416], we stressed:
"Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. `No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.' Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577."
"And similarly, in Douglas, [Douglas v. City of Jeannette] supra, we made clear, after reaffirming this rule, that:
"It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith * * *." 319 U.S. [157] at 164, 63 S.Ct. [877], at 881 [87 L.Ed. 1324]."
In the case at bar plaintiff's claim is in essence that he will be irreparably injured if he must await indictment, arrest and possible jail before he is given an opportunity to litigate further whether or not production of the books and records in question here actually conferred immunity upon him. As indicated, however, such allegations are insufficient to warrant interference by a federal court with state criminal prosecutions. See also Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896).
Moreover, as the defendant points out, there is no certainty that the plaintiffs will ever be arrested, accused, indicted, jailed or otherwise, and at this juncture plaintiffs alleged injury is wholly conjectural and speculative.
CONCLUSION
For all of the foregoing reasons plaintiffs' applications for the convention of a three-judge court[3] and for a preliminary injunction must be and the same hereby are denied in all respects.
SO ORDERED.
NOTES
[1] Apparently, no appeal was taken from this decision.
[2] Although the partnership as a whole was the party to the State court action, and the individual partners are the plaintiffs here, no one denies that the privity between the parties is such that the State court result is binding here. See, e. g., Acree v. AirLine Pilots Association, 390 F.2d 199 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968); Jefferson School of Social Science v. Subversive Activities Control Board, 118 U.S.App.D.C. 2, 331 F.2d 76 (1963); Nichols v. Alker, 126 F.Supp. 679 (E.D.N.Y.1954), aff'd, 231 F.2d 68 (2d Cir.), cert. denied, 352 U.S. 829, 77 S.Ct. 42, 1 L.Ed.2d 51 (1956); 1B Moore's Federal Practice ¶ 0.411[6], [12].
[3] The Court is fully aware of the "constitutional insubstantiality" test defined in Hagens v. Lavine, etc., 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), but feels in the light of all of the foregoing that plaintiffs' claims are wholly insubstantial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602614/ | 577 So.2d 943 (1991)
Barbara J. NATHANSON, Appellant,
v.
Maria K. KORVICK, Judge, Appellee.
No. 76153.
Supreme Court of Florida.
April 11, 1991.
*944 Edward C. Vining, Jr., Miami, for appellant.
Robert A. Ginsburg, Dade Co. Atty. and Roy Wood, Asst. Co. Atty., Miami, for appellee.
BARKETT, Justice.
Upon certification by the Third District Court of Appeal, we review an order of the Circuit Court of the Eleventh Judicial Circuit denying Barbara Nathanson's motion to disqualify Judge Maria Korvick from presiding in her postdissolution of marriage proceedings.[*] We affirm.
Nathanson filed a petition for modification of alimony in July 1988. In November of 1989, she moved to disqualify Judge Korvick based upon the fact that her exhusband's attorney had both contributed to Judge Korvick's political campaign of 1988 and served on her campaign committee. Judge Korvick denied the motion, finding it insufficient on its face. Nathanson filed a petition for extraordinary relief in the district court. The district court declined to rule on the merits and certified the question to this Court pending our review of Breakstone v. MacKenzie, 561 So.2d 1164 (Fla. 3d DCA 1989), approved in part, quashed in part sub nom. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990).
In MacKenzie, we held that judges are not required to disqualify themselves based solely upon the allegation that an attorney or litigant has made a campaign contribution to the political campaign of the judge or the judge's spouse. As long as the citizens of Florida require judges to face the electorate, either through election or retention, "the resultant contributions to those campaigns ... are necessary components of our judicial system." Id. at 1335. We do not find that "contributions" are limited to financial ones, and thus do not distinguish between financial contributions and services on a campaign committee. For all the reasons expressed in MacKenzie, the trial judge was not obligated to recuse herself in this case.
Accordingly, we affirm the order of the circuit court.
It is so ordered.
McDONALD, GRIMES, KOGAN and HARDING, JJ., concur.
OVERTON, Acting C.J., dissents with an opinion.
SHAW, C.J., recused.
OVERTON, Acting Chief Justice, dissenting.
I dissent for the same reasons I expressed in my concurring opinion in MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990). In that instance, the majority had concluded that a judge's impartiality may not be challenged when the judge had received a political contribution allowed by law. In this case, the majority takes it a step further. Here, the adversary's attorney not only made a contribution but was on the judge's campaign committee and listed on his letterhead. It stretches common sense and reason to say that it is unreasonable for a citizen to question the impartiality of a judge under these circumstances. I would quash the decision of the district court.
NOTES
[*] We have jurisdiction pursuant to article V, section 3(b)(5) of the Florida Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602622/ | 577 So.2d 318 (1991)
Thomas J. OSBORNE, Jr., et al.
v.
VULCAN FOUNDRY, INC., et al.
No. 90-CA-0995.
Court of Appeal of Louisiana, Fourth Circuit.
March 14, 1991.
*319 Thomas G. Buck, Metairie, for The Board of Comm'rs for the Port of New Orleans, third party plaintiff/appellee.
Gerard T. Gelpi, John T. Lewis, Gelpi, Sullivan, Carroll & Laborde, New Orleans, for Baton Rouge Marine Contractors, Inc., third party defendant/appellant.
Before KLEES, BYRNES and WILLIAMS, JJ.
WILLIAMS, Judge.
The trial court sustained a motion for summary judgment filed by third party plaintiff, Board of Commissioners for the Port of New Orleans (Dock Board), against third party defendant, Baton Rouge Marine Contractors, Inc. (BRMC),[1] requiring it to defend and indemnify the Dock Board for claims asserted against it in this suit. The trial court's reasons for judgment indicate the ruling is based upon "the clear language of the contract between the parties." Through this appeal, BRMC claims the trial court erred in granting the motion because unresolved issues of material fact remain and, as a matter of law, the exculpatory and liability shifting provisions of the contract of lease violate the Shipping Act of 1916, the Shipping Act of 1984, LSA-R.S. 38:2216, LSA-R.S. 9:3221 and LSA-C.C. art. 2695, and/or otherwise contravene public policy. As we agree with BRMC's contention that issues of material fact remain unresolved, we reverse the trial court's summary judgment. We pretermit review of the issues of law.
FACTUAL AND PROCEDURAL HISTORY
On March 19, 1987, Thomas J. Osborne, Jr., and his wife, Phyllis Osborne, filed suit against Vulcan Foundry, Inc.[2] and the Dock Board for damages arising out of a work-related accident which occurred on October 26, 1986. The Osbornes' petition *320 alleges that, while in the course and scope of his employment with BRMC, Mr. Osborne was "injured when the top loader he was driving fell through a drainage grating on property owned and maintained by the Board," and leased to BRMC. The petition asserts the Dock Board "specifically had a duty to maintain said gratings and property so that top loaders of the type plaintiff was driving at the time of his accident could traverse them without incident." The petition further asserts the Dock Board was "negligent by failing to properly install and maintain the drainage grating" and this negligence "caused or contributed to plaintiff's injuries." In the alternative, plaintiffs' third supplemental petition avers the Dock Board negligently failed to warn plaintiff that the drainage grating might not be sufficient to withstand the weight of the BRMC machinery used at the accident site.
The Dock Board's answer to the petition denies its assertions and pleads Osbornes's comparative and contributory negligence. The answer also contains a cross claim against Vulcan for indemnity and contribution and an allegation that, by virtue of its lease with plaintiff's employer BRMC, the duty to maintain the drainage grating and property belonged to BRMC.
BRMC and its worker's compensation insurer intervened on August 28, 1987, for reimbursement for the medical and compensation benefits paid to Osborne, from any settlement or judgment which plaintiffs might receive from this suit.[3] Thereafter, on October 8, 1987, the Dock Board assumed the position of third party plaintiff and made BRMC third party defendant. The third party petition avers that the Dock Board is named as a direct defendant based upon allegations "that certain defects in the premises at his employment caused him injuries." But, at "all relevant times, third party defendants were lessees of the premises, and the ... lease requires the lessee to assume all responsibility for maintenance, to provide insurance, and to indemnify and defend third party plaintiffs in this action." Therefore, the Dock Board prays for judgment in its favor and against BRMC, requiring BRMC to cover its expenses in the defense of this matter and to indemnify it if judgment is ultimately rendered against it.
BRMC's answer to the third party demand asserts seven defenses. BRMC 1) claims the third party demand fails to set forth a claim upon which relief can be granted, 2) denies the petition's assertions, 3) avers it complied with any and all lawful obligations imposed upon it by the lease, 4) avers in the alternative that all of plaintiffs' damages were caused by the active fault and/or negligence of the Dock Board, 5) avers in the alternative that if plaintiff was injured by a vice or defect in the premises, the Dock Board knew or should have known of the defects and had reasonable notice of same, 6) avers in the alternative that the liability shifting and indemnity provisions of Section 34 of the lease agreement are unlawful and, hence, are inapplicable to this suit and 7) avers in the alternative that the trial court is without subject matter jurisdiction to construe and rule upon the provisions of the Dock Board and BRMC's lease.
On July 13, 1989, the Dock Board motioned for summary judgment claiming its entitlement to a complete defense and for indemnity from BRMC in accordance with the terms of their lease, and claiming its right of dismissal as plaintiff is the Dock Board's statutory employee. Its memorandum in support declares,
[i]t is undisputed that the accident occurred on property which had been leased to and was in the complete control, custody and possession of BRMC since 1979, over seven years prior to the accident. Although specifically listed in the lease as a "light duty" area, BRMC made various uses of this portion of the property, including storing extremely heavy loaded containers directly on top *321 of the grating, and had no regular maintenance or inspection program. After more than seven years of constant use, the grating broke ...
In any event, no matter what the cause of the accident, the Dock Board is entitled to indemnity and defense from its lessee.
The lease ... was for ten years, and included the area where plaintiff's accident occurred.
Under Section 8, the properties were to "be taken by lessee in their present condition, without any obligation on Board to make any changes or improvements therein"; the lessee agreed to "assume sole responsibility for the condition of the leased premises"; and the lessee had "fully inspected the leased premises, and on the basis of such inspection lessee accepts the leased premises in their present condition as being suitable for the purposes for which they are hereby leased ...".
Under Article 14, BRMC agreed to "pay all costs and assume all risks in doing work, or carrying on operations, now or hereafter permitted or required under the terms and conditions of this lease ...".
Under Article 15, BRMC had the right to build whatever they wanted on the leased premises, as long as the Board had the right to approve the plans.
Article 16 provided that:
Lessee agrees to be responsible for and shall at its own cost, risk and expense perform and pay all costs of maintenance, repairs, renewals and replacements, whether attributable to use and operations or to deterioration of materials, of the herein leased premises and any facilities and equipments situated or to be situated thereon ... Board shall have no responsibility whatsoever to perform any maintenance work on the herein leased premises ...
Article 18 provided that BRMC "shall, at its own cost, risk and expense, promptly and with due dilligence repair, replace or restore or cause the repair, replacement or restoration of any and all such property which may become the subject of loss, damage or destruction, however caused or whether such loss, damage or destruction be partial or total"; and further that "Board shall have no responsibility to repair, replace or restore any property herein leased which may be the subject of loss, damage or destruction...".
Finally, and most specifically, Article 34, titled "Indemnity" provides that BRMC "shall protect, defend, indemnify and keep and save forever harmless Board from and against any and all loss, cost, claims, charges, expenses, penalties, damages, fines, suits, demands and actions of any kind in (sic) nature whatsoever growing out of, in connection with, or by reason of any and all lessee's operations ... not directly and solely caused by any act of fault or negligence of Board, its employees or agents."
Clearly, under this contract, BRMC accepted the premises as is, assumed complete responsibility for all maintenance and repair, and agreed to indemnify and hold harmless the Board from claims such as are now presented by the plaintiff.
* * * * * *
... [T]he undisputed facts show that with regard to the the improper installation claim, the Dock Board did not install the grating. It was installed by a previous lessee. With regard to the failure to properly maintain claim, the Dock Board had no obligation to maintain the grating, said obligation being assumed by the lessee. Finally, with regard to the failure to warn claim, the lessor could not have a legal duty to lessee's employee to warn of something about which it had no knowledge and which was presumably an undetectible problem. Therefore, under these circumstances, defendant is clearly entitled to a judgment in its favor, against lessee, ordering them to repay defense costs incurred to date and to provide in defense and indemnity with regard to plaintiff's claims.
Both Vulcan and the Osbornes' oppositions to the motion are limited to the Dock *322 Board's claim that it is Osborne's statutory employer and, therefore, immune in tort under LSA-R.S. 23:1021 et seq. BRMC's opposition, however, favors the Dock Board's assertion of its statutory employer status, while it declares the Dock Board's arguments on indemnity are meritless. BRMC urges the prematurity of its responding to the Dock Board's indemnity argument as plaintiffs have not responded to Dock Board's allegations of uncontested facts. Alternatively, BRMC asserts the indemnity and exculpatory provisions of article 34 of the lease are unenforceable as they are violative of The Shipping Act of 1916 and of 1984,[4] and are otherwise contrary to public policy. In support of the argument that the Shipping Act of 1916 is violated by the indemnity provision of the lease, BRMC cites Federal Maritime Commission (FMC) cases, West Gulf Maritime Association v. The City of Galveston, 1981 AMC 938 (1979) and U.S. Lines, Inc. v. Maryland Port Admin., 1981 AMC 952 (1980).
The Dock Board's response to BRMC's opposition claims the FMC cases cited as authority for its position, are "completely inapplicable." Rather than pertaining to two-sided and bartered upon lease provisions, the Dock Board declares the cited cases only invalidated published tariff provisions, i.e., one-sided provisions which unfairly allowed terminal operators to abrogate their duty to keep their own facilities in good repair. The Dock Board further claims, the other statutes cited by BRMC do not apply to the lease because the statutes were promulgated after the parties entered their contract.
Oral arguments on the motion were heard on August 25, 1989. The court took the matter under advisement and then issued judgment, denying the motion for summary judgement on November 9, 1989. In response, the Dock Board requested written reasons for the court's judgment. Thereafter, on January 25, 1990 the court sua sponte ordered the motion be set for rehearing on February 16, 1990. Following rehearing, the matter was again taken under advisement. On February 20, 1990, judgment was issued denying the motion as to the statutory employer argument, but granting the motion as to the indemnity argument. The judgment decreed BRMC owes the Dock Board "a defense and indemnity to the claims asserted in these proceedings."
On February 28, 1990, BRMC requested written findings of fact and reasons for judgment and motioned for new trial and/or rehearing. The court issued its reasons on March 5, 1990, which briefly explained,
... The Court based this decision on the clear language of the contract between the parties. There is no doubt that the contract requires Baton Rouge Marine Contractors, Inc. to defend and indemnify the board.
BRMC also motioned for new trial and/or rehearing on February 28, 1990, and it was denied on March 19, 1990. This suspensive appeal by BRMC followed.
GENUINE ISSUES OF MATERIAL FACT
The Dock Board's indemnity claim is based on article 34, a provision captioned "Indemnity," as it is read together with the other lease provisions which placed the maintenance and repair of the leased premises on the lessee, BRMC. The indemnity provision, however, specifically excludes indemnity of personal injury suits or actions that are "directly or solely caused by any active fault or negligence of" the Dock *323 Board. Thus, under the terms of the lease, an essential element to the Dock Board's entitlement to indemnity is a finding that, through its active fault or negligence, the Dock Board did not directly or solely cause the Osbornes' damages.
BRMC urges that, because the Dock Board failed to support its motion with a statement of uncontested facts and with affidavits, depositions and other supporting documents which show Osborne's accident was not "directly and solely caused by any active fault or negligence" of the Dock Board, BRMC is allowed to rely merely on the allegations or denials contained in the pleadings. Hall v. Babin, 506 So.2d 658 (La.App. 4th Cir.1987). The allegations of disputed facts which BRMC claims the Dock Board did not rebut include those in the Osbornes' original and supplemental petition which allege the Dock Board has "a duty to maintain said gratings and property," is negligent for "failing to properly install and maintain the grating," is "negligent by failing to warn [plaintiff] that the drainage grating may not be sufficient to withstand the weight of the machines which [BRMC] used at the site," and is negligent for failing "to conduct sufficient testing and research to determine the weight bearing capacity of the grating which [the Dock Board] installed," and those in Vulcan's answer to the Osbornes' petition which allege the Dock Board is negligent for failing to properly maintain the premises and for failing to provide suitable design of the drainage grate.
BRMC cites Jones v. Merrick Construction Co., 546 So.2d 928 (La.App. 3d Cir. 1989), writ den., 551 So.2d 631 (La.1989), as support for its position that before the indemnity provision of the lease is triggered, there must first be a factual determination as to whether the injury was directly and solely caused by any active fault or negligence of the Dock Board. In Jones, defendant Merrick appealed the summary judgment on a cross claim granted against it and in favor of the City of Alexandria, ordering Merrick to defend and indemnify the City and its insurer in connection with the drowning death of a child. The City's construction contract with Merrick specifically excluded indemnity of claims which might arise out of any negligent act of the City through its agents and employees. In reversing the judgment, the Third Circuit held the issue of the City's negligence was a question of material fact which the trial court was required to answer prior to ordering Merrick to indemnify the City. While noting the trial court denied the City summary judgment on the issue of it being free from negligence, the appellate court declared that "[o]nly after a full trial on the merits can the City's negligence, or lack thereof, be determined."
Even though the exclusion clause in the indemnity provision in Jones proscribed indemnity if the City committed any act of negligence, and the exclusion herein is more limited, we find the exclusion clause makes the issue of the Dock Board's negligence a question of fact which must be answered prior to ordering BRMC to indemnify the Dock Board. Therefore, as a copy of the lease is the only document the Dock Board submitted in support of its motion, and as that single document is insufficient to resolve all genuine issues of material fact, we are constrained to reverse the summary judgment.
The Code of Civil Procedure sets forth that a plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for summary judgment in his favor for all or part of the relief for which he has prayed. LSA-C.C.P. art. 966(A). The Code also directs the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact, and mover is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966(B).
Once a motion for summary judgment has been made and supported, a party opposing the motion may not rest on the mere allegations of his pleadings but must set forth by way of affidavit or other receivable evidence specific facts showing a genuine issue for trial or else summary *324 judgment will be rendered against him. LSA-C.C.P. art. 967. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068 (La.App. 3d Cir.1985). However, under LSA-C.C.P. art. 966 and 967, the burden is upon the mover to show the absence of genuine issues of material fact. Frazier v. Freeman, 481 So.2d 184 (La.App. 1st Cir. 1985). Courts must closely scrutinize the papers supporting the position of mover, while the papers of the party opposing the motion are to be indulgently treated. Ortego v. Ortego, 425 So.2d 1292 (La.App. 3d Cir.1982), writ den., 429 So.2d 147 (La. 1983). The court must find the mover's supporting documents are sufficient to resolve all material issues of fact. Frazier v. Freeman, supra.; Louisiana Nat. Bank v. Slaughter, 563 So.2d 445 (La.App. 1st Cir. 1990). If they are insufficient, summary judgment must be denied. Id.
Summary judgments are not favored, any reasonable doubt should be resolved against the mover and in favor of a full trial on the merits. Ortego v. Ortego, supra.; Weems v. Hickman, 524 So.2d 792 (La.App. 3d Cir.1988); Vassallo, Inc. v. Southwestern Packing & Seals Co., 476 So.2d 925 (La.App. 2d Cir.1985). All doubts will be decided in favor of trial on the merits even if grave doubts exist as to a party's ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., supra.
We cannot find the Dock Board's supporting documents are sufficient to resolve all material issues of fact. Affidavits and/or depositions are needed to demonstrate that the parties' actions conformed to the terms of the lease, that the property was in fact maintained by BRMC and not the Dock Board, that the parties had no contravening contract, etc. LSA-C.C.P. arts. 966 and 967 do not mandate the filing of documentary evidence, such as affidavits and depositions. Nevertheless, when the mover's motion rests on the assertion that a provision in its contract requires indemnity and that provision is enforceable only if the injuries were not caused by "the direct or sole active fault or negligence" of the mover, the mover must meet its burden of showing no question of material fact exists on the issue of whether the indemnity exclusion applies.
Therefore, as we are bound to scrutinize the mover's papers very closely and constrained to resolve all reasonable doubts against granting summary judgment, we must reverse the trial court's judgment and remand the case for further proceedings. The Dock Board is, however, entitled to file another motion for summary judgment, with the appropriate documentation, at any time. The parties are to bear their own costs for this appeal.
REVERSED AND REMANDED.
KLEES, J., concurs in the result.
NOTES
[1] Reference in this opinion to BRMC encompasses both Baton Rouge Marine Contractors, Inc. and New Orleans Marine Contractors, A Division of Baton Rouge Marine Contractors, Inc.
[2] Plaintiffs' petition asserts that, as the manufacturer of the drainage grating through which plaintiff's top loader fell, Vulcan is liable for his damages because the drainage grating was defective, the drainage grating was of improper design and the warnings (or the lack of warnings) of the dangerous propensities of the drainage grating were inadequate.
[3] In its supplemental answer to BRMC's petition of intervention, filed on January 25, 1990, the Dock Board raised the affirmative defense of "the protection from intervenor's claim provided under the contract of lease between [BRMC and the Dock Board], and the protections afforded under Hartford Policy No. 43WZDD62227 Form WZ000313 (04084).
[4] Section 17 of the Shipping Act of 1916, 46 U.S.C. Sect. 816, provides in part as follows:
... [E]very other person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property.
Section 10(d)(1) of the Shipping Act of 1984, 46 U.S.C. 1709(d)(1), provides in part as follows: No common carrier, ocean freight forwarder, or marine terminal operator may fail to establish, observe and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property. | 01-03-2023 | 10-30-2013 |
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