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https://www.courtlistener.com/api/rest/v3/opinions/1602654/ | 577 So.2d 764 (1991)
STATE of Louisiana, Appellee,
v.
Frank Lee McCALL, Jr. a/k/a Cedric T. McCall, Appellant.
No. 22346-KA.
Court of Appeal of Louisiana, Second Circuit.
April 3, 1991.
*765 Indigent Defender Office by Richard E. Hiller, Shreveport, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Rebecca Irwin-Bush and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
Before MARVIN, C.J., and SEXTON and BROWN, JJ.
MARVIN, Chief Judge.
After being convicted by a jury of simple robbery, Frank Lee McCall unsuccessfully sought to modify the verdict under CCrP Art. 821 C to "attempted felony theft."
In this appeal of his conviction, he contends, as he did below, that he was proved guilty only of "attempted felony theft" because the evidence did not prove one element of robbery, that he used force or intimidation when he grabbed $140 from a grocery store cash register after asking the cashier for change for a dollar.
After his adjudication as a fourth felony offender, McCall was sentenced to 20 years at hard labor. Three of his assignments that complain of his habitual offender adjudication and of his sentence were not briefed or argued and are deemed abandoned. State v. Jackson, 454 So.2d 1220 (La.App. 2d Cir.1984), writ denied, 461 So.2d 312. His remaining assignment simply questions whether the evidence proves every element of the crime of simple robbery.
We find the evidence sufficient and affirm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
FACTS
McCall entered a Kroger grocery store in Shreveport about 1:00 a.m. April 19, 1989. The cashier, who was alone in the front area, was walking from her cash register toward the delicatessen area to take a break. Seeing McCall, she asked if she could help him. He said he wanted change for a dollar. As she returned to her register she became suspicious when McCall followed her behind the counter instead of remaining on the customer side. She intentionally opened the cash drawer only part of the way and made only the change compartment of the drawer visible and accessible. McCall forcibly jerked the drawer fully open, grabbed the bills in the $20 bill compartment ($140) and ran toward the door. The cashier screamed.
Other employees immediately responded to the cashier's screams by blocking McCall's escape, holding and preventing him from leaving the store. McCall struggled with these employees, biting one of them on the hand. McCall was finally restrained by three store employees and a customer who aided them. McCall was held until the police arrived.
The 25-year-old cashier and McCall separately stood before the jury to show their physical size. McCall did not testify. According to documents introduced at the habitual offender hearing, McCall was 34 *766 years old, six feet tall, and weighed about 165 pounds. The cashier was 5'6" and weighed 110 pounds.
McCall's "jerking" the cash drawer fully open caused some of the change in the drawer to fall on the floor, according to the cashier. She said she moved out of his way, explaining to the jury, "I was scared... I knew he wanted money ... I wasn't going to try to stop him from taking it."
A worker for the service company that mechanically swept the parking lot was operating the sweeper before and during the incident. He saw a woman driver and McCall in a car which she stopped in the driving area between Kroger and an adjoining store instead of in one of the vacant parking spaces near the Kroger entrance. Shortly thereafter and when this worker turned and drove his sweeper toward the front of the store, he saw the cashier "jumping up and down ... shaking her hands ... she looked scared and excited at the same time."
The store employees who restrained McCall did not see him take the money from the cash register. Although one employee said the cashier "didn't really seem to be upset" after she screamed for help, he explained that his attention was focused on apprehending McCall.
SUFFICIENCY OF EVIDENCE
LRS 14:65 defines simple robbery as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon." McCall contends here, as he did in his closing argument to the jury and in his motion to modify the verdict, that the state did not prove the "force or intimidation" element of the offense. We do not agree.
McCall's motion for modification was founded on CCrP Art. 821 C:
If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
Modification under Art. 821 is limited to "legislatively authorized responsive verdicts" under Art. 814. State v. Jones, 426 So.2d 1323, 1327 (La.1983).
The responsive verdicts to the charge of simple robbery are guilty; guilty of attempted simple robbery; and not guilty. Art. 814 A(24). "Attempted felony theft" is not a listed responsive verdict and, in our opinion, is not a legislatively-authorized lesser included responsive offense under Art. 821. Even should we assume the contrary for the sake of argument, we agree with trial court that the simple robbery conviction, in any event, is supported by sufficient evidence, according to our review under the Jackson v. Virginia standard.
McCall asked the cashier for change when she was alone in the front area of the store. He went behind the checkout counter instead of remaining on the customer side of the counter. His conduct intimidated her and caused her not to "tempt" McCall by fully opening the cash drawer and revealing the bills. She said, "I was scared ... I knew he wanted money ..." She testified that McCall "jerked" the drawer fully open to reach the $20 bills, which were the bills farthest away from his reach. She explained that McCall "snatched [the drawer] so hard ... some of the change fell on the floor."
A store employee who was stocking shelves "heard the drawer ... jerk real loud, and I knew [the cashier] wouldn't be jerking the cash register drawer out that fast." The worker cleaning the parking lot saw the cashier's reaction to the robbery. He said she jumped up and down, shook her hands, and looked "scared and excited." The jury observed the 50-pound weight and six-inch height advantage McCall had over the female cashier. McCall's conduct scared the cashier and made her scream.
When viewed in the light that most favorably supports the verdict, the totality of the evidence proves beyond a reasonable *767 doubt that McCall used either or both force and intimidation to take the money from the cashier's control, notwithstanding that he did not physically strike or shove her and did not verbally threaten her. See and compare State v. Jackson, supra, and State v. Green, 558 So.2d 1263 (La.App. 1st Cir.1990), writ denied, 564 So.2d 317.
DECREE
McCall's conviction is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602656/ | 577 So.2d 973 (1991)
Jerome MINNIS, Appellant,
v.
STATE of Florida, Appellee.
No. 90-1867.
District Court of Appeal of Florida, Fourth District.
March 27, 1991.
*974 Geoffrey C. Fleck of Friend, Fleck & Gettis, South Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
Jerome Minnis appeals his conviction for trafficking in cocaine and argues that the trial court erred in failing to grant his motion to suppress evidence which was seized from a closed opaque container within the trunk of his vehicle. We affirm.
On June 10th, 1988 Detective Kevin Minger received information from a confidential informant that Jerome Minnis, aged 33, who was 6/2" tall and about 200 pounds, would travel to a certain address in Miami to pick up one-half to one kilogram of cocaine and transport it to Hollywood in a two-door brown Datsun.[1] This was the first time that the police were using this confidential informant. An hour later Detective Minger and Detective Michael O'Hara saw the Datsun arrive, as predicted, at the address. The vehicle and the driver matched the informant's detailed description. A teletype check of the tag number revealed the owner as Jerome Minnis. Minnis left the residence after five or ten minutes carrying a brown paper bag, placed the bag in the trunk of his vehicle, and started north on I-95. Shortly thereafter the police stopped the vehicle and advised Minnis that they had reason to believe that there were narcotics in the trunk of the car. Detective Minger said, "You don't have a problem with me searching your trunk, do you?" Minnis replied, "Well, I'd rather not have you." Minnis was removed from his vehicle and seated in the back of the patrol car. The police retrieved Minnis' keys from the ignition, unlocked the trunk, seized the bag and opened it. The bag contained cocaine.
Minnis was charged with trafficking in cocaine and filed a motion to suppress the evidence. The trial court denied the motion on several bases. The court ruled that the police had probable cause to stop and arrest Minnis based upon the specific information which they had received and their personal observation of the events. The court ruled:
That Minger and O'Hara had probable cause to stop and arrest Minnis. Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329 (1959); Tippins v. State, 454 So.2d 630 (Fla. App. 5th Dist. 1984). They had specific information such as the name and description of the defendant, what type of car he would drive, and where he would be picking up the cocaine. The detectives were able to personally observe the events which the informant said would occur which gave them probable cause to believe that the defendant was in the process of committing the offense of trafficking in cocaine.
Further, the court ruled that the opening of the trunk, and the opening of the bag was valid:
*975 That the opening of the trunk, removal of the bag and opening of the bag was a valid search incident to a lawful arrest. The area of warrantless vehicle searches has gradually expanded over recent years. In 1981, the United States Supreme Court allowed police to search the passenger compartment without a warrant when a lawful custodial arrest was made of the occupant of a vehicle. New York v. Belton, 453 U.S. 454 69 L.Ed.2d 768, 101 S.Ct. 2860 (1981). In United States v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982), the Supreme Court allowed police officer who had probable cause that contraband was located somewhere in the vehicle to search the vehicle and open any container large enough to hold contraband without a warrant. Ross partially removed the burden upon law enforcement to obtain a search warrant set by the earlier cases of Arkansas v. Sanders, 442 U.S. 753, 61 L.Ed.2d 235, 99 S.Ct. 2586 (1979) and United States v. Chadwick, 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476 (1977).
The enlarging of the area for a warrantless vehicle search has also occurred in cases emerging from the courts of this state. Originally searches of this type were suppressed. E.g. Mancini v. State, 448 So.2d 573 (Fla.App. 1st Dist. 1984); Manee v. State, 457 So.2d 530 (Fla.App. 2d Dist. 1984). However, the Fifth District Court of Appeals upheld searches similar to the one at bar under the search incident to lawful arrest in Tippins v. State, supra and State v. Diaz, supra. The difference with the case at bar, however, is that the contraband was located in the passenger compartment.
Recently, the Third District Court of Appeals extended the area of a search incident to a lawful arrest to that outside of the passenger compartment. In State v. James, 526 So.2d 188 (Fla.App. 3d Dist. 1988), a search of a bag which the officer had probable cause to believe there was contraband and was hidden behind a gas flap was upheld as a valid search incident to arrest. The court reasoned that the police already possessed probable cause that a particular object in view is a fruit, instrumentality, or evidence, then it is unobjectionable that they proceed to inspect it carefully in order to confirm this probability.
After the denial of his motion to suppress Minnis was convicted of trafficking in cocaine and appeals. On appeal Minnis now argues that the trial court erred in failing to grant his motion to suppress. He argues that the police officers should have obtained a warrant to open the paper bag which they had probable cause to believe contained cocaine. He relies on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) for the proposition that once probable cause is focused on a container within a vehicle then the police must obtain a search warrant to open the container. He further argues that the trial court erroneously held that the search and seizure was lawful, as incident to Minnis' arrest, despite the fact that the container was not near the defendant at the time of the arrest.
We reject Minnis' argument and agree with the trial court that the search was proper. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) the police received information from an informant that a certain individual was selling narcotics kept in the trunk of a certain car parked at a specific location. The police immediately drove to the location, stopped the car and arrested the driver. One of the officers opened the car's trunk and found a closed brown paper bag. Inside the bag the officer discovered plastic bags containing heroin. The U.S. Supreme Court upheld the warrantless search on grounds that police who have legitimately stopped an automobile, and who have probable cause to believe that contraband is concealed somewhere within it, may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and *976 packages that may conceal the object of the search. The court specifically held that the scope of a warrantless search is not defined by the nature of the container in which the contraband is secreted, but rather, it is defined by the object of the search and places in which there is probable cause to believe that it may be found. The court ruled that the police could conduct a warrantless search of the vehicle as thorough as a magistrate could authorize by warrant. However the court further noted that the automobile exception does not apply so as to permit a warrantless search of any movable container which is placed in a vehicle if the car is not otherwise believed to be carrying contraband.[2]
We rely on Ross because here the probable cause was not "focused" on the brown paper bag. It is clear that the confidential informant never told the police how Minnis would transport the drugs once he obtained them. The police had no information indicating that the drugs would be carried in a brown paper bag. When they saw Minnis go into the residence where the illegal activities were supposed to take place and subsequently place a bag in the trunk of his vehicle, they did not know that the bag contained the contraband. The illegal drugs could just as well have been secreted on Minnis' person. Likewise, after entering the car he could have placed the drugs within the passenger compartment of the vehicle. In other words, there was no "focus" on the bag and probable cause was directed toward the vehicle in general. Since a magistrate could have authorized a search of the vehicle (including containers) by a warrant, the warrantless search conducted by the police could be of equal scope. Under Ross any closed container found within the vehicle, including the brown paper bag, which could have concealed the drugs could have been properly searched. See also, United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985.)
We believe that another case upon which the appellant relies Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984) is distinguishable. In Mancini a police officer obtained information from a CI who advised that the defendant would be picking up a package of cocaine in a Federal Express package. The officer watched the defendant pick up the package, followed him a short time and then stopped the car. The officer searched the car and opened the Federal Express package. It contained cocaine. The trial court denied the motion to suppress. On appeal the district court reversed and discussed Ross. The court ruled that the probable cause was limited to the Federal Express package and not with the automobile generally. The court concluded that under Sanders[3] the officer was required to obtain a warrant to open the package. The court noted that it was clear that the probable cause was limited to the Federal Express package as contrasted to with the automobile generally. In the case at bar the probable cause was directed to the vehicle in general and not to a specific package.
We also disagree with Minnis' assertion that the police had no probable cause because the confidential informant was unproven and therefore unreliable. In the recent case of Alabama v. White, ___ U.S. ___, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) the United States Supreme Court held that an anonymous telephone tip, which was corroborated by independent police work, exhibited sufficient indicia of reliability to provide a reasonable suspicion to make an investigatory stop of the defendant's vehicle. Furthermore, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which dealt with an anonymous tip in the probable cause context, the court held that the totality of the circumstances determined whether an informant's tip established probable cause. There, an anonymous letter indicated that the defendants *977 were involved in drug related activities and predicted future criminal activities. Major portions of the letter's predictions were corroborated by independent police work. On review the Supreme Court held that the warrant, which had been issued to search the defendants' house and car, had been supported by probable cause.
In the instant case independent police surveillance corroborated the detailed information which the informant had provided regarding Minnis' physical description, the date of his birth, where he lived, the type of car which he would be driving and the address in Miami where the illegal activities were to occur. Thus, there was probable cause to stop and search the vehicle. Accordingly, we affirm the denial of the motion to suppress and Minnis' subsequent conviction.
AFFIRMED.
HERSEY, C.J., POLEN, J., and WALDEN, JAMES H., Senior Judge, concur.
NOTES
[1] There was also some information that Minnis might have drugs and a gun in a sneaker somewhere in the vehicle.
[2] This results in the anomaly that if the police have too much information about where the drugs are in the car then they have to get a warrant to open the package, whereas if they only believe that the drugs are "somewhere" in the vehicle then they can search the entire vehicle.
[3] Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602657/ | 8 So.3d 591 (2009)
Charlotte H. LITTLE and John Little, D.D.S.
v.
BOSTON SCIENTIFIC CORPORATION, Micrus Corporation, Cook, Incorporated, Microvena Corporation, Cordis Corporation and Hospital Service District No. 1 of Jefferson Parish d/b/a West Jefferson Medical Center.
No. 08-CA-271.
Court of Appeal of Louisiana, Fifth Circuit.
January 13, 2009.
Rehearing Denied February 9, 2009.
Writ Denied April 17, 2009.
*593 Joseph R. Ward, Jr., Lisa A. Condrey, Ward & Condrey, LLC, Covington, Louisiana, Michael E. Kramer, Attorney at Law, Winnsboro, Louisiana, for Plaintiffs/Appellants.
Stanton E. Shuler, Jr., Karen M. Dicke, Leake & Andersson, L.L.P., New Orleans, Louisiana, for Defendants/Appellees.
Stewart E. Niles, Jr., Michelle A. Bourque, Niles, Bourque & Fontana, L.L.C., New Orleans, Louisiana, for Defendants/Appellees.
Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and MADELINE JASMINE, Pro Tempore.
MARION F. EDWARDS, Judge.
Plaintiffs/appellants, Charlotte H. Little ("Mrs. Little") and John Little, D.D.S. ("Dr. Little"), appeal a summary judgment in favor of defendant/appellee, Micrus Corporation ("Micrus"), and a jury verdict in favor of defendants/appellees, Robert W. Dawson, M.D. and Louisiana Medical Mutual Insurance Company.
The underlying facts are as follows: In 2001, Mrs. Little suffered a hearing loss and, in the course of diagnostic testing, discovered that she had a brain aneurysm. She was referred to Dr. Robert Tiel ("Dr. Tiel"), a neurosurgeon, for further evaluation. Mrs. Little's options were to have an open craniotomy, an endovascular coiling procedure, or to have no treatment, although disclosure of these options is disputed. Mrs. Little stated that she did not want to undergo a craniotomy. Following her consultation with Dr. Tiel, Mrs. Little decided to undergo the angiogram and coiling procedure.
She was referred to and consulted with Dr. Robert Dawson ("Dr. Dawson"), an interventional radiologist. Dr. Dawson noted that Mrs. Little perhaps had two aneurysms and was aware that she did not want to undergo a craniotomy. Dr. Dawson performed the angiogram and coil embolization on July 24, 2001. During the procedure, Dr. Dawson placed a coil, manufactured by Micrus, in the larger of the two aneurysms. While placing the second coil, the first coil dislodged, and, when it could not be removed successfully, Dr. Dawson placed an emergency consultation with Dr. Frank Culicchia ("Dr. Culicchia"). Dr. Culicchia performed a craniotomy and removed the coil. On the following day, another craniotomy was performed when Dr. Culicchia discovered that Mrs. Little had suffered a middle cerebral artery distribution infarct, or stroke. During these procedures the skull bone was not replaced due to swelling, but, on August 13, 2001, Dr. Culicchia performed a replacement of *594 the bone. As a result of these problems, Mrs. Little suffered brain damage.
Suit was filed against several defendants, including Dr. Dawson and his insurer. Micrus, the manufacturer of the coil, was sued for defective design and manufacture, failure to warn of the risks that the coils could dislodge, and spoliation of evidence. A subsequent petition alleged that a Micrus representative, Sue Young, was negligent in sizing the coil used. Prior to trial, Micrus filed a Motion for Summary Judgment, which was granted by the trial court, dismissing it from the lawsuit. The case against Dr. Dawson was heard by a jury, and, following trial, the jury returned a verdict in favor of Dr. Dawson. From these judgments, Mrs. Little has taken an appeal.
INFORMED CONSENT
In her first assignment of error, Mrs. Little urges the jury erred in rendering a verdict in favor of Dr. Dawson, as the evidence was uncontroverted that she was not advised about the material risk of coil migration and its attendant risk that a subsequent craniotomy would be necessary. No other issues of malpractice are before us.
Prior to trial, a Medical Review Panel concluded that, among other things, with regard to Dr. Dawson and the issue of consent, "The complication that occurred was listed as a risk prior to the surgery."
At trial, Mrs. Little, a speech language pathologist, testified that she knew what an aneurysm was from her training and work with stroke patients. Dr. Tiel told her of the various treatment options available, but he did not discuss the risks and benefits of each. He advised her to undergo the coiling procedure. When she went to Dr. Dawson's office, that physician looked at her MRI and told her they could be successfully coiled but that an angiogram was necessary to determine the exact location of the aneurysms. Except for taking her vital signs, there was no physical examination. He did not discuss any risks associated with either the angiogram or the coiling, and he did not tell her of any risks involving coil migration. The consultation took approximately five minutes. Dr. Dawson handed her the consent forms and told her to read and sign them. At the time she signed them they were not filled in.
Mrs. Little testified that she was anesthetized during the procedure, but near the end she heard Dr. Dawson state that he had "hit" the middle cerebral artery.
At trial, a consent form signed by Mrs. Little was admitted. On July 23, she signed a consent for "cerebral angio embolization of aneurysm" to "define and treat aneurysm(s) with endovascular coils." This document, thus, combined consent for an angiogram and coiling. Reasonable therapeutic alternatives and the risks associated with such alternatives are listed as: "open surgerysame risks." The portions of the agreement in parentheses were filled in by hand. The printed material risks were listed on an attached page and included stroke, inability to speak, and paralysis.
Dr. Little testified that, when Mrs. Little consulted Dr. Tiel, she was told her aneurysm could be treated by either an open craniotomy or by the coiling procedure. Dr. Little accompanied his wife on her office visit to Dr. Dawson. Her appointment was at 1:00 p.m., and she told him she was there just to sign forms. She returned five minutes later, telling him she had signed the documents. They then went to the hospital for some pre-operative tests. When she was admitted, Dr. Dawson told him that if the angiogram showed the aneurysm was optimal for coiling, he *595 would perform the procedure. If it could not be performed, Mrs. Little would have to return for a craniotomy. After Mrs. Little had been in the procedure room for some time, Dr. Dawson came out and explained that "things have gone wrong" and that he had called a neurosurgeon because the coil had dislodged. Dr. Little later signed consent forms for the craniotomy. Following the first procedure, Mrs. Little's head began to swell, necessitating a second surgery on the following day. About two weeks later, a third operation was performed to attempt to clip the aneurysm and repair Mrs. Little's skull. The aneurysm was not amenable to clipping.
Dr. Tiel, the referring neurosurgeon, testified that, after the aneurysms were discovered, he recommended that Mrs. Little have an arteriogram to better define her condition. He advised her that she could have a craniotomy, whereupon the artery would be partially dissected and "clipped" to prevent it from growing. Her second option was endovascular coiling, and the third was to do nothing. She did not want the craniotomy. In Dr. Tiel's opinion, the risk of coil migration should have been indicated on the consent form, as it indicates a potential problem. However, Dr. Tiel was not aware of the rate of coil migration at the time of the operation. In his own practice, he does not give a detailed list of all surgical maneuvers but gives a general idea of what will happen. In the consenting process, it is important to indicate when a secondary operation may be necessary.
Dr. Dawson testified that Dr. Tiel referred Mrs. Little to him specifically for the coiling procedure. He specifically remembered his conversation with Mrs. Little. She told Dr. Dawson that she had come for the procedure, if it could be done, and that she did not want a craniotomy. When she came into the office, he conferred with her for approximately thirty minutes, going over her history and discussing her options, listed above, with her, including the chances over her lifetime of a spontaneous rupture. Because of her hypertension and the existence of a second aneurysm, her aneurysm was somewhat more likely to rupture. Endovascular therapy would require an angiogram to confirm that a coiling procedure was possible. The risks of complications from the arteriogram, mainly a stroke, were about one in a thousand. If she had a coil embolization or surgery, the same types of risks apply, but the percentage of complications would be about two and a half to three percent. Dr. Dawson "absolutely told her there was a possibility of a stroke," and discussed the risks with her as they went over the consent forms.
Q: [D]id you ever tell Ms. Little there was a risk that the coil would migrate out of the aneurysm, specifically?
A: I told her that the risks of the procedure were perforation and stopping up a blood vessel.
Q: Let me ask the question again: at no timeI think you're agreeing with meat no time did you tell her, "Charlotte, there's a chance this coil could get loose in your brain."
A: I told her we could stop up a blood vessel. I did not tell her the mechanism that this was because the effect on the brain is the same. If you stop up a blood vessel, it's a stroke. We're talking about harm, not mechanism.
According to Dr. Dawson, complete or partial coil migration, as a complication, is too unusual to put in terms of percentage. A coil could migrate and not harm the patient. Only the risks of harm, not the technical aspects of a procedure, are listed on a consent form for surgery. Mrs. Little understood that if complications arose, she would be treated for them.
*596 During Mrs. Little's surgery, the first coil in the larger aneurysm was placed and sat well, allowing other coils to be deployed to fill the aneurysm. When Dr. Dawson attempted to seat the second coil, the first one became dislodged into the cerebral artery. He called Dr. Culicchia and meanwhile attempted to snare the coil to extract it. Dr. Culicchia recommended surgery.
Dr. Dawson had received instructions via documents from Micrus regarding the use of the coil. The packaging information made no sense to him, so Dr. Dawson discussed it with a company representative. Dr. Dawson was told to essentially ignore a section labeled "Instructions for Use."
Dr. Culicchia, a neurosurgeon, testified that, on the morning of the first procedure, he was notified that he had to report to the angiogram suite. After viewing the angiogram that had just been performed, he realized the artery had to be opened. Meanwhile, he asked Dr. Dawson to continue to attempt to retrieve the coil. When Dr. Dawson was unsuccessful, Dr. Culicchia proceeded with the surgery and removed the coil. In his opinion, the angiographic criteria supported the initial finding that the aneurysm could and should be treated with coils. Removal of a migrated coil is not always necessary unless the coil has resulted in a clot formation. Many patients have coils, which have migrated and blood flow is fine. In Mrs. Little's case, however, the coil caused the obstruction of blood supply to a portion of her brain, leading to the stroke and necessitating the emergency craniotomy.
After the first surgery, Mrs. Little's brain was very swollen, and necrotic tissue had to be removed. During the third surgery, Dr. Culicchia noted that it was a "wide neck" aneurysm, which type of aneurysm has a high incidence of coil migration. However, it is very difficult to determine the proper "neck to dome" ratio of an aneurysm located in the middle cerebral artery.
Dr. Charles Kerber was qualified as an expert witness in the fields of radiology, interventional radiology, and endovascular neurosurgery, including the issue of informed consent. After reviewing the pertinent documents and records, Dr. Kerber testified that, in his opinion, the consent form was reasonable and adequate and that the recommendation for coiling was appropriate and reasonable. Even a good coiling procedure has risks for death, stroke, or blindness. According to the angiogram, the neck of the larger aneurysm indicated that a coil would likely stay and that Mrs. Little's aneurysm was coilable. The risks set forth on the consent form for the cerebral angiogram are the same risks a patient would encounter in a coiling procedure, and the list of technical issues that can occur in surgery are essentially infinite. Coil migration is a technical problem that can result in complication, and the potential complication should be disclosed to the patient.
Dr. Edward Connolly, a neurosurgeon, testified as a member of the Medical Review Panel. He stated that the type of aneurysm from which Mrs. Little suffered was an excellent candidate for coiling but is frequently difficult to clip. He opined that the consent form gave adequate and reasonable consent. The list of technical problems that could occur would be nearly infinite. It would be unusual for a physician to tell a patient they might need surgery for some unforeseen occurrence. The chances of Mrs. Little needing an open craniotomy even if she had an embolus were not great. If Mrs. Little signed a blank consent form, it would be below the standard of care. However, if she knew of the risks before she signed the form, such *597 would indicate the patient received informed consent.
The standard of review on appeal is as follows:
It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong.... To reverse a fact-finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Where the jury's findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court's ruling is manifestly erroneous, or clearly wrong....
....
... [Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, where conflict exists in the testimony.... However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination...[1]
The law on the issue of informed consent is both statutory and jurisprudential. LSA-R.S. 40:1299.40, in pertinent part, states:
A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
When the alleged malpractice is based on lack of consent, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. LSA-R.S. 40:1299.40 (in 2001).
The doctor's duty is to disclose all risks which are "material".... In broad outline, a risk is material when a reasonable person in what the doctor knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding *598 whether or not to forego the proposed therapy....
The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great....
The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. "Some" expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient's position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony....
There must be a causal relationship between the doctor's failure to disclose material information and material risk of damage to the patient.... Because of the likelihood of a patient's bias in testifying in hindsight on this hypothetical matter, this court and others have adopted an objective standard of causation: whether a reasonable patient in the plaintiffs position would have consented to the treatment or procedure had the material information and risks been disclosed....[2]
Encompassed in the definition of material risks is the concept that in order for a patient to make an informed, intelligent decision, he must be advised of any alternatives to the proposed procedure.[3] The physician is required to disclose material risks in such terms as a reasonable doctor would believe a reasonable patient in the plaintiffs position would understand. Technical language will not ordinarily suffice to disclose a risk to an untutored layperson; and abstract or blanket terms may not be adequate to communicate specific dangers. In order for a reasonable patient to have awareness of a risk, she should be told in lay language the nature and severity of the risk and the likelihood of its occurrence.[4]
In the present case, Mrs. Little contends that withheld information concerning the Micrus manufacturer's warnings coupled with a failure to disclose the known complication of coil migration were things to which she would have attached significance in her decision making process. The portion of the Micrus insert to which Mrs. Little refers states that the coil system "is intended for embolization of intracranial aneurysms thatbecause of their morphology, their location or the patient's general medical conditionare considered by the treating neurosurgical team to be a) very high risk for management by traditional *599 operative techniques or b) inoperable."
As Dr. Dawson pointed out in his testimony, Mrs. Little's decision to forego a craniotomy made her condition inoperable by definition. Therefore, we fail to see how disclosure of this information would have changed the outcome. Further, the manufacturer's information included infection, stroke, and death as possible complications of the procedure and, as outlined above, these risks were disclosed in the written consent forms. With regard to coil migration, the question is whether Mrs. Little would have attached significance to that specific risk.
The evidence at trial shows that the incidence of coil migration, as of the time of the procedure, was "too unusual to put in terms of a percentage," and that coil migration does not inevitably cause harm or require removal. Thus, it is questionable that the possibility of migration was a material risk as defined by the jurisprudence. The initial harm that Mrs. Little suffered, that of a stroke, was listed as a potential complication of both the angiogram and the coiling procedure. As we understand it, migration and/or the attempted removal were the mechanisms that caused the stroke and led to the emergency surgeries. Mrs. Little failed to prove that she would have attached particular significance to the fact that a stroke could be caused by coil migration rather than by another means inherent in an invasive brain procedure. In other words, Mrs. Little was aware that a stroke was a possible complication of such a procedure. There is no evidence that the possibility of coil migration made the chances of suffering a stroke more probable. Even if coil migration were defined as a material risk, the resulting harm, a stroke, was satisfactorily disclosed in the consent form.
Mrs. Little urges that the consent form was blank when she signed it, after only five minutes of consultation with Dr. Dawson, who did not discuss any risks associated with either the angiogram or the coiling, and who did not tell her of any risks involving coil migration. Dr. Little confirmed that time frame. Dr. Dawson specifically recalled the consultation, which he stated took about thirty minutes and during which he went over each possible complication with her. The form stated that surgery carried the same material risks as the other procedures. Moreover, the signed form states that all blanks were filled in prior to signing, that she had the opportunity to ask questions regarding risks and alternatives, and that her questions had been answered. The credibility determination apparently made by the jury was reasonable, and, in the absence of evidence that the consent was obtained by misrepresentation, under LSA-R.S. 40:1299.40 we must presume that the consent was valid.[5]
It is inarguable that Mrs. Little did not want to undergo an open craniotomy and that she chose the intervention that she believed to be the least invasive. However, the ensuing complications clearly required emergency surgery, to which Dr. Little validly consented. Although we sympathize with Mrs. Little's plight, we cannot find manifest error in the jury's verdict.
SUMMARY JUDGMENT
Appellate courts review the trial court's grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the *600 light most favorable to the non-movant.[6] A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A material fact is one that potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue exists when reasonable persons could disagree.[7] However, if reasonable persons could reach only one conclusion, summary judgment is appropriate.[8] Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.[9]
Mrs. Little contended that Micrus was liable due to the defective design, manufacture, and failure to properly warn of the risk of coil migration. A supplemental petition added that a Micrus representative, Sue Young ("Ms. Young"), was negligent in "sizing" the particular coil used and that the coil, after its removal, was given to a Micrus representative, who intentionally discarded it to prevent inspection. In dismissing Micrus from the lawsuit on summary judgment, the trial court determined that Mrs. Little did not prove that the warning on the product was not inadequate and that there was no viable action against Ms. Young for negligence. The court further found in favor of Micrus on the issue of spoliation, and, following this conclusion, determined that Mrs. Little had not produced any evidence of defective design. On appeal, Mrs. Little contests the findings of the court with regard to inadequate warning and spoliation.
Ms. Young's deposition was admitted in connection with the Motion for Summary Judgment. She stated that she trained physicians and staff at hospitals in the intricacies of the Micrus coil and was present during the procedure on Mrs. Little. She testified that, if there is a complication that happens with a device, Micrus asks the physician to save it and return it to Micrus. However, Ms. Young did not know what became of the coil after it was removed as it was not given to her. After the surgery, she called Bill Gore of Micrus to report what happened and wrote a report. She was unable to find the report, and probably threw away "last year all my stuff and unfortunately, that went with it." Eric Leopold, a Micrus representative to whom she sent the report, was also unable to find any copy of the report. We note Ms. Young's deposition was taken in 2004; suit had been filed in July of 2002 and service obtained against Micrus in August 2002.
Ms. Young believed that she sent the report to Micrus by e-mail, and that she had verbal confirmation that it had been received. However, in this case Ms. Young did not perceive the problem to be a malfunction of the coil, so she did not ask to see the device or have it saved.
Attached to the opposition is a copy of a confidential report on the matter, prepared by Micrus. The report indicates that initial notification of the event was October 28, 2002, and, after describing the event is *601 the comment: "The product was not returned to Micrus. No product malfunction is alleged." A report to the FDA generated and dated that same day reiterates that no malfunction had been alleged.
A portion of Dr. Culicchia's deposition was admitted in connection with the opposition to the motion. In that deposition, Dr. Culicchia stated that, after he removed the coil, he handed it to the person who hands him instruments, the scrub nurse or surgical technician, but he did not know who that was. He did not know what became of the coil, although it was his "best recollection" that Ms. Young was given the coil.
The theory of "spoliation of evidence" refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. . . . A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. . . . Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply. . . . The tort of spoliation of evidence has its roots in the evidentiary doctrine of "adverse presumption," which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained.. . . .[10]
We find on review that questions of fact exist regarding whether or not Ms. Young received the coil following surgery. She testified that she did not; Dr. Culicchia recalled that it was given to her. Whether or not she received it at that time is a credibility determination not properly determined by summary judgment. We agree with the trial court that it is a prerequisite to a state law tort claim for spoliation of evidence that a party knew suit would be filed when the evidence was discarded and that suit had not been filed as of the time of the surgery. Implicit in this finding, however, is a factual determination, that is, that the coil was disposed of prior to suit having been filed, that is, at the time of the surgery. Even though summary judgment is now favored, it is not a substitute for trial on the merits, and it is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, or knowledge that call for credibility evaluations and the weighing of the testimony.[11]
In this regard, we are further troubled on the subject of the inaccuracies in the reports generated by Micrus to the FDA, regarding notice and its statement that no product malfunction had been alleged well after suit had been filed and served on Micrus. We note as well the fact that the report made by Ms. Young was thrown away over a year after suit had been filed, and such report may well go toward the issue of spoliation.
Micrus urges that, even if Mrs. Little's version of events is correct that is, that the device was disposed of deliberately Mrs. Little cannot establish a cause of action for spoliation under the Louisiana Products Liability Act because destruction of the evidence has to impair the plaintiffs civil claim in order to have a cause of action. Mrs. Little alleged that Micrus was liable in part due to the defective *602 manufacture of the coils causing failure during the procedure, a cause of action encompassed by LSA-R.S. 9:2800.55. It is evident to this Court that destruction of the device distinctly impairs that cause of action.
On our review, we find the above questions of material fact preclude summary judgment and set it aside. Because of this finding, we decline to address any remaining issues with regard to that judgment.
For the foregoing reasons, the jury verdict is affirmed. The summary judgment is reversed and set aside, and the matter remanded to the trial court for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
NOTES
[1] Rabalais v. Nash, XXXX-XXXX (La.3/9/07), 952 So.2d 653, 657 (some citations omitted).
[2] Hondroulis v. Schuhmacher, 553 So.2d 398, 411-12 (La.1988) (citations omitted). Also see, Rovira v. Byram, 02-1115 (La.App. 5 Cir. 2/25/03), 841 So.2d 1009, writ denied, XXXX-XXXX (La.5/9/03), 843 So.2d 407.
[3] Kennedy v. St. Charles Gen. Hosp. Auxiliary, 630 So.2d 888 (La.App. 4 Cir.1993), writ denied, 94-0269 (La.3/18/94) 634 So.2d 863.
[4] Hondroulis, supra; Rovira, supra.
[5] See, e.g., Cherry v. Herques, 623 So.2d 131, 135 (La.App. 1 Cir. 1993).
[6] Nugent v. On-Call Nursing Agency & Assoc. of New Orleans, Inc., 07-1022 (La.App. 5 Cir.3/25/08), 983 So.2d 128 (citing Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764).
[7] Nugent, supra.
[8] Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.
[9] Nugent, supra.
[10] Desselle v. Jefferson Hosp. Dist. No. 2, 04-455 (La.App. 5 Cir. 10/12/04), 887 So.2d 524, 534 (citations omitted).
[11] S.J. v. Lafayette Parish Sch. Bd., 2006-2862 (La.6/29/07), 959 So.2d 884. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602676/ | 418 F.Supp. 690 (1976)
Winthrop J. ALLEGAERT, as Trustee in Bankruptcy of duPont Walston Incorporated, Plaintiff,
v.
CHEMICAL BANK, Defendant.
No. 74 Civ. 1516.
United States District Court, E. D. New York.
August 25, 1976.
*691 Hughes, Hubbard & Reed, New York City, for plaintiff.
Shea, Gould, Climenko & Kramer, New York City, for defendant.
MEMORANDUM AND ORDER
PLATT, District Judge.
PRELIMINARY STATEMENT
Plaintiff moves pursuant to Rule 12(f) of the Federal Rules of Civil Procedure for an order striking from defendant's answer its Fifth Defense to All Counts of the plaintiff's complaint.
The motion is assertedly brought pursuant to the direction of The Hon. Max Schiffman, United States Magistrate, as a result of a pretrial conference which dealt informally with certain discovery requests made by the defendant of the plaintiff. In particular, plaintiff objected to certain interrogatories and demands for production of documents on the ground that they pertain only to the alleged Fifth Defense and that such defense was and is irrelevant to this action.
After a preliminary hearing on plaintiff's motion defendant cross-moved pursuant to Rule 15(a) of the Federal Rules of Civil Procedure for an order granting it leave to file and serve an "Amended Answer with Third-Party and Cross-Claim" and pursuant to Rules 14(a), 18(a), 19(a), 20 and 21 of such Rules for permission to join duPont Glore Forgan Incorporated ("DGF") and H. Ross Perot ("Perot") as third-party defendants. By letter dated March 31, 1976, the request to join third-party defendants was withdrawn. Accordingly, the only issue before the Court is the viability of the defendant's Fifth Defense.
In this action plaintiff, as the trustee in Bankruptcy of Walston Incorporated ("Walston"), seeks to set aside as voidable preferential or fraudulent transfers within the meaning of Section 60(b) and Section 67 of the Bankruptcy Act, the New York State Debtor and Creditor Laws and the common law, payments in excess of $2.5 million dollars by Walston to the defendant on the eve of Walston's petition for an arrangement under Chapter XI of the Bankruptcy Act.
In addition to other defenses, the defendant alleges in its Fifth Defense that by *692 reason of a "Realignment" of Walston and DGF pursuant to certain written agreements (i) the two firms "constituted a single business entity whose assets were and are available to satisfy the creditors of * * * Walston * * *, (ii) the single entity was not and is not insolvent, and (iii) that therefore, a fortiori, there can have been no voidable preference or voidable transfer to" the defendant.
The defendant contends that, although plaintiff now moves to strike the "single entity" defense, plaintiff at this time is maintaining an action in the Southern District of New York against DGF, Perot, and others in which plaintiff "adopts defendant's single entity theory virtually in its entirety". Specifically, defendant claims that plaintiff alleges in such suit (i) that the realignment was a merger between DGF and Walston under Delaware law; (ii) that the realignment contemplated that all operations of the two firms would be combined and that a single broker's business would result; (iii) that the parts of the newly formed entity would be wholly dependent on each other and would operate as a single business; (iv) that all of DGF's expenses were assumed by Walston; (v) that DGF took control of all the functions of Walston; and (vi) that under the realignment Walston's business and property and basic nature and structure were substantially altered and changed.
DISCUSSION
The Bankruptcy Act utilizes a "balance sheet" test to determine solvency or insolvency, i.e., a debtor's assets, fairly valued, are to be compared to his debts as of the relevant date. The Act excludes from the assets "any property which [the debtor] may have conveyed, transferred, concealed, removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors," 11 U.S.C. § 1(19). Further, the courts have consistently held that under the Bankruptcy Act contingent or inchoate claims of the bankrupt are not included as part of the bankrupt's property, Penn v. Grant, 244 F.2d 309 (9th Cir.), cert. denied, 355 U.S. 837, 78 S.Ct. 58, 2 L.Ed.2d 47 (1957); In re Bloch, 109 F. 790 (2d Cir. 1901); In re Bichel Optical Laboratories, Inc., 299 F.Supp. 545 (D.Minn.1969); In re Cooper, 12 F.2d 485 (D.Mass.1926); see 1 Collier on Bankruptcy, ¶ 1.19[2.1], p. 107 (14th Ed.). This is so unless the claims are such that they may be rendered available for the payment of the bankrupt's debts within a reasonable time of the relevant act of bankruptcy, Mossler Acceptance Co. v. Martin, 322 F.2d 183 (5th Cir.1963), cert. denied, 376 U.S. 921, 84 S.Ct. 679, 11 L.Ed.2d 616 (1964); Syracuse Engineering Co. v. Haight, 110 F.2d 468, 471 (2d Cir. 1940); In re Bichel Optical Laboratories, supra; 1 Collier on Bankruptcy, ¶ 1.19[3], pp. 122-25.
These principles apply to the instant case in two ways. First, the exclusionary language of 11 U.S.C. § 1(19) would mean, if the allegations made to us are correct, that the assets of Walston transferred to DGF cannot be considered in determining whether Walston was solvent on the date of Walston's subsequent transfer to the defendant.
Second, defendant's Fifth Defense maintains in effect that Walston possessed an equitable claim to DGF's assets on the date of the transfer to the defendant, and that this claim was an asset which, with Walston's other assets rendered Walston solvent on that date. But this claim was at best contingent or inchoate, and not such that it could be rendered available for the payment of Walston's debts within a reasonable time, if ever. As such, this claim cannot be included in Walston's assets when determining Walston's solvency at the date of the transfer.
There is no longer any question but that it is the trustee's duty to seek to void every voidable preference or transfer including in this case any such that may have been made to DGF from or by Walston. (4A Collier on Bankruptcy, § 70.95[2], pp. 1104-1106) (14th Ed.).
Whether the defendant might make joint or parallel efforts with the trustee to achieve the same result, we need not now decide. In any event, it would appear that any retrieval of assets or other property *693 from DGF would necessarily be "for the benefit of the [bankrupt] estate" and would be distributable to all of the creditors by the bankruptcy court and trustee.
We think it appropriate to add these comments.
First, the conclusion we have reached will have the extra advantage of allowing the parties and this Court to avoid in this action the wasteful duplication of the necessarily involved Southern District discovery proceedings on the Walston-DGF relationship and to avoid any possible inconsistencies in results in the two litigations.
Second, upholding this type of defense could vitiate the basis for the voiding and recovery of preferential transfers. For example, where a bankrupt makes two voidable transfers each of which is for an amount in excess of the amount by which the debtor's liabilities exceed his remaining assets, each recipient could interpose a defense similar to the Fifth Defense of this defendant and claim that since the trustee can recover the amount paid to the other, there is actually no insolvency.
Third, the so-called Fifth Defense is really not a defense at all but in essence a separate action similar to the action brought by the trustee against DGF, which is not a party to this action as now constituted.
Accordingly, plaintiff's motion must be and the same hereby is granted and the Fifth Defense is hereby stricken, without prejudice to its reassertion if at some future date a determination is made in a case also involving DGF that there was in fact a merger of DGF and Walston and that no insolvency existed at the date of the filing of the petition in bankruptcy. The case is remanded to the Magistrates for further pretrial discovery and proceedings not inconsistent with this memorandum.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602691/ | 577 So.2d 1312 (1991)
In re Inquiry Concerning a Judge No. 89-62, re: TRETTIS, Thomas T.
No. 77431.
Supreme Court of Florida.
April 11, 1991.
J. Klein Wigginton, Chairman and Roy T. Rhodes, Gen. Counsel, Tallahassee, and Marvin E. Barkin, Richard W. Candelora and Craig P. Clendinen of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, Sp. Counsel to The Florida Judicial Qualifications Comm'n, for petitioner.
Richard T. Earle, Jr. of Earle & Earle, St. Petersburg, for respondent.
PER CURIAM.
In this disciplinary proceeding the Judicial Qualifications Commission and Judge Thomas T. Trettis present the following stipulation, findings, and recommendations to this Court for review. Art. V, § 12, Fla. Const.
1. Judge Trettis does not contest the matters set forth in the Notice of Formal Proceeding (the "Notice") instituting this inquiry.
2. Judge Trettis specifically consents to a finding of probable cause by the *1313 Commission as to such matters under the Notice of Investigation served December 13, 1989 and under the Second Supplemental Notice of Investigation served August 31, 1990.
3. Judge Trettis does not contest the findings and recommendation of the Commission set forth below.
4. Judge Trettis regrets and apologizes for his conduct.
5. This Stipulation constitutes the only response to this cause by Judge Trettis.
6. The Commission and Judge Trettis waive oral argument.
FINDINGS AND RECOMMENDATIONS
After full and deliberate consideration of the charges set forth in the Notice of Formal Proceeding, the Commission by a vote of at least nine members, makes the following findings with respect to the Respondent, Thomas T. Trettis:
1. You have conducted yourself in a manner designed to lessen public confidence in the dignity, integrity and impartiality of the judiciary, in violation of Canon 2A of the Code of Judicial Conduct.
2. You have exhibited rude and overbearing behavior in open court, including numerous improper tirades and outbursts directed toward jurors, defendants and attorneys, and you have engaged in verbal abuse and intimidation of courthouse personnel and fellow judges on numerous occasions in violation of Canon 3A(2) and (3) of the Code of Judicial Conduct.
3. You have engaged in improper ex parte communications concerning pending or impending proceedings, in violation of Canon 3A(4) of the Code of Judicial Conduct.
4. You have made inappropriate comments on pending proceeding which were not required in the performance of your legal duties, in violation of Canon 3A(6) of the Code of Judicial Conduct.
5. You have failed to disqualify yourself in proceedings in which your impartiality might reasonably be questioned, in violation of Canon 3C(1)(a) of the Code of Judicial Conduct.
6. You have allowed personal relationships to influence your judicial conduct in connection with the estate of Peter Mauger and the case of Philip Joseph Procacci and have lent the prestige of your office to attempt to create an employment position in the judicial system for others, in violation of Canon 2B of the Code of Judicial Conduct.
7. During the course of the investigation, you voluntarily submitted to a complete physical and psychological examination at the Watson Clinic in Lakeland. That examination revealed certain significant stressors in your environment, and resulted in recommendations for a remedial course of action that you should pursue.
8. You cooperated fully in connection with the examinations; you have adhered to the recommended course of action; and there has been a noticeable improvement in your behavior.
9. You have agreed that you will continue to obtain such additional treatment and care as the Watson Clinic or other doctors prescribe, and that you will diligently pursue any course of treatment that the Watson Clinic or other doctors recommend.
The Commission recommends that Judge Thomas T. Trettis be publicly reprimanded for his conduct specified therein.
This Court is greatly troubled by the conduct of Judge Trettis. For the court system to properly fulfill its role in today's society, it is absolutely essential to maintain public confidence in the dignity, integrity, and impartiality of the judiciary. When a judge continuously acts in a manner to undermine this confidence, drastic remedial action, including removal from the bench, is required. While the conduct of Judge Trettis is not as severe or as chronic *1314 as that which existed in In Re Crowell, 379 So.2d 107 (Fla. 1979), wherein we removed Judge Crowell from the bench, his course of conduct, prior to its being modified, was headed in that direction.
Because of the provisions of paragraphs 7, 8, and 9 of the stipulation, we approve the recommendation. Should the conduct of Judge Trettis relapse and continue in the manner related in the original complaint, we request the Judicial Qualifications Commission to file a supplemental proceeding for further review. As a condition of the reprimand, Judge Trettis is directed to comply with his agreement as set forth in paragraph 9 of the stipulation.
We therefore approve the recommendation of the Judicial Qualifications Commission and, for the matters described in the stipulation, publicly reprimand Judge Thomas T. Trettis.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602702/ | 418 F.Supp. 701 (1976)
UNITED STATES of America
v.
Stephen CRUTCHFIELD.
Crim. No. 76-106 Erie.
United States District Court, W. D. Pennsylvania.
September 1, 1976.
*702 John P. Garhart, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.
James K. McNamara, Erie, Pa., for defendant.
MEMORANDUM DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
KNOX, District Judge.
The defendant in this case stands indicted for possessing a sawed-off rifle which had not been registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(b) and also for possessing such a firearm not bearing a serial number in violation of 26 U.S.C. § 5861(i). The gun was taken from him by the police at the time of his arrest in the early morning of March 3, 1976, for public drunkenness in violation of 18 CPSA 5505.
The Section in question a part of the Pennsylvania Penal Code reads as follows:
"A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity."
By a previous order dated August 26, 1976, the court has held this section of the Pennsylvania Penal Code constitutional against an attack based upon vagueness and overbreadth.
The evidence was taken on the motion to suppress the evidence seized from the defendant which hearing was held August 25, 1976. It appeared from the testimony of Officer Yochim of the Erie City Police that on March 3, 1976, he was asked to come to the police office in the municipal building in Erie because a man was there having problems and it was reported to him that he had had trouble at the Perry Square Cafe. Officer Yochim together with Officer Smith then took him to the cafe in question, however the owner said that there had been no trouble there, that there had been a scuffle sometime during the evening but there was nothing to be concerned about.
The officer testified that at this time the man was seriously intoxicated and could barely move. He said he was bouncing off the walls of the corridor and weaving back and forth smelling of alcohol and that in the officer's opinion he was heavily intoxicated. The officer stated that he was incoherent, he was loud and could not be understood. He was thereupon placed under arrest for public intoxication in violation of the section of the Pennsylvania Penal Code above quoted. When taken back to the police station, he was searched during the course of booking and the cut down rifle in question was found in the inside left inner pocket of his jacket. He said that the defendant had never been abusive to him personally and that he was placed in custody because he obviously was in such condition that he "couldn't make it".
We have previously noted that the section of the Pennsylvania Penal Code is carefully drawn so as not to punish all forms of drunkenness but only drunkenness in a public place to such a degree as to endanger the person himself or other persons or property or annoy persons in the vicinity, and the court concludes that the officer was within his rights to place this person in custody under this statute because he was in such condition as to be a danger to himself. If the officer had turned him loose on the streets under these circumstances and he had been run over by an automobile or otherwise injured himself, the officer and the city might be liable to suit for neglect of duty.
*703 The question is whether this was a lawful arrest because if it was, then the officers were justified in searching the defendant under the decision of the United States Supreme Court in Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) and are entitled to search the person of the defendant.
Difficulty has arisen as the result of Rule 51 of the Pennsylvania Rules of Criminal Procedure which in connection with summary offenses, as public drunkenness is classified, provides for institution of proceedings in such cases generally by the issuance of a citation and summons. However, Rule 51(A)(3)(c) effective September 1, 1975, provides:
"(c) the defendant may be arrested without a warrant by a police officer for a summary offense but only when, (i) such arrest is necessary in the judgment of the officer, and (ii) the officer is in uniform or displays a badge or other sign of authority, and (iii) such arrest is authorized by law. Thereafter the case shall proceed as provided in Rule 62."
The officer testified that the arrest was necessary in his judgment because defendant was in such condition that he "couldn't make it". It is stipulated that the officers were in uniform at the time of the arrest. The only question at issue is whether the arrest was authorized by law, this being a summary offense.
It will be noted that we are not dealing with an arrest for a felony or for a misdemeanor as to which other rules apply. The court concludes, however, that a police officer of the City of Erie had the right to make an arrest on view for violation of this Section of the Pennsylvania Penal Code when in his judgment the defendant was in such condition that he might endanger himself and that authority for the arrest is found in Third Class City Code 53 PS 37005 which reads:
"Policemen shall be ex-officio constables of the city, and shall and may, within the city or upon property owned or controlled by the city or by a municipality authority of the city within the Commonwealth, without warrant and upon view, arrest and commit for hearing any and all persons guilty of breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or violating any of the ordinances of said city for the violation of which a fine or penalty is imposed. 1931, June 23, P.L. 932, art. XX, § 2005; 1951, June 28, P.L. 662 § 20."
The Pennsylvania Superior Court has dealt with a similar problem in Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975). In this case, the court held that an officer had no right to arrest without warrant for underage drinking in violation of Section 6308 of the Pennsylvania Crimes Code involving drinking by persons under 21 years of age. It is noted that this is a summary offense under the Crimes Code and that the proper procedure is to issue a citation rather than make an arrest on view.
The Superior Court recognized, however, (Footnote 5) that the new Rule 51 which had then been adopted January 1, 1974, affected only organizational not substantive changes. It is noted that the authority to arrest is limited to the extent of the powers given by law to such officials and that the rule is not intended to give powers to arrest to any person who is not otherwise by law in possession of such powers. As noted, the legislature has conferred this authority on members of the police force in third class cities such as Erie.
In Footnote 6 in Shillingford the court said:
"The appellant could have been arrested under Section 5505 of the Crimes Code which reads: `A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.' Whereas underage drinking (e. g., the act *704 of drinking or possessing an alcoholic beverage) is not of itself a summary offense which `involves a breach of the peace, endangers property or the safety of any person present,' See Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965), and thus an arrest for the offense may not be made without a warrant, see Pa.R.Cr.P. 51; the offense of Section 5505 involves the state of being intoxicated to an endangering degree and an arrest without a warrant would be proper under Pa.R.Cr.P. 51. This possibility has been noted before. See Commonwealth v. Wilson, 225 Pa.Super. 513, 312 A.2d 430 (1973) (concurring opinion by Spaeth, J.)."
It will be noted that the court therein recognized that an arrest would have been proper under Section 5505 involving a state of being intoxicated to an endangering degree.
In view of the above it appears that the police were within their rights in making an arrest of the defendant who was in such a condition as to endanger himself and therefore a search of his person resulting in the discovery of the sawed-off rifle was proper.
The court has previously entered an order denying the motion to suppress evidence and this memorandum opinion is filed in explanation of such order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602704/ | 577 So.2d 299 (1991)
Lionel J. HICKS, Sr.
v.
J.W. SOMERS, et al.
No. 90-CA-0985.
Court of Appeal of Louisiana, Fourth Circuit.
March 14, 1991.
Writ Denied May 24, 1991.
Richard S. Vale, Virgil A. Lacy, III, Blue, Williams & Buckley, Metairie, for defendant/appellant, Fireman's Fund Ins. Co.
Michael R. Sistrunk, Terrill W. Boykin, McGlinchey, Stafford, Cellini & Lang, New Orleans, for defendant/appellee, Aetna Life Ins. Co.
Before BARRY, CIACCIO and ARMSTRONG, JJ.
BARRY, Judge.
Lionel Hicks, Sr., a Slidell policeman, was injured on May 6, 1984 when his police car was hit by a vehicle driven by Clifford *300 Rupert. Hicks sued Rupert's insurer, State Farm Mutual Automobile Insurance Company, Aetna Insurance Company, the liability insurer for the City of Slidell, and Fireman's Fund Insurance Company, insurer of school buses operated by the St. Tammany Parish School Board. Hicks was a named insured under the School Board's policy.
Hicks alleged that his damages exceeded Rupert's liability coverage and that Aetna and Fireman's Fund were liable for his underinsured claims.
Aetna's policy, issued on July 12, 1983, covered approximately 150 vehicles owned by the City and provided liability coverage of $500,000 per occurrence. On September 2, 1983 Stephen Buser, executive assistant to the Mayor of Slidell, executed a statutorily valid waiver of U/M coverage. Fireman's Fund does not question the waiver.
After the waiver the Mayor of Slidell decided to carry U/M coverage on the cars that he and the Chief of Police used. On November 3, 1983 Aetna issued Endorsements 21 and 22 to provide $500,000 U/M coverage on "units # 69 & 137." The policy identifies units 69 and 137 as 1983 Buick Electras used by the Mayor and Police Chief. On the form which contains Endorsements 21 and 22 is an unexecuted U/M waiver form dated November 11, 1983 indicating that U/M coverage is provided in the amount of "$500,000 CSL" (combined single limit). The form is identical to the one executed by the City when it waived U/M coverage. The City could have used the uncompleted form to select lower or higher limits of U/M coverage on units 69 and 137 or to reject U/M coverage for those vehicles. Aetna admits that the form was not necessary to Endorsements 21 and 22 and concedes it was probably included by accident.
State Farm tendered its policy limit of $25,000 and was dismissed. Aetna moved for summary judgment claiming it was not liable for U/M coverage because of the City's waiver. Hicks and Fireman's Fund filed a joint opposition to the motion for summary judgment; however, Hicks withdrew his opposition. The trial court granted summary judgment and dismissed Aetna. Fireman's Fund appeals, arguing that the unexecuted waiver form reinstated U/M coverage on all of the City's vehicles.
The parties agree that if the City did not waive U/M coverage the Aetna policy is contractually and statutorily primary to Fireman's Fund's policy because Aetna insured the vehicle Hicks was driving. La. R.S. 22:1406D.
EXCEPTION OF NO RIGHT OF ACTION
Prior to submission of the appeal, Aetna raised an exception of no cause of action charging that Fireman's Fund has no standing to attack the summary judgment. Aetna argues that Fireman's Fund has no independent right of action as to Aetna's contractual obligation to its insured and should be limited to raising those issues at trial.
We disagree.
Any party to a suit may appeal to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. C.C.P. Art. 2082, Comment (C). Andrade v. Shiers, 516 So.2d 1192 (La.App. 2d Cir.1987), reversed in part on other grounds, 564 So.2d 787 (La.App. 2d Cir.1990), writ denied 567 So.2d 1128 (La. 1990).
Fireman's Fund's potential liability is directly related to Aetna's obligation to provide U/M coverage.
Fireman's Fund does not have to be able to assert an independent right of action against Aetna in order to challenge the summary judgment.
WAIVER OF U/M COVERAGE
At issue is whether the blank U/M waiver vitiates the City's prior expressed rejection of U/M coverage.
Each endorsement became part of the policy at the time it was executed. Ledoux v. Old Republic Life Ins. Co., 233 So.2d 731 (La.App. 3rd Cir.1970), writ refused, 256 La. 372, 236 So.2d 501 (1979). The endorsements are chronological according *301 to their date of execution. Endorsements 21 and 22 reinstated U/M coverage effective November 3, 1983 on two specific vehicles. Aetna's coverage, which consists of the original July 12, 1983 policy and Endorsements 1 through 22, provided $500,000 liability coverage on all City vehicles and $500,000 U/M coverage on the Mayor's and Police Chief's cars.
At that time R.S. 22:1406D(1)(a) provided in pertinent part that U/M coverage did not apply "where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer."
Fireman's Fund correctly points out that reinstatement of U/M coverage need not be signed by the insured to be effective. Only a rejection or selection of lower U/M limits must be executed by the insured. R.S. 22:1406D(1)(a).
R.S. 22:628 provides in pertinent part:
No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy....
U/M coverage specifically applied to the Mayor's and Police Chief's cars. The waiver form would have allowed the City to increase, lower or waive U/M coverage on those two vehicles. It had no effect on the remainder of the policy.
While we view the policy and endorsements as clear and unambiguous, the deposition testimony leaves no doubt that all parties understood that U/M coverage was not intended on any vehicle other than the Mayor's and Police Chief's cars. The policy and endorsements do not provide U/M coverage on any City vehicle except units 69 and 137. Nevertheless, even if we concluded that the policy provisions were ambiguous we would reach the same result. Parol evidence is admissible to establish circumstances surrounding the rejection or selection of lower limits of U/M coverage. Bird v. Daniels, 508 So.2d 611 (La.App. 2d Cir.1987), writs denied, 513 So.2d 825 (La. 1987) and 513 So.2d 828 (La.1987); Cheadle v. Francois, 470 So.2d 255 (La.App. 4th Cir.1985), (Barry, J., concurring). The deposition testimony leaves no doubt that all parties understood that U/M coverage was not intended on any vehicle other than the Mayor's and Police Chief's cars.
Fireman's Fund's reliance on Roger v. Estate of Moulton, 513 So.2d 1126 (La. 1987) is misplaced. Unlike this case, Roger concerned a prospective rejection of U/M coverage which did not comply with R.S. 22:1406D(1)(a).
According to Roger, the object of U/M coverage is "to promote recovery of damages for innocent automobile accident victims... when the tortfeasor is without insurance, and as additional or excess coverage when he is inadequately insured." Roger, 513 So.2d at 1130. Those public policy considerations do not apply where the beneficiary is another insurer.
The judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603329/ | 645 So.2d 1053 (1994)
BLUE REEF HOLDING CORP., INC., Appellant,
v.
Joseph F. COYNE, Individually and as Trustee of Saturn Realty Trust, a Massachusetts Business Trust, Frank L. Viola, Anthony M. Viola, Jaguar Construction, Inc., Jupiter Key Association, Inc., Haymarket Cooperative Bank, and The Town of Jupiter, Appellees.
No. 94-1302.
District Court of Appeal of Florida, Fourth District.
November 16, 1994.
Rehearing Denied December 27, 1994.
*1054 David L. Gorman and Peter S. Van Keuren of David L. Gorman, P.A., North Palm Beach, for appellant.
Nancy W. Gregoire, Brian S. McHugh and Porcher L. Taylor, III, of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees-Joseph F. Coyne, Individually and as Trustee of Saturn Realty Trust, a Massachusetts Business Trust, Frank L. Viola, Anthony M. Viola, Jupiter Key Ass'n, Inc. and Haymarket Coop Bank.
WARNER, Judge.
In this appeal from the denial of a temporary injunction the trial court determined that a declaration of restrictions to real property gave a developer an unfettered right to change the size and configuration of recreational parcels of property in its development. We hold that the declarations of covenants and restrictions prevent such a modification without the consent of the owners and reverse.
Appellant is the owner of two residential lots within the platted subdivision of Jupiter Key. Appellee, Joseph Coyne, as trustee, was the developer of Jupiter Key. The subdivision was originally platted in October 1991 and provided for single-family and multi-family lots and included a sizeable recreation area on the plat. In January 1992 the developer recorded covenants and restrictions for Jupiter Key, which recited that the Property comprising Jupiter Key would be owned, used, and conveyed subject to the covenants and restrictions contained within the recorded document and that such "provisions, conditions, covenants, restrictions, reservations, regulations, burdens, benefits ... shall run with and bind the Property and inure to the benefit of Developer, the Corporation, Owners... . for a period of 99 years." The covenants described the "recreation area" as those portions of Jupiter Key "designated as, or dedicated for use as, a Recreation Area" as depicted in Exhibit D attached hereto, and shall only be used for "Recreational purposes." Exhibit D consisted of the original plat of the subdivision of October 1991 and showed the recreational area. The recreational areas were designated for the sole use of the residents of Jupiter Key, and the declarations provided for the conveyance of the areas to the property owner's association once the developer had sold 75% of the lots, which was deemed the date of turnover. The declaration of covenants also provided that the covenants could be amended by the developer without the requirement of the consent of either the property owner's association or the owners. However, "no amendment to this declaration shall be effective which would increase the liabilities of the then Owner or prejudice the rights of a then Owner or his guests, invitees, lessees and licensees to utilize or enjoy the benefits of the then existing Common Property unless the Owner or Owners so affected consent to such amendment in writing or unless such amendment is adopted in accordance with the procedures required for adoption of an amendment to this Declaration after the Turnover date." Art. IX. Section J(4). An amendment became effective when a Certificate of Amendment was recorded in the Public Records.
In December 1993, the developer recorded a replat of a portion of Jupiter Key, including the Recreation area. In doing so, he reduced the size of the recreation area by about one-half. Townhomes were designated to be constructed on the half of the recreational area appropriated to the developer in the replat. Appellant was not made aware or given any notification of the change of the recreational area, even though its lots had been purchased over a year prior to the replat. There is in the record no certificate of amendment to the covenants and restrictions. Upon discovering the new plat and the substantial reduction of the size of the recreational area, appellant filed suit to enjoin the construction of the townhomes as well as to remove that portion of the construction already commenced. After an evidentiary hearing on a motion for temporary injunction, the trial court denied the injunction, finding that the covenants and restrictions for Jupiter Key gave the owner the right to make modifications to the size of the Recreation Area, citing to the amendment portion *1055 of the declarations. That order generates this appeal.
We think that the trial court ignored the clear language of the covenants in determining that the developer had an unrestricted right to change the size of the recreation area. First, the covenants define the recreation area as it was defined on the first plat. Second, that area is reserved only for recreational purposes. To change the use of half of that area to a townhouse lot is a clear violation of the declarations. While the developer, who is also bound by the covenants, reserved the right to amend, no amendment is effective without the owners' consent where it prejudices the rights of an owner to "utilize or enjoy the benefits of the then existing Common Property [which by definition in the declaration includes the recreational area]." Building a townhouse on part of the recreational property most assuredly prejudices the owners' rights to "utilize" the existing Common Property, because it turns common property which was to be owned by the property owner's association into residential property. Appellees' argument that lessening the size of the recreational area does not decrease appellant's benefit of the use of the facilities to be constructed is off mark. Either the facilities constructed will be considerably smaller, fewer recreational facilities will be constructed, or the residents will have less open space for other communal uses. In any event, appellant does not have the use of what the declarations promised would inure to its benefit. The owner was required to consent to such a change in use.
The declarations of covenants were restrictions running with the land. They were binding on both developer and subsequent owners. The interpretation of the covenant, being a matter of law, see Royal Oak Landing Homeowner's Association, Inc. v. Pelletier, 620 So.2d 786 (Fla. 4th DCA 1993), we hold that the trial court erred in determining that the developer had an unlimited right to amend the covenants to appropriate to his own benefit land set aside for the use of the owners.
Appellees contend, in the alternative, that appellant has not proved an irreparable injury through the violation of the covenant. Therefore, it has not satisfied the requirements to obtain a temporary injunction. However, irreparable injury is not required to be shown to enjoin a violation of a restrictive covenant affecting real property. Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927); Killearn Acres Homeowners Ass'n, Inc. v. Keever, 595 So.2d 1019 (Fla. 1st DCA 1992); Jack Eckerd Corporation v. 17070 Collins Ave. Shopping Center, Ltd., 563 So.2d 103 (Fla. 3d DCA 1990); Daniel v. May, 143 So.2d 536 (Fla. 2d DCA 1962). The declaration of covenants clearly were covenants restricting real property. Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980), is not to the contrary. Unlike the present case, while the plaintiff in Contemporary Interiors claimed that its property interest was being harmed, the opinion notes that no facts showed the existence of a property right.
We therefore reverse the order denying the temporary injunction. The imposition of the temporary injunction would preserve the status quo until the final hearing on the injunction. We remand for further proceedings.
HERSEY and GLICKSTEIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038079/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2964
___________
The Society of Lloyd’s, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Robert W. Fuerst; Hord Hardin, *
* [UNPUBLISHED]
Defendants, *
*
Harold F. Ilg, *
*
Appellant, *
*
Walter A. Klein; Meade M. McCain; *
John J. Shillington; Cynthia J. *
Todorovich; Michael B. Todorovich, *
*
Defendants. *
___________
Submitted: July 5, 2005
Filed: July 11,2005
___________
Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
Harold F. Ilg appeals the district court’s1 adverse grant of summary judgment
in a diversity action brought by The Society of Lloyd’s seeking recognition and
enforcement of a foreign money judgment. For reversal, he argues that the district
court’s handling of this case violated his due process rights. We have carefully
reviewed the record, see Royal v. Kautzky, 375 F.3d 720, 722 (8th Cir. 2004)
(reviewing de novo claims of constitutional error), cert. denied, 73 U.S.L.W. 3623
(U.S. May 31, 2005), and we find no basis for concluding that Ilg’s due process rights
were violated by the district court, see Herts v. Smith, 345 F.3d 581, 587 (8th Cir.
2003) (due process generally requires adequate notice and opportunity to be heard at
meaningful time and in meaningful manner). Further, the undisputed evidence
established that summary judgment was properly granted against Ilg. See Mo. Rev.
Stat. §§ 511.770-787 (2000) (Uniform Foreign Country Money-Judgments
Recognition Act); United States v. One Parcel of Real Property, Located at 9638
Chicago Heights, St. Louis, Mo., 27 F.3d 327, 329 n.1 (8th Cir. 1994) (failure to
respond to summary judgment motion does not automatically compel resolution in
favor of moving party; reviewing court must still determine whether entry of
summary judgment was appropriate).
Accordingly, we affirm. See 8th Cir. R. 47B. We also deny as moot Ilg’s
pending motion.
______________________________
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1602744/ | 577 So.2d 390 (1991)
Milton Bruce ANDERSON, II
v.
STATE of Mississippi.
No. 89-KP-117.
Supreme Court of Mississippi.
April 3, 1991.
*391 Milton Bruce Anderson, II, pro se.
Mike C. Moore, Atty. Gen., Patricia W. Sproat, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ.
HAWKINS, Presiding Justice, for the Court:
Anderson pled guilty to four felony indictments in the First Judicial District of the circuit court Hinds County, and on August 7, 1985, was sentenced to serve a number of years. In the same court, he collaterally attacked those pleas pursuant to Miss. Code Ann. § 99-39-1 et seq. (Supp. 1990) on two grounds: (1) he was denied a speedy trial, and (2) his trial counsel was ineffective because he failed to raise the defense of denial of speedy trial prior to entry of Anderson's guilty pleas. Anderson appeals in forma pauperis the circuit court's denial of his requests for post-conviction relief. We affirm.
Mississippi's statutorily created right to a speedy trial was never invoked because Anderson entered his pleas of guilty on the day he was arraigned. Miss. Code Ann. 99-17-1 (Supp. 1990). Also, the trial court analyzed the merits of Anderson's constitutional speedy trial claim using the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and concluded that no constitutional violation had occurred.
In affirming the trial court, we note en route an additional reason why Anderson's speedy trial claim fails. In petitioning the court to plead guilty, Anderson swore "that by pleading guilty I am admitting that I did commit the crime charged in the indictment(s) and that I am waiving all of the rights set forth in paragraph number 5 of this Petition." Paragraph number 5 of the Petition to Enter Plea of Guilty expressly informed Anderson of his right, among others, to "a speedy and public trial by jury." Anderson does not attack the voluntariness of his plea, and there is no apparent reason why this Court should not hold that Anderson expressly waived his right to a speedy trial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and progeny require an "intentional relinquishment or abandonment of a known right or privilege." That test was met in this case.
Moreover, we have recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial. Ellzey v. State, 196 So.2d 889, 892 (Miss. 1967). We have generally included in this class "those [rights] secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890." Sanders v. State, 440 So.2d 278, 283 (Miss. 1983); see also Jefferson *392 v. State, 556 So.2d 1016, 1019 (Miss. 1989). We take this opportunity to specifically include in that class of waivable or forfeitable rights the right to a speedy trial, whether of constitutional or statutory origin.
This view is in accord with that of our sister states. See e.g. State v. Anderson, 417 N.W.2d 403, 405 (S.D. 1988); Village of Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581, 582-83 (1986); Davis v. State, 469 So.2d 1348, 1349 (Ala. Crim. App. 1985); State v. Champagne, 461 So.2d 1059, 1060-61 (La. Ct. App. 1984); Hall v. State, 281 Ark. 282, 663 S.W.2d 926, 927 (1984); Garrett v. State, 534 S.W.2d 325, 328 (Tenn. Crim. App. 1976).
This rule also prevails in the federal arena. See e.g. U.S. v. Green, 882 F.2d 999, 1007 (5th Cir.1989); Lebowitz v. U.S., 877 F.2d 207, 209 (2nd Cir.1989); U.S. v. LoFranco, 818 F.2d 276, 277 (2nd Cir.1987); U.S. v. Andrews, 790 F.2d 803, 809-10 (10th Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 505 (1987); Tiemens v. U.S., 724 F.2d 928, 929 (11th Cir.1984), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984); U.S. v. Jackson, 659 F.2d 73, 74 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1637, 71 L.Ed.2d 870 (1982); U.S. v. O'Donnell, 539 F.2d 1233, 1236-37 (9th Cir.1976), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976); Speed v. U.S., 518 F.2d 75, 77 (8th Cir.1975), cert. denied, 423 U.S. 988, 96 S.Ct. 398, 46 L.Ed.2d 306 (1975).
With regard to Anderson's claim of ineffective assistance of counsel, it too must fail because it is based on the now fallacious premise that counsel was ineffective because he failed to raise a speedy trial claim.
LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602775/ | 577 So.2d 308 (1991)
Theodore R. ROBERTS, et al.
v.
MURPHY OIL CORPORATION and Louisiana State Department of Transportation and Development.
No. 90-CA-0399.
Court of Appeal of Louisiana, Fourth Circuit.
March 14, 1991.
Writ Denied May 24, 1991.
*309 Jennifer N. Willis, Cater & Willis, New Orleans, for plaintiffs-appellants.
Peter A. Feringa, Jr., John F. Olinde, Douglas L. Grundmeyer, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendants-appellees.
Gregory J. Lannes, Jr., Louisiana Dept. of Transp. and Development, Chalmette, for defendant-appellee.
Deborah F. Cottrell, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, for 3rd party defendant-appellee.
Before KLEES, CIACCIO and LOBRANO, JJ.
CIACCIO, Judge.
Plaintiff, Theodore Roberts and other residents of Jacob Drive in St. Bernard Parish filed a petition for damages and injunctive relief on July 7, 1982 against defendants Murphy Oil Corporation (Murphy) and the Louisiana Department of Transportation and Development (DOTD). Plaintiffs alleged that their homes sustained flood damage on May 3, 1978, April 13, 1980 and April 25, 1982, when surface water failed to drain in their neighborhood during heavy rains on those occasions. Plaintiffs allege the drainage failure resulted from DOTD and Murphy's altering of the existing drainage pattern in the area in 1972-1973 during construction of La. Hwy. 39, also known as the Judge Perez Drive extension. Plaintiffs further allege that the water run-off from Murphy's 25 acre property bordering Jacob Drive, which had previously gone into the 40 Arpent Canal, *310 went instead into the Jacob Drive Subdivision drainage system after completion of the highway. St. Bernard Parish Police Jury was later made a defendant in the suit.
In response to plaintiffs' petition, Murphy filed an exception of prescription contending that plaintiffs' claims for damages allegedly resulting from the 1978 and 1980 floods had prescribed pursuant to the one-year prescriptive period in LSA-C.C. art. 3492. The public defendants, St. Bernard Parish and the DOTD, also filed exceptions of prescription arguing that plaintiffs' claims relative to all three floods had prescribed under LSA-R.S. 9:5624.
On November 3, 1989, plaintiffs filed a second supplemental and amending petition seeking to clarify their original allegations against Murphy. Murphy then filed a motion to strike, claiming that plaintiffs were raising new allegations in violation of a pre-trial order.
After a hearing on the motions the trial judge granted St. Bernard Parish and the DOTD's exceptions, dismissing plaintiffs claims against them. The trial judge also granted Murphy's exception of prescription, dismissing plaintiffs claims for damages sustained prior to July 7, 1981 and also its motion to strike barring all claims against Murphy that were not alleged in the original petition.
Plaintiffs appeal the trial court judgment. Murphy has filed an exception of prescription before this court, seeking dismissal of all claims against it pursuant to LSA-R.S. 9:5624.
On appeal, plaintiffs contend that the trial judge erred in applying the two-year prescriptive period of LSA-R.S. 9:5624, which applies when private property is damaged for public purposes. They maintain that the two-year period is applicable only for damages resulting from intentional and necessary work and is not applicable to a claim for damages resulting from negligent acts. Plaintiffs argue that LSA-C.C. arts. 3492 and 3493, the general prescriptive statutes relative to delictual actions and damage to immovable property, are applicable in this case. Defendants argue that plaintiffs' damages were inherent in the nature of the road construction per se and thus they were intentional because the decision to build the road was intentional.
LSA-R.S. 9:5624 specifically provides:[1]
When private property is damaged for public purposes any and all actions for damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.
Interpreting the intent of the statute, the Supreme Court in Lyman v. Town of Sunset, 500 So.2d 390 (La.1987) concluded that LSA-R.S. 9:5624 is applicable in those cases where damage to private property was a necessary consequence of a public purpose. The Third Circuit in Perkins v. Simon, 265 So.2d 804 (La.App. 3d Cir.1972) held that the two-year prescriptive period is applicable only when the damage to private property is the intentional or necessary result or consequence of the construction work incidental to a public purpose and is not applicable to a claim for damages resulting exclusively from the negligent acts or omissions of the principal, its agents or employees causing the damage. Likewise, in Oswalt v. Irby Construction Company, 424 So.2d 348 (La. App. 2d Cir.1982), the court found that the two-year prescriptive period in LSA-R.S. 9:5624 was applicable where the plaintiff's rice crops were damaged in the course of the construction of power lines across plaintiff's rice fields pursuant to a construction contract between defendant and Louisiana Power & Light Company. The court held that the public purpose work which caused the damage was intentional and necessary and it mattered not for purposes of determining the applicable prescriptive period that the work was done in a negligent manner or that the full extent of the damages might have been unintentional.
*311 In the instant case at the hearing on defendants' exception of prescription, plaintiffs offered the testimony of Steven Estopinal, a licensed civil engineer and land surveyor, as an expert witness. Estopinal testified that he had designed several subdivision drainage systems in St. Bernard Parish and was familiar with the Jacob Drive drainage system. According to him, the Jacob Drive flooding occurred because the super elevation of the Judge Perez Drive extension disrupted the drainage system. Estopinal opined that the resultant flooding was not a necessary and intended consequence of the Judge Perez Drive extension project. He further testified that there were alternative ways that the highway could have been built without destroying or disrupting the drainage system on Jacob Drive. Defendants offered no testimony or evidence to refute Estopinal's testimony or to prove that the flooding of Jacob Drive was a necessary or intentional consequence of the extension of Judge Perez Drive.
In his reasons for judgment, the trial judge did not address the issue of whether damage to plaintiffs' property was the intentional or necessary result or consequence of the construction of the Judge Perez Drive extension and his final judgment was not made on this basis. After review of the record, we find that the damages claimed by plaintiffs in this suit were not the intentional and necessary consequence of the construction work which was performed incidental to a public purpose. We further find that it was not necessary or intended that the drainage system of Jacob Drive be altered so as to cause flooding during normal rainfall. Accordingly, we find the trial court erred in applying the two-year prescriptive period in LSA-R.S. 9:5624 so as to bar all plaintiffs' claims against St. Bernard Parish and DOTD. We therefore conclude that the one year prescriptive period set forth in LSA-C.C. art. 3493 relative to damage to immovable property applies to this case.
Plaintiffs further contend that the alteration of the Jacob Drive drainage system and recurrent floodings constituted a continuous tort and therefore prescription did not begin to run until the tortious conduct ceased, in this case April 25, 1982.
In support of their contention that the alteration of the drainage system and recurring floods were a continuous tort, plaintiffs rely on the holding in South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531 (La.1982). In that case, gasoline from defendants' service stations continuously leaked underground, saturating and deteriorating the polyethylene sheaths of subterranean telephone cables through the action of the petroleum product. The Supreme Court held that prescription against defendants did not begin to run until the leaking gasoline tanks were removed. The court concluded that the doctrine of continuing tort applies only when both the alleged wrongful act and the damages caused by it are continuous.
Under the facts of this case, plaintiffs' damages resulted from three separate and distinct incidents of flooding. A further review of the jurisprudence indicates that repeated instances of flooding caused by the negligent alteration of drainage are separate and distinct events which do not serve to interrupt prescription. See, Carbo v. Hart, 459 So.2d 1228 (La.App. 1st Cir.1984) writ denied, 462 So.2d 654 (La. 1985); Nuckolls v. Louisiana State Highway Department, 337 So.2d 313 (La.App. 2d Cir.1976). Hence, the trial judge was correct in concluding that the separate flooding incidents and the alteration of the Jacob Drive drainage system did not constitute a continuous tort.
Plaintiffs, in opposition to defendants' exception of prescription, invoke the doctrine of "contra non valentum agere nulla currit prescriptio" in support of their position that prescription was suspended against them until April 25, 1982. They contend their claims against defendants for damages resulting from the floods on May 3, 1978 and April 13, 1980 had not prescribed as they had no knowledge that these floods were caused by the Judge Perez Drive extension project because the heavy rains on these two occasions caused widespread flooding throughout St. Bernard *312 Parish. They allege it was not until the rainfall on April 25, 1982 when flooding was confined only to Jacob Drive that they had sufficient notice that their flood damage was due to the alteration of the drainage system caused by the road construction.
Prescription for damage caused to immovable property commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage. LSA-C.C. art. 3493. When a party has enough notice to excite attention and put him on guard and to call for inquiry, he has sufficient knowledge to start the running of prescription. Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 (La.1970).
In Jordan v. Employee Transfer Corporation, 509 So.2d 420 (La.1987), the Louisiana Supreme Court further delineated the rules regulating the running of prescription. The court stated:
Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.
When prescription begins to run depends on the reasonableness of a plaintiff's action or inaction. id at 423.
Defendants argue that plaintiffs had actual knowledge that the flooding was caused by the alteration of the drainage system due to the Judge Perez Drive extension project as evidenced by an affidavit executed by plaintiff Theodore Roberts filed in opposition to defendant Murphy's motion for summary judgment which the trial court denied.
In his affidavit, plaintiff Roberts stated that he has owned his home on Jacob Drive since May, 1963, and at the initial flooding he personally observed a culvert running under the shell road on the Murphy Oil property which drained into the drainage ditch on Jacob Drive. He further avered that prior to the actual road construction project on Judge Perez Drive his home had never flooded but after completion of the project his home had flooded on five occasions. However, at the hearing on the exceptions of prescription, Roberts testified, under oath, that the plaintiffs were aware of the flooding on May 3, 1978 and April 13, 1980 but that the greater portion of St. Bernard Parish had also flooded on those two occasions. On direct examination Roberts denied that he was aware of the alteration of the drainage system prior to 1982 when, while employed by St. Bernard Parish on a road crew, he and other workers unsurfaced a culvert at Jacob and Judge Perez Drives and noticed water from a pipe emanating from Murphy's property draining into the drainage ditch between Jacob Drive and Murphy's property. Defendants offered no evidence to refute this testimony.
The trial judge made no factual determination as to whether plaintiffs knew or should have known that the flooding in 1978 and 1980 was the result of the Judge Perez Drive extension. Further, he did not resolve the conflict or ambiguity between Roberts' affidavit and his testimony at the hearing on the exception of prescription. The resolution of this conflict or ambiguity will require a credibility determination which we cannot make on the appellate level.
This factual determination should be made by the trial judge who has the benefit of the live testimony of Roberts and who must weigh it against his seemingly ambiguous or contradictory affidavit. Accordingly we remand this case to the trial court to make a factual determination as to whether plaintiffs had actual or constructive knowledge that the flooding on May 3, 1978 and April 13, 1980 was caused by the alterations of the drainage system on Jacob Drive as a result of the extension of Judge Perez Drive and was not caused by an act of God.
Lastly, plaintiffs argue the trial court erred in granting Murphy's motion to *313 strike regarding the allegation against Murphy raised in their second supplemental and amending petition. They assert that the second supplemental and amending petition merely clarified the allegations against Murphy set forth in the original petition.
Plaintiffs' original petition alleged that Murphy and the DOTD had executed a change order in the construction project whereby they connected Murphy's drainage with that of Jacob Drive. In paragraphs II and VI of their second supplemental and amending petition plaintiffs allege that Murphy had abandoned existing drainage ditches on its property and cut new ones, thus altering the natural drainage and diverting its water run-off to the Jacob Drive Canal. Murphy contends plaintiffs filed their supplemental petition ex parte without setting it for contradictory hearing and failed to have it served properly by the sheriff.
Once an answer is served, a plaintiff may amend his petition only by leave of court or written consent of the adverse party. LSA-C.C.P. art. 1151. The court may permit the plaintiff to file a supplemental petition on motion, upon reasonable notice and upon such terms as are just. LSA-C.C.P. art. 1155. A party seeking to supplement a pleading must proceed by contradictory motion served on the opposing party by the sheriff. The moving party may not proceed ex parte. Wallace v. Hanover Co. of New York, 164 So.2d 111, 119 (La.App. 1st Cir.1964) writ refused, 165 So.2d 486 (La.1964). The district court has broad discretion in ruling on such motions. Its decision to grant or deny the motion should not be disturbed absent an abuse of discretion. Royer v. St. Paul Fire & Marine Ins. Co., 502 So.2d 232 (La.App. 3rd 1987) writ denied, 503 So.2d 496 (La.1987).
Plaintiffs' original petition was filed on July 7, 1982. More than seven years later, plaintiffs sought to assert different factual allegations against Murphy, ex parte, without a contradictory hearing. Under these circumstances, we cannot say the trial court abused its broad discretion in granting Murphy's motion to strike paragraphs II and VI of plaintiff's second supplemental and amending petition.
For the foregoing reasons, the judgment of the trial court is reversed and vacated insofar as it maintained the exceptions of prescription in favor of defendants, the Louisiana Department of Transportation and Development, the St. Bernard Parish Police Jury and Murphy Oil Corporation, dismissing plaintiffs' claims against them. In all other respects, the judgment is affirmed. The exceptions of prescription are remanded to the trial court for rehearing. The exception of prescription filed by defendant Murphy Oil Corporation in this court is denied.
AFFIRMED IN PART, REVERSED and VACATED IN PART and REMANDED.
NOTES
[1] This statute was amended by Acts 1987, No. 339, Section 1 to provide that the period of prescription shall begin to run after completion and acceptance of the public works. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602779/ | 786 N.W.2d 520 (2010)
IN RE I.B.
No. 10-0526.
Court of Appeals of Iowa.
May 26, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602790/ | 786 N.W.2d 876 (2010)
287 Mich. App. 283
PEOPLE
v.
MANN.
Docket No. 288314.
Court of Appeals of Michigan.
Submitted January 5, 2010, at Lansing.
Decided February 2, 2010, at 9:10 a.m.
*877 Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Thomas E. Evans, Prosecuting Attorney, and David G. Banister, Chief Assistant Prosecuting Attorney, for the people.
Ronald D. Ambrose, for defendant.
Before: BECKERING, P.J., and MARKEY and BORRELLO, JJ.
MARKEY, J.
The prosecution appeals by leave granted the trial court's decision to rescore a sentencing variable and adjust downward defendant's sentence for a conviction of armed robbery, MCL 750.529. We vacate and remand for reinstatement of the original sentences. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant pleaded guilty to charges of armed robbery and unlawful imprisonment, MCL 750.349b. At the plea proceeding, defendant admitted that while armed with a knife he entered a store in Nashville and demanded money from an employee. Defendant further admitted that upon obtaining the money, he left the store, stopped a woman driving a car, and forced her to drive him to Battle Creek. In exchange for the plea, the prosecutor agreed to drop charges of carjacking, MCL 750.529a, and kidnapping, MCL 750.349, and to waive habitual offender enhancement of defendant's sentences. Additionally, the trial court agreed to impose minimum sentences at the low end of the guidelines range.
The trial court initially sentenced defendant to serve concurrent terms of imprisonment of 171 months to 40 years for the robbery conviction and 10 to 15 years for the unlawful imprisonment conviction. The trial court denied a motion for resentencing. In response to defendant's delayed application for leave to appeal, this Court in lieu of granting the delayed application, *878 entered an order vacating the judgment of sentence and remanding this case to the trial court with instructions to recalculate Offense Variable (OV) 9 in light of People v. Melton, 271 Mich.App. 590, 596, 722 N.W.2d 698 (2006), and MCL 777.39. Unpublished order, entered May 21, 2008 (Docket No. 284628). On remand, the trial court changed the score of OV 9 from 10 to zero points, and resentenced defendant to 135 months to 40 years for the robbery conviction and 10 to 15 years for the unlawful imprisonment conviction. The prosecutor now appeals by leave granted.
Offense Variable 9 addresses the number of victims. The trial court originally assessed 10 points for that variable, which is the total prescribed where "[t]here were 2 to 9 victims who were placed in danger of physical injury or death...." MCL 777.39(1)(c).
In the conflict resolution case of Melton, this Court held that OV 9 was to be scored solely according to the number of victims placed only in physical danger. Under Melton, no points are to be scored under OV 9 for victims placed in danger of financial injury. Melton, 271 Mich.App. at 592 (DAVIS, P.J.), 597 (NEFF, J., concurring), 722 N.W.2d 698. Melton was decided on July 20, 2006. In apparent response to that decision, the Legislature amended MCL 777.39, effective March 30, 2007 (approximately one month before the crimes here at issue), to add persons placed in danger of property loss to those placed in danger of physical injury or death as victims for purpose of scoring OV 9.2006 PA 548.
In this case, however, the prosecutor seeks to return defendant's score for OV 9 from zero to 10 points solely on the basis that two victims were threatened with injury or death. Because the prosecutor has never relied on financial or other property-related criteria in maintaining that a score of 10 points is proper, neither Melton nor the legislative response to it presents a reason for adjusting the original scoring of OV 9. Consequently, neither Melton nor the legislative response to it now bar the reinstatement of that original score.
Other caselaw does come to bear, however. In People v. McGraw, 484 Mich. 120, 771 N.W.2d 655 (2009), our Supreme Court held that for purposes of scoring OV 9, "a defendant's conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring offense variables unless a variable specifically instructs otherwise." Id. at 122, 771 N.W.2d 655.
Defendant protests that his armed robbery was completed with there being only one victim for purposes of OV 9 before he began the separate crime stemming from his commandeering a car and driver for his getaway. The applicable statutes, however, prevail over this empirical reasoning. MCL 750.530(1) sets forth robbery in general terms as a felony punishable by imprisonment for not more than 15 years. MCL 750.530(2) in turn adds that for purposes of that statute, the course of committing a larceny includes "flight or attempted flight after the commission of the larceny...." MCL 750.529 incorporates MCL 750.530 by reference and enhances the penalty if the robbery is accomplished with the use of a dangerous weapon. Accordingly, the course of an armed robbery includes the robber's conduct in fleeing the scene of the crime. Thus, in the instant case, defendant's commandeering of a car immediately after taking money from the first victim and forcing the driver of the car to drive him to another community, created a second victim of the armed robbery. In other words, the carjacking incident constituted not only the commission of separate offenses, but was also a continuation of the armed robbery.
*879 At the beginning of the resentencing proceeding, the trial court stated, "As I understand it, the Court of Appeals has indicated that OV 9 should have been scored zero. Is that correct?" Defense counsel agreed, but the prosecuting attorney protested, arguing that the variable was to be recalculated, not necessarily adjusted to zero. The trial court heard arguments, announced its decision to rescore OV 9 at zero, and invited the prosecuting attorney to appeal.
Defendant argues that the trial court correctly interpreted this Court's remand order in this regard and that the result demands respect now as the law of the case. We disagree.
We conclude that the trial court inaccurately inferred from this Court's remand order that this Court demanded that it score zero for OV 9. This Court instead expected only that the question would be considered anew, applying Melton, to the extent that it was relevant. Upon further review, we now conclude that the trial court correctly scored OV 9 at 10 points in the first instance.
Because the original sentences of 171 months to 40 years for the armed robbery conviction and 10 to 15 years for the unlawful imprisonment conviction were within the appropriate guidelines sentence range of properly scored guidelines, resentencing is neither required nor permitted. MCL 769.34(10). Instead, we vacate the sentences imposed after this Court's initial remand and again remand with instructions to reinstate the original sentences.[1]
We vacate defendant's new sentences and remand for reinstatement of his original sentences. We do not retain jurisdiction.
NOTES
[1] The trial court should take this opportunity to correct an irregularity that the parties have not discussed. Although at resentencing the trial court stated from the bench its intention to retain the 10- to 15-year sentence for the unlawful imprisonment conviction, which was not at issue, the judgment of sentence that followed listed for that conviction the same 135 months to 40 years sentence listed for the armed robbery conviction. Because there was no legal reason or justification for increasing both the minimum and maximum sentences for that conviction, we regard this irregularity as simple inadvertence but ask the trial court to correct it on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602750/ | 577 So.2d 1068 (1991)
Jerry Joe ROGERS
v.
PARISH OF EAST BATON ROUGE, et al.
No. CA 89 2053.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
Writ Denied May 31, 1991.
*1069 Francis Rougeou, Baton Rouge, for plaintiff-appellant Jerry Joe Rogers.
Ann Halphen, Baton Rouge, for defendant-appellee South Cent. Bell.
W. George Bayhi, Parish Atty., Baton Rouge, for defendants-appellees City of Baton Rouge, et al.
Before COVINGTON, C.J., and LANIER and GONZALES, JJ.
GONZALES, Judge.
This is a suit for damages in tort arising out of an automobile accident. Plaintiff Jerry Joe Rogers appeals the ruling of the Nineteenth Judicial District Court which granted defendant South Central Bell's motion for summary judgment.
On December 25, 1987, plaintiff, John McGee and their dates picked up two cases of beer and an ice chest and proceeded to the home of McGee's parents. They left about an hour later and while on the road had a flat tire. They called plaintiff's brother to help and by the time the flat was fixed the two cases of beer had been consumed and the group purchased additional beer from 7-Eleven in twelve packs. After dropping off their dates, Rogers and McGee went to a local bar, The Sports Page. They later left to pick up Roger's car, but neither man recalls who was driving at that time.
While driving on Flannery Road, approximately five minutes from The Sports Page, their vehicle left the road, went into the ditch and traveled 316 feet before striking a reinforced concrete culvert located in the City/Parish right-of-way and owned by South Central Bell. Both Rogers and McGee were severely injured. Plaintiff Rogers filed suit in the Nineteenth Judicial District Court against the Parish of East Baton Rouge, South Central Bell Telephone Company and their respective insurance companies, Loren Williams, the owner of the truck, and his insurer Champion Insurance Company. South Central Bell filed a motion for summary judgment. A judgment dismissing South Central Bell was signed by Judge Doug Moreau on August 11, 1989.
Plaintiff appealed and assigns the following specifications of error:
1) The trial court erred in granting defendant South Central Bell's motion for summary judgment when there does exist a genuine issue as to material facts regarding the custodial liability of South Central Bell.
2) The trial court erred in considering South Central Bell's affidavit which was filed only three days prior to the hearing *1070 in support of the defendant's motion for summary judgment, which did not allow plaintiff a sufficient amount of time to secure a counteraffidavit in opposition to the defendant's motion.
3) The trial court erred in failing to grant plaintiff's motion for a new trial, when new evidence was obtained which was instrumental in establishing the plaintiff's liability.
FACTS
Officer Margie Groht of the Baton Rouge Police Department was the first to reach the accident scene. She was unable to obtain statements from Rogers and McGee because of the severity of their injuries. She believed that Rogers was the driver of the vehicle because he was lying at the left front of the truck with his head under the truck. McGee was thrown thirteen feet north of the vehicle and to the right side of the vehicle. Blood was not drawn from Rogers at the hospital due to the severity of his injuries.
Officer Groht's police report concluded that the driver failed to maintain control of the vehicle. She testified at deposition:
Q. Could you determine from your observations that night as to why he failed to negotiate that curve?
A. The only possibility would be alcohol. There were no defects whatsoever in the roadway. We checked that. There was nothing else to really cause it unless he had some kind of mechanical failure in the vehicle itself, which I don't know.
Officer Jimmy Attuso arrived at the scene after Officer Groht. He and two other officers observed that the truck's speedometer was stuck on 68 miles per hour, indicating the speed at the time of impact. The posted speed for Flannery Road is 45 miles per hour. The windshield of the truck was lying 48 feet north of the vehicle and the hood of the truck was lying 31 feet north of the vehicle, both also indicating a high rate of speed at the time of impact.
Officer Attuso observed numerous empty beer cans in the cab and bed of the truck and lying around the vehicle. He made a detailed report which stated:
During the investigation, officers observed seven empty beer cansthree Coors Lites, 12-ounce; three Miller Lites, 10-ounce; and one Bud Lite, 10-ounce, all lying around the vehicle.
Officer observed four empty beer cansthree Bud Lites 10-ounce, and one Budweiser 10-ounce, lying in the bed of the truck.
Officer also observed one J.D. Dant Whiskey bottle broken on the front seat, but the seal on the cap was not broken.
Officer observed sixteen empty beer cansnine Coors Lites, 12-ounce; five Miller Lites, 10-ounce; and two Bud Lites, 10-ounce, lying in the bed of the truck.
Officer Attuso testified:
Q. Did you get close enough to them to notice any alcohol?
A. You could smell alcohol on them.
Officer Attuso testified that he felt the driver was highly intoxicated, could not control the vehicle at a high rate of speed and as a consequence, ran off the road. He also testified that because the speedometer indicated 68 miles per hour, there was a good possibility that prior to impact the vehicle was traveling faster than 68 miles per hour. McGee testified that he and Rogers each drank more than a case of beer before the accident, and that he believed the cause of the accident was "too much alcohol".
Plaintiff-appellant's claim for damages against defendant, South Central Bell, is based upon South Central Bell's alleged failure to correct an unreasonably dangerous situation which it knew or should have known under the circumstances to exist and which created an unreasonable risk of harm. Specifically, Rogers alleges that South Central Bell caused an unreasonably dangerous situation by placing a reinforced concrete headwall near a dangerous curve and on the city's right-of-way.
ASSIGNMENT OF ERROR NUMBER 1
Whether the trial court erred in granting defendant South Central Bell's motion *1071 for summary judgment, when there does exist a genuine issue as to the material facts regarding the custodial liability of the aforementioned defendant.
Plaintiff-appellant alleges that South Central Bell is liable under both a negligence and strict liability theory. In regard to strict liability, plaintiff argues that the culvert/headwall presented an "unreasonable risk of harm due to its location near a heavily traveled roadway and its size".
Plaintiff has presented no evidence that the headwall was defective in any way. The mere fact that an accident or injury occurs is not proof of a defect or an unreasonably dangerous condition. Broussard v. Pennsylvania Millers Mutual Insurance Co., 406 So.2d 574 (La.1981). Under Louisiana law, a custodian will not be held responsible for every injury resulting from every risk, but only for those injuries caused by an unreasonable risk of harm to others. (Emphasis added) Entrevia v. Hood, 427 So.2d 1146 (La.1983); Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Maltzahn v. City of New Orleans, 433 So.2d 417 (La.App. 4th Cir.1983).
It is undisputed by plaintiff that the culvert was located 10 to 12 feet east of the road and in the ditch. The record shows that the culvert was constructed in the only possible location, which was dictated by the location of the ditch apparently constructed by the City/Parish for drainage purposes. The culvert could not reasonably have been located in any other place. There was no visual obscurement to motorists approaching the curve where the vehicle left the roadway. The police report indicated the roadway was dry at the time of the accident and there were no defects in the roadway. It is undisputed by plaintiff that at the time of impact the vehicle was apparently traveling 68 miles per hour in a 45 mile per hour zone and that both Rogers and McGee had consumed a large amount of alcohol before the accident. It is undisputed that Officer Attuso observed a large number of empty beer cans in and around the vehicle and smelled alcohol on the breath of both Rogers and McGee. The trial court correctly found that plaintiff failed to meet the burden of proof necessary to show the headwall created an unreasonable risk of harm to others.
Plaintiff also asserts that South Central Bell is liable to him under a negligence theory. Plaintiff asserts "South Central Bell had a duty to protect the public against the risk that a motorist might lose control of his or her vehicle, drive it off the road, and hit the concrete structure, situated in close proximity to the curve".
As stated by the Fourth Circuit in Armand v. Louisiana Power & Light Company, 482 So.2d 802, 803 (La.App. 4th Cir.) writ denied, 484 So.2d 669 (La.1986), in order for the defendant's conduct to be considered the legal cause of the plaintiff's injuries, its conduct must be a cause in fact of the injuries. The risk and harm encountered by a plaintiff must fall within the scope of protection afforded by a defendant's duty which was breached by its negligence... Negligent conduct is a cause in fact of harm to another if it is considered a substantial factor in bringing about the harm. Thomas v. Missouri Pacific Railroad Company, 466 So.2d 1280 (La.1985). The cause must play a significant role in causing the injury. Lastrapes v. South Central Bell Telephone Company, 473 So.2d 115 (La.App. 3d Cir.); writ denied, 477 So.2d 708 (La.1985), Carter v. Dr. Pepper Bottling Company, 470 So.2d 496 (La. App. 1st Cir.1985).
A motorist has a duty to control an automobile and maintain a proper lookout. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir.1975), writ denied 325 So.2d 608 (La.1976); Hebert v. Lefty's Moving Service, 389 So.2d 855 (La.App. 4th Cir.1980).
The culvert/headwall owned by South Central Bell is located 10 to 12 feet from the road in a ditch. The location of the culvert did not create an unreasonable risk of harm. The law applicable to this case is found in Perkins v. State Department of Transportation & Development, 515 So.2d 553, 555 (La.App. 1st Cir.), writ denied 515 So.2d 1114 (La.1987). This Court found in Perkins,
*1072 The roadway and shoulder of the highway are intended for vehicular use by statutory definitions; however, the roadside ditch is not so intended. The roadside ditch is constructed and maintained "for the purpose of draining the highway." Because the roadside ditch is intended for drainage and not vehicular use, there was no duty on the part of either DOTD or the Parish to construct or maintain the utility pole located on the back of the ditch in such a way that it did not pose an unreasonable risk of danger for vehicles in the ditch. See Wilkinson v. Town of Baker, 506 So.2d 739 (La.App. 1st Cir.1987).
The culvert in the case sub judice is analogous to the utility pole in Perkins.
In Wilkinson v. Town of Baker, 506 So.2d 739 (La.App. 1st Cir.1987), plaintiff's car was forced by a passing car to veer off the roadway and into a ditch. The car traveled about fifty feet before striking a sewer manhole structure, then traveled about twenty-five more feet before it came to rest against a private driveway culvert. This Court found there was no duty on the part of the City to construct or maintain the portion of the manhole located in the ditch in such a way that it did not pose an unreasonable risk of danger for vehicles in the ditch, because the roadside ditch was intended for drainage and not vehicular use.
In the case sub judice, the sole cause of the accident was the negligence of the driver of the car who, while driving under the influence of alcohol, failed to negotiate a curve while traveling at a high rate of speed and drove into a ditch, traveling 316 feet before hitting the culvert and then a fire hydrant.
A motion for summary judgment should be granted only if the pleadings, depositions and all records on file show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, La.C.C.P. art. 966. We find South Central Bell is entitled to summary judgment as a matter of law. This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 2
Assignment of error number two alleges the trial court erred in considering South Central Bell's affidavit filed only three days prior to the hearing in support of the defendant's motion for summary judgment which did not allow the plaintiffs a sufficient amount of time to secure a counter affidavit in opposition to the defendant's motion. Louisiana Code of Civil Procedure Article 966 provides that service of a motion for summary judgment must be made at least ten (10) days before the hearing. There is no requirement that mover file supporting affidavits ten (10) days prior to the hearing. The court in In re Gary, 300 So.2d 524 (La.App. 2d Cir.), writ denied 303 So.2d 179 (La.1974), held that it was not error for the trial court to consider the mover's affidavits at the hearing on the motion for summary judgment even though the affidavits were not filed until that day. The court stated "It should be first noted the article [La.C.C.P. art. 966] makes no specific reference to any time limitation on the filing of a proponent's affidavits." In re Gary, 300 So.2d at 525. In any event, in the case sub judice the trial judge on the day of oral argument (July 14, 1989) advised both counsel that the court would leave the record open until July 19, 1989, solely for the purpose of filing a countervailing affidavit, if in fact such could be obtained.
This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 3
Assignment of error number three alleges the trial court erred in failing to grant the plaintiff's motion for new trial, when new evidence was obtained which was instrumental in establishing the plaintiff's liability. In their application for new trial, plaintiffs rely solely on the affidavit of David Androwski, whom they allege had an accident involving the same culvert/head wall owned by South Central Bell. Plaintiff alleges this affiant was a crucial witness to establish the requisite knowledge necessary to impose liability under the negligence rule. The trial court judge at the hearing on the motion for summary judgment, July 14, 1989, stated *1073 that he would allow the parties additional time to file a counter affidavit to South Central Bell's affidavit of the architect which stated that the design of the driveway and culvert conformed to all then-applicable codes, standards and laws. The judge stated "Other than that, I'm not going to let the record by supplemented any further than that." Instead of filing a counter affidavit, the plaintiff filed the affidavit of Androwski into the record on July 18, 1989. Plaintiff alleged in its motion for new trial that Androwski could not be located earlier by plaintiff. The motion for summary judgment was filed by plaintiff on May 19, 1989. Hearing on the motion for summary judgment was not held until July 14, 1989. The trial court denied plaintiff's motion for new trial on the motion for summary judgment, finding that the Androwski affidavit was outside of those things for which the record was left open and that it did not consider the affidavit because it was not in the record at the time of the argument on the motion for summary judgment, and because it was outside the confines of the allowance for keeping the record open, and there was no request that the record be left open for such an affidavit.
Louisiana Code of Civil Procedure Article 1972 provides "A new trial shall be granted upon contradictory motion of any party, in the following cases: ... (2) When the party has discovered, since the trial, new evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial ..."
The only reason given by plaintiff for not securing Androwski's affidavit earlier is that "plaintiff was unable to locate him." Plaintiff states in his brief, "The attestation of Mr. David Androwski establishes that the defendant, South Central Bell, did in fact have knowledge that the structure they placed within the right-of-way of South Flannery Road did create an unreasonable risk of harm." The affidavit of Androwski states that he was returning from a hunting trip three or four years ago, had been drinking, ran off the curve on South Flannery Road and hit the culvert at issue in the present case. A police report of the incident was filed into the record by plaintiff on August 9, 1989. The police report states that subject ran off the road and abandoned his vehicle which was found by police at 1:00 a.m. on February 15, 1984. The police report found "Subject states that his steering column locked up and he ran off the road ... He stated he didn't realize he had to report the accident because he thought he just ran into a ditch." The existence of the affidavit and police report does not warrant a new trial. The fact that three years prior to this accident an intoxicated driver lost control of his vehicle, ran off the road and hit the same culvert does not show that the culvert was defective in any way. The motion for new trial was properly denied.
This assignment of error has no merit.
Defendant-appellee, South Central Bell, in answer to plaintiff's appeal of this case contends this appeal is frivolous and requests an award of damages and attorney fees under La.C.C.P. art. 2164.
This Court has found that under La.C.C.P. art. 2164 recovery of damages for frivolous appeal is penal in nature and must be strictly construed. Weatherall v. Department of Health and Human Resources, 432 So.2d 988 (La.App. 1st Cir.), writ denied 437 So.2d 1150 (La.1983). Where contentions raised on appeal are without merit, but raise legitimate issues, damages for frivolous appeals are not allowed. Sample v. Sample, 432 So.2d 376 (La.App. 1st Cir.1983).
Therefore, all costs of this appeal are to be borne by plaintiff herein.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602767/ | 577 So.2d 755 (1991)
Joann TURNER, Individually, etc.
v.
POINTE COUPEE PARISH SCHOOL BOARD, et al.
No. 89 CA 2092.
Court of Appeal of Louisiana, First Circuit.
March 28, 1991.
Writ Denied May 24, 1991.
C. Jerome D'Aquila, New Raods, for plaintiff-appellant.
Robert L. Kleinpeter, Kleinpeter & Kleinpeter, Baton Rouge, for defendant-appellee.
Before LOTTINGER, SHORTESS and CARTER, JJ.
SHORTESS, Judge.
On October 12, 1983, ten-year-old Catina Williams was entering a classroom when an unidentified child threw the classroom door shut ahead of her.[1] Catina raised her hand to stop the door and, as a result, her *756 hand broke through one of the door's glass panels. Catina's injuries consisted of lacerations of the ulnar nerve and two tendons, the palmaris and flexor carpi ulnaris tendons. Because of the injuries Catina now suffers from a deformity referred to as a "claw hand."
Joann Turner, individually and as the natural tutrix of her minor daughter, Catina Williams (plaintiff) sued Pointee Coupee Parish School Board (defendant) to recover for injuries Catina sustained which were caused by the accident. Plaintiff argued at trial that defendant was negligent and strictly liable for not having installed some form of safety glass in the door's panels. After a trial on the merits the trial court ruled in favor of defendant and dismissed plaintiff's suit. Subsequently, plaintiff perfected this appeal essentially reurging the same position she presented to the trial court.
The school was constructed in 1941 and originally provided classrooms for the first grade through high school. Shortly before the accident, the school was converted into an elementary school. The doors to the classrooms have wood panel bottoms and four narrow horizontal glass panels which start approximately 35 to 38 inches from the floor and about 2 or 3 inches above the doorknob. The record does not reveal the thickness, composition, or dimensions of the glass panels. However, from the photographs provided in the record, each panel appears to be about 18 inches long and 6 inches high.
The trial court, in ruling for defendant, apparently relied exclusively on LSA-R.S. 40:1711-1715 which imposes criminal sanctions for failure to use "safety glazing materials" in any hazardous location. Specifically, the trial court relied on LSA-R.S. 40:1711(2) that provides in pertinent part: "... wood panel doors with small lights thirty-six inches or more above the floor... are not to be considered hazardous and these installations are not to be included within the definition of hazardous locations as set forth hereinabove." Assuming for the sake of argument that the article is applicable to the present case[2] where the building was constructed well before the enactment of the statute in 1972, we conclude the trial court erred in finding that per se compliance with the statute relieves defendant of liability. This court in Williams v. Exxon Corp., 541 So.2d 910, 918 (La.App. 1st Cir.), writ denied, 542 So.2d 1379 (La.1989), held that compliance with existing building codes does not in and of itself relieve defendant of liability. See also Morrison v. Clearview Medical Plaza, 357 So.2d 1386 (La.App. 4th Cir.), writ denied, 359 So.2d 622 (La.1978). Although the cases cited examined whether compliance with the building codes provided a safe harbor for defendants, we find the rationale of the cases apply with even more force where the issue is whether compliance with an act imposing criminal liability for using certain glazing materials relieves one of potential civil liability. Compliance (or noncompliance) with the act is simply another factor to be considered in the totality of the circumstances.
The testimony reveals the school had not experienced a prior problem with the doors. Only once in 17 years has the need arisen to replace any of the glass panels in the doors of the school. Defendant replaced a glass panel after it was deliberately broken to gain access to an office. Understandably, defendant argues that under the circumstances there was nothing to indicate it knew or should have known that an unreasonably dangerous condition existed. But, as stated by the Louisiana Supreme Court, under the law in effect at the time of the incident,[3] "[w]here delictual responsibility is based not on negligence *757 but on legal fault, under article 2317, a public body's knowledge of the existence of the danger is irrelevant[;] [l]iability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty." Jones v. City of Baton Rouge, etc., 388 So.2d 737, 740 (La.1980).
This court in Williams v. Exxon Corp., 541 So.2d at 913, articulated the elements plaintiff must prove in order to recover. Plaintiff must prove (a) that the thing which caused the damage was in the care (custody) of the defendant owner, (b) the existence of a defect or vice of the thing and (c) that his damage occurred through this defect or vice. In Entrevia v. Hood, 427 So.2d 1146 (La.1983), the supreme court stated that there is a limit on the owner's strict liability. The owner may only be held responsible for things which pose an unreasonable risk of harm to others. The court went on to say that the application of strict liability must only be determined after a full study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations.
The only issue of consequence presented by the parties is whether the door was defective and unreasonably dangerous.
As noted by the supreme court in Dixon v. Allstate Ins. Co., 362 So.2d 1368, 1370 (La.1978), thousands of injuries occur each year as a result of collisions with glass doors and panels. According to the unrebutted testimony of plaintiff's expert, studies have shown that the majority of persons injured as a result of glass breakage are children under the age of 15, even though this group forms a small percentage of the population. He gave several reasons for this unfortunate phenomena: children are preoccupied with doing other things; they do not appreciate the hazards of pushing on glass the way older people might; there is also a difference in stature and size in relationship to the doorknob where they would typically push. Also, the expert testified that failure of the defendant to use some form of safety glass created a hazardous situation.
Applying the above precepts, we note that the owner of the door is a public body with taxing authority. The cost imposed by the application of strict liability can be spread widely among the persons who benefit from the state school system. The potential for harm is great because the door is subject to heavy use by children. This particular door is used as an entrance to the classroom that has a high traffic pattern. Moreover, the glass panel which caused the injury is located two to three inches above the doorknob, just where small children will often with their hands push to open or try to stop a door about to slam in their face. The cost of replacing the pane directly above the doorknob is slight in light of the cost of injuries, actual or potential.
Defendant argues that the cost of replacing the panels would strain an already excessively burdened budget. However, the only glass that concerns us are the panels directly above the doorknob. These are the panels most likely to cause injuries to small children attending the school.
For the above reasons, we reverse the trial court's judgment. Since we have the entire record before us, we will decide the issue of quantum instead of remanding the case.
Plaintiff was admitted to the Earl K. Long Hospital the day of the injury, October 12, 1983. The next day she underwent surgery to repair the lacerations of the ulnar nerve as well as the repair of two tendons, the palmaris longus and the flexor carpi ulnaris. The surgery went well, and she was discharged that same afternoon.
Plaintiff returned several times to the hospital for follow-up visits. In general, the outpatient medical records reveal that she developed a claw hand, a static deformity in which some of the joints of the hand go into hyperextension while other joints go into flexion.
Plaintiff saw Dr. Ronnie Matthews, an orthopedic surgeon, on January 22, 1988. His examination of the intrinsic muscles of *758 her hand revealed weakness and atrophy. Matthews also found that plaintiff does not have normal nerve sensation in her hand. Based on guidelines set by the American Medical Association and the Academy of Orthopedic Surgeons, Matthews estimated she will suffer from a 26% disability to the left upper extremity.
According to Matthews, additional surgery could be of some value to plaintiff but that future surgery will not completely return the hand to normal.
As a result of the accident, plaintiff can no longer perform many of life's simple tasks, such as buttoning her clothes, tying her shoes, and putting a bow in her hair.
After thoroughly reviewing the record, we conclude that a general damage award of $150,000.00 is reasonable under the circumstances presented. C.f. Streeter v. Sears Roebuck and Co., Inc., 533 So.2d 54 (La.App. 3d Cir.1988), writ denied, 536 So.2d 1255 (La.1989) (general damage award of $145,333.33 to plaintiff suffering from a claw hand as a result of ulnar nerve damage).
The judgment of the trial court is accordingly reversed at defendant's costs.
REVERSED AND RENDERED.
NOTES
[1] The trial court made no specific finding of fault on the part of the unidentified child.
[2] In Wilkinson v. Hartford Accident & Indemnity Co., 411 So.2d 22, 23 (La.1982), the supreme court indicated the statute did not apply to impose liability on a school board for a building constructed in 1965. But, compare Dixon v. Allstate Ins. Co., 362 So.2d 1368, 1370 (La.1978) where the court in an earlier case apparently considered the statute under circumstances similar to Wilkinson.
[3] Compare LSA-R.S. 9:2800 enacted in 1985 which only allows the imposition of strict liability when the public body has actual or constructive knowledge of the particular vice or defect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602768/ | 8 So.3d 259 (2009)
RANKIN GROUP, INC., Appellant
v.
CITY OF RICHLAND, Mississippi, Appellee.
No. 2007-CA-02259-COA.
Court of Appeals of Mississippi.
March 17, 2009.
Samuel D. Joiner Jr., attorney for appellant.
Stephen W. Rimmer, Jackson, attorney for appellee.
Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
GRIFFIS, J., for the Court.
¶ 1. The Rankin Group, Inc. ("Rankin") petitioned the Circuit Court of Rankin County to issue a writ of mandamus to require the City of Richland ("the City") to sign and file a bill of exceptions. The circuit court dismissed the petition for the writ of mandamus, because Rankin did not appeal the City's decision within ten days as required under Mississippi Code Annotated section 11-51-75 (Rev.2002). Rankin now appeals the dismissal and argues that: (1) the time for appeal was incorrectly determined to run from the date the board adjourned the meetingnot the date the minutes were signed, and (2) the City is estopped from labeling this property a mobile home because the City has taxed it as *260 a homestead since 1965. We find no error and affirm.
FACTS
¶ 2. Rankin entered into an agreement to purchase the disputed property in June 2007. At this time, George Sanders, Rankin's president met with the City's building official, Jeff Sims, to discuss the property. Sims instructed Sanders to draft a proposal for improvements to the property for discussion at the City's next meeting. Sanders attended that next meeting, but the issue of his property was tabled until the City's following meeting.
¶ 3. The City held its regularly scheduled meeting on September 4, 2007, and recessed this meeting until September 11, 2007, at which time the meeting was adjourned. Rankin was not represented during either session. During this two-session meeting, the decision was made to demolish the structure owned by Rankin under the City's authority to remove dilapidated buildings in an effort to clean private property pursuant to Mississippi Code Annotated section 21-19-11 (Rev. 2007). The minutes from this two-session meeting were signed by a majority of the members of the governing body of the City on September 18, 2007. The City had published a notice in the local newspaper for two consecutive weeks as required under section 21-19-11 if the property owner or his address is unknown.
¶ 4. On September 27, 2007, Rankin presented the City with a bill of exceptions to sign. However, the City refused to sign it. On October 12, 2007, Rankin petitioned the circuit court to issue a writ of mandamus to require the City to sign the bill of exceptions. The City subsequently filed a motion to dismiss. The circuit court granted the motion to dismiss Rankin's petition because the petition was filed after the ten-day time period for appeal had passed. Because of the procedural bar, the circuit court declined to hear Rankin's argument on the merits that this structure is actually real propertynot a mobile homeand notice was improper.[1]
STANDARD OF REVIEW
¶ 5. Appellate courts "review[] errors of law, which include summary judgments and motions to dismiss, de novo." Aldridge v. West, 929 So.2d 298, 300(¶ 6) (Miss.2006) (quoting City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000)).
ANALYSIS
1. Was the time for appeal incorrectly determined to run from the date the board adjourned the meetingnot the date the minutes were signed?
¶ 6. Rankin argues that the City's decision was not final and appealable until September 18, 2007, when the minutes of the September 4, 2007, and September 11, 2007, meetings were adopted and approved by signing. The City responds that the ten-day period for appeal begins when the meeting, where the City rendered its decision, is adjourned.
¶ 7. "This Court must apply the plain meaning of unambiguous statutes." Ameristar Casino Vicksburg, Inc. v. Duckworth, 990 So.2d 758, 760(¶ 9) (Miss.2008) (citing Richmond v. City of Corinth, 816 So.2d 373, 377-78(¶ 15) (Miss.2002)).
¶ 8. We begin our inquiry by looking at the plain meaning of section 11-51-75, which provides in pertinent part:
Any person aggrieved by a judgment or decision of the board of supervisors, or *261 municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.
(Emphasis added). The City argues that a decision is rendered and the time for appeal begins to run once a meeting is adjournedwhen a motion to adjourn is made, seconded, and approved by the majority of the board. Rankin argues that under Mississippi Code Annotated section 21-15-33 (Rev.2007), the City does not render a decision until the minutes of a meeting are signed. Once the minutes are signed and the meeting adjourned, then the ten-day time period for appeal begins to run.
¶ 9. Rankin cites South Central Turf, Inc. v. City of Jackson, 526 So.2d 558, 562-63 (Miss.1988) as grounds that a matter is not finally decided and appealable until the minutes of the meeting are signed. In South Central Turf, Inc., the supreme court was not required to decide whether the time for appeal began at the adjournment of the meeting or upon the signing of the minutes from that meeting, because the appeal was filed more than ten days after the minutes were signed. Id. at 562.
¶ 10. We look to section 21-15-33 to determine the effect and validity of municipal minutes. The statute states in part that:
The minutes of every municipality must be adopted and approved by a majority of all the members of the governing body of the municipality at the next regular meeting or within thirty (30) days of the meeting thereof, whichever occurs first. Upon such approval, said minutes shall have the legal effect of being valid from and after the date of the meeting.
Miss.Code Ann. § 21-15-33. The minutes must be approved at the next meeting or within thirty days, and once approved, the "minutes shall have the legal effect of being valid from and after the date of the meeting." Id. (emphasis added). Rankin argues that meeting means the meeting when the minutes are approved, not the actual meeting addressed by the minutes. However, this interpretation is inconsistent with the plain language of the statute.
¶ 11. Following Rankin's logic, if the City did not hold a regularly scheduled meeting within thirty days, but it approved the minutes within thirty days of the original meeting as required by section 21-15-33, then the minutes would have no legal effect. In this situation, there would be no meeting within Rankin's interpretation of section 21-15-33 to mark the legal effect of the minutes. Rankin's argument is without merit.
¶ 12. The ten-day time period for appeal began when the City adjourned the meeting on September 11, 2007, after making a decision about the property. Finding no error, we affirm.
2. Is the City estopped from labeling this structure a mobile home because the City has taxed it as a homestead since 1965?
¶ 13. Rankin argues that the City is estopped from removing this structure as a mobile home under section 21-19-11, because the City has taxed this property as a homesteadnot a mobile homesince 1965. The City argues that the timeliness of the appeal is dispositive, and the underlying merits are irrelevant.
*262 ¶ 14. The supreme court has held that "[w]hen an appeal and bill [of] exceptions are not filed within the prescribed 10 days from the day of adjournment of the board of supervisors['] session, neither the circuit court nor [the appellate court] has jurisdiction [to] consider the appeal." House v. Honea, 799 So.2d 882, 883(¶ 9) (Miss.2001) (citing Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990)). As discussed, Rankin's appeal was filed outside the ten-day period allowed by section 11-51-75.
¶ 15. Rankin's failure to file the appeal within ten days determines the outcome of this appeal. We affirm the circuit court's dismissal based on its lack of jurisdiction due to Rankin's failure to timely appeal.
¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] Under Mississippi Code Annotated section 21-19-20 (Supp.2008), the real property statute, the property owner is entitled to thirty-days notice and a hearing in circuit court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603359/ | 645 So.2d 538 (1994)
Roy L. DEMPSEY, Appellant,
v.
OLD DOMINION FREIGHT LINES and Florida Unemployment Appeals Commission, Appellees.
No. 94-740.
District Court of Appeal of Florida, Third District.
November 9, 1994.
James Garrity, Tampa, for appellant.
Brian P. Philips, Palm Beach Gardens, for appellee Old Dominion Freight Lines.
*539 John D. Maher, Tallahassee, for appellee Florida Unemployment Appeals Com'n.
Before HUBBART, LEVY and GREEN, JJ.
GREEN, Judge.
Roy L. Dempsey ("Dempsey") appeals the denial of unemployment compensation benefits by the Florida Unemployment Appeals Commission as the result of his voluntary departure from his place of employment at Old Dominion Freight Lines, Inc. ("Old Dominion"). We reverse.
The relevant facts are basically undisputed by the parties. Dempsey had been employed as a dock worker at Old Dominion. Dempsey complained to the operations manager at Old Dominion that he [Dempsey] had been the constant recipient of verbal abuse by one of the night supervisors for whom Dempsey worked. Specifically, the night supervisor repeatedly referred to Dempsey as a "dumb a____,"; "dumb son of a b____" and other such offensive phrases.
After his complaint, Dempsey was apparently reassigned to a different location for approximately thirty days. Acting upon complaints from the other workers that Dempsey was receiving preferential treatment in not working the night shift, the operations manager decided to reinstate Dempsey to the night shift. When Dempsey told the operations manager that he would not work for the night supervisor who called him names, Dempsey was basically told that he had to either work with this supervisor or "clock out." Dempsey did in fact leave for the evening. When Dempsey reported for work the next day, he was told that he had in effect quit his job when he left the prior day.
The Florida Department of Labor and Employment Security Division of Unemployment Compensation determined that Dempsey was entitled to receive his unemployment compensation benefits. It found that the verbal abuse constituted good cause attributable to Old Dominion for Dempsey's voluntary departure. Old Dominion appealed this determination to a referee who likewise agreed that good cause attributable to the employer had been demonstrated.
Old Dominion then appealed to the Unemployment Appeals Commission ("UAC") which reversed the prior decision. This appeal is the result of that reversal.
At issue is whether Dempsey voluntarily left his place of employment for good cause attributable to his employer. We find that he did and the UAC erred in denying him unemployment compensation benefits. With this finding, we join the ranks of our sister courts and hold that although employers have every right to correct or admonish their employees in a reasonable manner when dissatisfied, employees are not required to accept undue verbal abuse from employers. Gollet Enter. East, Inc. v. Florida Unemployment Appeals Comm'n, 630 So.2d 1166 (Fla. 4th DCA 1993); accord Buckeye Cellulose Corp. v. Williams, 522 So.2d 39 (Fla. 1st DCA 1988).
We believe that an average employee of reasonable sensibilities would feel degraded and humiliated at being the direct recipient of constant profanity at the hands of an employer. We are dismayed that the employer's response to the situation in this case was to basically tell the employee to either accept the abuse or leave. We do not believe that any employee should have to endure verbal abuse as a condition of employment. Nor do we believe that such an employee should have to forfeit unemployment compensation benefits when he or she decides to sever ties with the employer for that reason.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1036013/ | Case: 12-14418 Date Filed: 07/31/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14418
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-24289-CMA
MARK R. LOUIS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 31, 2013)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Case: 12-14418 Date Filed: 07/31/2013 Page: 2 of 4
Mark R. Louis, a Florida prisoner serving a life sentence for first degree
murder, appeals the district court’s denial of his pro se petition for a writ of habeas
corpus brought pursuant to 28 U.S.C. § 2241. On appeal, Louis argues that the
immigration detainer entered against him violated his due process rights. After
careful review of the parties’ briefs, we affirm.
I.
Louis is a native and citizen of Haiti. He entered the United States without
inspection on October 25, 1979. On March 18, 1983, a Florida state court
convicted him of first degree murder. He was sentenced to life in prison and was
required to serve at least 25 years before he was eligible for parole. In April 1984,
the Immigration and Naturalization Service (INS) initiated deportation proceeds
against him by serving him with an order to show cause. In March of the next
year, an immigration judge ordered Louis deported to Haiti.
On June 13, 2007, the United States Department of Homeland Security,
Bureau of Immigration and Customs Enforcement (ICE) lodged an immigration
detainer against Louis with the Florida Department of Corrections. The detainer
notified the Department of Corrections that Louis may be subject to removal from
the United States and requested that the Department of Corrections notify ICE
before Louis was released from custody in order to provide the Department of
Homeland Security adequate time to assume custody of him.
2
Case: 12-14418 Date Filed: 07/31/2013 Page: 3 of 4
In the fall of 2011, Louis filed his 28 U.S.C. § 2241 petition in the District
Court for the Southern District of Florida. The petition asks the district court to
vacate his detainer because it violates his due process rights in two ways. First, the
final removal order is invalid because changes in Haiti, particularly the destruction
from the 2010 earthquake, prevent his removal. Thus, according to Louis, because
the final removal is invalid, so too is the detainer. Second, the detainer prevented
him from participating in work release and other prison privileges available to
inmates not subject to an immigration detainer.
We review de novo the district court’s denial of habeas relief under 28
U.S.C. § 2241. Skinner v. Wiley, 355 F.3d 1293, 1294 (11th Cir. 2004) (per
curiam). A petitioner can use a § 2241 petition to challenge custody alleged to be
in violation of the Constitution or laws of the United States. See 28 U.S.C. §
2241(c)(3). An ICE detainer, standing alone, is generally insufficient to establish
ICE custody. Orozco v. U.S. INS, 911 F.2d 539, 541 (11th Cir. 1990) (per curiam).
Here, Louis does not challenge his custody in Florida state prison resulting
from his Florida state conviction. Rather, Louis alleges that the ICE detainer is
somehow “custody” that is “in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2241(c)(3). But Louis’s claims must fail because “[t]he filing
of the detainer, standing alone, did not cause [him] to come within the custody of
3
Case: 12-14418 Date Filed: 07/31/2013 Page: 4 of 4
the INS.” Orozco, 911 F.2d at 541. Accordingly, the district court correctly
determined that it lacked jurisdiction over the petition.
AFFIRMED.
4 | 01-03-2023 | 08-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922463/ | 756 A.2d 163 (2000)
Anthony R. SCALISE and Dolores Scalise, Appellants,
v.
ZONING HEARING BOARD OF BOROUGH OF WEST MIFFLIN and Borough of West Mifflin.
Commonwealth Court of Pennsylvania.
Argued June 7, 2000.
Decided July 21, 2000.
*165 W. Timothy Barry, Pittsburgh, for appellants.
David C. Fetzko, West Mifflin, for appellee, Bor. of West Mifflin.
Mike Adams, Pittsburgh, for appellee, ZHB of the Bor. of West Mifflin.
Before KELLEY, J., LEADBETTER, J., and LEDERER, Senior Judge.
*164 LEADBETTER, Judge.
Anthony R. and Dolores Scalise appeal from the order of the Court of Common Pleas of Allegheny County that affirms the decision of the Zoning Hearing Board of the Borough of West Mifflin (ZHB). The ZHB granted the Scalises' a variance to permit their tenant to store pool supplies and accessories. The Scalises object to the limited scope and conditions attached to the variance.
Since 1969, the Scalises have owned a lot at 1501 Sylvan Avenue, in the R-2 Medium Density Residential District. On the lot there currently exists a 17,000 square-foot building. At the time they purchased the property, it was being used for the outdoor storage of carnival and other commercial/industrial equipment. From 1971 until 1994, the Scalises operated a sheet metal shop constructing HVAC duct-work. They operated their business pursuant to a variance granted in 1971 permitting use of the site for a sheet metal shop and construction of a building therefore. An additional variance granted in 1988 permitted construction of an addition to the building. In 1994, the Scalises ceased operating their business at the site and since that time have periodically leased the site to a variety of different businesses. At present, the Scalises lease the building to Aqua Pool Company. Aqua Pool uses a portion of the building to store pool equipment and accessories. In addition, Rycon Construction uses a portion of the building for temporary storage of auditorium seats while Rycon makes repairs at the local high school. In light of Aqua Pool's intention to store materials, the Scalises applied for a certificate of occupancy for "storage," which the zoning officer denied on the ground that the ordinance does not permit storage/warehouse in the R-2 District.
The Scalises appealed the denial of the certificate contending before the ZHB that the variances granted in 1971 and 1988, as well as certificates of occupancy issued during the time the Scalises fabricated HVAC ducts, created a vested right to a non-conforming use of the property for "a fabricating shop, offices, storage warehouse, garage and related commercial/light industrial uses." The ZHB rejected this contention and found that the 1971 and 1988 variances granted a limited authorization for a sheet metal fabrication shop with indoor storage for the Scalises' own materials and maintenance of their vehicles. Consequently, the use by Aqua Pool required a new variance, which the ZHB granted with limitations that confined the use to storage, allowed loading and unloading only between 8:00 a.m. and 6:00 p.m., Monday through Saturday, and specifically prohibited sales, manufacturing, or construction activities. The Scalises appealed to the court of common pleas, which affirmed and adopted the findings and conclusions of the ZHB. Subsequently, the Scalises filed the present appeal in which they contend that the ZHB erred in failing to direct the issuance of the certificate of occupancy based on their tenant's entitlement to engage in a broad range of unspecified commercial/light industrial uses. The Scalises argue that a certificate of occupancy for use by Aqua Pool cannot be denied because the 1971 variance, as well as the certificates of occupancy issued in 1972, 1977 and 1984, established their right to any non-conforming use sufficiently similar *166 to the sheet metal shop and associated storage. The Scalises also contend that their right to maintain a non-conforming use cannot be abrogated or limited by the imposition of restrictions such as those the ZHB attached to the variance permitting pool equipment storage.
Initially, it is to be noted that the ZHB did not find that the Scalises had any rights arising from the existence of a pre-existing non-conforming use, and there is no evidentiary support for such an assertion. Hence, the doctrines protecting a pre-existing non-conformity and allowing for its natural expansion do not apply to this case. See Schaffer v. Zoning Hearing Bd., 32 Pa.Cmwlth. 261, 378 A.2d 1054, 1056 (1977). A pre-existing non-conforming use arises when a lawful existing use is subsequently barred by a change in the zoning ordinance. See Haller Baking Company's Appeal, 295 Pa. 257, 145 A. 77 (1928). "The protected status accorded non-conforming uses or buildings is bottomed on the belief that in many instances a retroactive enforcement of zoning would have such severe effects on the owner that it would be an impermissible `taking' in the absence of compensation." Ryan, Pennsylvania Zoning Law and Practice, § 7.1.3 (1981), citing Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539 (1962). It is axiomatic that the right to maintain a pre-existing non-conformity extends only to uses that were legal when they came into existence. The enactment of a new ordinance cannot have the effect of protecting a pre-existing illegality.
The burden of proving a pre-existing non-conforming use is on the property owner making the assertion. Appeal of Lester M. Prange, Inc., 166 Pa.Cmwlth. 626, 647 A.2d 279, 281 (1994). Consequently, the Scalises had the burden of proving that the commercial storage use existing on the property when they purchased it in 1969 was a lawful use that predated the enactment of the ordinance which zoned the site for residential use. At the ZHB hearing, they failed to sustain their burden. In opening remarks, the Scalises' attorney said that prior to 1969 the site was used for "outdoor storage of carnival equipment and other types of industrial-type equipment." R.R. 24. (Mark Scalise later testified that his attorney's statements were accurate.) Anthony Scalise testified that the equipment was stored on the property by "squatters" whom the Scalises' predecessors had tried to evict for "[probably] twenty years." R.R. 71-72. However, it is not enough to show that a non-conforming use existed on the site at the time of purchase. It must be shown that the non-conformity came into existence legally and predated a change in zoning that rendered it non-conforming. Here, there is no evidence in the record as to when the site was first zoned residential, or precisely when the junkyard/storage use came into existence. Moreover, the only evidence on the point strongly suggests that the equipment storage use was unlawful.
The Scalises also argue that they derive rights generally associated with a pre-existing non-conforming use by virtue of the certificates of occupancy issued in 1972, 1977 and 1984, which documented their sheet metal shop with associated storage and office for HVAC contracting as an authorized non-conforming use. This argument misconstrues the purpose and effect of the certificates of occupancy and equates "pre-existing non-conformity" with the non-conformity that arises where a variance is granted. The certificates neither create a pre-existing non-conforming use nor are they sufficient to prove that one existed. The certificates serve only to document the continued presence of an authorized use other than one permitted under the ordinance by-right, i.e., non-conformity in a more generalized sense.
The Scalises' entitlement to use the property in a manner other than that permitted by the ordinance arose by virtue of the 1971 use variance, as expanded by the variance issued in 1988. It is true, as *167 the Scalises assert, that the right to use in conformance with these variances runs with the land, insofar as it is not a right limited to only the Scalises. See Aquaro v. Zoning Bd. of Adjustment, 673 A.2d 1055, 1060 n. 12 (Pa.Cmwlth.1996). It is also generally true that municipalities do not have the power to compel a change in the nature of an existing lawful use of property. PA Northwestern Distrib., Inc. v. Zoning Hearing Bd., 526 Pa. 186, 192, 584 A.2d 1372, 1375 (1991) (stating general principle in the context of a case involving pre-existing non-conforming use). However, the ZHB did not rule that the Scalises' successors or lessees could not use the property in the manner allowed by the 1971/88 variances and the corresponding certificates of occupancy, but rather that the proposed use did not fit within their scope. We agree.
A variance is, or should be, a fairly narrowly tailored cure for a site-specific hardship. See Section 910.2(a)(5) of the Municipalities Planning Code (MPC),[1] 53 P.S. § 10910.2(a)(5) (stating that, where authorized, variance will represent the minimum that will afford relief). The reason for limiting the relief available by way of a variance derives from the very nature of the power to grant site-specific relief from legislation. In his treatise, Ryan explains:
The modification of a zoning ordinance by the issuance of a variance is itself a form of legislative power: H.A. Steen Ind., Inc., v. Cavanaugh, 430 Pa. 10, 17, 241 A.2d 771, 775 (1968). While the ordinance reflects legislation in its most common formthe creation of rules of general application a variance is a specialized form of legislation, directed at the specific property involved. The courts have long recognized that unlimited use of the variance power would swallow the entire legislative power and therefore generally have refused to permit its use as a substitute for rezoning: see O'Neill v. Zoning Board of Adjust., 434 Pa. 331, 254 A.2d 12 (1969).
....
Most of the rules which limit variances are designed to keep the variance power from growing to a general legislative power. This is the central problem in variance law. It is reflected in the concept that the hardship which justifies a variance must not be merely that hardship which results of necessity from a valid zoning regulation; in the requirement that a property be "uniquely" affected in order to justify a variance; and in the rule that a zoning board has no authority to grant a variance affecting too large a tract of land.
Ryan, Pennsylvania Law and Practice, § 6.1.3 (1981). As Ryan further recognizes, "A corollary to the concept that variances cannot be used to achieve general legislative solutions of zoning problems is the rule that the issuance of a variance permits only the act specifically authorized." Id. at § 6.1.4. Hence, a use permitted by variance "is not one upon which a right of extension may be erected as though it were a [pre-existing] non-conforming use." Pierorazio Appeal, 53 Pa. Cmwlth. 593, 419 A.2d 221, 222 (1980). See also Kensington South Neighborhood Advisory Council v. Zoning Bd. of Adjustment, 80 Pa.Cmwlth. 546, 471 A.2d 1317, 1320 (1984). Alterations in a use granted by variance require further action by the zoning authorities. Kensington, 471 A.2d at 1320. The ZHB's finding that the 1971/88 variances were limited to the operations of a sheet metal shop, the indoor storage of the materials used in the sheet metal business and maintenance of that business' vehicles is fully supported by the plain language of those variances.[2] Thus, *168 the ZHB properly proceeded to consider the Scalises' alternative request for a new variance.
In considering the application for a new variance to allow use by Aqua Pool, the ZHB properly limited the scope of the use to the minimum necessary to afford relief from the hardship imposed by strict adherence to the ordinance. There is no merit to the Scalises' contention that they should have been granted a broad variance for any commercial or light industrial use. Their right is to variance relief that affords them reasonable use of their property within the limitations imposed both by the nature of the variance power afforded to the ZHB and by Section 910.2(a)(5) of the MPC, i.e., "the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue."
There is also no merit to their argument that the ZHB erred in imposing conditions on the variance granted. Section 910.2(b) of the MPC, 53 P.S. § 10910.2(b), authorizes the attachment of reasonable conditions to a variance. See also R & L Marino Bros., Inc. v. Zoning Hearing Bd., 49 Pa.Cmwlth. 267, 412 A.2d 163, 166 (1980). In light of the testimony at the hearing, we find the restrictions to have been reasonable and appellants do not claim otherwise. They claim instead that the restrictions imposed under the current variance for Aqua Pool's use deprives them of the full scope of the 1971 variance. However, once it is determined that the proposed use requires a new variance, whether conditions should be imposed upon that new variance must be determined based upon the circumstances surrounding the newly allowed use. It is of no moment whatsoever that a prior variance which allowed a different use may have had fewer or different restrictions.
Accordingly, we affirm.
ORDER
AND NOW, this 21st day of July, 2000, the order of the Court of Common Pleas of Allegheny County in the above captioned matter is hereby affirmed.
NOTES
[1] Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Section 910.2 was added by the Act of December 21, 1988, P.L. 1329.
[2] The 1988 variance specifically provides "That the use of the subject property be specifically limited to indoor storage of [the Scalises'] own materials and the maintenance of [the Scalises'] own vehicles..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602820/ | 577 So.2d 988 (1991)
STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant,
v.
PUCKETT OIL COMPANY, INC., Appellee.
No. 90-1426.
District Court of Appeal of Florida, First District.
April 3, 1991.
*990 E. Gary Early, Asst. General Counsel, for State of Fla., Dept. of Environmental Regulation, appellant.
Robert D. Fingar, of Huey, Guilday, Kuersteiner & Tucker, P.A., Tallahassee, for appellee.
ERVIN, Judge.
The Department of Environmental Regulation (DER or department) appeals from a summary final order entered by the Division of Administrative Hearings (DOAH or division), assessing against it attorney's fees and costs, pursuant to Section 57.111, Florida Statutes (1989), in favor of Puckett Oil Company, Inc. (Puckett), as a prevailing small business party. We reverse and remand for further proceedings.
Following this court's decision reversing DER's order denying Puckett's eligibility to apply for reimbursement pollution cleanup costs, see Puckett Oil Co. v. Department of Envtl. Reg., 549 So.2d 720 (Fla. 1st DCA 1989), Puckett filed a petition with the DOAH seeking an award of costs and fees as a prevailing small business party. Contrary to the provisions of Florida Administrative Code Rule 22I-6.035(5)(a), requiring that the agency file its response within twenty days after the filing of a petition, DER filed its response twenty-four days later. On the same date, Puckett filed a motion requesting that a summary final order be entered due to DER's failure to file a responsive pleading within the time required by the rule, and it later moved to strike DER's response to its petition because of the untimely filing. On April 16, 1990, the hearing officer entered a summary final order awarding $15,000 in attorney's fees and costs to Puckett. Thereafter, on May 8, 1990, DER moved to vacate the summary final order and submitted an affidavit alleging, inter alia, that the late filing of its response was a result of counsel's mistaken belief that, because Puckett's petition was served upon him by mail, he was entitled to an additional five days' mailing time pursuant to Florida Administrative Code Rule 22I-6.002. Before a ruling was obtained on DER's motion to vacate, the agency filed its timely appeal from the summary final order, and an order was subsequently entered granting Puckett's request to dismiss the motion to vacate on the ground that the filing of the notice of appeal divested the hearing officer of jurisdiction to entertain the motion.
Appellant's primary contention on appeal is that the hearing officer abused his discretion in refusing to vacate the summary final order because the record discloses that its late-filed response was the result of excusable neglect. In support of this argument, it relies upon cases in the civil sector construing the excusable neglect standard applicable to default judgments under Florida Rule of Civil Procedure 1.540(b). Appellee answers, arguing, among other things, that the doctrine of excusable neglect does not pertain to administrative proceedings, because it is not provided for in the Administrative Procedure Act (APA).
We are of the view that it is unnecessary to apply the doctrine of excusable *991 neglect to the case at bar. We agree that the hearing officer correctly ruled he had no jurisdiction to consider the motion to vacate the summary final order once the notice of appeal was filed. Hence he had, under the circumstances, no opportunity to consider appellant's defense of excusable neglect. Cf. Taylor v. Department of Professional Reg., Bd. of Medical Examiners, 520 So.2d 557 (Fla. 1988) (agencies possess inherent authority to correct clerical errors and errors arising from mistake or inadvertence if a request for correction is made within thirty days from the entry of the amended order). Accordingly, we consider only the propriety of the entry of the summary final order.
It is not clear from the order whether it was issued on the ground that the hearing officer considered that he no longer had jurisdiction to entertain the response filed by the agency once twenty days had expired from the filing of the petition for costs and fees, or whether it was entered on the basis that he was granting the then-pending motion to strike. On either theory, the summary final order was erroneous. One of the reasons given in the order was that the rule requiring a response to be filed within twenty days from the filing of a petition employed the word "shall,"[1] which, in the hearing officer's judgment, was mandatory. The hearing officer continued that DER's failure to timely file a responsive pleading constituted a waiver of the agency's opportunity to dispute the petitioner's allegations and thus rendered the petition uncontroverted. Consequently, the hearing officer concluded that there were no genuine issues of material fact as to the allegations asserted in the petition and the supporting affidavits, thus requiring entry of the summary final order.
Clearly rule 22I-6.035(5)(a)'s use of the mandatory term "shall" does not mean that if a response is not filed within the time specified in the rule, the hearing officer no longer possesses jurisdiction to consider a response to a petition for costs and fees. If a provision, though mandatory in terms, is designed simply to further the orderly conduct of business, such provision is generally deemed directory only. See Reid v. Southern Dev. Co., 52 Fla. 595, 42 So. 206 (1906). We do not consider that an untimely response filed in an administrative proceeding should be treated any differently from an untimely answer or other response filed in a civil proceeding. Although the APA does not specifically provide for the entry of default judgments for failure of a party to serve or file a pleading within the prescribed time, or for relief from default judgments,[2] we consider, for the reasons stated infra, that the DOAH has discretion to extend the time for the filing of a responsive pleading, notwithstanding that the particular rule governing the filing of such pleading employs mandatory language as to the time required for a response.
We are of the view that if it was DOAH's intent in adopting rule 22I-6.035(5)(a) to establish a jurisdictional time limitation upon the filing of an agency's responsive pleading to a petition for fees and costs, DOAH has acted in excess of any express or reasonably implied delegated legislative authority. It is well recognized that the powers of administrative agencies are measured and limited by the statutes or acts in which such powers are expressly granted or implicitly conferred. Department of Professional Reg., Bd. of Medicine v. Marrero, 536 So.2d 1094 (Fla. 1st DCA 1988), review denied, 545 So.2d 1360 *992 (Fla. 1989); Florida Dep't of Corrections v. Provin, 515 So.2d 302 (Fla. 1st DCA 1987); Hall v. Career Serv. Comm'n, 478 So.2d 1111 (Fla. 1st DCA 1985); 1 Am.Jur.2d Administrative Law § 73 (1962). In Machules v. Department of Admin., 523 So.2d 1132 (Fla. 1988), the question before the Florida Supreme Court was whether the failure of an employee to file an administrative appeal within twenty days from his employer's determination that he had abandoned his position, as required by Florida Administrative Code 22A-7.10(2), was jurisdictional. In approving Judge Zehmer's dissenting opinion, the supreme court agreed "that the 20-day appeal period is not jurisdictional in the sense that failure to comply is an absolute bar to appeal but is more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Machules, 523 So.2d at 1133 n. 2.
Similarly, in the present case, we find no statutory authority, either expressly or reasonably implied therefrom, empowering DOAH to set a jurisdictional time limitation on the right of an agency to respond to a petition for fees and costs. To the contrary, we consider that the division's power to permit a late-filed response is reasonably implied from the very statutes that rule 22I-6.035 referenced as authorizing its adoption: Section 120.57, Florida Statutes (1989), specifically subsection (1)(b)4, authorizing parties "to respond, to present evidence and argument on all issues," and sections 57.111(4)(c) and (d), allowing a state agency against which a small business party has prevailed to oppose an application for attorney's fees and costs by affidavit, and requiring the hearing officer to conduct an evidentiary hearing on the application. Clearly the two statutes, which the rule was designed to implement, imply that the agency shall be given a fair opportunity to defend against an application for fees and costs. We find nothing in the statutes reasonably suggesting that if an agency fails to comply with the time limitations required for its response, a summary final order, regardless of any mitigating circumstances, must thereafter be entered.
While the hearing officer did not explicitly rule on the appellee's pending motion to strike the agency's tardily filed response, it is conceivable that the summary final order may have been so motivated due to the hearing officer's reference in the order to the following earlier orders of DOAH: Heisler v. Department of Professional Reg., Constr. Indus. Licensing Bd., 11 F.A.L.R. 3309 (Fla.Div.Admin. Hearings 1989); Department of Professional Reg., Bd. of Landscape Architecture v. Webster, 11 F.A.L.R. 3016 (Fla.Div.Admin. Hearings 1988); David's Pharmacy v. Department of Health & Rehab. Servs., 11 F.A.L.R. 72 (Fla.Div.Admin. Hearings 1988), in which the division entered orders granting petitions for fees and costs on facts disclosing that the agencies had not filed responses. In circumstances in which no response whatsoever has been filed, the division obviously has the right, in its supervision of orderly administrative proceedings, to conclude that a party has waived his or her right to respond, as more fully discussed infra, and to thereafter enter a summary final order, pursuant to Florida Administrative Code Rule 22I-6.030. In the instant case, however, DER did file a responsive pleading, albeit four days late.
It is an altogether different matter for a hearing officer to exercise his or her discretion to strike a tardily filed pleading as a sanction against a party who fails to comply with the provisions of a procedural rule. We cannot agree that the officer possesses such authority, as applied to the circumstances at bar. In so holding we observe that Article I, Section 18, of the Florida Constitution prohibits an administrative agency from imposing a sentence of imprisonment or any other penalties except as provided by law. Pertinent case law reveals that an agency possesses no inherent power to impose sanctions, and that any such power must be expressly delegated by statute. For example, in Great Am. Banks, Inc. v. Division of Admin. Hearings, Dep't of Admin., 412 So.2d 373 (Fla. 1st DCA 1981), this court held that a hearing officer had no statutory authority *993 to impose sanctions upon a party for the failure to make discovery, and that Section 120.58(3), Florida Statutes, as it then existed, provided the exclusive method of enforcing a discovery order, i.e., by filing a petition for enforcement in the circuit court. We further stated that to the extent that the agency's rules providing for sanctions conflicted with section 120.58(3), they were invalid. Accord Hillsborough County Hosp. Auth. v. Tampa Heart Inst., 472 So.2d 748 (Fla. 2d DCA 1985) (holding that Florida Administrative Code Rule 28-5.211, which purported to allow an agency or hearing officer to dismiss a proceeding or enter a default as a sanction for failure to comply with a procedural order, was invalid).
In 1984 the legislature amended section 120.58(1)(b) to allow a hearing officer to impose sanctions, but such authority was specifically extended only to enforcement of discovery orders. See A Professional Nurse, Inc. v. Department of Health & Rehab. Servs., 519 So.2d 1061, 1064 (Fla. 1st DCA 1988). Nevertheless, the extreme sanction of prohibiting a party from presenting any witnesses or exhibits at the hearing, as a result of a discovery violation, was there found to be overly severe in that the combined effect of the prohibition was as severe as dismissal. Id. See also Division of Admin. Hearings v. Department of Transp., 534 So.2d 1219 (Fla. 1st DCA 1988) (hearing officer correctly determined that Florida Administrative Code Rule 22I-6.037(3) was an invalid delegation of legislative authority for the reason that the DOAH did not possess legislative authority to adopt a rule allowing a hearing officer to impose the sanction of dismissal with prejudice).
The above case law is clear that an agency's authority to impose sanctions must be expressly delegated to the agency. Although the legislature has explicitly conferred such authority in different contexts, i.e., section 120.58(3), imposition of sanctions caused by the violation of discovery orders, and section 120.57(1)(b)5, imposition of "an appropriate sanction," including a reasonable attorney's fee, resulting from a party's failure to comply with the pleading requirements of the statute, we find no statutory authority delegated to the division to impose the sanction of dismissal with prejudice of a tardily filed response to an administrative petition.
In concluding that rule 22I-6.035(5)(a) neither establishes a jurisdictional time limitation for the filing of a responsive pleading to a petition for fees and costs, nor provides authority for the imposition of sanctions in the event of a late-filed response, we do not mean to imply that under appropriate circumstances an agency may not be presumed to have waived its right to respond. But, in order for waiver to be applied based on the passage of time, we consider it essential for a showing to be made that the party against whom waiver is asserted has received notice sufficient to commence the running of the time period within which the response is required. See City of St. Cloud v. Department of Envtl. Reg., 490 So.2d 1356 (Fla. 5th DCA 1986); Henry v. Department of Admin., Div. of Retirement, 431 So.2d 677 (Fla. 1st DCA 1983). Thus, if it is clearly established that a party has received notice informing him or her of the requirement of taking certain action within a specified period of time, and such party delays for a protracted length of time in taking the required action, we consider that the party may be deemed to have waived his or her right to so act. "Waiver, [however,] is not a concept favored in the law, and must be clearly demonstrated by the agency [or other party] claiming the benefit." Henry, 431 So.2d at 680.
Moreover, we note that an administrative rule may liken a party's inaction in the face of notice clearly requiring action within a specified time to default under appropriate circumstances. For example, subsections (a) and (d) of Florida Administrative Code Rule 22T-9.008(5) require that a respondent file its answer with the Florida Commission on Human Relations within 20 days from service of a petition, and that "[i]f a respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the *994 material facts alleged in the petition." In two pertinent cases involving construction of that rule, however, the Commission, notwithstanding the above mandatory language, agreed with the hearing officer's recommendation that the rule was directory only and that it should not be enforced against a respondent who had failed to file an answer in the absence of any demonstration of prejudice to the petitioner, or without consideration of any evidence of reasons for not complying with the rule. See Arnold v. Burger Queen Sys., 8 F.A.L.R. 3606 (Fla. Comm'n Human Relations 1986), aff'd, 509 So.2d 958 (Fla. 2d DCA 1987); Bates v. School Bd. of Alachua County, 10 F.A.L.R. 4647 (Fla. Comm'n Human Relations 1988). Similarly, in the case at bar, in that there was only a delay of four days in the filing of the response, and no showing was made that the petitioner suffered any prejudice from the delay, we fail to find the existence of any valid ground for applying waiver.
Accordingly, the summary final order entered is REVERSED and the cause REMANDED with directions that the agency be permitted to file its response and that the hearing officer thereafter consider it on its merits.
NIMMONS and ZEHMER, JJ., concur.
NOTES
[1] Florida Administrative Code Rule 22I-6.035(5)(a) provides:
(5)(a) A state agency against which a petition for costs and fees has been filed shall file a response within twenty (20) days of filing of the petition, which shall state whether the state agency seeks an evidentiary hearing and shall specify whether the state agency asserts:
1. That costs and attorney's fees claimed in the affidavit are unreasonable;
2. That the petitioner is not a prevailing small business party;
3. That the agency's actions were substantially justified;
4. That circumstances exist which would make the award unjust; or
5. That the agency was a nominal party only.
[2] Compare Florida Rules of Civil Procedure 1.500 and 1.540. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602852/ | 8 So.3d 1143 (2009)
WASHINGTON
v.
STATE.
No. 2D07-5107.
District Court of Appeal of Florida, Second District.
May 15, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602861/ | 8 So.3d 1185 (2009)
Marc E. BOSEM, M.D., and Marc E. Bosem, M.D., P.A., Appellants,
v.
MUSA HOLDINGS, INC., d/b/a Eyeglass World, a Florida corporation, The Laser Vision Institute, L.L.C., and Marco Musa, individually, Appellees.
No. 4D07-3383.
District Court of Appeal of Florida, Fourth District.
April 15, 2009.
Rehearing Denied June 10, 2009.
*1186 Jeffrey A. Norkin of Jeffrey A. Norkin, P.A., Plantation, and Joel S. Perwin of Joel S. Perwin, P.A., Miami, for appellants.
Paul O. Lopez of Tripp Scott, P.A., Fort Lauderdale, for appellees.
POLEN, J.
Appellants/Cross-Appellees, Marc E. Bosem, M.D., Marc E. Bosem, M.D., P.A., d/b/a CorrectVision Laser Institute, (Bosem) brought an action for injunctive relief, fraud, false advertising, and compensatory damages against Appellees/Cross-Appellants, Musa Holdings, Inc., d/b/a Eyeglass World, The Laser Vision Institute, L.L.C., and Marco Musa, (Musa) for Musa's alleged unauthorized use of Bosem's image or likeness and violation of the Lanham Act, 15 U.S.C § 1125. The trial court ultimately entered an order granting Bosem's motion for partial summary judgment and holding that Musa's use of Bosem's name, likeness and biography was unauthorized and in violation of section 540.08, Florida Statutes, and the Lanham Act. Accordingly, Bosem's entitlement to damages was the only issue determined by the subsequent bench trial and is also the only issue before this court on appeal.
Though the parties have appealed several determinations made by the trial court in its calculation of damages, we write only to address an issue cross-appealed by Musa regarding liquidated damages and prejudgment interest. Bosem argued below, in part, that Musa's unauthorized use of his image resulted in lost profits because he was forced to reduce the price of his LASIK eye surgery procedure in order to retain patients who had seen Musa's advertisements in which Musa claimed Bosem would perform the same surgery for less at its centers.
The trial court found that Bosem sustained lost profits in the amount of $93,306 and awarded Bosem prejudgment interest on that amount. In concluding that prejudgment interest was warranted in the present case, the trial court discussed Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002). In Thin Air, this court held that prejudgment interest was appropriate only for damages which were "an amount certain" and that the trial court erred in granting prejudgment interest on all damages which were not "fixed." 809 So.2d at 31-32. There, plaintiff sued for compensatory and punitive damages after the defendant withheld payment from plaintiff due to a dispute over excess charges. Id. at 32. The trial court ultimately awarded prejudgment interest on all damages, and this court held that the only claim which was liquidated was that for an open accountthe payment withheld by defendantbecause it was a known amount from the beginning which defendant refused to pay. See id. Thus, prejudgment interest was appropriate as to that claim but none of the others. Id.
In the present case, the amount of damages was never certain until the trial court calculated Bosem's lost profits. Bosem claimed he had sustained lost profits of between $300,000 and $400,000 and maintained that the period of infringement was from 2000 to 2002. The trial court found that Bosem's lost profits were actually $93,306 and that the period of infringement was from July 2000 to December 2001. Florida case law suggests that on a claim for lost profits or price-erosion damages, prejudgment interest is not warranted because the amount of damages is generally unknown. For example, in Jones v. Sterile Products Corp., 572 So.2d 519, 520 *1187 (Fla. 5th DCA 1990), the court held that lost profit and price erosion damages resulting from a breach of a non-compete agreement were unliquidated and, thus, that prejudgment interest was not warranted. Moreover, "[t]o date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right," and anticipated business profits are not a vested property right. See Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So.2d 1130, 1134 (Fla. 4th DCA 2008). Therefore, we reverse the award of prejudgment interest. As to all other issues, we affirm.
Reversed.
HAZOURI and CIKLIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602871/ | 577 So.2d 184 (1991)
Verman J. ARNAUD
v.
The UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICAS, Carpenter Local Union Number 1098 Pension Plan and Sammie Rose Devillier Arnaud Landry.
No. CA 89 1940.
Court of Appeal of Louisiana, First Circuit.
March 5, 1991.
Floyd J. Falcon, Jr., Baton Rouge, for plaintiff-appellee Verman J. Arnaud.
Dennis A. Pennington, Baton Rouge, for defendant-appellant Sammie D. Arnaud Landry.
Robert L. Roland, Baton Rouge, for defendant-appellee United Broth. of Carpenters.
Before SAVOIE, CRAIN and FOIL, JJ.
*185 FOIL Judge.
This appeal arises from the trial court's judgment holding that defendant has no interest in the disability benefits due plaintiff under the provisions of his pension plan. We affirm.
FACTS
The record in this matter, as well as stipulations entered into by the parties to this lawsuit, reveal the following facts: Plaintiff, Verman J. Arnaud, was married to defendant, Sammie Rose Devillier Arnaud Landry, on May 24, 1958. Defendant, the Carpenters Local 1098 Pension Trust (Pension Trust), is a collectively bargained Trust which provides a pension plan for qualified carpenters and of which plaintiff is a member. The Pension Trust was established April 1, 1970, and provides for certain types of benefits including normal retirement benefits at age 65 and disability benefits for total and permanent disability.
The community existing between Mr. Arnaud and Mrs. Landry was terminated effective February 10, 1984, the date he filed suit for legal separation. The parties were subsequently divorced by judgment dated May 23, 1985. By judgment rendered July 25, 1986, but not signed until February 23, 1987, the parties stipulated to the partition of certain community assets. Mrs. Landry was recognized as the owner of a one-half interest in Mr. Arnaud's retirement, said interest to be the proportionate part resulting from Mr. Arnaud's employment by the Carpenters Local Union Number 1098 during the existence of the community, to be determined at time of retirement.
On October 1, 1987, Mr. Arnaud became disabled within the terms of the Pension Trust and filed for benefits. At the age of 55, he became entitled to disability benefits effective April 1, 1988. Mrs. Landry asserted a one-half interest in these payments as allegedly provided for in the partition judgment. She claimed that plaintiff's retirement, whether normal, early or disability, represents deferred compensation which is community property. The Pension Trust refused to pay the disputed one-half to either party, thus plaintiff filed the instant suit seeking past due benefits plus a declaration of his rights delineating that Mrs. Landry has no interest in his disability benefits. After a trial on the merits, the trial court did so rule, and a judgment was signed accordingly.
It is from that judgment that defendant, Mrs. Landry, brings the instant appeal. She claims the trial court committed reversible error in finding, as a matter of law, her legal right to one-half of plaintiff's retirement benefits does not include a portion of those benefits received under a disability retirement plan.
CLASSIFICATION OF DISABILITY BENEFITS
At trial, Louis Reine, the Administrator of the Pension Trust, testified as to the various characteristics or provisions of the plan. The Trust is funded by contributions made by participating contractors, consisting of a dollar amount per hour worked in covered employment. The pensions provided under the plan are based on age and service credits and are not related to wages. The normal pension is payable at age 65. On a normal pension, members may work a certain number of hours per calendar year without losing benefits. Disability is a separate pension, on which members are not allowed to work at all. If a member is receiving disability benefits and later returns to work, that pension is voided and stops at that time. If the member wishes to receive disability benefits again, he would have to reapply and resatisfy the disability criteria. Finally, under early retirement which is available at age 55, members may not work and receive retirement benefits at the same time and must take a reduction in the amount of benefits payable. However, in contrast to one on disability, a member on early retirement can go back and forth by coming out of retirement, working, and then resuming the same pension he had in effect.
To be eligible for disability, a member needs fifteen years total credit in the pension plan and must be disabled. Mr. Reine stated that the disability portion of the plan has no cash value. If a member reaches *186 age 65 without ever becoming disabled, the disability portion of the plan would be of no value to him as he would receive no benefits from it. If an individual takes disability retirement, at age 65 it converts to a normal retirement pension. Normal retirement benefits are not reduced because a member draws disability benefits prior to age 65.
In oral reasons for judgment, the trial court found that the disability payments in question, though not a dollar-for-dollar match, were intended to replace income which Mr. Arnaud would be earning if he were working. If he were working, Mrs. Landry would not be entitled to share in that income which would clearly be his separate property. The trial court also noted that under the provisions of the Pension Trust, payment of disability benefits does not reduce or diminish the retirement benefits which will be paid at age 65, a portion of which Mrs. Landry will be entitled to at that time by virtue of the partition judgment.
Although the facts of this case are unique, there is analogous support in the Louisiana jurisprudence for treating the disability payments as a substitute for lost income attributable to the disability and classifying the same as the separate property of the injured former spouse after the termination of the community property regime existing between the parties. Cf. Lachney v. Lachney, 529 So.2d 59 (La.App. 3d Cir.), writ denied, 532 So.2d 764 (La. 1988). As stated by the court in Lachney, inquiry must be made to determine whether the disability benefits represent deferred compensation in the nature of retirement or pension income or compensation to an injured employee for lost earnings in the event the employee becomes incapacitated due to serious illness or injury.
A review of the record in this matter leads us to the conclusion that the disability payments made to plaintiff do not represent deferred compensation such as retirement benefits. The disability portion of the Trust has no cash value. If an employee reaches the age of 65 without suffering total disability, he would never receive any benefits under that portion of the plan. If at any time plaintiff returns to work, the monthly disability payments would be terminated and the disability pension voided. In addition to disability benefits paid, plaintiff will receive unreduced retirement benefits at age 65, a proportionate interest of which will belong to his ex-wife. Based on these facts, we agree that the disability benefits are plaintiff's separate property as compensation for post-community loss of earnings that would have been the separate property income of the disabled spouse. To hold otherwise would lead to an inequitable result.
In support of her contention that the benefits in this case are community property, Mrs. Landry claims the case of Johnson v. Johnson, 532 So.2d 503 (La.App. 1st Cir.1988), is controlling. We disagree, finding that case distinguishable in several respects. In Johnson, the husband was a member of the Firefighter's Pension and Relief Fund in New Orleans, which is governed by La.R.S. 33:2101 et seq. He suffered an injury and began receiving disability benefits during the existence of the community. On appeal, this court held that the benefits received by Mr. Johnson were an asset of the community formerly existing between the parties. We noted that the right to receive compensation for his disability was based entirely on Mr. Johnson's contributions to the fund from community earnings and his years of service as a firefighter. As the benefits flowed from a community endeavor, we held Mrs. Johnson was entitled to her proportionate share of the payments.
After a reading of the statutes governing the New Orleans Firefighters' Pension, La.R.S. 33:2101, et seq., we do not feel compelled to follow Johnson due to significant differences in the pension plans involved in these two cases. In Johnson, the fund was made up of salary deductions from each member (clearly community funds) and contributions from the fire department. In the case at hand, the Trust is funded solely by employer contributions no contributions are made by the members. In Johnson, the amount of benefits payed was based on the number of years of service. *187 Entitlement to benefits in our case is simply based on a minimum requirement of fifteen years of credit in the plan. In the event of termination of employment, the fund in Johnson had a cash value. The disability portion of the Trust in this case has no cash value. Finally, and perhaps most important, if disability continues, a member of the fund in Johnson may never be eligible for ordinary retirement benefits by not being able to meet the minimum service requirements. Clearly, under those circumstances the benefits in Johnson were more in the nature of deferred compensation such as early retirement benefits. In the present case, Mr. Arnaud's disability pension automatically converts to a normal retirement pension at age 65. As such, the disability benefits are more representative of compensation for lost earnings due to inability to work.
For the reasons expressed herein, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant, Sammie Rose DeVillier Arnaud Landry.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602890/ | 577 So.2d 1363 (1991)
Annemarie HARRIS, Appellant,
v.
STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF STATE EMPLOYEES' INSURANCE, Appellee.
No. 90-135.
District Court of Appeal of Florida, First District.
April 3, 1991.
*1364 G. Bart Billbrough and Geoffrey B. Marks, of Walton, Lantaff, Schroeder & Carson, Miami, for appellant.
John M. Carlson, Senior Atty., Department of Admin., Tallahassee, for appellee.
ERVIN, Judge.
Appellant, Annemarie Harris, seeks review of an order denying her request for *1365 reimbursement from appellee, the State of Florida, Department of Administration, Division of State Employees' Insurance (division), under the state group health self-insurance plan (self-insurance plan or plan) for medical expenses incurred on behalf of her infant daughter. Appellant contends that the lower tribunal erred in failing to construe the ambiguous insurance document against its drafter, the division, and in failing to find that the state was estopped from denying coverage by virtue of a material misrepresentation made to appellant by an agent of appellee concerning the requirements for converting from individual to family coverage under the self-insurance plan. Upon review of the record, we conclude that the final order not only lacks factual findings necessary to determine the estoppel issue, but that certain conclusions therein are not supported by the evidence. Therefore, we reverse and remand with directions for the division to conduct additional proceedings.
Appellant is an attorney who, at all times pertinent to this appeal, was employed as an assistant public defender by the Dade County Public Defender's Office. Shortly after she began her state employment, she chose to enroll in one of the state-approved HMO plans for individual health insurance coverage. In December 1987 the contract between appellant's HMO and the state was terminated, and appellant was left with the option of selecting another HMO insurance plan or the self-insurance plan. To aid her in deciding which plan to apply for, appellant, who was then three months' pregnant, contacted Faith Quincoses, the administrative assistant in the public defender's office designated to advise employees of the benefits available to them under the various plans and to assist them in completing the paperwork necessary to secure such benefits. Although the record does not disclose the full extent of the conversations between Quincoses and appellant, it does reflect that Quincoses supplied appellant with the names of several fellow employees whom she could contact regarding their experiences with the health insurance plans they had selected. It appears that in addition to talking with these other employees, appellant discussed her choice of coverage with her husband, a former assistant state attorney who had been insured through the state insurance plan during his employment with the state. Following her discussions, appellant elected individual coverage through the state group health self-insurance plan.
The record next shows that in mid-April appellant again consulted Quincoses pertaining to the question of when she should convert from individual to family health insurance, so that her unborn child, who was due for delivery on June 23, 1988, would be covered. It is undisputed that Quincoses then erroneously told appellant that in order for her child to be included under the state plan, she must prepare and submit the necessary paperwork within 30 days from the child's birth. Quincoses considered that as long as the employee notified the division and did the paperwork within 30 days after the child's birth, the child would be covered as a family member. It is unclear from the record, however, whether this was the first time Quincoses had given such advice to appellant, and particularly whether Quincoses gave her the same advice at any time prior to mid-April.
Quincoses subsequently began work on the appropriate forms in order for appellant to complete her application for family coverage prior to June 1, the date scheduled for appellant's maternity leave. Before appellant signed the necessary papers, however, she experienced unexpected and severe complications with her pregnancy, resulting in an emergency premature birth by Caesarean section on April 24, 1988. Almost immediately following the delivery of the daughter, the child's condition worsened and she was transferred to another hospital with proper neonatal facilities. The infant remained in that hospital for approximately two months, incurring medical expenses of approximately $180,000. While the state health insurance plan covered *1366 appellant's expenses resulting from the birth, the state refused to pay any of the child's expenses, on the ground that appellant had only individual not family coverage at the time of her daughter's birth. Although the paperwork, which Quincoses signed on behalf of appellant, was submitted to the division on or about May 10, 1988, the division refused to provide the pertinent benefits available under family coverage, asserting that the child was not a named insured as of the date of her birth, and that once she became insured under the policy, her expenses related to a preexisting condition which was not covered under the policy.
In reaching its determination, the division relied on Florida Administrative Code Rule 22K-1.203, which provides:
(3) An employee or retiree may begin family coverage prior to acquiring any eligible dependents. Since such coverage is effective the first day of any given month, employees who will acquire eligible dependents during the month and are desirous of having immediate coverage of such dependents must make application in time for a complete month's premium to be deducted prior to the first day of the month during which the dependent will be acquired. Otherwise, coverage cannot be effective on the actual date the dependent is acquired.
(Emphasis added.) Under the division's interpretation of this rule, in order for the medical expenses of appellant's daughter to be covered, the premium for such coverage was required to have been paid before April 1, 1988. Because the first premium was not paid until sometime after May 10, 1988, or on a date following the child's birth, the division concluded that the child was not insured at the time of its birth; therefore none of the child's medical expenses could be paid under the coverage provided.
Turning to appellant's argument that the insurance plan was ambiguous and should be construed against the division, we consider it necessary first to set forth the applicable features of the plan. The self-insurance plan was established by the state and is administered by Blue Cross & Blue Shield. The plan is described in the "State of Florida Employees Group Health Self Insurance Plan Brochure." This benefit document is not, however, provided to individual employees, but rather is supplied to personnel officers of the various state agencies. It moreover expressly informs employees that it is not an insurance contract, and advises employees that if they wish to make any inquiries regarding the policy, they should direct them to "their agency personnel offices or the Office of State Employees' Insurance." Although the benefit document provides general information regarding the effective date of coverage, it says nothing about a change from single to family coverage, or the effective date therefor. While we consider that it would be far more informative for the state to provide a copy of the policy to each of its insureds, we cannot say that the benefit document is on its face ambiguous.
Turning to appellant's second argument regarding estoppel, the elements necessary to establish estoppel against the state are: (1) a representation by an agent of the state as to a material fact that is contrary to a later asserted position; (2) reasonable reliance on the representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon. Tri-State Sys. v. Department of Transp., 500 So.2d 212, 215-16 (Fla. 1st DCA 1986), review denied, 506 So.2d 1041 (Fla. 1987); Warren v. Department of Admin., 554 So.2d 568, 570 (Fla. 1st DCA 1989), review dismissed, 562 So.2d 345 (Fla. 1990). In regard to state agencies, the theory of estoppel may be applied when state agencies deny benefits because of mistaken statements of fact. Warren, 554 So.2d at 571. In the case at bar, however, the hearing officer concluded that appellant's "attempt to invoke the doctrine of estoppel is without legal, factual, or equitable basis." Our difficulty in intelligibly reviewing this conclusion *1367 is that the final order not only lacks findings which are essential to a determination, but it also contains conclusions that are not supported by the record.
In addressing appellant's estoppel argument, we have no difficulty in agreeing with her contention that Quincoses was acting as the division's agent when she gave advice to appellant. The benefit document clearly refers questions regarding coverage to the various agencies' personnel offices, and, in doing so, the division made Quincoses its agent. See Warren, 554 So.2d at 571 (state's self-insurance plan brochure referred questions concerning claims to Blue Cross & Blue Shield, thereby making it the state's agent). And certainly Quincoses' advice to appellant constituted a representation of a material fact that was contrary to the division's later asserted position vis-a-vis rule 22K-1.203.[1] The impediment to our adequately reviewing this issue, however, relates to the lack of a sufficient record pertaining to the elements of appellant's reasonable reliance on the representation and her detrimental change in position caused by that representation and reliance.
The hearing officer rejected appellant's estoppel argument because she found that appellant did not rely solely on Quincoses' advice. Specifically, the hearing officer stated that appellant relied on the advice of others persons other than agents of the state and found that appellant's "own conduct belies her allegation that she was acting solely on Quincoses' advice since Quincoses had spoken to Petitioner about changing to family coverage after the birth of the baby, and the record is clear that Petitioner initiated conversion to family coverage with an effective date prior to the birth of the baby." (Emphasis added.)
Although it is essential to one who prevails upon a theory of estoppel against the state that the representation be made by an agent of the state, see Warren, neither of the hearing officer's conclusions is supported by the record. As to her conclusion that appellant relied on the advice of other persons, the hearing officer was obviously confused. The record instead discloses that the advice referred to occurred in December 1987 when appellant was in the process of selecting a new insurance plan. There is nothing in the record indicating that the conversations with the other persons had anything to do with appellant's decision regarding when she should convert to family coverage. The hearing officer's own findings, moreover, do not support her conclusion of reliance on the advice of others, because the findings state that "[i]t is unknown whether Petitioner relied solely on the advice Quincoses gave in choosing to purchase individual coverage rather than family coverage, whether Petitioner relied instead on the advice she obtained from questioning her friends or whether she relied upon her husband's desires, in choosing to participate in the State Plan or in choosing to purchase only individual coverage."
Neither does the record support the hearing officer's conclusion that appellant's actions belied her reliance allegation. Although it cannot be precisely determined from the record who instigated the mid-April *1368 conversations regarding appellant's conversion to family coverage, the record appears to suggest that it was Quincoses who did so. If so, appellant's actions would not be considered contrary to Quincoses' advice; she was rather following Quincoses' directions.
As to the issue of detrimental reliance, the rule is clear that if appellant made her first inquiry regarding family coverage in mid-April, appellant would not have been able to make the first premium payment for family coverage, as required by the division's rule, on or before the first of the month in which her daughter was born, i.e., April 1988 even assuming that Quincoses had then given her correct advice. Consequently, we could not say that appellant's injury was in fact caused by reliance on the misrepresentation. See, e.g., Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla. 1987); State Farm Fire & Casualty Ins. Co. v. Ortiz, 560 So.2d 1350 (Fla. 3d DCA 1990). If, however, Quincoses first gave the erroneous advice to appellant in December 1987, or at any point prior to April 1, 1988, appellant obviously could have relied on that advice to her detriment by failing to convert to family coverage before April 1, 1988, under the theory that if she had been correctly informed, she would have followed the advice, and a complete month's premium for family coverage would have been deducted before the first day of the month in which her child was born.
Because, however, the record is unclear regarding when Quincoses first made the misrepresentation to appellant, we are unable to determine whether appellant relied on it to her detriment. Consequently, additional factual findings must be made on this issue. Turner v. Turner, 529 So.2d 1138, 1140-41 (Fla. 1st DCA 1988) (appellate court may reverse and remand with directions to take additional evidence as is necessary to render detailed findings sufficient to enable proper review); School Bd. of Lee County v. Lee County School Bd. Employees, Local 780, AFSCME, 512 So.2d 238 (Fla. 1st DCA 1987) (remand for further findings as to employer's motivation in reprimanding its employee).
The case is REVERSED and REMANDED with directions for the hearing officer to take such additional evidence as is necessary to fully resolve the issues presented.
ALLEN and WOLF, JJ., concur.
NOTES
[1] Appellee has argued that Quincoses' advice was an erroneous statement of law, not fact, and that the state cannot be estopped through mistaken statements of law. Austin v. Austin, 350 So.2d 102, 105 (Fla. 1st DCA 1977) (erroneous statement that surviving spouse would receive benefits under state retirement system even if not designated as the beneficiary), cert. denied, 357 So.2d 184 (Fla. 1978). We do not agree. Although Quincoses' representation was based on a misunderstanding of the applicable law, her statement was nonetheless a factual misrepresentation regarding what acts were necessary to effectuate conversion to family coverage. See Kuge v. Department of Admin., Div. of Retirement, 449 So.2d 389, 391-92 (Fla. 3d DCA 1984) (misrepresentation regarding number of years of creditable service with the state). See also Tri-State Sys. v. Department of Transp., 500 So.2d 212, 216 (Fla. 1st DCA 1986) (misrepresentation concerning whether sign permits were valid and legal), review denied, 506 So.2d 1041 (Fla. 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602895/ | 786 N.W.2d 268 (2010)
IN RE N.F.
No. 10-0202.
Court of Appeals of Iowa.
May 12, 2010.
Decision Without Published Opinion Affirmed on both Appeals. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603010/ | 577 So.2d 394 (1991)
Charles E. WILSON
v.
STATE of Mississippi.
No. 90-KP-0065.
Supreme Court of Mississippi.
April 3, 1991.
*395 Charles E. Wilson, pro se.
Mike C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ.
SULLIVAN, Justice, for the Court:
Charles Wilson was indicted by the Lauderdale County Grand Jury for armed robbery in violation of Miss. Code Ann. § 97-3-79 (1972) and for aggravated assault in violation of Miss. Code Ann. § 97-3-7(2) (1972). Wilson entered a plea of guilty to the charges on February 17, 1989. The petition indicated that Wilson had been advised by his attorney of the nature of the charges against him and had been told what the minimum and maximum sentences would be for a plea of guilty. Wilson's handwritten additions to the petition indicated that he knew the recommended sentence would be ten years for the aggravated assault charge and five years for the armed robbery charge which sentences would be served consecutively.
The petition further stated that Wilson was satisfied with the advice he had received from his attorney and that no one had promised him a lighter sentence or any form of leniency other than the ten years and five years. Wilson included the following statement on the petition:
I armed robbed the Dixie Pak-A-Sak and cut Violet Harper's neck in the process on Nov. 23, 1987 in Meridian Lauderdale County Ms. I used a knife to perform the robbery and the assault.
Included with the petition was a Certificate of Attorney. In it, Wilson's attorney indicated that he had fully explained to Wilson the allegations contained in the indictment and the minimum and maximum *396 penalties for each count. He was satisfied that Wilson understood the nature of the charges and the effect of the guilty plea.
The court accepted the District Attorney's recommendation. Wilson was sentenced to serve ten years on the charge of aggravated assault and five years on the charge of armed robbery, the sentences to run consecutively.
Wilson filed a Petition for Post-Conviction Collateral Relief/Motion to Vacate Judgment and Conviction on November 6, 1989. Wilson claimed that his guilty plea was not voluntarily entered, that he was denied effective assistance of counsel, and that he was wrongfully advised as to the possibility of earning good time on his five year sentence. The court denied the Motion. Wilson appeals that denial.
I. DID THE TRIAL COURT VIOLATE WILSON'S DUE PROCESS RIGHTS BY PERMITTING WILSON'S COUNSEL TO CHANGE WITHOUT OBTAINING LEAVE OF COURT?
II. DID THE TRIAL COURT ERR IN ALLOWING WILSON TO BE CONVICTED OF AGGRAVATED ASSAULT WHEN THE EVIDENCE SUPPORTED, AT MOST, A CHARGE OF SIMPLE ASSAULT?
We have examined the law and the facts with regard to these two issues and find them to be without merit. Therefore, we provide no discussion of these issues.
III. DID THE TRIAL COURT ERR IN DENYING AN EVIDENTIARY HEARING ON WILSON'S MOTION FOR POST-CONVICTION COLLATERAL RELIEF?
In his Motion for Post-Conviction Collateral Relief, Wilson contended that he was denied effective assistance of counsel and that, as a result, his guilty plea was not entered voluntarily. The errors his counsel allegedly made include the following:
1) His counsel advised him that if he pled guilty to armed robbery, earned time would be applicable to that sentence;
2) His counsel failed to advise him of the elements of the charges;
3) His counsel failed to inform him of the maximum and minimum sentences which could be applicable to the charges;
4) His counsel failed to object to the indictment because of the ambiguity and vagueness in the charge; and
5) His counsel failed to inform him of the nature and consequences of a plea of guilty to the multi-count indictment.
The claim of ineffective assistance of counsel is judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two inquiries which must be made under that standard are "(1) whether counsel's performance was deficient, and, if so, (2) whether the deficient performance was prejudicial to the defendant in the sense that our confidence in the correctness of the outcome is undermined." Neal v. State, 525 So.2d 1279, 1281 (Miss. 1987). This standard applies to the entry of a guilty plea. Schmitt v. State, 560 So.2d 148, 154 (Miss. 1990).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the defendant challenged his guilty plea claiming that his attorney had misinformed him about parole eligibility. The Supreme Court said that "[w]here, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Hill, 474 U.S. at 56, 106 S.Ct. at 369, 88 L.Ed.2d at 208 [quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)].
The Court in Hill placed great emphasis on the second part of the Strickland standard, that of showing that the attorney's performance did in fact influence the defendant's decision. The Court said that the defendant had not met this requirement since he did not allege that he would have insisted on going to trial if he had been correctly informed.
A guilty plea must be made voluntarily in order to satisfy the defendant's constitutional rights. A plea is voluntary if *397 the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea. Schmitt, supra, at 153. Where a defendant is not informed of the maximum and minimum sentences he might receive, his guilty plea has not been made either voluntarily or intelligently. Vittitoe v. State, 556 So.2d 1062 (Miss. 1990).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), stands for the proposition that a complete record should be made to ensure that the defendant's guilty plea is voluntary. There, the defendant pled guilty to five indictments for armed robbery but the record was silent concerning any questions which the judge had asked him about his plea. In holding that the case should be reversed since the record did not disclose whether the plea had been voluntarily made, the Supreme Court said,
What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences. When the judge discharges that function, he leaves a record adequate for any review that may be later sought ... and forestalls the spin-off of collateral proceedings that seek to probe murky memories.
Boykin, 395 U.S. at 243-244, 89 S.Ct. at 1712, 23 L.Ed.2d at 280.
We have followed Boykin. In Alexander v. State, 226 So.2d 905 (Miss. 1969), this Court said that the trial court should not accept the defendant's plea of guilty "without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." Alexander, 226 So.2d at 909. And while a transcript of the proceeding is essential, other offers of clear and convincing evidence which prove that the defendant entered a guilty plea voluntarily are sufficient. For instance, where an evidentiary hearing has established that a defendant's guilty plea was entered voluntarily, the fact that a record was not made at the time the plea was entered will not be fatal. Taylor v. State, 285 So.2d 172, 177 (Miss. 1973).
Under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-39-1 et seq. (Supp. 1990), the application for post-conviction relief must, in part, meet the pleading requirements of Section 99-39-9. The application must also present "a claim procedurally alive `substantial[ly] showing denial of a state or federal right.'" Neal v. State, 525 So.2d 1279, 1281 (Miss. 1987).
Wilson claims that his counsel was ineffective and that his guilty plea was not entered voluntarily. The allegations contained in his Motion are not well pleaded but we must consider them anyway "to the end that a prisoner's meritorious complaint may not be lost because inartfully drafted." Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990).
The record contains only Wilson's Petition to Enter a Plea of Guilty. The plea proceeding whereby the court considered the guilty plea and questioned Wilson about it was not transcribed by a court reporter. Because of the inadequate record, it is impossible to make a determination of whether Wilson really understood the nature of his guilty plea. We have commended the practice of a judge who files a transcript of the guilty plea proceedings within days after that proceeding takes place. "This transcript is then available when a post-conviction motion of this nature is filed, allowing for immediate review and rapid disposition of the motion without the expenditure of county funds for transporting the petitioner from Parchman for a hearing." Garlotte v. State, 530 So.2d 693, 694 (Miss. 1988).
Wilson's allegations contained in the Motion, though inartfully drafted, warrant an evidentiary hearing for a determination on those issues. The allegations, if true, amount to a denial of constitutional rights. *398 Because the plea hearing was not transcribed, we have no way of knowing whether Wilson entered his plea voluntarily or whether his attorney provided effective assistance. We can only examine his Petition to Enter Plea of Guilty and that is, for the most part, a standardized form. We reverse and remand for an evidentiary hearing on those two issues.
REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING ON THE ISSUES OF THE INEFFECTIVE ASSISTANCE OF COUNSEL AND THE VOLUNTARINESS OF THE GUILTY PLEA; AFFIRMED ON ALL OTHER ISSUES.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, PITTMAN, BANKS and McRAE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030352/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5226
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TAMAR BALDWIN, a/k/a James Baldwin,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cr-00117-AMD-2)
Submitted: September 30, 2009 Decided: October 16, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Bonnie S. Greenberg, Assistant United States Attorney,
Nick Lyon, Third Year Law Student, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tamar Baldwin pled guilty to bank robbery, 18 U.S.C.
§ 2113(a), (d) (2006) (Count One), and use of a firearm during a
crime of violence, 18 U.S.C. §§ 924(c), 2 (2006) (Count Two).
The district court sentenced him as a career offender, U.S.
Sentencing Guidelines Manual § 4B1.1 (2008), to a term of 156
months imprisonment for the bank robbery and a consecutive
seven-year sentence for aiding and abetting his co-defendant’s
brandishing of a firearm during the robbery. 18 U.S.C.
§ 924(c)(1)(A)(ii). Baldwin appeals his sentence, contending
that (1) the district court erred in giving him an enhanced
sentence for the § 924(c) offense based on his co-defendant’s
brandishing of a firearm, (2) he was not a career offender, and
(3) the sentence was unreasonable. We affirm.
Baldwin stipulated as part of his plea agreement that
he and co-defendant Chi Antonio Ray robbed a bank in
Reiserstown, Maryland. Baldwin carried a crowbar into the bank
and Ray carried a gun. Baldwin remained at the door while Ray
ordered the tellers and customers to the floor, ordered two
tellers to open cash drawers at gunpoint and took money, then
returned to the first teller, kicked him in the head, and
ordered him to get more money. A third cash drawer was opened
and Ray obtained money from it, after which he and Baldwin left
the bank and were apprehended a short time later.
2
In the presentence report, the probation officer
recommended that Baldwin qualified for sentencing as a career
offender because he had prior convictions for a drug offense and
second degree assault. The probation officer also recommended a
seven-year sentence under § 924(c)(1)(A)(ii), which applies if a
firearm was brandished during and in relation to a crime of
violence. Baldwin objected to the seven-year sentence for
brandishing, alleging that he had not admitted participating in
or condoning Ray’s brandishing. He also objected that his prior
Maryland assault conviction was categorically a crime of
violence and thus not a predicate for career offender status.
At sentencing, the district court overruled both objections.
The court determined that Baldwin was a career offender, but
imposed a sentence below the career offender guideline range, to
be followed by a consecutive eighty-four-month sentence for the
§ 924(c) conviction.
On appeal, Baldwin first challenges the enhanced
sentence for brandishing. “To be liable for aiding and
abetting, a defendant must (1) willfully associate himself with
the criminal venture, and (2) seek to make the venture succeed
through some action of his own.” United States v. Bowen,
527 F.3d 1065, 1078 (10th Cir. 2008); see also United States v.
Wilson, 135 F.3d 291, 305 (4th Cir. 1998) (aiding and abetting
in § 924(c) context does not require participation in every
3
stage of crime, only knowing participation at some stage and
intent to achieve common goal). Most circuits require that the
defendant “intentionally facilitate or encourage another’s use
of a gun,” but “[l]ittle is required to satisfy the element of
facilitation.” Bowen, 527 F.3d at 1079 (noting that the Tenth
Circuit requires only that the aider and abettor know of
another’s use of a gun in a crime of violence and knowingly and
actively participate in the crime) (citations omitted).
Baldwin does not dispute that he aided and abetted the
bank robbery and knew a firearm would be “used,” but he contends
that “there was no evidence either that [he] knew the firearm
would be brandished, or that he condoned the brandishing when it
took place.” He seeks support from the Supreme Court’s
discussion, in Dean v. United States, 129 S. Ct. 1849, 1853-54
(2009), of the requirement in § 924(c)(4) that “[t]he defendant
must have intended to brandish the firearm” for a specific
purpose, which the Court distinguished from subsection
(c)(1)(A)(iii), which requires no proof of intent for an
enhanced sentence when a firearm is discharged in the course of
a violent or drug trafficking crime. Id. at 1856. However,
Dean does not advance Baldwin’s argument.
As defined in § 924(c)(4), to “brandish” a firearm
means “to display all or part of the firearm, or otherwise make
the presence of the firearm known to another person, in order to
4
intimidate that person, regardless of whether the firearm is
directly visible to that person.” Brandishing a firearm is one
type of active use of a firearm, Wilson, 135 F.3d at 304, and is
arguably the most obvious and likely use to be anticipated in an
armed robbery. Baldwin stood guard at the door of the bank,
armed with a crowbar, while Ray obtained money by brandishing a
gun, presumably in full view of Baldwin, and then left with Ray
and the proceeds of the robbery. We conclude that the evidence
was sufficient for the district court to determine that Baldwin
intentionally aided and abetted Ray’s brandishing of the
firearm, and that Baldwin was subject to a consecutive
seven-year sentence for the § 924(c) conviction.
Next, Baldwin contests his career offender status. A
defendant is a career offender if he was at least eighteen years
old when the instant offense was committed, the instant offense
is a felony and is either a crime of violence or a drug offense,
and he has at least two prior felony convictions for crimes of
violence or drug offenses. See USSG § 4B1.1. A “crime of
violence” is any federal or state offense punishable by
imprisonment for a term exceeding one year that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another, or . . . involves conduct
that presents a serious potential risk of physical injury to
another.” USSG § 4B1.2(a). In deciding whether convictions
5
constitute crimes of violence, the sentencing court should
employ a “categorical approach.” Taylor v. United States,
495 U.S. 575, 600 (1990); United States v. Kirksey, 138 F.3d
120, 124 (4th Cir. 1998). Under this approach, the court may
look only to the fact of conviction and the statutory definition
of the prior offense. Taylor, 495 U.S. at 602.
However, in a limited number of cases, such as this
one, where the definition of the predicate crime is ambiguous
because it describes both violent and non-violent offenses, the
sentencing court may “examine the facts contained in the
charging document on which the defendant was convicted[,]” with
the aim “that we focus only on the facts necessarily decided by
the prior conviction.” Kirksey, 138 F.3d at 124-25. In
addition, the sentencing court may consider other items from the
record of a prior conviction, such as “a bench-trial judge’s
formal rulings of law and findings of fact, and in pleaded cases
. . . the statement of factual basis for the charge,” but may
not consider any items from the prior record that were not
conclusively validated in the earlier proceeding. Shepard v.
United States, 544 U.S. 13, 20-23 (2005).
In Maryland, the common law crime of assault
encompasses “the crimes of assault, battery, and assault and
battery, which retain their judicially determined meanings.”
Md. Code Ann., Crim. Law § 3-201(b) (LexisNexis Supp. 2008).
6
Maryland case law defines assault as “an attempted battery or an
intentional placing of a victim in reasonable apprehension of an
imminent battery. A battery . . . includes any unlawful force
used against a person of another, no matter how slight.”
Further, “[t]he common law offense of battery thus embraces a
wide range of conduct, including kissing without consent,
touching or tapping, jostling, and throwing water upon another.”
Kirksey, 138 F.3d at 125 (internal quotation marks and citations
omitted). Thus, we observed in Kirksey that, “under the
definition of assault and battery in Maryland, it remains
unclear whether we can say categorically that the conduct
encompassed in the crime of battery constitutes the use of
physical force against the person of another to the degree
required to constitute a crime of violence.” Id. In this case,
the court properly considered the charging document.
Baldwin argues that, because the government failed to
produce the bench-trial judge’s factual findings and legal
rulings, the government failed to prove that he was actually
convicted of the violent assault charged when he could
conceivably have been convicted of a non-violent assault if the
evidence was insufficient to prove the charged violent assault.
He also contends that the district court improperly considered
the statement of probable cause because it was not “linked to
[the statement of charges] by any language demonstrating such
7
relation or incorporation[.]” The latter claim is baseless. *
The statement of facts states, “Upon the facts contained in the
application of Joseph, Burl it is formally charged that . . . .”
The statement of probable cause contains Officer Joseph’s
description of Baldwin’s offense. Both were filed on the same
day in the Baltimore County district court and have the same
case number. These facts establish that the statement of
probable cause was incorporated into the charging document, and
was properly considered by the district court. Kirksey, 138
F.3d at 126.
With respect to the adequacy of the proof of a violent
assault, we have held, post-Shepard, that, in a case where the
defendant did not plead guilty and the state statute proscribes
both violent and non-violent conduct, the district court may
look to jury instructions or the charging documents to determine
whether a prior conviction was for a crime of violence. See,
e.g., United States v. Roseboro, 551 F.3d 226, 230 n.3 (4th Cir.
2009); United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.
2008). Baldwin was convicted in a bench trial; therefore, the
district court acted properly in consulting the charging
*
Baldwin acknowledges that he did not object to
consideration of the statement of probable cause on this ground,
only on relevance grounds.
8
document and determining from it that Baldwin was convicted of a
violent assault.
As support for his argument that the charging document
was inadequate under Shepard, Baldwin relies on In re Sealed
Case, 548 F.3d 1085 (D.C. Cir. 2008), which held that a guilty
plea to a District of Columbia robbery charge was insufficient
to establish a prior crime of violence because the statute could
have been violated by mere snatching. Id. at 1089-93; see also
United States v. Ventura, 565 F.3d 870 (D.C. Cir. 2009) (holding
prior guilty plea to Virginia felonious abduction insufficient
to establish crime of violence on similar grounds). However, in
both In re Sealed Case and Ventura, the charging document did
not incorporate a statement of facts, as it did in Baldwin’s
case. In re Sealed Case, 548 F.3d at 1090; Ventura, 565 F.3d at
878.
Last, Baldwin argues that his sentence was
unreasonable. We review a sentence for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, ___, 128 S. Ct. 586, 597 (2007). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. After determining whether
the district court properly calculated the defendant’s advisory
guidelines range, this court must consider whether the district
court considered the 18 U.S.C. § 3553(a) (2006) factors,
9
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 596-97;
see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Finally, we review the substantive reasonableness of the
sentence, “taking into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted).
Applying these standards, we have thoroughly reviewed the record
on appeal and conclude that the sentence was reasonable.
We therefore affirm the sentence imposed by the
district court. 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
10 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603048/ | 577 So.2d 1300 (1991)
Calvin WILSON, Petitioner,
v.
STATE of Florida, Respondent.
No. 75012.
Supreme Court of Florida.
March 14, 1991.
Rehearing Denied May 2, 1991.
Nancy Daniels, Public Defender and Kathleen Stover, Asst. Public Defender, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen. and John M. Koenig, Jr., Asst. Atty. Gen., West Palm Beach, for respondent.
GRIMES, Justice.
Pursuant to article V, section 3(b)(4) of the Florida Constitution, we review Wilson v. State, 549 So.2d 702, 704 (Fla. 1st DCA 1989), in which the district court of appeal certified the following question as being one of great public importance:
Whether a defendant who denies having done the act which constitutes the offense charged is entitled to a jury instruction on the defense of entrapment?
Wilson was charged with the sale of cocaine and with possession of cocaine with intent to sell. At trial, an undercover police officer testified that she gave Wilson twenty dollars with which he bought and delivered to her a small piece of crack cocaine. Wilson's counsel requested an entrapment instruction. The trial judge refused to give the instruction because Wilson had testified that he never possessed any cocaine and that the officer had made the purchase from another man. Wilson was convicted of both crimes. On appeal, the court held that Wilson was not entitled to the entrapment instruction because he denied having committed the offenses.[1]
Florida courts have consistently applied the rule that one who denies committing the act that constitutes the offense cannot claim entrapment. Neumann v. State, 116 Fla. 98, 156 So.2d 237 (1934); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA), review denied, 402 So.2d 613 (Fla. 1981); Pearson v. State, 221 So.2d 760 (Fla. 2d DCA 1969); Ivory v. State, 173 So.2d 759 (Fla. 3d DCA), cert. dismissed, 183 So.2d 212 (Fla. 1965). However, the *1301 district court of appeal chose to certify the entrapment question in this case because of its uncertainty regarding the scope of the application of Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), recently decided by the United States Supreme Court.
In Mathews, the defendant was a Small Business Administration (SBA) official who was responsible for providing certain small businesses with government contracts that the SBA would then help them perform. The president of one business believed Mathews was not helping his company because he had repeatedly refused Mathews' requests for loans. Ultimately, while cooperating with the FBI, he offered the loan and Mathews accepted. Mathews was charged with accepting a gratuity in exchange for an official act. He did not deny taking the money but said he thought it was a personal loan unrelated to his official duties. He also claimed the FBI entrapped him, but the trial judge refused to instruct the jury on entrapment because Mathews did not admit every element of the crime. The United States Supreme Court reversed the conviction, holding that a defendant may, if circumstances warrant it, receive an instruction on entrapment even if he denies the criminal act.
The United States Supreme Court's decision in Mathews is not controlling authority because it was based on a construction of the Federal Rules of Criminal Procedure and did not purport to construe the United States Constitution.[2] Yet, we cannot accept the state's contention that Mathews is wholly inapplicable. While the facts of Mathews could be distinguished, the Court unmistakably held "that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." 485 U.S. at 62, 108 S.Ct. at 886. (Emphasis added.) Thus, the issue before us is one of policy.
Among the arguments for allowing a defendant to deny the criminal act and still plead entrapment are (1) inconsistent pleadings are allowed in civil cases, (2) certain other inconsistent defenses may be made in criminal cases, (3) entrapment is an affirmative defense that the defendant bears the burden of proving, and (4) a reasonable jury is likely to hold blatant inconsistencies against a defendant.
The most persuasive justification for precluding an instruction on entrapment when the defendant denies having committed the crime is to prevent perjury. As stated by Justice White in Mathews:
After all, a criminal trial is not a game, or a sport. "[T]he very nature of a trial [i]s a search for truth." Nix v. Whiteside, supra [475 U.S. 157], at 166 [106 S.Ct. 988, 994, 89 L.Ed.2d 123]. This observation is particularly applicable to criminal trials, which are the means by which we affix our most serious judgments of individual guilt or innocence. It is fundamentally inconsistent with this understanding of criminal justice to permit a defendant to win acquittal on a rationale which he states, under oath, to be false.
485 U.S. at 72, 108 S.Ct. at 891 (White, J., dissenting).
The logic of Justice White's observation is compelling. Accordingly, we answer the certified question in the negative, subject to the following qualification.
We believe there are some circumstances under which a defendant who claims entrapment may deny commission of the crime without necessarily committing perjury. The facts of the Mathews case provide a good illustration. The defendant admitted having accepted the loan. He only denied that he did so with the intent to bestow SBA favors upon the lender's company. See also United States v. Henry, 749 F.2d 203 (5th Cir.1984) (defendant may claim entrapment while denying criminal intent, so long as he does not deny committing the acts charged); Stripling v. State, *1302 349 So.2d 187 (Fla. 3d DCA 1977) (defendant may deny being part of the conspiracy while contending he was entrapped into committing the overt acts), cert. denied, 359 So.2d 1220 (Fla. 1978). As explained in W. LaFave and J. Israel, Criminal Procedure section 5.3, at 254-55 (1985):
In any event, where the circumstances are such that there is no inherent inconsistency between claiming entrapment and yet not admitting commission of the criminal acts, certainly the defendant must be allowed to raise the defense of entrapment without admitting the crime. Thus, the inconsistency rule does not apply when the government in its own case in chief has interjected the issue of entrapment into the case. And if a defendant testifies that a government agent encouraged him to commit a crime which he had never contemplated before that time and that he resisted the temptation nonetheless, there is nothing internally inconsistent in thereby claiming entrapment and that the crime did not occur. Asserting the entrapment defense is not necessarily inconsistent with denial of the crime even when it is admitted that the requisite acts occurred, for the defendant might nonetheless claim that he lacked the requisite bad state of mind.
Thus, we conclude that a request for an instruction on entrapment when there is evidence to support the defense should be refused only if the defendant has denied under oath the acts constituting the crime that is charged. Applying this principle to the instant case, it is clear that the trial judge properly refused to instruct on entrapment because Wilson testified that he neither possessed the cocaine nor sold it to the undercover officer. We approve the decision of the court below.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT and KOGAN, JJ., concur.
NOTES
[1] The district court of appeal vacated one of Wilson's convictions and certified three additional questions dealing with the propriety of separate convictions for both sale and possession with intent to sell or deliver arising from one transaction. Because neither side addressed these questions in this Court, we decline to consider them in this opinion.
[2] At oral argument defense counsel conceded that Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), was not grounded upon the federal constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603052/ | 577 So.2d 1167 (1991)
Joy W. MANSON, Plaintiff-Appellant,
v.
CITY OF SHREVEPORT, Defendant-Appellee.
No. 22221-CA.
Court of Appeal of Louisiana, Second Circuit.
April 3, 1991.
Writ Denied May 27, 1991.
*1168 William T. Allison, Shreveport, for plaintiff-appellant.
Lawrence K. McCollum, Shreveport, for defendant-appellee.
Before SEXTON, NORRIS and VICTORY, JJ.
SEXTON, Judge.
The plaintiff, Joy Manson, appeals the trial court judgment which denied her claim for worker's compensation benefits, penalties, and attorney fees. The plaintiff was injured on August 26, 1983, while in the course and scope of her employment with the defendant, City of Shreveport. However, the trial court rejected her claim for worker's compensation, finding the plaintiff was no longer disabled on February 24, 1987, when her employment was terminated by the defendant. We affirm.
On August 26, 1983, the plaintiff had been employed for four years as a secretary for the Shreveport Fire Department. On that date, while in the course and scope of her employment, she fell down a flight of stairs. There is no dispute that the plaintiff was injured in the accident, that she suffered headaches and was unable to work for nearly a year. There is also no dispute that, during that year, the city paid plaintiff full worker's compensation benefits.
On August 1, 1984, the plaintiff returned to work for the city as a senior secretary in the Department of Human Resources. The plaintiff apparently continued to suffer from headaches, some of which were severe enough to cause her to miss work. From August 1, 1984, until September 10, 1986, the plaintiff was compensated by the city with two-thirds of her usual salary for the days she missed work due to headaches. The city stopped paying these benefits on September 10, 1986. The city did, however, continue to pay plaintiff's medical bills.
*1169 According to the testimony of city representatives, the city stopped paying plaintiff for the days she missed due to headaches when it was determined that plaintiff was earning at least 90 percent of the wages she had earned prior to the accident, making her ineligible for supplemental earnings benefits. This testimony is somewhat confusing as the record reflects that plaintiff was earning more money immediately upon her return to work than she had been prior to the date of the accident. She was thus never statutorily entitled to supplemental earnings benefits. LSA-R.S. 23:1221(3). It appears this remuneration was pursuant to an informal contractual arrangement between the plaintiff and the city.
Although plaintiff was no longer being compensated for the days she missed due to her headaches, she nevertheless continued to be employed by the city until February 24, 1987. Plaintiff's absences between September 10, 1986, and February 24, 1987, were credited against her sick leave, annual leave, etc. When plaintiff had exhausted her various leave allowances, the city terminated her employment for what it termed her abandonment of her job. The plaintiff, of course, asserted that her alleged abandonment of her job was actually caused by the headaches stemming from her August 26, 1983, accident.
The plaintiff's lawsuit sought temporary total disability benefits from the date her employment was terminated, February 24, 1987. Following a five-day bench trial, which ended on July 21, 1988, the trial court ordered both sides to file briefs. By written opinion dated January 16, 1990, the trial court rejected plaintiff's demands. The trial court found that plaintiff had abandoned her employment in order to move to Texas for social reasons, rather than because of any compensable disability. The court found that plaintiff had exaggerated her injuries and misrepresented her ability to perform her job functions. In short, the trial court made a credibility determination and found the plaintiff had failed to prove she was still suffering from any disability. A judgment rejecting plaintiff's demands was signed on February 1, 1990.
The only issue on appeal is whether the trial court was in error in finding the plaintiff failed to prove by a preponderance of the evidence that she remained disabled on February 24, 1987, due to her work-related accident of August 26, 1983.
Although the Louisiana Worker's Compensation Act, LSA-R.S. 23:1021, et seq., is to be construed liberally in favor of the claimant, the plaintiff's burden of proof is not relaxed. The burden remains on the plaintiff to prove her claim by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Burnes v. Wizard Enterprises, Inc., 543 So.2d 616 (La.App. 2d Cir.1989).
The finding of disability within the framework of the worker's compensation law is a legal rather than a purely medical determination. Barry v. Western Electric Company, Inc., 485 So.2d 83 (La.App. 2d Cir.1986), writ denied, 487 So.2d 441 (La. 1986); Calhoun v. Fireman's Fund Insurance Companies, 437 So.2d 900 (La.App. 2d Cir.1983). Thus the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977); Jackson v. Georgia Casualty and Surety Company, 513 So.2d 530 (La.App. 2d Cir.1987), writ denied, 515 So.2d 448 (La.1987).
Ultimately, the question of disability and, more specifically in regard to the instant case, whether plaintiff's headaches remain substantial enough to constitute a disability for worker's compensation purposes, is a question of fact. See, Barry v. Western Electric Company, Inc., supra; Latiolais v. Home Insurance Co., 454 So.2d 902 (La.App. 3rd Cir.1984), writ denied, 460 So.2d 610 (La.1984). Accordingly, we note that an appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless they are clearly wrong. Thus, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 *1170 So.2d 1330 (La.1978). Such deference to a trial court's factual findings and credibility determinations applies as well in worker's compensation cases. Ducote v. J.A. Jones Construction Company, 471 So.2d 704 (La.1985); Culp v. Belden Corporation, 432 So.2d 847 (La.1983).
We find the trial court's factual finding that plaintiff was no longer disabled on the date her employment was terminated, which finding was based predominantly on the trial court's credibility determinations, is supported by the record and is not clearly wrong.[1]
Testimony revealed that prior to the date of termination, plaintiff may have been abusing the city's sick leave policy and the special arrangement she had with the city regarding compensation for absences associated with her headaches. On one occasion, Candace Higginbotham, the assistant director of the Department of Human Resources, saw the plaintiff at a New Year's Eve party after the plaintiff had called in sick both New Year's Eve day and the preceding day. The plaintiff did not deny being at the party, but claims she had felt obligated to attend, and she testified, without corroboration, that she left immediately after vomiting at the dinner table. On another occasion, the plaintiff was discovered to have been at a golf tournament, although allegedly only for a brief time to register her boyfriend, on a day she had been too ill to go to work.
We also note that the plaintiff seemed to require less medical, therapeutic, and pharmaceutical treatment for her headaches after her termination from employment with the city. This, too, supports the trial court's conclusion that plaintiff may have been exaggerating her injuries and misrepresenting her ability to work. Her employment was terminated on February 24, 1987, and she moved to Dallas sometime in March 1987. From that time until trial, the plaintiff only saw a doctor for treatment of her headaches twice. On each occasion, in November 1987 and in May 1988, the plaintiff returned to Shreveport to see her treating neurologist, Dr. Nabil Moufarrej. Following her accident, until she left Shreveport, plaintiff had previously sought treatment from Dr. Moufarrej every two to three weeks or two to three months.
The plaintiff also required no hospitalization for her headaches after she moved to Dallas. Conversely, while she was in Shreveport and still employed by the city, the plaintiff had been taken to the hospital for treatment of her headaches on numerous occasions. Keith Lehr, with whom the plaintiff had lived for two and a half years while she was employed by the city, testified that he took the plaintiff to the hospital three to four times when her headaches were especially severe. The plaintiff's daughter, Julia Manson, testified that she took her mother to the hospital five to ten times while plaintiff worked for the city, in addition to other occasions when the aforementioned Mr. Lehr and a Ms. Covern, the plaintiff's next-door neighbor, had taken her to the hospital.
A corresponding decrease in plaintiff's physical therapy treatments was also seen; she went from 73 days of treatment between 1985 and February 1987, to no treatments after her move to Dallas. A decline in plaintiff's medication was also noted, as her prescriptions for pain medication decreased after her move to Dallas. All of *1171 these factors would seem to be an implication either that plaintiff's headaches have improved since she left Shreveport or that she had been misrepresenting their severity while employed by the city. Either interpretation would support the city's position and the trial court's conclusion that the plaintiff is not now disabled.
The city presented additional evidence of the plaintiff's present ability to work in the form of surveillance testimony and videotapes which show her at the Griffin Company offices, a truck and trailer dealership owned by David Griffin, the man with whom the plaintiff lives in Dallas. The tapes were made on March 24, 25, May 2, 3, June 6, 7, 8, 9, 10, 15, 16, 17, 27, 28, 29, 30, and July 1, 1988. With few exceptions, the tapes show that plaintiff consistently arrived at the Griffin offices between 10:21 a.m. and 12:53 p.m. and left the offices between 5:01 p.m. and 6:18 p.m.; such was her routine on 13 of the 17 days taped. On one of the remaining days, surveillance showed the plaintiff had company at Mr. Griffin's residence. On a second date, a painter was at the residence. On a third date, the plaintiff arrived at the Griffin offices at 12:47 p.m. but left at 3:09 p.m., apparently to go shopping.[2] June 28 was the only occasion that plaintiff did not go to the office that surveillance could not provide an apparent reason for plaintiff's departure from her usual schedule.
Plaintiff notes that evidence in the form of videotapes must be approached with caution because they show only intervals of the activities of the subjects, they do not show rest periods and do not reflect whether the subject is suffering pain during or after the activity, citing Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La. 1983). However, Orgeron dealt with a plaintiff involved in heavy physical labor who sought worker's compensation. The defendant had relied on the videotapes to terminate plaintiff's benefits. The Louisiana Supreme Court found that, because of the aforementioned unreliability of the videotapes, it was arbitrary and capricious for the employer to cease paying benefits based on those tapes in total disregard of contrary medical opinions.
The instant case is clearly distinguishable from Orgeron. The city did not rely on the videotapes to deny benefits. The earliest videotape was made some 18 months after benefits were terminated and 14 months after plaintiff's employment was terminated. Additionally, the concern for showing only intervals of activity is decidedly less of a factor in the instant case. The plaintiff testified that it is only the most severe headaches which prevent her from working. These severe headaches are marked by nausea, dizziness, and blackouts, requiring that plaintiff remain in bed and at times seek hospitalization. The videotapes, irrespective of the Orgeron concerns, were clearly evidence that Ms. Manson was not suffering from the severe headaches on any of the dates shown, with the possible exception of June 28.
By her own admission, plaintiff is either able to work or is disabled by a headache which confines her to bed for up to three days at a time. A videotape showing plaintiff was not confined to her bed indicates she was not disabled on that date. Contrary to the videotapes in Orgeron, which were inconclusive as to whether the plaintiff was or was not partially disabled, the videotapes in the instant case are probative evidence that Ms. Manson was not disabled on the vast majority of the days she was videotaped. The videotapes were properly considered by the trial court.
We next consider the medical testimony presented in this case. That testimony, which can be fairly classified as incomplete and inconclusive, does not convince us the trial court was manifestly erroneous in rejecting plaintiff's claim for worker's compensation. The plaintiff's testimony revealed that at least nine doctors treated her for headaches; however, the record contains the testimony of only two of those doctors. Dr. Moufarrej testified for the plaintiff as her predominant and most recent treating physician. He diagnosed plaintiff as suffering from post-traumatic *1172 headaches, but admitted that stress and the plaintiff's menstrual cycle could have contributed to her headaches. He also noted that plaintiff had a family history of high blood pressure and related headaches. Dr. Moufarrej also testified that the plaintiff's decreased intake of medicine and her failure to make medical, hospital, or therapy visits after she had moved to Dallas might be an indication that plaintiff's headaches are improving. Dr. Moufarrej also testified that, as the plaintiff related to him that physical therapy helped control the severity of her headaches, he had recommended that plaintiff continue with the therapy, which advice she obviously disregarded after moving to Dallas.
Dr. William Phillip Osborne, a specialist in algology, the study of pain, testified on behalf of the city. Although Dr. Osborne spent only 30 minutes with the plaintiff, he did review her X-rays, reports from other doctors who had seen her, and various psychological tests performed upon the plaintiff. In Dr. Osborne's expert opinion, the plaintiff was no longer suffering from post-traumatic headaches. Dr. Osborne initially felt that plaintiff had mixed headaches, some vascular, of which the posttraumatic headache would be one type, and some muscle tension headaches. However, in Dr. Osborne's experience, post-traumatic headaches dissipate some four to six months after the trauma. Dr. Osborne testified that any remaining headaches plaintiff suffers from are muscle tension headaches in conjunction with rebound headaches, which are a result of excessive medication. In short, neither physician could, with any degree of certainty, link plaintiff's headaches to the August 26, 1983, accident.
Finally, in light of our conclusion that the trial court was not clearly wrong in finding that plaintiff failed to prove her continuing disability, we must reject plaintiff's argument that she is entitled to a presumption that her headaches were caused by her August 26, 1983, accident. Plaintiff's legal assertion is accurate: a claimant's disability is presumed to have resulted from an accident where, before the accident, the injured person was in good health, but commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves thereafter, providing there is medical or circumstantial evidence indicating a reasonable possibility of the causal connection between the accident and the disability. See, for example, Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985). This shifts the burden of proof to the defendant to rebut the presumption. Nevertheless, the presumption regarding a causal connexity is inapplicable where, as in the instant case, the trial court has found that the plaintiff failed to prove a continuing disability, which finding we have determined is not clearly wrong.
In conclusion, we do not find the trial court to have been clearly wrong in ruling that plaintiff failed to prove by a preponderance of the evidence that she was still disabled when her employment was terminated on February 24, 1987. Accordingly, the judgment of the trial court is affirmed at appellant's cost.
AFFIRMED.
NOTES
[1] Appellant's first assignment of error points out that the trial court, in concluding that the plaintiff was not disabled, based its decision in great part on the credibility of the plaintiff. Appellant thus complains that this credibility determination should not receive its usual deference because it was made after 17 months of deliberation. Unfortunately, we often review cases where the trial judge makes a credibility call after a significant delay. The question of whether the credibility decisions of the trial court should receive their customary weight after significant delay has been a source of concern to members of this court for some time; thus, plaintiff's argument has found a sympathetic audience.
However, we are unaware of any jurisprudence allowing us to reduce the usual deference we give to trial court credibility determinations based on delay between trial and opinion. Further, the prevention of delay in the trial court is a matter which addresses itself to the Louisiana Supreme Court. Notwithstanding these observations, the credibility determinations in the instant case appear well supported by the record.
[2] Surveillance trailed her to a shopping mall. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602983/ | 8 So.3d 1206 (2009)
Angel VIDAURRE, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-3199.
District Court of Appeal of Florida, Second District.
April 29, 2009.
James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Angel J. Vidaurre appeals an order revoking his community control for three separate offenses and the three concurrent sentences imposed in connection with that revocation. We affirm the order revoking his community control. We also affirm the sentences for unlawful sexual activity with a minor and possession of a firearm by a convicted felon. We reverse the sentence for possession of cocaine because, as the State correctly concedes, Mr. Vidaurre's term of probation had expired long before he was alleged to have violated his probation as to that third-degree felony.
In 1999, the State charged Mr. Vidaurre by information with two second-degree felonies, unlawful sexual activity with a minor and possession of a firearm by a convicted felon, and with one third-degree felony, possession of cocaine. On June 26, 2001, Mr. Vidaurre entered a no contest plea to *1207 all three offenses. He was sentenced to ten years' probation for the second-degree felonies and to five years' probation for the offense of possession of cocaine. He was thereafter found to have violated the terms of his probation four times, and his probation was continued after each violation.
On September 25, 2007, an affidavit was filed alleging that Mr. Vidaurre had violated his probation a fifth time. On September 28, 2007, the trial court found that Mr. Vidaurre violated his probation and sentenced him to two years' community control. The order of community control purported to apply to all three offenses even though the term of probation for the offense of possession of cocaine had expired in June 2006. Thereafter, on May 16, 2008, he was found to have violated his community control and was sentenced to three concurrent terms of imprisonment for eighty-four months.
"A violation of probation must be set in motion prior to the termination of the period of probation." Jones v. State, 954 So.2d 675, 676 (Fla. 4th DCA 2007); see also § 948.04(2), Fla. Stat. (2001); State v. Wimberly, 574 So.2d 1216, 1217 (Fla. 2d DCA 1991) ("A trial court lacks jurisdiction to revoke probation for violations which occur during the period of probation unless the revocation process is set in motion during the probationary period."). Here, in light of his scoresheet, Mr. Vidaurre's probationary term could have been longer than five years, but it ended in June 2006 because the trial court continued his probationary term instead of extending it. Since the next violation of probation was not set in motion before the period of probation ended, the trial court lacked jurisdiction to find Mr. Vidaurre in violation of his probation on September 28, 2007. See Jones, 954 So.2d at 676. The eighty-four month terms of imprisonment for the other two offenses are substantial downward departure sentences and are unaffected by this error.
Affirmed in part; reversed in part; and remanded.
DAVIS and SILBERMAN, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602990/ | 786 N.W.2d 860 (2010)
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
Stephen J. LICKISS, Respondent.
No. 10-0363.
Supreme Court of Iowa.
August 6, 2010.
*863 Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
Stephen J. Lickiss, Altoona, pro se.
TERNUS, Chief Justice.
This matter comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, Stephen J. Lickiss, violated ethical rules in four probate matters by neglecting these matters, failing to respond to clients' inquiries for information, taking probate fees without prior court *864 approval, failing to notify his clients that he had ceased to represent them, and failing to respond to the board's inquiries. The grievance commission found Lickiss violated the Iowa Rules of Professional Conduct and recommended a three-month suspension. Upon our respectful consideration of the findings of fact, conclusions of law, and recommendation of the commission, we find Lickiss committed several ethical violations and suspend his license to practice law indefinitely with no possibility of reinstatement for three months.
I. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 281 (Iowa 2009). The commission's findings and recommendations are given respectful consideration, but we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 (Iowa 2009). The board has the burden of proving attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006). As frequently stated, "`[t]his burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.'" Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)). Upon proof of misconduct, the court may impose a lesser or greater sanction than that recommended by the commission. Id.
II. Prior Proceedings and Factual Background.
Lickiss was admitted to the Iowa bar in 1995. At the times relevant to this disciplinary proceeding, he practiced as a sole practitioner. Prior to undertaking the probate matters that are the subject of this disciplinary action, Lickiss had no experience handling adult conservatorships, adult guardianships, or estates.
On January 15, 2009, the board filed its amended complaint against Lickiss, alleging misconduct and ethical violations in four probate matters. Lickiss failed to answer and failed to respond to other inquiries by the board. As a result, the commission ruled the allegations in the amended complaint were deemed admitted pursuant to Iowa Court Rule 36.7. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 378 (Iowa 2007). Based on Lickiss's implied admissions, the hearing on the board's complaint addressed only the issue of the proper discipline. A related matter that arose at the hearing was whether and to what extent Lickiss's prior discipline should affect the current proceeding and the appropriate sanction. We now set forth the circumstances regarding the four probate matters, Lickiss's prior discipline, and Lickiss's evidence of mitigating circumstances.
A. Mina Shelton Guardianship and Conservatorship. In October 2005, Lickiss opened a guardianship and conservatorship for Mina Shelton ("Mina"). Mina's daughter, Irene Henderson, and son, Danny Shelton, were named co-guardians and co-conservators. Lickiss did not secure the surety bond ordered by the court, even though he assured Henderson he would. In addition, Lickiss was paid $1176.48 for his services without prior approval from the probate court as required by statute.[1]*865 When the reports required in guardianships and conservatorships were not filed, Lickiss received notice of and failed to cure numerous delinquencies. He also failed to respond to the board's inquiries and his clients' inquiries about these delinquencies. As a result of Lickiss's failure to act, Henderson hired a new attorney in December 2007. She also filed a request for an extension of time to deal with the delinquencies, in which she stated: "I have tried numerous times to reach [Lickiss] by telephone and have not received any calls from him. It is my understanding that he is still listed as the attorney of record in this matter." Although Lickiss eventually closed his practice, he neither withdrew from the case nor informed his clients that he was no longer acting as their attorney.
Based on this series of events, the board alleged and Lickiss admitted violations of the following provisions of the Iowa Rules of Professional Conduct: 32:1.1 ("A lawyer shall provide competent representation to a client."), 32:1.3 ("A lawyer shall act with reasonable diligence and promptness in representing a client."), 32:1.4(a)(3) ("A lawyer shall ... keep the client reasonably informed about the status of the matter[.]"), 32:1.4(a)(4) ("A lawyer shall ... promptly comply with reasonable requests for information[.]"), 32:1.5(a) ("A lawyer shall not ... charge... or collect [a fee in violation of] any restrictions imposed by law."), 32:3.2 ("A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."), 32:3.4(c) ("A lawyer shall not ... knowingly disobey ... the rules of a tribunal[.]"), 32:8.1(b) ("[A] lawyer... shall not ... knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority[.]"), and 32:8.4(d) ("It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]").[2]
B. Howard Shelton Guardianship and Conservatorship. Lickiss established a guardianship and conservatorship for Howard Shelton ("Howard") contemporaneously with doing so for Howard's wife, Mina. Henderson and Danny Shelton were named co-guardians and co-conservators. Lickiss's conduct with respect to Howard's guardianship and conservatorship mirrored his conduct with respect to Mina's guardianship and conservatorship. As a result, the board alleged and Lickiss admitted he violated the same ethical rules enumerated in relation to the Mina Shelton matter.
C. Maxine Baird Guardianship and Conservatorship. On February 9, 2006, Lickiss filed a petition establishing a guardianship and conservatorship for Maxine Baird. Lark Eckerman and Sandra Stotts, Baird's daughters, were named co-guardians and co-conservators. Despite telling his clients he would secure the surety bond required by the court, Lickiss failed to do so. As of June 2008, Lickiss had also received three delinquency notices and had failed to cure the delinquencies. In addition, he did not respond to the board's inquiries regarding these notices. Although Eckerman attempted to reach Lickiss by calling the telephone numbers Lickiss and the clerk of court had *866 given her for him, she received recordings saying the numbers were not in service. With assistance from the clerk of court, Eckerman was eventually able to address the delinquencies and file the necessary reports on her own.
Baird died in March 2009. At the time of the hearing in this disciplinary action, Eckerman had been unable to reach Lickiss to obtain a copy of Baird's will. At the hearing, Lickiss promised to get the will to Eckerman. Based on these uncontroverted facts, the board alleged and Lickiss admitted he violated the same ethical rules enumerated in relation to the Mina Shelton matter.
D. Richard McGrean Estate. On April 7, 2006, Lickiss filed a petition for administration of Richard McGrean's estate. Lickiss failed to publish and mail notices regarding the estate, failed to file an inventory, and failed to file interlocutory reports. Several delinquency notices were sent to Lickiss from 2006 through 2008, but he did not cure the delinquencies. Consequently, the board alleged and Lickiss admitted he violated the same ethical rules enumerated in relation to the Mina Shelton matter.
E. Lickiss's Prior Discipline. After Lickiss was notified of the delinquencies in the Shelton matters on June 1, 2006, these delinquencies were reported to the disciplinary authorities. See Iowa Code § 633.32 (2005) (requiring clerk of court to report delinquent inventories and reports to the presiding judge); Iowa Ct. R. 7.6(2), (3) (requiring clerk of court to submit section 633.32 reports to the state court administrator, who must then transmit a list of attorneys who have ignored a notice of delinquency to the disciplinary board). The board wrote to Lickiss regarding these delinquencies on October 11, 2006, and again on November 14, 2006, but received no response.
In January 2007, the board initiated the disciplinary process to address the probate delinquencies in the Shelton proceedings. Thereafter, the board became aware of four additional delinquency notices sent by the clerk in the Shelton matters and a notice of delinquency issued in the McGrean estate. Following the board's second notice to Lickiss of the January 2007 disciplinary proceeding, Lickiss finally responded on February 23, 2007, but took no steps to rectify the delinquencies.
On June 14, 2007, the board issued a public reprimand of Lickiss, which this court published on September 21, 2007. The board's reprimand was based on Lickiss's failure to act with reasonable diligence and promptness in the Shelton and McGrean matters in violation of rule 32:1.3. Specifically, the board was acting in response to four delinquency notices in the Mina Shelton matter, four delinquency notices in the Howard Shelton matter, and one delinquency notice in the McGrean matter. The 2007 reprimand did not address Lickiss's failure to secure surety bonds or his collection of fees without prior court approval in the Shelton matters, as that conduct was not yet known by the disciplinary office.
After the 2007 reprimand, the ethical infractions that are the subject of the present disciplinary action came to the board's attention, and notice of these complaints was sent to Lickiss on two separate occasions. When Lickiss failed to respond, the board filed a certificate under Iowa Court Rule 34.7(3) on October 28, 2008, advising this court that Lickiss had failed to respond to the board's second notice of complaints. On the same day, the Iowa Supreme Court Clerk of Court notified Lickiss his license would be suspended unless he acted within twenty days to cause the board to withdraw its certificate. Lickiss did not respond. On November *867 24, 2008, pursuant to rule 34.7(3), this court issued an order of temporary suspension of Lickiss's license to practice law. Lickiss's license remained suspended until April 2009, when the board withdrew its certificate based on Lickiss's participation in the hearing in this disciplinary proceeding, which the board considered a response, albeit a tardy one, to its complaint. We reinstated Lickiss's license on April 14, 2009, and his license has remained in active status since that time.
F. Lickiss's Evidence of Mitigating Circumstances. At the hearing, Lickiss candidly admitted his misconduct and recognized that he was not suited to handle probate matters as a sole practitioner. He acknowledged that his foray into private practice as a sole practitioner was a mistake. He also detailed personal circumstances that impacted his ability to handle his law practice. Lickiss was struggling with the breakup of his marriage; loss of the opportunity to adopt foster children who had been living with him; serious financial difficulties, including the imminent foreclosure of the mortgage on his home; and depression. Lickiss was taking medication for his depression at the time of the hearing.
Lickiss testified that in the spring of 2008, he voluntarily ceased his private practice, but did not formally withdraw from these probate matters and did not notify his clients that he had discontinued his practice. Lickiss testified that he did not withdraw from these proceedings because he was unaware that he was required to do so. He asserts he does not intend to return to private practice, but hopes to find a position as a prosecutor, a role he had handled successfully for over nine years prior to starting his own practice.
III. Ethical Violations.
A. Neglect. As we have frequently stated, neglect involves "a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client." See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004). In each of the four matters at issue here, Lickiss consistently failed to perform the obligations he assumed as an attorney, including failing to secure the necessary surety bonds, publish the required notices, file the required reports, and cure the numerous delinquencies. We conclude he violated rule 32:1.1 (requiring competent representation), rule 32:1.3 (requiring reasonable diligence and promptness), and rule 32:3.2 (requiring lawyer to make reasonable efforts to expedite litigation consistent with his client's interests). Wagner, 768 N.W.2d at 283-87. These same actions delayed the administration of the conservatorship, guardianship, and estate proceedings and required otherwise unnecessary administrative oversight by the clerk of court and judicial officers. As a result, Lickiss's conduct was prejudicial to the administration of justice in violation of rule 32:8.4(d). Rickabaugh, 728 N.W.2d at 380-81 (holding failure to file interlocutory reports in estates and receiving delinquency notices as a result prejudiced the administration of justice); see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999) (holding acts that "hampered the efficient and proper operation of the courts" constituted conduct prejudicial to the administration of justice).
B. Probate Fees. Iowa law prohibits an attorney from collecting fees in probate cases without a prior court order approving the fees. Iowa Code §§ 633.197, .198. Taking probate fees *868 without prior approval by the court violates rule 32:1.5(a) (prohibiting fees imposed or collected in violation of law). Wagner, 768 N.W.2d at 283. Thus, Lickiss violated rule 32:1.5(a) in collecting fees in the Shelton matters without court approval.
C. Failing to Respond to Inquiries. Lickiss did not keep his clients informed with respect to the status of their legal matters, did not respond to their attempts to reach him, and did not tell them he had closed his office and would no longer represent them. This conduct violated rule 32:1.4(a)(3) (requiring lawyer to keep client reasonably informed) and rule 32:1.4(a)(4) (requiring lawyer to promptly comply with reasonable requests for information). In addition, when Lickiss failed to respond to the board's inquiries in this disciplinary proceeding, he violated rule 32:8.1(b) (requiring response to demand for information by disciplinary authority). Casey, 761 N.W.2d at 60 (failure to respond to board's inquiries in probate matter violates rule 32:8.1(b)).
IV. Sanction.
A. Board Recommendation. The commission recommends that we suspend Lickiss's license for three months. The commission also suggests that, prior to reinstatement, Lickiss provide an evaluation from a licensed health care professional verifying his fitness to practice law. The commission further recommends that, prior to reinstatement, Lickiss provide proof that he (1) has returned all wills and client materials to clients for whom he provided estate planning and probate services prior to the date of his suspension, (2) has attended continuing legal education in estate planning and probate law, (3) has developed a system to track and meet all reporting deadlines, and (4) has associated with an attorney experienced in probate practice to mentor him as necessary.
B. Relevant Factors and Considerations. "`There is no standard sanction for a particular type of misconduct, and though prior cases can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances of each case.'" Wagner, 768 N.W.2d at 287 (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007)); accord Casey, 761 N.W.2d at 61. In tailoring the sanction to the particular circumstances of each case,
"we consider the nature of the violations, the attorney's fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances."
Casey, 761 N.W.2d at 61 (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa 2008)); accord Wagner, 768 N.W.2d at 287.
C. Appropriate Discipline. When attorney misconduct involves neglect, sanctions have typically ranged from a public reprimand to a six-month suspension. Casey, 761 N.W.2d at 61. "`Often, the distinction between the punishment imposed depends upon the existence of multiple instances of neglect, past disciplinary problems, and other companion violations.'" Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)). This case does not involve an isolated case of neglect. Lickiss engaged in multiple instances of neglect in four probate matters such that he failed to properly advance his *869 clients' interests. In addition, he took probate fees before obtaining the required court orders, and he failed to respond to his clients' and the board's inquiries.
A review of two prior disciplinary cases involving like circumstances is instructive. In Wagner, 768 N.W.2d at 282-83, 288, 289, a disciplinary proceeding involving one probate case, among other matters, we imposed a six-month suspension for misconduct consisting of neglect, misrepresentations to the court, premature taking of probate fees, failure to deposit fees in a trust account, failure to promptly return unearned fees, failure to respond to the board, and having a prior public reprimand for neglect and another public reprimand for misrepresentation. In Casey, 761 N.W.2d at 63, a disciplinary proceeding involving a probate matter and a personal injury case, we imposed a three-month suspension for neglect, misrepresentation to the court, premature taking of probate fees, and failure to respond to the board's inquiries.
D. Prior Discipline. In choosing the appropriate sanction in this case, we consider an aggravating factor: Lickiss's 2007 public reprimand for identical occurrences of neglect. Lickiss's prior discipline poses the rather unique circumstance of having occurred in three of the same cases that are the subject of this disciplinary proceeding: the Shelton matters and the McGrean estate. This court has held that, when a lawyer has already been sanctioned for similar, relatively contemporaneous misconduct, we may refrain from imposing additional discipline for newly discovered ethical violations if we conclude that a more severe sanction would not have been imposed had the newly discovered ethical violations been known when the initial discipline was ordered. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 309 (Iowa 2009). We conclude this principle does not apply here.
It is true that some of the ethical infractions that are the subject of this disciplinary proceeding occurred concurrently with the probate delinquencies that were the basis for the 2007 reprimand. Significantly, however, these infractions, which were unknown at the time of that reprimand, are of a different character than simple neglect. In addition to neglecting his clients' legal matters by ignoring probate delinquency notices, Lickiss failed to secure the necessary security bonds in the three conservatorships and prematurely took probate fees in the Shelton matters. We cannot conclude that this additional misconduct would not have warranted a more severe sanction than the public reprimand given by the board for Lickiss's failure to respond to delinquency notices had the board been aware of these other ethical infractions in 2007.
In addition, much of the misconduct that is the subject of the current complaint, including numerous instances of neglect, occurred after the prior reprimand. The prior reprimand was imposed in response to one delinquency notice issued in the McGrean estate in 2006 (there were four subsequent delinquency notices) and to four delinquency notices issued in 2006 in each of the Shelton matters (there were four additional delinquency notices in each of those cases). In addition, the 2007 reprimand did not address any of the 2008 Baird delinquencies. Because the 2007 reprimand did not address Lickiss's behavior subsequent to 2006, an additional sanction is appropriate for his later misconduct.
We think the prior reprimand constitutes a particularly aggravating circumstance because one would expect that the initial discipline for failing to address *870 the probate delinquencies would have prompted the respondent to attend to his clients' legal matters or obtain the assistance of an attorney who would attend to these matters. Therefore, in determining the proper sanction here, we do not consider Lickiss's failure in 2006 to cure the delinquencies that were the focus of the prior reprimand, but we do consider that prior reprimand as an aggravating circumstance. See Wagner, 768 N.W.2d at 288 (aggravating circumstances included having a prior disciplinary record consisting of a public reprimand for neglect and another public reprimand for misrepresentation); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Jones, 606 N.W.2d 5, 9 (Iowa 2000) (prior public reprimand considered aggravating circumstance).
E. Voluntary Cessation of Practice and Temporary Suspension. At the hearing, Lickiss argued the period during which he voluntarily refrained from practicing law beginning in the spring of 2008 should be credited toward any suspension we impose here. Under our cases, however, a period of voluntary cessation of practice will not be allowed as a credit toward a suspension ordered by this court. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89 (Iowa 2001). As we have stated,
in some cases we have given credit for the time an attorney has been actually suspended under a temporary order by this court. For purposes of retroactive commencement of a suspension, we do not equate a voluntary cessation of practice with a temporary suspension.
Under our present rules, an attorney formally suspended by this court is required to take certain steps to assure his complete disengagement from all pending matters, ... and to file proof of his compliance with those requirements.... In the case of a voluntary cessation of practice, there is no such procedure for verification and therefore no means of determining that the discontinuation of practice was complete and continuous. Treating a voluntary cessation in the same way as a suspension could lead to future problems regarding whether the attorney has in fact ceased to practice.
Comm. on Profl Ethics & Conduct v. McDermott, 405 N.W.2d 824, 825 (Iowa 1987) (citations omitted). Thus, we will not credit the period of Lickiss's voluntary cessation of practice toward any suspension we order here.
We next consider the impact of this court's temporary suspension of Lickiss. Lickiss's temporary suspension under rule 34.7(3) was a consequence of his failure to respond to the board's inquiries. Based on the length of that suspension (over four months), we conclude he has been adequately disciplined for that misconduct, and therefore, we will not consider his violation of rule 32:8.1(b) (requiring response to demand for information by disciplinary authorities) in fashioning a sanction here. We decline to give Lickiss a credit for his period of temporary suspension against any suspension imposed here because the suspensions are not duplicative. First, because we have decided to impose no additional discipline for Lickiss's violation of rule 32:8.1(b), the sanction we impose here is not for the same misconduct that warranted the temporary suspension. Secondly, the purpose of the temporary suspension is more than disciplinary; it is also intended to prompt a response to the board's inquiries so the disciplinary action may proceed in a timely and informed fashion.[3]
*871 F. Depression and Voluntary Practice Limitations. In fashioning an appropriate sanction, we take into account Lickiss's depression as a mitigating circumstance. While illnesses do not excuse misconduct, they can moderate the discipline we impose. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa 2008) (holding depression a mitigating circumstance in a disciplinary case that resulted in a one-year suspension for neglect, client trust account violations, and dishonesty to client); Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006) (holding severe depression and anxiety constituted mitigating circumstances considered in disciplinary action resulting in two-year suspension for multiple acts of misconduct, including neglect, misrepresentation, and client trust account violations).
In addition, we view Lickiss's voluntary cessation of law practice after receiving the public reprimand to be a remedial effort to address his personal and professional problems. Lickiss testified that he intends to forego private practice, including probate work, in the future and return to a career as a prosecutor. Like illness, voluntary remedial efforts to limit a respondent's practice of law to areas of competence do not excuse misconduct. Nevertheless, we consider such remedial efforts as a mitigating circumstance. Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Scheetz, 549 N.W.2d 828, 833 (Iowa 1996) (imposing discipline notwithstanding respondent's voluntary remedial efforts to limit practice to areas of competence, but considering such efforts in deciding to impose discipline of public reprimand).
G. Discipline. After considering the number and nature of Lickiss's ethical infractions as well as the aggravating and mitigating factors present in this case, we agree with the commission that a threemonth suspension is appropriate. See Casey, 761 N.W.2d at 63 (imposing three-month suspension for similar misconduct). To ensure that the public is adequately protected in the event Lickiss seeks reinstatement, we require that any application for reinstatement be supported by an evaluation from a licensed health care professional demonstrating Lickiss's fitness to practice law. See McCann, 712 N.W.2d at 97 (requiring evaluation of respondent who suffered from depression and anxiety). We also concur in the commission's recommendation that Lickiss be required to return all client property in his possession, including wills, prior to reinstatement.
We do not adopt the commission's suggestion that, prior to reinstatement of his law license, Lickiss must submit evidence of completing appropriate continuing legal education. Although Lickiss admitted the board's allegation that he failed to provide competent representation, he testified that he does not intend to engage in probate work in the future, and he has already abandoned the private practice of law. Therefore, it would be impractical to ascertain the appropriate content of any continuing legal education requirement.
In addition, we do not adopt the commission's recommendation that Lickiss associate with an experienced probate practitioner or that he submit evidence that he has developed a system to track and meet all reporting deadlines. As we have noted in prior cases, "neither the *872 court nor the bar has effective machinery in place for ... supervision" of such requirements. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 819 (Iowa 2007); see also Comm. on Prof'l Ethics & Conduct v. Mahoney, 402 N.W.2d 434, 435 (Iowa 1987) (lawyer was reprimanded and placed under supervision of his law partner; lawyer later withdrew from firm following which former partner discontinued supervision and lawyer again engaged in unethical conduct).
Although we have not ordered protective measures such as continuing legal education or adequate clerical and professional support, we expect Lickiss to avail himself of whatever resources are necessary to allow him to practice in compliance with our rules of professional conduct. We caution him that, in the event he is reinstated, he should consider a career that will allow him to steer clear of any future ethical violations.
V. Conclusion.
Because Lickiss has violated ethical rules by neglecting four probate matters, failing to respond to clients' inquiries for information, taking probate fees without prior court approval, and failing to notify his clients that he would no longer be representing them, we suspend Lickiss's license to practice law indefinitely with no possibility of reinstatement for three months. This suspension shall apply to all facets of the practice of law as provided in Iowa Court Rule 35.12(3) and requires notification of clients as outlined in Iowa Court Rule 35.22. Prior to any reinstatement, Lickiss must provide an evaluation from a licensed health care professional verifying his fitness to practice law. Costs are taxed to Lickiss pursuant to Iowa Court Rule 35.26. Reinstatement shall not be ordered until all costs are paid. Iowa Ct. R. 35.12(1).
LICENSE SUSPENDED.
NOTES
[1] Henderson testified that $1053.98 was charged for work that Lickiss did when he first took the case and the remaining $122.50 was charged in connection with work that Lickiss performed or partly performed in connection with a June 2006 delinquency notice. At the hearing, the board did not contend Lickiss had not earned these fees or that these fees were unreasonable. The board only claimed the fees were collected without court authorization.
[2] The board alleged and Lickiss admitted a violation of rule 32:8.4(a) ("It is professional misconduct for a lawyer to . . . violate . . . the Iowa Rules of Professional Conduct[.]"). We do not consider a violation of this rule as a separate ethical infraction, Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010), and so give it no further consideration.
[3] The coercive nature of the suspension is demonstrated by the fact that the length of a temporary suspension under rule 34.7 is essentially up to the respondent. Once the attorney responds to the board's inquiries, the board is required to withdraw its certificate or provide an alternate basis for continuing the suspension, see Iowa Ct. R. 34.7(3)(d), and upon the board's withdrawal of the certificate, the court must "immediately reinstate the attorney's license to practice law," id. r. 34.7(3)(f). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737275/ | 727 N.W.2d 375 (2006)
2007 WI App 19
STATE
v.
WESTON.
No. 2006AP1393-CR.
Wisconsin Court of Appeals.
December 13, 2006.
Unpublished opinion. Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1310121/ | 239 N.W.2d 571 (1976)
STATE of Iowa, Appellee,
v.
Tim SEVCIK, Appellant.
No. 2-58440.
Supreme Court of Iowa.
March 17, 1976.
Pat W. Brooks and Curtis A. Ward, of Mowry, Irvine & Brooks, Marshalltown, for appellant.
Richard C. Turner, Atty. Gen., Earl W. Roberts, Jr., Asst. Atty. Gen. and Jared O. Bauch, County Atty., for appellee.
Heard by MOORE, C. J., and RAWLINGS, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.
RAWLINGS, Justice.
Defendant appeals from judgment on jury verdict finding him guilty of assault with intent to inflict great bodily injury in violation of Section 694.6, The Code 1973. We affirm.
March 7, 1975, Sevcik was charged by county attorney's information. Attendant circumstances are not material to this appeal.
Trial was scheduled to commence Monday, April 21, 1975. Wednesday (April 16), the prosecutor served upon defendant a "Notice of Additional Witnesses", having inadvertently failed to earlier do so. The giving of such notice is required by § 780.10, which provides in pertinent part:
"The county attorney * * * shall not be permitted to introduce any witness * * * unless he shall have given to the *572 defendant, or his attorney of record if the defendant be not found within the county, a notice in writing stating the name, place of residence, and occupation of such witness, and the substance of what he expects to prove by him on the trial, at least four days before the commencement of such trial." (emphasis supplied).
The case proceeded to trial, as scheduled. Following introduction of complainant's evidence the State manifested an intention to call witnesses named in the aforesaid notice. Defendant moved they be excluded. This motion was sustained upon the premise the requisite four days' notice had not been given. See Code §§ 780.10, supra, and 4.1(23) [now § 4.1(22), The Code 1975]. The latter enactment says, to the extent here relevant: "In computing time, the first day shall be excluded and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday * * *."
Still desiring to introduce evidence via challenged witnesses the county attorney renewed his request and in so doing then invoked § 780.11. It states:
"Whenever the county attorney desires to introduce evidence to support the indictment, of which he shall not have given said four days notice because of insufficient time therefor since he learned said evidence could be obtained, he may move the court for leave to introduce such evidence, giving the same particulars as in the former case [§ 780.10], and showing diligence such as is required in a motion for a continuance, supported by affidavit." (emphasis supplied).
Over defendant's resistance trial court granted the State's motion. Defendant's attorney was then appropriately asked whether a continuance was desired as permitted by § 780.12. It declares: "If the court sustains said motion, the defendant shall elect whether said cause shall be continued on his motion, or the witness shall then testify." (emphasis supplied). In declining the proffer, defense counsel stated, "The defendant will not move for a continuance. I don't think he has to and he won't. Just proceed and see what happens from there."
Trial resumed, the additional witnesses testified, and a guilty verdict was ultimately returned.
Defendant then unsuccessfully moved for a new trial, alleging the State's § 780.11 motion, supra, was erroneously sustained. He here voices the same argument.
Three related inquiries are facially presented. In brief, we are asked to resolve these questions:
(1) Did defendant receive timely notice of the additional witnesses' testimony, pursuant to §§ 780.10 and 4.1(23), both quoted above?
(2) Did trial court erroneously sustain the State's § 780.11 motion for leave to introduce the controverted testimony?
(3) Even if the State's § 780.11 motion was erroneously sustained, did defendant waive such error by refusing a continuance, provided by § 780.12?
We are satisfied this third question must be answered in the affirmative and such is dispositive. Consequently, other issues above raised are not reached.
I. In State v. Kidd, 89 Iowa 54, 60-61, 56 N.W. 263, 265 (1893), this court thus explained the forerunner of §§ 780.10-780.13:
"The evident purpose of these provisions is to inform the defendant in time to enable him to prepare to defend against * * * the witnesses and evidence by which he will be confronted. If he permits a witness to be examined without objection who was not before the grand jury, and for whose examination no notice was given or leave granted, he should not be heard to complain, for, by failing to object, he waived his right to notice and to time. When a motion for leave to examine a witness is filed, the defendant has the notice contemplated, *573 and when the leave is granted he has the election to take time or not. It is his privilege to elect to have the cause continued, thereby insuring to himself time to prepare to meet the proposed evidence. If he does not elect to take a continuance, he certainly should be held to have waived the time. The situation is not unlike what it would be if less than four days' notice had been given, and the defendant had failed to object to the examination of the witness. Whether the motion for leave is rightfully or wrongfully sustained, the only right given to the defendant is the election to continue the case."
Sevcik now asks that Kidd and its progeny be overruled. We are not so disposed.
Essentially, defendant contends trial court's holding impermissibly shifted to him the "burden" of seeking a continuance, even if the State was dilatory in giving notice of additional testimony. Assuming absence of shown diligence, he argues a § 780.11 motion could not be granted. More specifically, it is contended trial court "rescued the county attorney from his predicament" by sustaining the motion, leaving defense counsel only two alternatives: (1) proceed with trial, thereby waiving any alleged error in sustaining the State's motion, or (2) proceed with trial pursuant to § 780.12, thereby also waiving any alleged error. Thus says defendant, it is necessary to overrule Kidd in order to render enforceable his "procedural rights" under §§ 780.10-780.13.
Although we are not insensitive to the preservation of error dilemma in which defendant found himself, it is evident he overlooks the salutary purpose of the four day notice rule, i. e., "to inform defendant of the witnesses against him and the substance of their testimony." See State v. Bruno, 204 N.W.2d 879, 886 (Iowa 1973).
Actually, Sevcik appears to interpret § 780.10 et seq. as an exclusionary mechanism. But these statutes do not prohibit the introduction of evidence under all circumstances. Rather, they procedurally relate to timely evidential notice. If the accused has no objection as to timeliness, all reason for preclusion falls. Thus, when defendant refused a continuance, as was his right under § 780.12, he effectively waived any objection to an untimely call of the additional witnesses.
II. Defendant also misconceives both the nature and extent of his "procedural rights". To say trial court's adverse ruling impermissibly shifted to him the "burden" to seek a continuance is patently unfounded. He had a statutory permissive right, not a prejudicial burden to have the case continued. The situation is comparable to that in State v. Gilliland, 252 Iowa 664, 108 N.W.2d 74 (1961). There, as here, trial court permitted the State to introduce evidence by witnesses whose names, expected testimony, etc. were communicated to defendant less than four days prior to trial. Upon granting the prosecution's § 780.11 motion, the defendant was informed of his right, under § 780.12, to benefit of a continuance. His attorney responded, "I'm not doing anything", but attempted to reserve "the right to object to the witness being heard at this time." 252 Iowa at 670, 108 N.W.2d at 77. In the instant case, as aforesaid, defense counsel stated, "Just proceed and see what happens from there". This language in Gilliland, 252 Iowa at 670, 108 N.W.2d at 78, is controlling:
"A continuance was available to the defendant; it was his legal right under the statute. But it was his duty to ask it, and this he did not do, and he cannot now complain. * * * . At this point he seems to have been attempting to have his cake and eat it. He had refused, when asked, to move for a continuance; he apparently was willing for the trial to proceed * * *."
In other words, had Sevcik elected, when asked, to avail himself of the "procedural right" afforded by § 780.12, the alleged error he now says could not be preserved would have been avoided. Moreover, as State v. Kidd, supra, unequivocally holds, *574 defendant's only privilege was to elect a continuance "[w]hether the motion for leave is rightfully or wrongfully sustained * * *." 89 Iowa at 61, 56 N.W. at 265. By refusing to accept the offered continuance, defendant waived any right to effectively resist the State's privilege to call and introduce evidence of the named additional witnesses.
AFFIRMED.
MOORE, C. J., and McCORMICK, J., concur.
UHLENHOPP and REYNOLDSON, JJ., concur specially.
UHLENHOPP, Justice (concurring specially).
I disagree with the basis given for the court's decision, but I agree with the result.
I. Section 780.11 of the Code provides:
Whenever the county attorney desires to introduce evidence to support the indictment, of which he shall not have given said four day's notice because of insufficient time therefore since he learned said evidence could be obtained, he may move the court for leave to introduce such evidence, giving the same particulars as in the former case [name, address, occupation, and substance of testimony], and showing diligence such as is required in a motion for continuance, supported by affidavit. (Italics added.)
Section 780.12 provides that if the court sustains the motion, the defendant shall elect whether to have a continuance or let the witness testify.
I think these sections contemplate that a defendant is only put to the election if the provisions of the two sections are met. Thus if the county attorney shows diligence in ascertaining witnesses but learns of a witness only within the four days, then he may successfully move and the defendant must elect. But if the county attorney does not show such diligence or does not learn of the witness only within the four days and the court nonetheless grants the county attorney's motion, the court errs and cannot compel the defendant to waive the error.
Any other result repeals the provisions of diligence and late-learning of the existence of the witnessa trial court can simply disregard those requirements and force the defendant to waive the error although the county attorney was not diligent or in fact knew of the witness for weeks, as the record shows he knew here.
I can think of no other situation in which a court can disregard statutory requirements with no error resulting. I would overrule the decisions which hold that a court can do so in this situation.
II. Section 780.10 requires the county attorney to give the notice in question "at least four days before the commencement of the trial." Section 4.1(22) provides:
In computing time, the first day shall be excluded and the last [day] included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday . . . . (Italics added.)
In serving a notice under § 780.10, the first day, the day of service, is thus excluded, but the fourth day is included, and the notice is timely if trial begins on that included fourth day. State v. King, 225 N.W.2d 337 (Iowa). Hence service on Monday is timely if trial begins the fourth day hence, Friday; or service on Thursday is timely for trial beginning on the fourth day hence, Monday. State v. Clark, 145 Iowa 731, 122 N.W. 957.
Defendant contends, however, that service on Wednesday is only timely for trial beginning on Tuesday, the sixth day hence. Thus Monday is not included in his computation, and this notwithstanding the language of § 4.1(22) that the time shall include Monday. Defendant arrives at this conclusion from the words in § 4.1(22) which I have italicized: time "shall be extended so as to include the whole of the *575 following Monday . . . ." But those words do not say the whole of Monday is to be "excluded," as defendant would read them. The whole of the last day is normally included, unless it is a holiday, since the law ordinarily does not take notice of parts of days. Thrasher v. Haynes, 221 Iowa 1137, 264 N.W. 915 (quoting general rule). Thus service on Monday is timely for a trial beginning anytime on Friday. So service on Wednesday is timely for a trial beginning anytime on Monday.
The legislature probably placed "the whole of" in § 4.1(22) for the situation in which an act is to be done on that last day, such as entry of an appearance in an action. The legislature desired to make very clear that all day Monday is to be includedthe person has all of Monday to enter his appearance. See Bruce v. Pope, 179 Iowa 1161, 162 N.W. 797.
Monday should not be excluded from the four-day computation under § 780.10. I would affirm on that basis.
REYNOLDSON, J., joins this special concurrence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605110/ | 175 N.W.2d 63 (1970)
185 Neb. 270
STATE of Nebraska ex rel. Loren B. BELKER, Relator, Appellant,
v.
BOARD OF EDUCATIONAL LANDS AND FUNDS of the State of Nebraska et al., Appellees.
No. 37004.
Supreme Court of Nebraska.
March 10, 1970.
Clarence A. H. Meyer, Atty. Gen., Bernard Packett, Asst. Atty. Gen., Lincoln, for appellees.
McGinley, Lane, Mueller, Shanahan & McQuillan, Ogallala, Maupin, Dent, Kay, Satterfield & Gatz, Gary L. Scritsmier, North Platte, for amicus curiae.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
On reargument, previous opinion adhered to 184 Neb. 621, 171 N.W.2d 156.
BOSLAUGH, McCOWN, and SMITH, JJ.
The central issue in this case, and the only real issue, is whether the Legislature is authorized to direct the sale of all school lands. It is our opinion that the constitutional provision which vests the general management of all school lands and funds in the Board of Educational Lands and Funds "under the direction of the Legislature" authorizes the Legislature to direct the sale of school lands. Art. VII, s. 1, Constitution of Nebraska.
The legislative history of the act does not appear in the record of this case. Whatever it may have been, there is nothing in the act, nor in any legislative history alluded to, which in any way limits or attempts to limit the jurisdiction or power of the courts to determine, in a proper proceeding, whether the sale of any school lands was conducted in the manner required by law.
Whether the sale of the lands should prove to be a wise decision or not, it is a decision which the people empowered the Legislature to make. This court has no authority to exercise a power which the people have constitutionally vested in the Legislature.
We adhere to the opinion originally filed in this case.
CARTER, J., dissenting.
This matter arises after a reargument of the issues raised by the appeal. The three members of the court upholding the constitutionality of the act under Article V, section 2, Constitution of Nebraska, have concluded to adhere to the former opinion. I disagree with this disposition of the case.
Due to a temporary disability, I was not able to participate in the disposition of the case originally and Colwell, District Judge, sat in my stead. Having participated in the motion for a rehearing and the reargument of the case, I deem it necessary to state my views regarding the constitutionality of the legislation authorizing the sale of the school lands held in trust for the benefit of the common schools of the state.
The statutes primarily questioned here provide in part: "All lands, now owned or hereafter acquired by the state for educational purposes, shall be sold at the expiration of the present leases. * * * Prior to such sale, the land shall be appraised for sale purposes in the same manner as privately owned land by a representative appointed by the Board of Educational Lands and Funds, and thereafter shall be sold at public sale at not less than the appraised value; Provided, * * *." *64 S. 72-257, R.S.Supp.1967. "Such land shall be sold, at public auction, by a representative of the Board of Educational Lands and Funds or by the county treasurer of the county in which the land is located, to the highest bidder. The appraised value for sales purposes as provided in section 72-257 shall be the starting bid price. * * * Settlement shall be made by paying cash of not less than twenty percent of the purchase price at the time of sale and the balance shall be payable in cash within ninety days of the date of sale. If the person submitting the high bid for the land fails to pay the balance of the purchase price and complete the sale within ninety days his rights under the sale, including the twenty per cent down payment, shall be forfeited by the board and a new sale shall be authorized." S. 72-258, R.S.Supp.1967. It is clear to me that if the foregoing provisions are complied with, the sale is to be final and complete and the purchaser entitled to a deed.
The original concurring opinion of Boslaugh, Smith, and McCown, JJ., State ex rel. Belker v. Board of Educational Lands & Funds, 184 Neb. 621, 171 N.W.2d 156, in sustaining the constitutionality of the foregoing provisions of the law holds that irrespective of the shortcomings of the statutes, the trustee, or persons dealing with the trust assets, have the courts available to them to determine whether or not the rules governing trusts have been properly applied and that such fact is sufficient to sustain a holding of constitutionality. This opinion states: "The fact that the sale statute is silent as to the procedures for such a determination does not alter the law of trusts, nor relieve the trustee of its trust obligations, nor make the statute unconstitutional." Under this theory, the Legislature can merely direct a sale and the courts will supply the missing language, compel compliance with such directions of the court, and hold the act constitutional. This has been tried many times in this state with fatal results in each and every instance. Cases in this court consistently and unanimously support such results. They are cited in the dissenting opinion by Spencer, J., in State ex rel. Belker v. Board of Educational Lands & Funds, 184 Neb. 621, 171 N.W.2d 156, and will not be repeated here. In 82 C.J.S. Statutes § 328, p. 635, it is said in part: "It has been held to make no difference that the omission resulted from inadvertence, or because the case in question was not foreseen or contemplated, or that as a result of the omission the statute is a nullity."
The controlling opinion in this case concedes that the school lands of this state are held in trust for the benefit of the common schools. The relationship of trustee and beneficiary is a fiduciary one imposing the utmost good faith in the handling of the trust property. Among the duties of a trustee is to require in the case of the sale of trust property that he shall obtain the highest price possible and refuse to make a sale if the sale was fraudulent, or the result of chilled bidding, or any other conduct or circumstance that resulted in an inadequate sale price. The statute under consideration provides for an appraisal and a public sale, after which, if the bid price equals or exceeds the appraisal price, the sale is completed upon payment of the bid price within 90 days. The statute therefore deprives the trustee, the Board of Educational Lands and Funds, from exercising the powers and duties of a trustee imposed by the creation of the trust relationship by the Constitution.
It is asserted in the controlling opinion that the failure to provide for the sale of school lands consistent with its trust status may be read into the statute by implication and enforced as if written into the statute. This is simply not true. See 82 C.J.S. Statutes § 328, p. 635. An implication to be drawn from the absence of language in a statute is a mere guess and the guess, if made, is judicial legislation. But assuming, solely for the purpose of argument, that there is language in the statute from which an intent can be implied, the position of the controlling members of the court remains *65 wholly untenable under the facts in this case.
The history of the act shows conclusively that the Legislature intended that the appraisal, sale, and payment were to constitute the sole basis for the passing of ownership. The right of the trustee to perform its duty was intended to be cut off. Its duty to protect, conserve, and safeguard the assets of the trust for the benefit of all its beneficiaries and its liability for loss thereof resulting from its failure to exercise reasonable care, prudence, and diligence were cast aside in favor of a summary binding sale for the very purpose of subverting the duty of the trustee and the rights of beneficiaries.
The history of the statutes under consideration is set forth in the dissent of Spencer, J., in State ex rel. Belker v. Board of Educational Lands & Funds, supra, and will be only briefly set forth here. The statutes here involved were before the Legislature in their present form. An amendment was offered that would give the Board of Educational Lands and Funds the right to reject bids. The amendment was rejected, plainly indicating that the Legislature did not intend that such board as trustee could see to it that the land did sell for its highest market price. This legislative action demonstrated that the Legislature intended to obstruct the trustee in the performance of its duty and to provide for a completed sale if the bid equalled or exceeded the appraised value whether or not the best interests of the beneficiaries were served. That this was the intent of the Legislature is further shown by the provision that the county treasurer of the county in which the land was located could sell school lands, a person not even a trustee. With this situation existing, a court cannot possibly justify finding or creating a legislative intent contrary thereto by implication or otherwise.
In Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484, it is said: "No court could justify putting into a statute by implication what both Houses of the Legislature had expressly rejected by decisive votes. The House and Senate Journals leave no room for doubt of the legislative intent to deny the power exercised by the State Committee in seeking to debar names from the primary ballots under the resolutions of February 1, 1930. Once the legislative intent is ascertained, the duty of the court is plain. To refuse to enforce statutes in accordance with the true intent of the Legislature is an inexcusable breach of judicial duty, because an unwarranted interference with the exercise of lawful, legislative authority." See, also, Blome Co. v. Ames, 365 Ill. 456, 6 N.E.2d 841, 111 A.L.R. 940; 50 Am.Jur., Statutes, S. 330, p. 322.
In Long v. Poulos, 234 Ala. 149, 174 So. 230, the court said: "If the intention of the Legislature can be ascertained from the language used and the history of the enactment, it is not necessary to apply any presumptions of law which will aid in the interpretation when its meaning does not otherwise appear. * * * We do not think it is necessary to draw upon such presumptions in this case because we think that without them we are able to ascertain the legislative intent."
In State, Department of Highways v. Busch (La.App.), 220 So. 2d 513, it was said: "We cannot supply by interpretation what our lawmakers have failed or refused to do by legislation."
"If legislative intent has meaning for the interpretative process it means not a collection of subjective wishes, hopes, and prejudices of individuals, but rather the objective footprints left on the trail of legislative enactment. Legislative intent can't be `dreamed-up.' It can be speculated about; but it can be discovered only by factual inquiry into the history of the enactment of the statute, the background circumstances which brought the problem before the legislature, the legislative committee reports, the statements of the committee chairman, and the course of enactment. *66 To pursue this course means work and hard work, but if it is pursued it is seldom that the pursuit is fruitless. An honestly conducted inquiry into these considerations will fail but infrequently to disclose to the inquirer the purpose and intent of the legislature and will clarify the applicability of the statute to the question in litigation." 2 Sutherland, Statutory Construction (3d Ed.), S. 4506, p. 321.
"Be this as it may, judicial interpretation should never be judicial legislation. We may not, therefore, under the guise of interpretation, read into a statute matters which have been omitted by the Legislature particularly where it appears that the omission might have been intentional." In re Estate of Barnett, 97 Cal. App. 138, 275 P. 453.
"There are two well-established rules by which we must be governed in construing a statute. On the one hand, we must give effect to each and every part of it; on the other, we are not permitted to read into a statute anything which we may conceive the Legislature may have unintentionally left out. Rather than violate the latter rule, the court will leave ambiguous phrases of statutes ineffective and refer their correction to the Legislature. And that is what must be done with respect to the phrase we are considering. To render the phrase effective would require much supplementation by the court. * * * To supply these deficiencies in the act in order to give effect to the ambiguous phrase would amount to judicial legislation. From the phrase itself, we think it would be a violent assumption to say that the Legislature intended in any manner to change or modify our long-established practice and procedure with respect to the appointment of trustees for insolvent corporations. That such an assumption would be repugnant to the legislative intent is apparent from the title of the act, * * *." Seattle Assn. of Credit Men v. General Motors Acceptance Corp., 188 Wash. 635, 63 P.2d 359.
"In the same case it was also held that `the court cannot, under its powers of construction, supply omissions in a statute, especially where it appears that the matter may have been intentionally omitted.'" Appeal of Infants Welfare League Camp, 169 Pa.Super. 81, 82 A.2d 296.
"If the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it by including the omitted case would be tantamount to adding to a statute a meaning not intended by the Legislature." Mitchell v. Mitchell, 312 Mass. 154, 43 N.E.2d 783.
The foregoing authorities when applied to the facts in this case show the plain intent of the Legislature to circumvent the duties and liabilities of the trustee and the right of the beneficiaries of the trust to have the trust property sold for the highest market price obtainable in accordance with the fiduciary relationship of the parties. The holding of the controlling opinion that the court may supply the missing legislative intent by interpretation or implementation, even though it is directly contrary to the real purpose and intent of the Legislature, is nothing more than judicial legislation and an encroachment upon the powers of the Legislature forbidden by the separation of powers provision of our state Constitution. The very idea that this court may rewrite a statute and give it effect, even though in conflict with the ascertained and real intent of the Legislature, is abhorrent to every student of constitutional government.
"In Armstrong v. Board of Supervisors, 153 Neb. 858, 46 N.W.2d 602, 606, it is said: `If the language of a statute is clear and unambiguous, courts will not by interpretation or construction usurp the function of the lawmaking body and give it a meaning not intended or expressed by the legislature.' See, also, Federal Farm Mortgage Corp. v. Adams, 142 Neb. 202, 5 N.W.2d 384; 50 Am.Jur., Statutes, § 225, p. 204. A statute is not to be considered as *67 appropriate for construction as a matter of course. It is only ambiguous statutes of uncertain meaning to which the rules of construction have application. In Cross v. Theobald, 135 Neb. 199, 280 N.W. 841, this court said: `Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.'" Ledwith v. Bankers Life Ins. Co., 156 Neb. 107, 54 N.W.2d 409.
"We are not warranted in supplying words which appear to have been designedly omitted, or in accomplishing the same result indirectly by giving to the words used the broad import and meaning for which the state contends." State v. Pence, 173 Ind. 99, 89 N.E. 488, 25 L.R.A.,N.S., 818.
"This being true, must we not accept the statute as we find it and concede that the General Assembly in its wisdom omitted the word `newspapers' from the second sentence for some reason which appeared to that august body to be sufficient. Whatever may have influenced the General Assembly to omit the word `newspapers' from the second sentence in the statute, if it did purposely do so, is sufficient, and courts are not authorized to interpolate words into a statute which the lawmaking body has purposely omitted. * * * The learned trial judge delivered a written opinion, from which we take the following pertinent observation: `The argument of the commonwealth is that the word "newspapers" was inadvertently omitted by the Legislature in the second sentence adverted to, and, having been inadvertently omitted by the Legislature, it should be included by the court. This seems to me clearly to confound the functions of these two agencies of the government. Under the Constitution it is the province of the Legislature to enact and the province of the judiciary to interpret, and it is of vital importance to the maintenance of our institutions that the functions of the two departments shall be kept separate and distinct as provided in the Constitution. However beneficent a law might be, it is for the Legislature to pronounce it. However much public policy may demand the enactment of a law, the court cannot enact it.'" Commonwealth v. Lipginski, 212 Ky. 366, 279 S.W. 339.
"In the construction of statutes, words should never be supplied except to effectuate a meaning clearly shown by the other parts of the statute and to undertake to augment the substance of a statute as here desired would be an abortive act of legislation rather than a proper exercise of the power of judicial construction. Saslow v. Previti, 3 A.2d 811, 17 N.J.Misc. 29.
The controlling opinion, however, purports to sweep these fundamental concepts under the rug by stating that they have no application because equity courts are open to enforce the duties, liabilities, and fiduciary relationship of the parties. Let us examine the validity of this holding, a holding supported by no legal authority, court decision, or authoritative text, in the controlling decision of this case.
I am in full agreement with the controlling opinion that our equity courts have general supervisory powers over the administration of trusts. According to available records the value of unsold school lands was at least $70,100,000. The number of tracts to be sold is not known to me but there are at least 544 since there are that many tracts under lease. Under the theory of the controlling opinion, it is possible that a minimum of 544 suits would be required to insure that the trustee procured the highest possible market value of the land for the benefit of the beneficiaries of the trust. It is not at all likely that the Board of Educational Lands and Funds would bring such suits, a board whose duties are prescribed by the Legislature and whose salaries are fixed by it. If a beneficiary brought suit to determine the adequacy of the sale price, the cost of attorneys' fees and court expense would probably far exceed *68 the benefit accruing to a single beneficiary even if the litigation proved successful. But more important still, the statute deprives the trustee of its duty to act in the capacity of a fiduciary and the duties and responsibilities of the trustee acting in its fiduciary capacity. It deprives the beneficiaries of the benefit of the trustee in seeing to it that the highest market price is obtained for the common schools of the state. It would subject the state to the payment of losses from sales not made in accordance with the law governing the sale of trust property as provided in Article VII, section 9, of the Constitution. I submit that the theory announced in the controlling opinion is not only not in accordance with law but, for all practical purposes, provides no adequate remedy for a breach of the fiduciary relationship. I submit that the power of the courts to control the administration of trust property can best be exercised by insisting that the statute providing for the sale of school lands be consistent with the sale of trust property and the duties, liabilities, and benefits accruing to trustees and beneficiaries growing out of the fiduciary relationship of trustee and beneficiary created by the Constitution. I submit that the theory of the court's opinion is unworkable, defeats the purposes of the law of trusts, and in practice provides no effective protection to the beneficiaries of the trust. I submit that the general power of equity courts to supervise trusts through collateral attack does not afford an adequate remedy, nor does it comply with the necessary attributes of due process. In addition thereto, a multiplicity of suits would be required to insure compliance with the law of trusts and the protection of the beneficiaries of the trust.
This case has been twice argued. In each argument four judges were of the opinion that the statutes were unconstitutional. In the first argument, Colwell, District Judge, sat as a member of the court. In the second, I resumed my place on the court and Colwell, District Judge, did not participate. The result is that five judges sat on the two arguments who firmly believe that the act before us is unconstitutional. On the other hand, the same three members of the court have stood in the shadow of Article V, section 2, of the Constitution, and insisted that the act is constitutional. I do not intend to infer any irregularity in constituting the court in either instance. There was none. My only comment is that three members of the court under the provisions of Article V, section 2, of the Constitution, are authorized to sustain the constitutionality of a legislative act without citing a single case or text authority. On the other hand, the five dissenting members of the court have cited ample authority to sustain their position that the act is unconstitutional. I submit in all fairness that if the position of the three members of the court can sustain their holding of constitutionality, and I am confident they cannot, it is encumbent upon them to do so. In my opinion, the controlling opinion is legally unsound and the failure to cite supporting authority affords some evidence to confirm that opinion.
The purpose of the statute is shown by the language of the act and the history of its enactment. It is clearly demonstrated that the legislative intent is to make the sale therein provided the final completion of the sale to the highest bidder. The object of the controlling opinion is to avoid questions of unconstitutionality by a construction contrary to the intent of the Legislature. This is judicial legislation under all of the authorities and is violative of the division of powers provision of the state Constitution. Such a construction is not only void as judicial legislation, but it has the effect of eliminating the protection afforded the resulting trust fund and its beneficiaries by virtue of its status as trust property. The purported remedy of the controlling opinion is not only inadequate, but it will require a multiplicity of suits to enforce the protections required by the Constitution in designating the school *69 lands of the state as trust property. I submit that our adopted opinion is contrary to the Constitution and the applicable law, is an arbitrary assumption of legislative powers by rewriting the act contrary to the intent of the Legislature, and has the effect of circumventing the rights of the beneficiaries of the resulting trust fund by a disregard of the manner provided for the sale of trust property. The act is unconstitutional and void, and contrary to the best interests of the state, the beneficiaries of the trust fund, and the good conscience of a court of equity.
Simple justice and the applicable law require that its beneficiaries should be protected with the utmost fidelity without the necessity of engaging in costly collateral litigation. I submit that the controversial statute is wholly void and arbitrary and that the only legal and adequate remedy is a declaration of unconstitutionality by this court. Having these views, I emphatically dissent from the unsupported holdings announced in the opinion of the controlling members. I would reverse the judgment of the district court and enter a declaration of unconstitutionality.
WHITE, C. J., and SPENCER and NEWTON, JJ., join in this dissent.
Separate Opinion by SMITH, J.
From original submission of this case on January 14, 1969, almost 14 months have elapsed. The interval, highly abnormal for this court, is an example of predilection for delay that we ought to prevent.
SPENCER, J., dissenting.
I reaffirm my dissent to the three-judge opinion upholding the constitutionality of sections 72-257 and 72-258, R.S.Supp.1967, and 72-258.01, R.R.S.1943 (as amended by Laws 1965, c. 435, ss. 2, 3, and 4, pp. 1386 and 1387, and Laws 1967, c. 466, ss. 10 and 11, p. 1450,) found at 184 Neb. 621, 171 N.W.2d 156. I am authorized to state that White, C. J., and Carter and Newton, JJ., adhere to that previously declared position.
The controlling opinion in this case states that the only real issue is whether the Legislature is authorized to direct the sale of all school lands. This is not the issue at all. No contention is advanced by anyone that the power to sell school lands is not lodged in the Legislature. The issue is whether the statute implementing the constitutional authorization to sell meets the requirements for the sale of trust property where, as here, the Constitution declares it to be such. The dissenting opinion of Judge Carter points out not only that the statute does not comply, but that it was the intention of the Legislature not to comply.
Additionally, I attack the right of three members of this court to override a majority opinion, and state that the following sentence from Article V, section 2, Constitution of Nebraska, "No legislative act shall be held unconstitutional except by the concurrence of five judges," is itself unconstitutional.
The Enabling Act of Congress, permitting the people of Nebraska to adopt a Constitution and form a state government, required a republican form of government not repugnant to the Constitution of the United States and the principles of the Declaration of Independence. As the Supreme Court of Colorado said in People v. Western Union Telegraph Co., 70 Colo. 90, 198 P. 146, 15 A.L.R. 326: "The original Constitution of Colorado was a solemn compact between the state and the federal government, a compact which stipulated that it should never be altered save in the manner therein provided, and that all amendments and all revisions thereof would conform to the supreme law. The whole people of the state have no power to alter it save according to their contract. They cannot do so, even by unanimous consent, if such alteration violates the Constitution of the United States. Should they make the attempt their courts are bound by the mandate *70 of the federal Constitution, and by the oath they have taken in conformity therewith and with their own Constitution, to declare such attempt futile, to disregard such violation of the supreme compact, and decline to enforce it. There is no sovereignty in a state to set at naught the Constitution of the Union, and no power in its people to command their courts to do so. That issue was finally settled at Appomattox."
This provision does not limit the authority of this court to declare an act unconstitutional if it is in violation of the state Constitution only, but prohibits such declaration without five votes, whether it is unconstitutional under the state or the federal Constitution. This is violative of the federal Constitution. Any dilution of the judicial power shatters the fundamental principle that government is divided into three coordinate brancheslegislative, executive, and judicial. Any limitation upon what is rightfully a part of the judicial power destroys the republican form of government. If it is possible to require more than a majority vote, is it not also possible to require a unanimous vote? To so hold is foreign and hostile to our republican form of government.
There are certain acts which even the state Constitution cannot abrogate. One of these is to limit the authority of this court to exercise its sovereign and inherent power as the judicial branch of government, free from the dictates of the Legislature.
This constitutional provision as applied in the instant case permits the Legislature to dilute the inherent power of this court, as well as depriving the beneficiaries of the public school lands' trust of property without due process of law. In other jurisdictions a simple majority may hold a legislative act unconstitutional. Because of this provision, Nebraska requires five of seven judges to so hold. Citizens of Nebraska are not therefore entitled to all of the privileges of citizens in the several states.
The Supreme Court of the United States in Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830, struck down an act of the State of California which sought to prohibit open housing laws unless first approved by a majority vote of the people of California. The court held that even a majority could not promulgate legislation inherently contrary to rights afforded an individual under the Constitution of the United States. I maintain that our constitutional provision permitting a minority of the citizens of Nebraska, as represented by three judges upon this court, to thwart the will of the majority is in violation of the equal protection clause of the Constitution of the United States.
WHITE, C. J., dissenting.
As early as 1894 and as recently as 1962 this court has stated and reaffirmed the principle that the constitutional authority and power to sell, lease, and manage the educational lands of the state is conferred upon a district board and that the authority thus conferred, the Legislature is powerless to take away. At the present time the Board of Educational Lands and Funds has sole power under the Constitution to manage and control school lands. State ex rel. Crounse v. Bartley, 40 Neb. 298, 58 N.W. 966; State v. Kidder, 173 Neb. 130, 112 N.W.2d 759.
This constitutional function conferred upon the board "under the direction of the legislature" has been present since 1875. Nebraska Constitution of 1875, Article VIII, section 1; Nebraska Constitution of 1920, Article VII, section 1. In light of the above language it is clear that the responsibility, duty, and discretion to sell, lease, and manage the school lands is in the board and not the Legislature. Thus the word "direction" in the phrase "under the direction of the Legislature," cannot be construed to mean command. Rather, the word "direction" must be defined as meaning care and superintendence; a guidance or supervision of action, conduct, or operation. Town of Palatine v. Canajoharie Water *71 Supply Co., 90 A.D. 548, 86 N.Y.S. 412; Webster's Third New International Dictionary, p. 640 (1958). The prevailing minority states that "under the direction of the Legislature" authorizes the Legislature to direct the sale of school lands and also that whether the sale of the lands should prove to be a wise decision or not, it is a decision which the people have constitutionally vested in the Legislature.
One instance is sufficient to emphasize the fallacy in this reasoning. As pointed out by Carter, J., in the present case, and Spencer, J., in his previous opinion, the statute does not provide for, and the legislative intent was to prohibit, giving the board any right to reject or confirm bids. State ex rel. Belker v. Board of Educational Lands & Funds, 184 Neb. 621, 171 N.W.2d 156. It cannot be denied that the right to confirm or reject bids at a sale of land is the very essence of discretion. Thus, without any consideration of applicable trust law, it it clear under our previous decisions that the Legislature has usurped the constitutional duty of the board. Such usurpation is itself unconstitutional. The prevailing minority blithely permits this by stating that it is the will of the people with total disregard, or possibly disdain, for the previous interpretations this court has placed upon the stated will of the people. The direction to sell, while reserving no discretion in the board to confirm or reject bids, is more than a guidance or supervision of action, conduct, or operation. It is the arbitrary assumption of duties constitutionally placed upon the board by the will of the people and thus must fail as being unconstitutional.
This reasoning is also supported by the fact that Article VII, section 8, of the Constitution, pursuant to a 1920 amendment, states that school lands shall not be sold except at public auction under such conditions as the Legislature shall provide. This power to set the conditions of sale is a function of guidance or supervision and cannot be looked at as giving the Legislature the power to command sale of the school lands. The language used here clearly infers that the Legislature is not vested with the power to command sale of the school lands.
The prevailing minority states that there has been no present abuse of the trustee's discretion and that if an abuse is present when the land is sold an action on behalf of the beneficiaries may then be brought. As pointed out by Carter, J., this is in effect, no remedy at all as individual benefits would be grossly disproportionate to the costs of such an action by a trust beneficiary.
Aside from the ability of the Legislature to make such a command, the command itself is clearly a blatant violation of the trustee's discretion. The Legislative command in 1965 to sell all of the school lands as the leases expire, with over half of the land going on the market in 1975, shows total disregard for what future market conditions in a volatile economy may be. The lands are required to be sold without regard to the possibility of a depressed economy, a glutted market, or the availability and cost of money to purchase the land. Such a policy is clearly not prudent and is an abuse of the trustee's discretion. As such, it should be stopped in its gestation rather than aborted on a piecemeal basis as the expiration of each lease gives birth to a sale. As pointed out by Carter, J., the latter alternative is a totally inadequate remedy. I submit that the 1965 command is a present violation of the trustee's discretion as it governs sale of all the land, not just the sale of an isolated tract which may or may not be wise at the time sold.
An additional consideration is the fact that the available investments for proceeds of the sales are limited. In considering the wiseness of a sale it cannot be isolated from what will become of the proceeds. Land has been on a general rise in value for some time, the same is not true of legally permitted investments. The investments permitted by statute, section 72-202, R.R.S.1943, are generally of the type considered as income investments rather than capital *72 appreciation investments. To some extent the opposite is true of land. The possibility of increased income for the use of common schools is attractive, but it should not be used to close our eyes to the fact that in this age of inflation most investment analysts would advise a balanced portfolio which would also provide for capital appreciation. This might well be impossible if all of the school lands were sold and the proceeds invested pursuant to section 72-202, R.R.S.1943. A trustee is required to dispose of trust property upon the most advantageous terms which it is possible for him to secure for the benefit of the cestui que trust whom he represents. State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N.W.2d 520. To be prudent embraces foresight to the extent that reinvestment of the proceeds is predetermined, as it is under section 72-202, R.R.S.1943. This, among other things, is indicative of the trustee's violation of discretion and the consequent invalidity of the act.
Article IV, section 3, of the Constitution of 1866, gave exclusive chancery and common law jurisdiction to the district courts and Supreme Court. This theme has continually been carried forward and is presently stated in Article V, section 9. The Legislature is powerless to take away the equity jurisdiction conferred by the Constitution. Lacey v. Zeigler, 98 Neb. 380, 152 N.W. 792. Jurisdiction over the administration of trusts and supervisory jurisdiction over charitable trusts are inherent in equity courts of this state and in this court, and the Legislature has no power to limit or control this jurisdiction. John A. Creighton Home v. Waltman, 140 Neb. 3, 299 N.W. 261.
The framers of the original Constitution placed the school lands in trust with the fund to remain inviolate and undiminished. The creation of a trust and provision that the funds remain inviolate clearly shows the intent of the framers that the courts, through their equity jurisdiction, should retain control and supervision over the fund to prevent or remedy any and all violations of the trustee's duty.
The gift of this land under the Enabling Act and the acceptance and constitutional provisions for it are in the nature of a trust deed forming a solemn compact with the federal government. The state, in its generic sense, is the trustee with all branches of government participating in the administration of the trust. The Board of Educational Lands and Funds, executive branch, has the power to sell, lease, and manage under the direction of the Legislature and subject to the supervisory powers of the equity courts. It cannot be argued but that the creation of this trust under such a system of checks and balances was to guard against any violation of the trustee's discretion. Should the fact that a 1920 constitutional amendment will allow a legislative act to be overturned only by five votes of this court be permitted to disrupt this system of checks and balances? The answer must be an unequivocal no. A review of the history of the 1920 Constitutional Convention reveals not the slightest intent to invade or impede this court's jurisdiction to control and administer, in a proper case, the provisions of this trust and to protect the school children of the State of Nebraska against any type of state action whether by the people directly or by legislative action.
It is the duty of the courts to reconcile and harmonize, if reasonably possible, conflicting statutory or constitutional provisions. State ex rel. Johnson v. Marsh, 149 Neb. 1, 29 N.W.2d 799; Swanson v. State, 132 Neb. 82, 271 N.W. 264; Elmen v. State Board of Equalization & Assessment, 120 Neb. 141, 231 N.W. 772; 16 C.J.S. Constitutional Law §§ 16, 23, 25, 26, and 38, pp. 72, 91, 98, 99, and 117. In a literal context the 5-2 provision would seem to apply to any act of the Legislature. However, when we examine the context of the school lands trust, its origin, its formulation in the constitutional provisions, and the duties of this court in enforcing the administration of this trust, it seems to me that "an act of the *73 Legislature" can never mean administrative actions by the Legislature in behalf of the state in the exercise of its power as a trustee of the school lands. To otherwise hold would give the Legislature a power superior to that of the judicial or executive branch and clearly defeat the careful system of checks and balances formulated by the drafters of the Constitution to protect this trust. The compact establishing this trust was in form a constitutional provision, but in substance a trust deed. If the fundamental nature of the administrative power over the school land trust is to be circumscribed by independent judicial control, it cannot be transcended by such state action taking the form of an exercise of the general law-making power.
Under the original compact and its acceptance by the people of the State of Nebraska, no state action whether in the guise or form of legislative action or constitutional amendment of any nature whatsoever can assume to the Legislature the arbitrary and unreviewable power to manage the corpus of this trust as it sees fit.
The problem here is fundamental and it is also unique in trust law. It is unique because the trustee itself (the State) has embodied and integrated within itself the general law-making power through which the legislative will of the people must be expressed. Can this power be used to transcend its limitations? Is a declaration by the trustee state in the form of a legislative enactment necessarily an exercise of legislative power in any respect? Can the same power that administers the trust determine its extent? Can the original limitations incorporated by solemn compact be extended by the ordinarily overriding sovereignty of the state? Can the trustee pull itself up by its own boot straps?
Research reveals one case parallel, though not exactly in point, with the situation presented here. In Bridgeport Public Library & Reading Room v. Burroughs Home, 85 Conn. 309, 82 A. 582, the court was faced with the problem of a legislative act or resolution for the sale of real property held by a charitable public trust under the direction and control of the state Legislature. The parallelism to our case here was aptly stated by the Supreme Court of Connecticut as follows: "The decision of the Supreme Court of the United States in Stanley v. Colt, 5 Wall. (U.S.) 119, 18 L. Ed. 502, supported by others, prior and subsequent, removes from the field of discussion any question as to the existence of a power in the sovereignty of the state fully adequate to bestow upon trustees administering a public charitable trust authority as to its administration, such as the General Assembly attempted to confer in the present instance. Perin v. Carey, 24 How. (U.S.) 465, 501, 16 L. Ed. 701; Ould v. Washington Hospital, 95 U.S. 303, 312, 24 L. Ed. 450; Jones v. Habersham, 107 U.S. 174, 183, 2 S. Ct. 336, 27 L. Ed. 401."
That court disposed of the issue in that case without examining any question as to "constitutionality." In its opinion the court held, in language self-explanatory as to its application here, as follows: "* * * there has remained no doubt that our Constitution is to be construed as a grant and not as a limitation of power, and that the exercise of judicial power is forbidden to the legislative branch of the government, as the legislative is to the judicial. * * * The legislative power must be found somewhere outside of the judicial domain, and within the legislative, or it is nonexistent. * * * It concerns a trust, which is emphatically a matter of conscience, and a charitable trust, which is peculiarly the subject of a court of equity's care and solicitude. Bispham's Equity (8th Ed.) § 8; Stanley v. Colt, 5 Wall. (U.S.) 119, 169, 18 L. Ed. 502. The power is one which has come into our American jurisprudence in conformity with the English original, and is an adjunct of the judicial power. Its exercise involves an appeal to the conscience of the chancellor through an application duly made, an inquiry, and a determination embodying the exercise of discretion. These are peculiarly judicial functions. *74 `The judicial power includes such power as the courts, under the English and American systems of jurisprudence, have always exercised in legal and equitable actions.'"
That court continued: "We have no occasion to attempt to define the exact limits of either the judicial or the legislative power, or to draw the dividing line between the two. It is certain, wherever that dividing line may be or however indefinite it may be at points, that jurisdiction over this charitable trust to see that it is properly and beneficially administered, that the purpose of the donor does not fail, and that the interests of the beneficiaries, under changing conditions and with the lapse of time, belongs to the judicial department of the government, and is in no respect an incident of the legislative.
"The resolution of the General Assembly, in question, in so far as it purports to confer authority upon these trustees, must therefore fail of its purpose. The courts, in the exercise of their chancery powers, are alone competent to confer such authority. That authority not having been obtained, any attempt on the part or the trustees to sell the property would be in excess of their powers." (Emphasis supplied.)
This court has consistently held that a violation of the trustee's duty is a violation of the Constitution itself. In this case, we are compelled to go one step further and hold that the Constitution itself and any agency purporting to act under its delegated powers may not violate this trust in the guise of a constitutionally exercised power. A majority of this court has determined that the legislative act is a violation of the trustee's fiduciary duty. A majority now holds that the power sought to be exercised is subject to the supervisory control of the courts in their exclusive constitutional jurisdiction over the supervision of charitable trusts. A majority now holds that this supervisory control and jurisdiction may not be limited or changed by the trustee state (even though sovereign) by casting the extension of their powers or the violation of their trust duties in the form or the guise of a "constitutionally" exercised "legislative" power.
In conclusion it has been said that the protections of procedure are of the essence of due process. No better illustration could be made of that principle than in the context of this case. Our original Constitution and all subsequent Constitutions and amendments have created the procedural power necessary for the district and Supreme Courts to supervise and administer the school lands trust and to guard against invasions of the beneficiary's rights by state action of any nature whatsoever. To hold that these basic powers enumerated and declared in the Constitution may be eroded, no matter in how infinitely small degree, is, in my opinion a violation of our constitutional mandate to protect and guard this sacred trust against invasion by either the Legislature or by the people themselves.
CARTER, SPENCER, and NEWTON, JJ., join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605203/ | 46 Wis. 2d 386 (1970)
175 N.W.2d 210
STATE, Respondent,
v.
BLAKE, Appellant.
No. State 57.
Supreme Court of Wisconsin.
Argued March 2, 1970.
Decided March 31, 1970.
*388 For the appellant there was a brief and oral argument by George P. Kersten of Milwaukee.
For the respondent the cause was argued by Michael Ash, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
ROBERT W. HANSEN, J.
The defendant's basic complaint is that his conviction on the first burglary rested in part on the testimony of Smokovich, who testified following a grant of immunity on motion of the state pursuant to sec. 885.34, Stats.[1] The claim that a fair *389 trial was thus denied rests upon three contentions: one hinted at, one clearly implied, and one specifically spelled out.
Constitutionality.
Defendant suggests that there may be a constitutional flaw in permitting a trial court to grant immunity and order a witness to testify. There is no basis for such suggestion. The general rule is that a witness must answer all questions asked, assuming he has knowledge of the material facts involved.[2] One notable exception is the right of a witness to refuse to answer on the ground that such answer would tend to incriminate him.[3] If the witness does "take the fifth," the state may utilize sec. 885.34, Stats., and move that the court grant the witness immunity from prosecution and order that he answer.[4] If the witness still refuses to answer, he may be held in contempt. The statute and the procedure it outlines have been held to be entirely constitutional.[5]
Reluctance to testify.
Defendant's brief points out that the testimony of the prosecution's witness was "given after Smokovich was *390 granted immunity," and that "until the immunity grant, Smokovich would not so testify." Implied is that reluctance of a witness to testify without being ordered by the court to do so is not to be followed by a grant of immunity and a court direction to answer. Here the trial court found that, by answering, the witness might have subjected himself to a charge of either theft or drunkenness. Such possibility that his testimony might in fact subject him to prosecution is not seriously or successfully disputed.
The trial court was not required to go further to seek to determine whether there were other reasons why the witness was reluctant to testify without being ordered to do so. That there may have been no self-incriminating testimony given by Smokovich or that he may have been more concerned about the repercussions of his testifying voluntarily do not affect the propriety of the state's motion, the grant of immunity and the court's order that he answer the questions asked. If an accompanying result is that the witness cannot be subsequently accused of having volunteered testimony damaging to the defendant, what harm is there in that? The doctrine of Omerta, or death to those who voluntarily give information to the authorities, may be given recognition in the ranks of an organized underworld. It has no standing in a court of law. Courts have every reason to seek to protect those who testify in judicial proceedings against the fact or fear of post-testimony retributive violence or vengeance.
Circumstances.
The defendant specifically spells out and chiefly relies upon the assertion that the grant of immunity here was used "to obtain a change in the testimony of the prosecution's own witness" and, therefore, constituted an improper *391 use of the statute under the circumstances. A review of the record does not support such contention.
When Smokovich took the witness stand, he stated his name, age, address and that he was acquainted with the defendant. He then identified the defendant, stating that he had known him for approximately one year. The prosecutor then asked:
"Q. And were you in his company on the evening of January 13, 1967?
"A. If I don't have to testify I would rather not.
"Court: You are entitled to take the fifth amendment as to that which you think might incriminate yourself but that is your only reason for not testifying."
The prosecutor then questioned the witness concerning his conviction arising from the burglary on the evening of January 13, 1967. Smokovich stated that he had been convicted and sentenced for his participation in the safe stealing. Smokovich then testified that he was with the defendant on the night in question, that they had been drinking together, and that he had talked with the defendant that evening. Asked what they had talked about, Smokovich stated that he did not remember and that he had been drunk that night. After an attempt, blocked by defense counsel objections, to introduce certain testimony from the preliminary hearing, the state moved that the witness be granted immunity. The request was denied or deferred until further examination of the witness to determine whether the witness was in fact exercising his privilege against self-incrimination.
When asked again if he was at the scene of the crime on the night in question, Smokovich stated:
"A. Do I have to answer his questions?
"Q. Are you asking for the right to take the fifth amendment?
*392 "Court: Yes, you must answer his question unless you exercise your constitutional right not to incriminate yourself. You must answer his questions.
"....
"Witness: Can I plead the fifth?
"Court: If you want to.
"Witness: Yes."
The prosecutor then asked the court to determine whether the witness was entitled to invoke the fifth amendment under the circumstances. The court found a possibility of self-incrimination as to drunkenness or theft charges and recognized the witness' right to invoke the fifth amendment. Following a recess, and a subsequent refusal of the witness to answer questions, the state moved that immunity be granted and the witness directed to answer. The court granted the motion and instructed the witness that he now must answer. Smokovich then testified as to the burglary on the night of January 13, 1967, implicating the defendant. On this record it is clear that the witness based his refusal to answer questions on the ground of possible self-incrimination, that the trial court found that he was entitled to invoke the fifth amendment as the basis for refusing to answer, that the state moved for a grant of immunity and direction to testify after the witness had clearly based his refusal to answer questions on his invocation of the fifth amendment. The state moved to grant the witness immunity following the express statement of the witness that he was claiming his privilege against self-incrimination. The court deferred granting immunity until it was entirely clear that the witness was in fact relying upon his rights under the fifth amendment before granting the motion for an immunity grant and directing the witness to testify. There was full and complete compliance with the provisions of sec. 885.34, Stats.
*393 The additional complaint of the defendant that the trial court considered the first conviction in entering sentence on the second conviction vanishes with the affirming of such first conviction. A trial court may properly consider prior convictions in choosing between sentencing alternatives in a pending case.[6]
By the Court.Judgments and order affirmed.
NOTES
[1] "Whenever any person shall refuse to testify or to produce books, papers or documents when required to do so in any criminal examination, hearing or prosecution for the reason that the testimony or evidence required of him may tend to criminate him or subject him to a forfeiture or penalty, he may nevertheless be compelled to testify or produce such evidence by order of the court on motion of the district attorney. But no person who testifies or produces evidence in obedience to the command of the court in such case shall be liable to any forfeiture or penalty for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence; but no person shall be exempted from prosecution and punishment for perjury committed in so testifying."
[2] "... As a general rule, a witness in the course of his examination must answer every question which is pertinent to the issues; he cannot refuse to answer a relevant question from mere caprice or sentiment or because the disclosure is personally distasteful." 98 C. J. S., Witnesses, sec. 430, p. 239. See also: 58 Am. Jur., Witnesses, pp. 38, 39, sec. 29.
[3] U. S. Const., fifth amendment; Wis. Const., art. I, sec. 8.
[4] State ex rel. Rizzo v. County Court (1966), 32 Wis. 2d 642, 646, 146 N.W.2d 499, 148 N.W.2d 86; certiorari denied sub nom. Wisconsin v. Rizzo (1967), 386 U.S. 1035, 87 Sup. Ct. 1486, 18 L. Ed. 2d 597.
[5] Id. at page 648; State ex rel. Jackson v. Coffey (1963), 18 Wis. 2d 529, 118 N.W.2d 939.
[6] York v. State (1970), 45 Wis. 2d 550, 173 N.W.2d 693. Embry v. State, ante, p. 151, 174 N.W.2d 521. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605118/ | 416 So. 2d 818 (1982)
James Henry BREZIAL, Appellant,
v.
STATE of Florida, Appellee.
No. 81-1031.
District Court of Appeal of Florida, Fourth District.
May 12, 1982.
Rehearing Denied July 21, 1982.
*819 Douglas J. Glaid of Kay & Silber, P.A., Sp. Public Defender, Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
ANSTEAD, Judge.
Appellant James Brezial was convicted of possession of cocaine and placed on three years probation. At issue on appeal is whether the trial court properly denied a motion to suppress in which Brezial contended that the cocaine in question had been seized from him as the result of an unlawful police detention and search.
Officer David Barnes of the Fort Lauderdale Police Department was the only witness to testify at the hearing on the motion to suppress. Barnes related that on the night of December 13, 1980, the Fort Lauderdale Police Department received an anonymous report of a disturbance at Dillard High School. Barnes and Officer Dankocsik were dispatched to investigate, arriving at 8:52 p.m. Barnes panned the school's closed and darkened football field with the spotlight on his patrol car and observed two men sitting in the bleachers who ran when they saw the light, hopping a three-foot fence in the process. Although his companion escaped, Brezial was stopped and asked to identify himself and explain his reason for being in the area. Brezial stated that he carried no identification, but gave his name and date of birth. Barnes decided to run Brezial's name through the police computer before releasing him. Before running the check the officer, allegedly in fear for his safety, decided to frisk Brezial for weapons. However, before the frisk commenced, Barnes observed a nail-like object protruding from Brezial's right pocket and immediately seized the object, which was actually a hypodermic syringe containing six grams of cocaine.
The circumstances under which a temporary stop may be justified were expounded in State v. Stevens, 354 So. 2d 1244, at 1247 (Fla. 4th DCA 1978), as follows:
Circumstances can "reasonably indicate" that a person "has committed, is committing, or is about to commit" a violation of criminal laws or ordinances without necessarily indicating that high probability of guilt which is implied by the term "probable cause." State v. Payton, 344 So. 2d 648 (Fla. 2d DCA 1977). To justify temporary detention, only "founded suspicion" in the mind of the detaining officer is required. Lewis v. State, 337 So. 2d 1031 (Fla. 2d DCA 1976); State v. Othen, 300 So. 2d 732 (Fla. 2d DCA 1974); State v. Ebert, 251 So. 2d 38 (Fla. 2d DCA 1971). A "founded suspicion" is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. "Mere" or "bare" suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So. 2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Thomas v. State, 250 So. 2d 15 (Fla. 1st DCA 1971). There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime; The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.
In the present case, our view is that the anonymous report of a disturbance at *820 the high school, when coupled with Brezial's presence in the nighttime at a closed and darkened stadium and subsequent attempt to flee, formed a sufficient basis for Barnes' stop.
Whether there was a sufficient basis for the officer's frisk is a closer question. The mere fact that an officer has properly stopped a suspect does not automatically give him the right to conduct a frisk for weapons. Schnick v. State, 362 So. 2d 423 (Fla. 4th DCA 1978). Rather, under Section 901.151(5), Florida Statutes (1981), the officer must have "probable cause to believe [that the suspect] is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person."[1] However, "[i]t is evident that the Florida stop and frisk law does not require probable cause in the same sense that probable cause is required for a search warrant or for arrest." State v. Webb, 398 So. 2d 820, at 825 (Fla. 1981).
Brezial contends that the frisk here should be declared invalid because, at the time Officer Barnes decided to frisk, he had apparently not yet seen the "nail" and hence had no articulable reason to fear for his safety. However, we need not determine whether the officer would have been justified in frisking Brezial before spotting the "nail" since it was undisputed that Barnes spotted the sharp metallic object protruding from Brezial's pocket before the frisk actually commenced. We believe this to be the dispositive factor validating the frisk. Barnes did not actually know whether the object was a nail, or some other object that could be used as a weapon, but he did observe enough of the object to entitle him to find out. We cannot accept Brezial's proposition that the seizure should be invalidated because the officer had already decided to frisk him before spotting the nail-like object. See State v. Turner, 345 So. 2d 767 (Fla. 4th DCA 1977).
Accordingly, we approve the decision of the lower court denying Brezial's motion to suppress and affirm the conviction.
LETTS, C.J., and BERANEK, J., concur.
NOTES
[1] Section 901.151(5) reads, in full:
(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605643/ | 310 N.W.2d 106 (1981)
In re the Marriage of Harry RYDELL, petitioner, Respondent,
v.
Marjorie E. RYDELL, Appellant.
No. 50882.
Supreme Court of Minnesota.
September 18, 1981.
*113 Collins, Buckley, Sauntry & Haugh, William E. Haugh and Thomas J. Germscheid, St. Paul, for appellant.
Richard D. Goff, Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
SIMONETT, Justice.
The respondent below, Marjorie E. Rydell, appeals from the judgment in her marriage dissolution proceeding, claiming the award for spousal maintenance is inadequate. The trial court, believing it was bound by res judicata, awarded the same spousal maintenance as had previously been awarded in an earlier separation action. We reverse and remand.
At the time of trial, in August 1979, Harry and Marjorie Rydell had been married 37 years. Mr. Rydell was 56 and his wife 57. Mr. Rydell had worked for his company 29 years. His 1978 gross income was $23,820.79 and his monthly net take-home pay was about $1,200. Mrs. Rydell was in extremely poor health. She received, in addition to support money from her husband, $123 a month in social security disability benefits, plus about $35 a month in interest on her savings of $3,000. Medicare and her husband's health policy afforded Mrs. Rydell partial coverage on her substantial hospital, medical and drug expenses. She testified her monthly expenses were at least $700.
In deciding the issue of spousal maintenance, Judge Fleming ruled this issue had been decided in a prior separation action between the parties and that the spousal maintenance award in the separation decree of January 28, 1977, was res judicata. This being so, the spousal maintenance could only be modified in the dissolution proceeding *114 if Mrs. Rydell could show a material change in circumstances. The trial court found no material change in circumstances and, therefore, incorporated in its judgment the spousal maintenance provision from the separation decree, namely, $400 a month from November 1, 1976, to October 31, 1979; $300 a month from November 1, 1979, to October 31, 1981; and $200 a month until Mr. Rydell reached age 65 or retired, at which time Mrs. Rydell would receive one-third of Mr. Rydell's monthly pension benefits. Thus, under this declining balance formula, Mrs. Rydell will receive, as of November 1981, $200 a month maintenance. Mrs. Rydell did not appeal the 1977 separation decree.
It would seem the award of spousal maintenance was inadequate under the circumstances existing at the time of the dissolution, but the trial court did not reach this issue. The questions here, then, are: Does res judicata apply; if so, was there a material change in circumstances from the time of the separation trial in October 1976 to the dissolution trial in August 1979.
1. We first examine the issue of res judicata. When Mrs. Rydell brought her action in 1976, she asked for either separate maintenance or a dissolution and she asked for complete relief, including permanent alimony. The trial court, Judge Marsden presiding, granted separate maintenance. But it is clear, as Judge Fleming found in the dissolution proceeding, that the issues in the separate maintenance action were "fully and completely tried on the theory that it was a proceedings to fully and finally adjudicate all issues existing between the parties."
This is borne out by the provisions of the separation decree. There was a disposition of all marital property, including sale of the homestead, with Mrs. Rydell awarded 55% of their interest in the home and Mr. Rydell 45%. The award for spousal maintenance even provided for a sharing of the husband's future retirement benefits. Mr. Rydell was to keep all existing medical, health and accident policies in force.
Mrs. Rydell argues res judicata should not apply since an action for separate maintenance is different, both in its object and effect, from a dissolution proceeding, and that the former does not merge into the latter. A separation decree does not terminate the marriage, argues Mrs. Rydell, so considerations bearing on monthly maintenance may be different. While this may be so, we agree with Judge Fleming that in this case, on this record, the issues of property disposition and spousal maintenance were treated the same as if the court were dissolving the marriage. We hold, therefore, that the principles of res judicata apply, subject to the limitation that either party may petition for a modification of maintenance under Minn.Stat. § 518.64 (1980) based on substantially increased or decreased needs or resources. This is the approach used by the trial court.
2. "The terms of a decree respecting maintenance or support may be modified upon a showing of substantially increased or decreased earnings of a party or substantially increased or decreased need of a party, which makes the terms unreasonable and unfair." Minn.Stat. § 518.64, subd. 2 (1980). Here the trial court found Mrs. Rydell had not proved a material change in circumstances to justify modification of the spousal maintenance awarded about 3 years earlier.
Mrs. Rydell disagrees, since her health problems have progressively worsened in the past 3 years, causing higher medical bills. For many years Mrs. Rydell has suffered from periarteritis nodosa, a disease causing degeneration of the small blood vessels. The condition causes shortness of breath, recurrent bronchitis, chest pains, brittle bones and teeth and pain in the joints. Mrs. Rydell also has other unrelated serious health problems.
Mrs. Rydell's doctor testified at the dissolution trial. He explained Mrs. Rydell's condition was progressive, that she is totally disabled and "worsening slowly" and has a limited life expectancy. He stated he has treated Mrs. Rydell since 1974 and, further, that he had submitted a letter on his patient's *115 health, which was used as a court exhibit in the earlier separation trial. Indeed, Mrs. Rydell had moved to Arizona for her health on his advice.[1] The doctor also testified, however, that in June 1976, he knew Mrs. Rydell's condition was deteriorating and that she was going to get worse. He said most of her new complaints present at the time of the dissolution trial were expected at the time of the separation trial.
Consequently, it was the trial court's view that while, in fact, Mrs. Rydell's condition had substantially changed since 1976, this change had been foreseen and expected and, therefore, was not a material change of circumstances justifying a modification of spousal maintenance.[2] We do not agree.
In the separation proceeding Judge Marsden made the following finding:
That the petitioner's health is substantially impaired, and a major financial consideration in this proceeding is her expenses for prescription, hospital, and other medical care. The petitioner is eligible for medical and hospitalization coverage on group basis through the respondent's employer. It is expected that the physical symptoms she suffers will be diminished if she moves to a more favorable climate, such as is found in the State of Arizona. Her relocation expenses will be approximately $2,000.00.
Judge Marsden made no finding that Mrs. Rydell's condition would worsen (even though it appears there was evidence from which he could have so found); rather, he found that the wife's physical symptoms were expected to diminish if she moved to Arizona. Mrs. Rydell did move to Arizona, but, contrary to expectations, her physical symptoms have not diminished but have worsened. This is a material change in circumstances, or, as the statute puts it, this is a substantially increased need. Minn. Stat. § 518.64, subd. 2 (1980).
Before a modification is warranted, not only must there be a substantially increased need, but this need must make the decree's terms "unreasonable and unfair." The record does not disclose why, if in 1976 Mrs. Rydell's health was expected to deteriorate progressively, she was awarded support in a declining amount, unless the declining amount was predicated on the expectation her symptoms would diminish with the move to Arizona. In any event, we conclude there has been a showing of a material change in circumstances justifying modification under section 518.64, subdivision 2.
3. We remand to the trial court to consider what would be an appropriate modification. Since Mrs. Rydell now has a divorced status, Mr. Rydell has to pay an additional $935 a year to keep her on his health insurance, so his monthly payments, beginning in November 1981, will be about $278 a month. In awarding maintenance, the trial court considers many factors, including Mr. Rydell's ability to meet his own needs. Minn.Stat. § 518.552, subd. 2(f) (1980). We recognize the husband's financial resources are limited and his own retirement prospects are bleak. Nevertheless, at this time the declining support schedule utilized in 1977 does not afford a proper measure of maintenance under the changed circumstances.
Appellant is awarded $400 attorney's fees.
Reversed and remanded.
NOTES
[1] The doctor's letter dated June 22, 1976, received in evidence at the separation trial, said, "I have been treating Mrs. Marjorie Rydell for her severe obstructive lung disease and the effects of a disease called periarteritis nodosa. She needs continued care and continued medications, and a change of climate would be beneficial because of her lung condition."
The separation decree provided that Mr. Rydell advance his wife $2,000 to move to Arizona. Mrs. Rydell lived in Arizona at the time of trial.
[2] In June 1978, prior to commencement of the dissolution proceeding, Mrs. Rydell moved in the separation action for an increase in her monthly support. This motion was denied by Judge Summers on the ground there had been no material change of circumstances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603012/ | 418 F.Supp. 99 (1976)
W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Plaintiff,
v.
COASTAL GROWERS ASSOCIATION, a corporation, Defendant.
Civ. No. 75-2956-HP.
United States District Court, C. D. California.
July 14, 1976.
*100 John M. Orban, Associate Regional Sol., Jeannie J. Meyer, Atty., Office of the Sol., U. S. Dept. of Labor, Los Angeles, Cal., for plaintiff.
Leon L. Gordon, Los Angeles, Cal., for defendant.
MEMORANDUM OF DECISION
PREGERSON, District Judge.
The Farm Labor Contractor Registration Act (herein "the Act"), 7 U.S.C. § 2041 et seq., was passed by Congress in 1963 primarily to protect migrant workers from exploitation "by certain irresponsible contractors" who disseminated false information about terms, conditions, or existence of agricultural employment; operated unsafe or inadequately insured vehicles; provided unhealthy housing; or cheated on wages. See 7 U.S.C. §§ 2041, 2044 and 2045. To achieve the Act's remedial purposes, 7 U.S.C. § 2043 requires that all farm labor contractors register annually with the Secretary of Labor.
The Secretary brought this suit to enjoin defendant Coastal Growers Association from acting as a farm labor contractor until it obtains the certificate of registration required by § 2043. The court has jurisdiction under 7 U.S.C. § 2050a(c).
Defendant Coastal Growers Association, a non-profit agricultural cooperative organized under California Agriculture Code § 54001 et seq., recruits, hires, pays, feeds, houses, furnishes, transports, and supervises agricultural workers who labor in the citrus groves of the association's 340 growers-members. To become a member of defendant association, a citrus grower must pay a membership fee of $10 and sign a membership contract. This contract requires each grower-member to pay the association for direct costs incurred in picking his fruit and pruning his trees. In addition, each member is obligated to pay his pro-rata share, based on boxes picked, of the association's overhead expenses. These overhead expenses include: wages of office personnel, costs of insurance, costs of transportation, expenses of operating farm labor camps that house 40% of defendant's workers, and money spent in purchasing trucks, buses, and real property owned by defendant.
Defendant association, acting as a middleman between the workers and citrus growers, performs the traditional activities of a farm labor contractor, yet alleges that it is not required to obtain a certificate of registration from the Secretary of Labor because the defendant is not a "farm labor contractor" as defined in 7 U.S.C. § 2042(b):
The term "farm labor contractor" means any person, who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers . . . for interstate agricultural employment. *101 Defendant argues that it is not within this statutory definition because it neither performs services for a "fee" nor employs "migrant workers."
Defendant contends that it does not perform services for a fee because, as an agricultural cooperative, it realizes no profit. There is, however, no suggestion in the Act's language that the terms "fee" and "profit" are synonymous. "Fee" is defined in 7 U.S.C. § 2042(c):
The term "fee" includes any money or other valuable consideration paid or promised to be paid to a person for services as a farm labor contractor.
This definition merely refers to the consideration that a farm labor contractor receives for servicesit does not require a profit. This conclusion is buttressed by the legislative history and the administrative interpretation of the Act. The Act was opposed because it would, as Congress intended, regulate the activities of growers' associations, such as defendant:
[T]his legislation covers any association which hires workers for employment by their own members, a common practice of growers' associations.
S.Rep.No.202, 88th Cong., 2d Sess. U.S. Code Cong. & Admin.News 1964, p. 3705 (1964) (Minority Views).
Likewise, the regulations promulgated by the Secretary of Labor recognize the applicability of the Act to agricultural cooperatives, such as defendant:
Generally, the Act will not exclude any farmer's cooperative performing any of the farm labor contracting activities in behalf of its members . . ..
29 C.F.R. § 41.17(a) (1975).[1]
Since defendant is not excluded from the provisions of the Act, the court, then, must determine from the evidence presented by stipulation whether defendant receives a "fee" from its members.
The facts and circumstances of each individual case will be considered in determining whether any valuable consideration paid or promised to be paid constitutes a "fee" within the meaning of the Act.
29 C.F.R. § 41.5 (1975).
The facts of this case show that defendant association receives from its members money for wages paid to agricultural employees hired to work in the citrus groves. In addition, defendant receives from its members a $10 non-refundable membership fee. Defendant also receives from its members payments for their pro-rata share of the association's overhead expenses incurred, in part, to buy valuable assets such as trucks, buses, and real property owned by the association. Considering the totality of circumstances presented in this case, defendant clearly receives a "fee," i. e., "money or other valuable consideration" from its members for performing services as a farm labor contractor.
Defendant also contends that it is not a farm labor contractor within the meaning of the Act because it does not employ migrant workers. "Migrant worker" is defined in 7 U.S.C. § 2042(g):
The term "migrant worker" means an individual whose primary employment is in agriculture, as defined in section 203(f) of Title 29, or who performs agricultural labor, as defined in section 3121(g) of Title 26, on a seasonal or other temporary basis.
It is undisputed that defendant's employees perform agricultural labor. The court construes the term "migrant worker" to include all persons whose principal or main occupation is in agriculture and all persons who perform agricultural labor on a seasonal or temporary basis. See 29 C.F.R. § 41.13. This broad construction comports with the Act's humanitarian purpose to protect all those hired by middlemen to toil in our nation's fields, vineyards, and orchards. On the evidence presented by stipulation, it appears that all of defendant's agricultural *102 laborers are migrant workers as defined by 7 U.S.C. § 2042(g) and entitled to the Act's protection.
Since defendant performs services for a fee and since it employs migrant workers, the court concludes that defendant Coastal Growers Association is a farm labor contractor within the meaning of 7 U.S.C. § 2042(b) and has violated 7 U.S.C. § 2043(a) by failing to obtain a certificate of registration from the Secretary of Labor.
IT IS THEREFORE ORDERED that defendant Coastal Growers Association is enjoined from carrying on activities as a farm labor contractor until such time as defendant obtains a certificate of registration from the Secretary of Labor.
This Memorandum of Decision shall constitute the court's findings of fact and conclusions of law in accordance with Fed.R. Civ.P. 52.
NOTES
[1] This and the other regulations, issued by the Secretary of Labor pursuant to 7 U.S.C. § 2053, are entitled to great weight in determining the proper construction of the Act. See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603032/ | 577 So.2d 1261 (1991)
Wayne ANDERTON
v.
Wayne GENTRY and The Citizens Bank of Moulton.
89-1111.
Supreme Court of Alabama.
March 22, 1991.
*1262 W.H. Rogers, Moulton, for appellant.
J.G. Speake of Speake & Speake, Moulton, for appellees.
KENNEDY, Justice.
Wayne Anderton appeals from a judgment based on a directed verdict in favor of Wayne Gentry and The Citizens Bank of Moulton in a defamation action.
The issues in this case are whether the alleged defamatory statements would be slander per se or slander per quod and whether these statements gave rise to a claim based on the tort of outrage.
Anderton alleges that Gentry, president of Citizens Bank, made slanderous statements to two people concerning bank loans made by Anderton in his capacity as a vice-president and branch manager of Citizens Bank. On July 27, 1987, around 9:12 p.m., Gentry called Jim Smith to inquire about an overdue payment on a loan made to Smith's wife. Anderton alleges that Gentry made statements to Smith insinuating that Anderton had made the loan to Smith's wife in exchange for sexual intercourse. Smith testified that Gentry asked him what kind of relationship his wife had had with Anderton in order to receive this loan. Smith also testified that Gentry said Smith should watch Anderton and his wife closely. Gentry admitted that he called Smith concerning the delinquent loan payment *1263 but denied making the statements suggesting sexual relations between Smith's wife and Anderton.
Gentry also telephoned Denise Killough on the evening of July 27, 1987, concerning a late payment on a loan made to a bank customer named Angela Malone. Killough testified that Malone had lived with her for a short time but had since moved away. Killough also testified that Gentry asked if Malone was Anderton's girlfriend and whether Malone had received the loan because of their relationship. Gentry admitted dialing Killough's telephone number and inquiring about Malone's delinquent loan payment but denied making any comments about a loan made in exchange for sexual intercourse.
Although this is not a case of wrongful termination, we note that Anderton was notified that he was being fired from Citizens Bank on July 28, 1987. Anderton testified that as a result of these alleged statements and questions, he could not find another job that paid as well as his job at the defendant's bank. Anderton also testified that the statements had injured his business reputation and had caused him mental anguish. On cross-examination, Anderton admitted that he had sought jobs only at two other banks. Anderton also admitted that he had received no indication that the reason he was not hired by those banks was Gentry's alleged statements.
Gentry and Citizens Bank moved for a directed verdict pursuant to Rule 50(a), A.R.Civ.P. The trial court granted the motion, specifically finding that the statements and questions attributed to Gentry did not amount to slander per se but rather constituted slander per quod. The court found that Anderton had not proved the special damages as required in a case of slander per quod.
In reviewing the ruling on a motion for a directed verdict, this Court will make a "purely objective determination of whether the party having the burden of proof has produced evidence requiring a resolution by the jury." Ex parte Oliver, 532 So.2d 627, 628 (Ala.1988). This Court will view the tendencies of the evidence in a light most favorable to the nonmovant, regardless of the view the court has as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not the inferences this Court may think are more probable. Walker-Waddell Realty, Inc. v. Kresge, 533 So.2d 573 (Ala.1988).
"To establish a prima facie case of defamation, the plaintiff must show that the defendant was at least negligent, in publishing a false and defamatory statement to another concerning the plaintiff, which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod)." Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988).
The specific defamation involved in this case is slander. Generally, in slander there must be an oral communication of a defamatory matter to a third person. Nelson v. Lapeyrouse Grain Corp., supra. There are two types of slander, that is, slander per se and slander per quod. Slander per se is actionable if it imputes to the plaintiff an indictable offense involving infamy or moral turpitude. Lewis v. Ritch, 417 So.2d 210 (Ala.Civ.App.1982). Damage is implied by law when spoken words are found to be slander per se. Slander per quod is a communication to a third person of a defamatory statement subjecting the plaintiff to disgrace, ridicule, odium, or contempt although not imputing the commission of a crime involving infamy or moral turpitude. Ceravolo v. Brown, 364 So.2d 1155 (Ala.1978).
In the present case, the trial court specifically found that the alleged statements made by Gentry were slander per quod. We agree. The defamatory statements attributed to Gentry are accusations that Anderton made a loan to Mrs. Jim Smith because of an illicit relationship and that Anderton made a loan to Angela Malone because of a relationship with her. Anderton asserts that by these statements, Gentry was charging him with adultery and with soliciting prostitution. However, *1264 the statements made by Gentry do not suggest actions within the definitions of adultery, § 13A-13-2, Code of Alabama 1975, or prostitution, § 13A-12-110 through -113, Code of Alabama 1975. Because the statements imputed to Gentry do not suggest a crime of infamy or moral turpitude, the statements are considered slander per quod.
Because the statements amounted only to slander per quod, Anderton must plead and prove special damages. See Gray v. WALA TV, 384 So.2d 1062 (Ala. 1980). Anderton did not allege special damages in his complaint and there was no evidence of special damages presented in court. Thus, Anderton failed to prove the damages that must be proved in a case of slander per quod.
We also agree with the trial court that Anderton did not prove facts supporting his claim of outrage. In order to prevail on a claim of outrage, the plaintiff must produce evidence that the defendant engaged in extreme and outrageous conduct, intentionally or recklessly, and thereby caused severe emotional distress to another. American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). A defendant committing conduct actionable as "outrageous conduct" is liable for damages for resulting emotional distress and bodily harm to his victim; but to be actionable, the outrageous conduct must be so severe and extreme that no one could be expected to endure it. Id. We have said that for the conduct to be actionable, it must be so extreme "in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365. Although the alleged statements in the present case would have been humiliating and insulting, the tort of outrage does not provide recovery for "`mere insults, indignations, threats, annoyances, petty oppressions, or other trivialities.' "Inmon, 394 So.2d at 364-65 (citation omitted).
We affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603038/ | 577 So.2d 593 (1991)
COLONIAL APARTMENTS, L.P., Etc., Petitioner,
v.
CITY OF DeLAND, Etc., Respondent.
No. 90-1377.
District Court of Appeal of Florida, Fifth District.
February 14, 1991.
Rehearing Denied April 8, 1991.
*594 Jason G. Reynolds of Coble, Barkin, Gordon, Morris & Reynolds, P.A., Daytona Beach, for petitioner.
Astrid de Parry, City Atty., DeLand, for respondent.
PETERSON, Judge.
Colonial Apartments, L.P., petitions for a writ of certiorari to review the circuit court's denial of a petition for a writ of certiorari filed in that court. The petition in the circuit court asked for relief from an administrative action by the City of DeLand in denying approval of a site plan submitted by petitioner. We grant the writ.
Petitioner sought to construct an apartment project on an approximately twenty-acre site in the City of DeLand. The site had been rezoned R-4 under section 33-8.1 of the DeLand Code of Ordinances at the time of its annexation into the city in 1972. The ordinance has remained substantially unchanged since the annexation.
Pertinent portions of the ordinance provide:
(A) Statement of intent. The intent of the R-4 dwelling district is to:
(1) Permit the construction of totally planned single-family cluster developments or duplexes, triplexes and low-density low-rise garden type apartments on relatively large tracts of land in single or common ownership;
(2) Require the preparation and approval of detailed site, landscape, traffic, parking and other plans deemed necessary as part of an overall development concept;
(3) Require a greater amount of open space and recreation area to building area; and
(4) Achieve an esthetic and compatible relationship between buildings, yards, patios, parking areas, common open space, recreation areas, and adjacent properties.
* * * * * *
(E) Dimensional requirements. The following requirements shall apply in the R-4 District:
(1) Minimum project site. A two-family or multi-family dwelling project site should be approximately one acre or more in area in order to accommodate at least two (2) or three (3) buildings, and in any case be sufficient in size to meet the requirements set out herein.
(2) Project density. The maximum allowable number of dwelling units shall not exceed sixteen (16) units per acre.
* * * * * *
(F) Building height. In order to encourage variety in the appearance of building roof lines and more usable or landscaped area, developers are permitted to design a portion of the multi-family dwelling project to a maximum height of three (3) stories or forty-five (45) feet provided the following conditions are met:
* * * * * *
(3) No three-story structures shall be located adjacent to a single-family residential area as shown on the zoning map or land use plan.
* * * * * *
(H) Screening. A minimum five-foot high screen shall be provided along side and rear lot lines that abut upon a single-family residential area as shown on the zoning map or land use plan but shall not be required in any front yard or along side lot lines abutting a street, park, stream, lake or golf course....
* * * * * *
(N) Architecture and environmental quality guidelines. In order to promote architectural and environmental quality within the project, the developer is encouraged to utilize the following guidelines in designing the project:
* * * * * *
(2) The architectural design of buildings should be developed with consideration *595 given to the relationship of existing adjacent development in terms of building height, mass, texture, line, and pattern.
Additionally, the ordinance provided in rather specific terms for setback requirements, spacing between buildings, number of stories and height requirements, minimum livable floor area in square feet, screening, parking requirements and design, vehicle access lanes, sidewalks, open space requirements, landscaping, signs, and architectural and environmental quality guidelines.
Petitioner attempted to comply with the requirements of the ordinance and submitted for approval a site plan that provided for a density of thirteen units per acre. The city's planning authorities recommended to the city commission that the plan be approved with certain changes not involving density; the petitioner agreed in writing to make the suggested changes. The city commission tabled action on the plan at the first consideration when adjoining landowners voiced opposition. Then, at a commission meeting on December 18, 1989, final action was taken that approved the plan with the single condition that the density not exceed six units per acre. The city directed a letter to petitioner on December 21, 1989, stating the reason for its action:
1. Based upon Section 33-8.1(A)(1), the proposed development did not meet the criteria of being "low-density low-rise garden type apartments on relatively large tracts of land"; and
2. Based upon Section 33-8.1(A)(4), the proposed development did not achieve an aesthetic and compatible relationship with the adjacent properties.
Petitioner then requested that the circuit court grant review of the action of the city commission and argued that the action had the practical effect of illegally down-zoning the site from sixteen to six units per acre. The city responded by arguing that the site had never been properly zoned R-4 when annexed because of non-compliance by the applicant and the city with notice and hearing requirements and/or a required sketch development plan. The city further argued that a planned development in the R-4 zoning district was more analogous to a special exception use than a rezoning, and that density was a proper consideration under the "statement of intent" portion of the ordinance that required an "aesthetic and compatible relationship" with adjacent properties.
The circuit court denied the petition in a sixteen-page opinion and order in which it discussed: (1) the illegality of the initial rezoning (nothing that it was not necessary to rule upon this issue since "all parties agreed that the R-4 zoning designation should be presumed valid"); (2) the inadequate level of city services and increase in traffic; (3) the fact that the site is surrounded on three sides by low density, single-family, residential and agricultural use and the fact that the closest existing multi-family development has a density of 4.25 to 4.5 units per acre; and (4) the generally accepted planning standard for low-density, multi-family developments of five to eight units per acre. The order concluded by holding that the city had discretion to condition site plan approval for a multi-family development in the R-4 zoning district on a reduction of project density, and that the city's determination was supported by substantial competent evidence that six dwelling units per acre would be more compatible with surrounding properties. The circuit court also commented that "[p]roject density is of legitimate concern to the City Commission in determining whether or not to approve a site plan for a multifamily development in the R-4 zoning district."
The appendices provided by the parties included copies of the legislative history of the annexation, including 1972 minutes and ordinances. That history reflected that the primary purpose of the city in annexing the site in 1972 was to promote the joint efforts of developers of lands in the general location of the site to construct a master sewer lift station and discourage installation of four to six individual small package treatment plants. Nothing in the 1972 records provides the slightest hint that density was a consideration except the statement *596 in ordinance number 72-34 that "the building of R-4 multiple family dwellings on the subject property would be consistent with the City's Comprehensive Use Plan, which plan has been approved by the Planning Board of the City of DeLand as well as the technical assistance of the Volusia Council of Governments...." The appendices contain neither copies of pertinent portions of the comprehensive plans nor minutes of the 1989 city commission meetings that would allow any insight into the substantial down-zoning of the site.
We view the issue that was presented to the circuit court as one of construction of the R-4 ordinance. While there may have been an additional issue initially on the validity of ordinance 72-34 that zoned the site R-4 and annexed it into the city limits of DeLand, that issue was removed from consideration by the circuit court through the stipulation of the parties.
The elected and appointed officials charged with the administration of city and county government are subjected to increasing pressures. On one hand, they are pressed to allow growth only if it is commensurate with available roads and services. On the other hand is the pressure from landowners who wish to develop their vacant properties in a manner that results in the largest return of capital or pleasure. Still another pressure is the desire of neighbors who do not wish their present enjoyment of their lands disrupted in the slightest by the use of adjoining vacant property. Opposition of surrounding property owners must be considered by the city in the instant case since the statement of intent of the R-4 ordinance includes the desire to achieve aesthetic and compatible relationships between adjacent properties. But the opinions of neighbors by themselves are insufficient to support a denial of a proposed development. BML Investments v. City of Casselberry, 476 So.2d 713 (Fla. 5th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986); Conetta v. City of Sarasota, 400 So.2d 1051 (Fla. 2d DCA 1981).
General rules of statutory construction in zoning matters have evolved in past judicial attempts at interpretation and are appropriate in our review of the DeLand ordinance. Some of the basic rules were set forth in Rinker Materials Corporation v. City of North Miami, 286 So.2d 552 (Fla. 1973):
(a) In statutory construction, statutes must be given their plain and obvious meaning and it must be assumed that the legislative body knew the plain and ordinary meanings of the words.
* * * * * *
(c) Since zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner.
Id. at 553 (footnotes omitted). In Rinker, the supreme court also cited Rose v. Town of Hillsboro Beach, 216 So.2d 258 (Fla. 4th DCA 1968), for the rule that courts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear, unless it is clear that the omission was inadvertent, and must give to an ordinance the plain and ordinary meaning of the words employed by the legislative body. Id. at 553.
This court followed another basic rule in City of Ormond Beach v. State ex rel. Del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983), when we stated that the primary guide to statutory interpretation is the determination of legislative intent. It is only the interpretation of the statement of intent of the DeLand ordinance that causes the problem in the instant case, since the other portions of the ordinance are rather precise in directing the manner in which a parcel of land designated R-4 may be used. This statement of intent was used by the city to vary the rather straightforward pronouncement of the ordinance that limited the project density to sixteen units per acre. The record shows there was no evidence of intent before the trial court other than the language of the ordinance and the history of the annexation. The history seems to indicate that the city *597 induced the then-landowner to seek annexation in return for the R-4 zoning and availability of sewer facilities.
As to the language of the ordinance, we note the following:
1. The ordinance does not define the terms "low density" and "large tracts of land" as stated in section 33-8.1(A)(1). Some assistance in interpreting the term "low-density" can be gleaned, however, from several sections of the ordinance:
(a) Subsection (E)(1) provides that a multi-family dwelling project site ("multiple-family dwelling"), which includes a "garden apartment" pursuant to subsection (B)(3), should be approximately one acre or more in size to accommodate at least two or three buildings. Subsection (B)(2) describes a garden apartment as a group of two to eight owner- or renter-occupied dwelling units, but this number may be increased to twelve if approved by the planning board. This implies that each building can have eight units without the approval of the planning board. If eight units are allowed and at least two buildings are to be accommodated on approximately one acre, a simple calculation allows us to arrive at the maximum project density of sixteen units per acre. Whether sixteen units per acre are considered low, medium, or high density in other legislation is not clear or even material to this case, but in this ordinance, this number of units appears to fit the definition of a low-density, garden-type apartment.
(b) The ordinance contemplates that the R-4 zoning use would be placed adjacent to a single-family residential area indicating compatibility. Subsection (F)(3) prohibits three-story structures adjacent to a single-family residential area, and subsection (H) requires screening through the use of hedges and wood or masonry construction along side and rear lot lines abutting a single-family residential area. This recognition in the ordinance that R-4 and single-family districts can abut in the city's scheme of zoning undercuts the city's argument that the instant petitioner's attempt to gain approval of a site-plan showing thirteen units per acre is absurd when considering the surrounding properties. The city's own professional planning board did not seem to consider the site-plan absurd when it endorsed it with suggested changes not involving a density change.
The operative portions of the ordinance reviewed indicate that, for purposes of this ordinance, sixteen units per acre is within the term "low density" used in the statement of intent portion of the ordinance. Furthermore, nothing in the ordinance would lead one who examines the ordinance to suspect that the term "compatibility" as used in the statement of intent was meant to allow adjustment of the cap of sixteen units per acre prescribed in subsection (E).
The city relies in part on Life Concepts, Inc. v. Harden, 562 So.2d 726 (Fla. 5th DCA 1990), for its contention that the allowable density can be adjusted because the statement of intent requires that a project have a "compatible relationship" with adjacent properties. The City of Apopka ordinance under review in Life Concepts required that a use be "compatible with the surrounding residential uses." However, that ordinance is unlike the one in the instant case in that the phrase used in Apopka constituted a density restriction. The operative portion of the Apopka ordinance specifically provided that "[t]he maximum number of occupants to reside in the facility shall be compatible with the surrounding residential uses... ." Id. at 727. Moreover, unlike DeLand's ordinance, Apopka's ordinance never specified density at a certain number. We find most significant the comment in Life Concepts: "Had the ordinance provided a specific numerical cap on the occupancy of the home, the zoning board would have been prohibited from considering the actual impact of the proposed use." Life Concepts, at 728.
We agree with the city that project density is a legitimate concern and go further in stating that it is a most important concern. But it is a concern that must be addressed and expressed in appropriate ordinances. A community should be developed in accordance with planned action. Development decisions should not be *598 made in reaction to an application that relies on an ordinance establishing a density no longer acceptable to the majority of the current members of a governing body. Owners are entitled to fair play; the lands which may represent their life fortunes should not be subjected to ad hoc legislation. Density is one of the most important elements in the marketplace today in determining land value. When a law establishes a specific allowable density, its clear terms cannot be varied by a forced interpretation of intent. Such an ordinance should be interpreted in accordance with its plain meaning.
Our review of the circuit court's decision is limited to a determination of whether that court afforded procedural due process and applied the correct law. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). The correct law applicable in this case is that the ordinance should be given its plain meaning and that any doubts should be construed in favor of a property owner. The circuit court's reliance upon the undefined and uncertain standards contained in the statement of intent when clear and specific numbers of units are expressed in that same ordinance is not an interpretation that recognizes the plain meaning of the ordinance. It is not fair to the governed that the simple issue of how many dwelling units are allowed under this city ordinance requires a sixteen-page trial court opinion interpreting the ordinance against a clearly expressed number.
We grant the writ of certiorari, quash the order of the circuit court, and remand to the circuit court with directions to quash the administrative decision by the City of DeLand to impose a condition that the density of petitioner's development not exceed six dwelling units per acre.
Writ GRANTED; order QUASHED; REMANDED with directions.
W. SHARP and GOSHORN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603113/ | 786 N.W.2d 463 (2010)
2010 WI 80
STATE of Wisconsin, Plaintiff-Respondent,
v.
Terion Lamar ROBINSON, Defendant-Appellant-Petitioner.
No. 2008AP266-CR.
Supreme Court of Wisconsin.
Argued April 13, 2010.
Decided July 15, 2010.
*466 For the defendant-appellant-petitioner there were briefs and oral by Melinda A. Swartz, assistant state public defender.
For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
ANNETTE KINGSLAND ZIEGLER, J.
¶ 1 This is a review of a published decision of the court of appeals[1] that affirmed a judgment of conviction entered upon a guilty plea by the Milwaukee County Circuit Court, Joseph R. Wall, Judge. Acting upon an anonymous informant's tip and what they believed to be an outstanding felony arrest warrant, police officers forcibly entered and subsequently searched the apartment of Terion Lamar Robinson (Robinson). Following the circuit court's denial of his motion to suppress, Robinson pled guilty to one count of possession with intent to deliver tetrahydrocannabinols (THC), 200 grams or less, in violation of Wis. Stat. § 961.41(1m)(h)1 (2005-06).[2]*467 On appeal, Robinson argues that the officers' warrantless entry into his apartment and subsequent search violated his constitutional rights against unreasonable searches and seizures. We disagree and therefore affirm the court of appeals decision.
¶ 2 The dispositive issue in this case is whether the police officers' warrantless entry into Robinson's apartment and subsequent search was supported by probable cause and justified by exigent circumstances when the officers corroborated three of the four details relayed by an anonymous informant, knocked and announced their presence, and immediately heard footsteps running from the door.
¶ 3 Assuming without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers' lawful entry into Robinson's apartment, we conclude that the warrantless entry was nevertheless reasonable because it was supported by probable cause and justified by exigent circumstances. First, we determine that the police officers' warrantless entry into Robinson's apartment was supported by probable cause. Because the officers corroborated each of the three preliminary details provided by the anonymous informant, it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Robinson's apartment. Second, we conclude that the police officers' warrantless entry into Robinson's apartment was justified by exigent circumstances. Once Robinson was aware of the officers' presence outside his door and footsteps were immediately heard running from the door, the officers reasonably believed that Robinson would destroy evidence of his illegal drug activity. Finally, we conclude that once inside the apartment, the officers lawfully seized the evidence in plain view and arrested Robinson.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶ 4 On November 6, 2006, an anonymous citizen walked into Milwaukee's District Five police station and informed Officer Wesam Yaghnam (Officer Yaghnam) that a man by the name of Terion Robinson was selling marijuana out of his apartment. The citizen provided Officer Yaghnam with Robinson's complete address, 7233 North 38th Street in Milwaukee, Apartment 8, in addition to Robinson's cell phone number.
¶ 5 Officer Yaghnam then conducted a warrant check on the Crime Information Bureau (CIB) and the National Crime Information Center (NCIC) databases.[3] According *468 to Officer Yaghnam's testimony at the suppression hearing, his search revealed that Robinson "had two open warrants," one for a "family offense" and another for "the possession of [or] delivery of a controlled substance." Listed on the screen were the names of the warrants, what the warrants were for, and their case numbers. The warrant for possession or delivery of a controlled substance had a felony case number.
¶ 6 Consistent with his usual practice, Officer Yaghnam did not pull the warrants and testified that he does not always have the capability of doing so. Instead, "[a]ll [the officers] do is [] run on the system. If it comes back with a warrant, then that is in good faith, and that is how [they] arrest."
¶ 7 After conducting the warrant check, Officer Yaghnam and several other officers[4] went to the address identified by the anonymous informant as Robinson's apartment. The officers did not seek a search warrant, as they were intending to conduct a "knock and talk."[5] The officers were let into the building by another resident. Some officers, including Officer Yaghnam, proceeded upstairs to Apartment 8, while others remained outside to secure the exits.
¶ 8 According to Officer Yaghnam, the officers knocked on the door to Apartment 8 several times with no answer. They knocked again and heard movement inside the apartment, leading them to believe that somebody was inside. At that point, Officer Yaghnam called the cell phone number provided by the anonymous informant. A phone rang on the other side of the door, but nobody answered. Officer Yaghnam described the succeeding events as follows:
Q [Attorney Merten, on behalf of the State]: What happened next?
A [Officer Yaghnam]: I then knocked on the door again, and then a male voice replied, "Who is it?" I then replied, "Terion?" And he stated, "Yes," actually, "Yeah." Then I identified myself as, "The Milwaukee police department. You need to open the door." And that is when I heard footsteps running from the door.
Q: And when you said you heard footsteps running from the door, was thathow quickly after the fact that you identified yourself as a Milwaukee Police Department officer did you hear that?
A: Immediately.
....
Q: And when you heard those footsteps, what did you do then?
*469 A: Then, fearing for the safety of possibly him destroying evidence or escaping, we then forced entry into the building, into the apartment.
Q: How soon did you force entry after you heard those footsteps?
A: Immediately.
Q: And how did you force entry?
A: By kicking open the door.
¶ 9 After Officer Yaghnam kicked open the door, he and the other officers proceeded into the apartment. Upon entering the residence, Officer Yaghnam identified a "pretty strong" odor of burnt marijuana. He described the apartment's layout as an "open concept." Immediately to the right of the door was a kitchen, which opened up to a dining room. Robinson was standing in the dining room. The dining room flowed into a living room, where the officers found a female later identified as Roxanne Reindl (Reindl). The apartment had a balcony exit, accessible by a sliding door located between the dining room and living room. Officer Yaghnam observed loose marijuana on a coffee table in the living room and several individual bags of marijuana inside an open cooler next to the couch.
¶ 10 Officer Yaghnam arrested Robinson, citing as the basis Robinson's "open warrants."[6] He then searched Robinson's person and recovered "a large amount of currency"[7] and a cell phone. The cell phone's number matched the one Officer Yaghnam previously dialed. The officers also seized two digital scales and a box of sandwich baggies; one of the scales and the baggies were taken from the kitchen counter.[8]
¶ 11 On November 8, 2006, Robinson was charged with one count of possession with intent to deliver THC, more than 200 grams but not more than 1,000 grams, in violation of Wis. Stat. § 961.41(1m)(h)2. On January 7, 2007, Robinson moved to suppress all evidence obtained from his apartment on the grounds that it was the fruit of an unlawful entry.
¶ 12 On January 10, 2007, the circuit court conducted a hearing on Robinson's motion to suppress, at which Robinson largely corroborated Officer Yaghnam's testimony. Robinson recalled hearing knocks on his apartment door[9] on November 6, 2006, immediately followed by his cell phone ringing. He testified that he silenced his ringer and then went to the door to look out the peep hole, but the peep hole was covered. When he asked who was there, someone responded, "Milwaukee Police Department. Open up." According to Robinson, he then replied, "`No, thank you,' and walked away from the door, and they started kicking in the door." He denied running from the door and stated that he was not wearing shoes at the time.
¶ 13 Robinson also denied smoking marijuana that day but testified that Reindl was. He admitted that a strong odor of marijuana was in the air in his apartment and that marijuana was on the coffee table. When asked if he was aware that marijuana was also in the cooler, he responded that he was not: "I seen the weed that was *470 on the table. [The cooler] couldn't have been[i]t had to have been out of sight."
¶ 14 Reindl also testified at the suppression hearing. She recalled visiting Robinson at his apartment on November 6, 2006, and smoking "[a] little bit" of marijuana.
¶ 15 At the close of the suppression hearing, it came to light that what Officer Yaghnam thought was an open felony warrant for possession or delivery of a controlled substance was actually a commitment order for unpaid fines. In particular, on September 29, 2006, the Milwaukee County Circuit Court issued a commitment order for unpaid fines stemming from Robinson's 1998 conviction for manufacturing or delivering THC. According to court records, on December 18, 1998, then-circuit court Judge Kitty K. Brennan[10] sentenced Robinson to 12 months imprisonment and ordered him to "pay a fine in the amount of $500.00 plus all costs and surcharges at $50.00 a month, starting 3/1/99 and thereafter on the first of every month or serve 60 days STRAIGHT TIME in the House of Correction consecutive to any other sentence." The commitment order was signed by an assistant to the Clerk of Circuit Court and ordered that "any law enforcement officer arrest and detain Terion L[.] Robinson Jr[.] in custody for 60 days or until $1026.50 is paid."
¶ 16 On March 14, 2007, the circuit court issued an oral decision denying Robinson's motion to suppress. The court adopted Officer Yaghnam's testimony as its findings of fact, noting that "[e]ven Terion Robinson's version of all of this [wa]s not that much different than the police['s]." In particular, the court made a threshold finding that the officers, relying on the CIB and NCIC databases, believed that Robinson was subject to an outstanding felony arrest warrant for manufacturing or delivering marijuana. Citing State v. Collins, 122 Wis.2d 320, 326, 363 N.W.2d 229 (1984), the circuit court concluded that the evidence should not be suppressed because the officers believed they had a valid arrest warrant which authorized entry into Robinson's apartment.
¶ 17 As alternative grounds for denying Robinson's motion to suppress, the circuit court applied State v. Hughes, 2000 WI 24, 233 Wis.2d 280, 607 N.W.2d 621, and determined that the officers' otherwise warrantless entry into Robinson's apartment was supported by probable cause and justified by exigent circumstances. The court concluded that the officers had probable cause to believe that the apartment contained evidence of a crime because they confirmed information relayed by the anonymous informant, specifically Robinson's apartment number and his cell phone number. In addition, the court believed Officer Yaghnam's testimony that he heard footsteps running from the door and consequently feared the destruction of evidence.
¶ 18 Following the circuit court's denial of his motion to suppress, Robinson pled guilty to a reduced charge of one count of possession with intent to deliver THC, 200 grams or less, and the circuit court entered judgment of conviction.
¶ 19 Robinson appealed his conviction and the order denying his motion to suppress. On June 30, 2009, the court of appeals affirmed. State v. Robinson, 2009 WI App 97, 320 Wis.2d 689, 770 N.W.2d 721. Assuming without deciding that the *471 commitment order was insufficient to permit the officers' lawful entry into Robinson's apartment, the court of appeals concluded that the evidence derived from the warrantless entry and search was nevertheless admissible under the good faith exception to the exclusionary rule. Id., ¶ 1 (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629 N.W.2d 625). The court determined that Officer Yaghnam had a good faith belief that what he discovered on the CIB and NCIC databases was an open felony warrant for Robinson's arrest. Id., ¶ 11. Recognizing that police reliance on those databases is considered standard operating procedure, the court declined to suppress evidence obtained as a result: "`Suppressing evidence obtained in a situation where a reasonable officer would believe an arrest warrant existed would not help to deter misconduct by arresting officers, because there is no misconduct to deter.'" Id. (quoting Collins, 122 Wis.2d at 326, 363 N.W.2d 229).
¶ 20 In addition, like the circuit court, the court of appeals determined that the officers' warrantless entry was alternatively justified by exigent circumstances: "Robinson was in the identified apartment and had the cell phone number given by the informant. When the police heard footsteps moving away from the door suggesting a possible escape attempt or a destruction of evidence, exigent circumstances were created permitting the officers to kick in the door." Id., ¶ 17.
¶ 21 Robinson petitioned this court for review, which we granted on November 12, 2009. We now affirm.
II. STANDARD OF REVIEW
¶ 22 Our review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact. Hughes, 233 Wis.2d 280, ¶ 15, 607 N.W.2d 621. When presented with a question of constitutional fact, this court engages in a two-step inquiry. State v. Pallone, 2000 WI 77, ¶ 27, 236 Wis.2d 162, 613 N.W.2d 568; Hughes, 233 Wis.2d 280, ¶ 15, 607 N.W.2d 621. First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. See State v. Popke, 2009 WI 37, ¶ 10, 317 Wis.2d 118, 765 N.W.2d 569; Pallone, 236 Wis.2d 162, ¶ 27, 613 N.W.2d 568; Hughes, 233 Wis.2d 280, ¶ 15, 607 N.W.2d 621. Second, we independently apply constitutional principles to those facts. Pallone, 236 Wis.2d 162, ¶ 27, 613 N.W.2d 568; Hughes, 233 Wis.2d 280, ¶ 15, 607 N.W.2d 621; State v. Limon, 2008 WI App 77, ¶ 12, 312 Wis.2d 174, 751 N.W.2d 877.
III. ANALYSIS
¶ 23 In this case, we assume without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers' lawful entry into Robinson's apartment. We need not determine whether the good faith exception to the exclusionary rule applies because we conclude that the officers' warrantless entry and subsequent search was justified on the more narrow grounds of probable cause and exigent circumstances.
¶ 24 The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; Wis. Const. art. 1, § 11.[11] Because physical *472 entry of the home is deemed "`the chief evil against which the wording of the Fourth Amendment is directed,'" Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)), warrantless searches of homes are presumptively unreasonable, Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton, 445 U.S. at 586, 100 S.Ct. 1371; Pallone, 236 Wis.2d 162, ¶¶ 29, 59, 613 N.W.2d 568; Hughes, 233 Wis.2d 280, ¶ 17, 607 N.W.2d 621. However, the doctrine of exigent circumstances is one of the well-recognized exceptions to the warrant requirement. See Payton, 445 U.S. at 590, 100 S.Ct. 1371; Hughes, 233 Wis.2d 280, ¶ 17, 607 N.W.2d 621; State v. Smith, 131 Wis.2d 220, 228, 388 N.W.2d 601 (1986). The exception recognizes that in special circumstances, when there is an urgent need coupled with insufficient time to obtain a warrant, "it would be unrealistic and contrary to public policy to bar law enforcement officials at the doorstep." Smith, 131 Wis.2d at 228, 388 N.W.2d 601. In such instances, an individual's substantial right to privacy in his or her home must give way to the compelling public interest in effective law enforcement. See Hughes, 233 Wis.2d 280, ¶ 16, 607 N.W.2d 621; Smith, 131 Wis.2d at 228, 388 N.W.2d 601. The government bears the burden of showing that the warrantless entry was both supported by probable cause and justified by exigent circumstances. See Welsh, 466 U.S. at 750, 104 S.Ct. 2091; Pallone, 236 Wis.2d 162, ¶ 29, 613 N.W.2d 568; Hughes, 233 Wis.2d 280, ¶ 17, 607 N.W.2d 621; Smith, 131 Wis.2d at 228, 388 N.W.2d 601.
¶ 25 In this case, we conclude that the State has satisfied its burden of demonstrating that the police officers' warrantless entry into Robinson's apartment was both supported by probable cause and justified by exigent circumstances. We will analyze each requirement in turn.
A. Probable Cause
¶ 26 The Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution "require[] probable cause to support every search or seizure in order to `safeguard the privacy and security of individuals against arbitrary invasions by government officials.'" Hughes, 233 Wis.2d 280, ¶ 19, 607 N.W.2d 621 (quoting State v. DeSmidt, 155 Wis.2d 119, 130, 454 N.W.2d 780 (1990)). In the search context, probable cause requires a "`fair probability' that contraband or evidence of a crime will be found in a particular place." Hughes, 233 Wis.2d 280, ¶ 21, 607 N.W.2d 621 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 *473 S.Ct. 2317, 76 L.Ed.2d 527 (1983)); see also State v. Carroll, 2010 WI 8, ¶ 28, 322 Wis.2d 299, 778 N.W.2d 1. We evaluate the existence of probable cause objectively, concerned with whether law enforcement acted reasonably. See Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("[I]n order to satisfy the `reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the governmentwhether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirementis not that they always be correct, but that they always be reasonable."); Gates, 462 U.S. at 231, 103 S.Ct. 2317 ("`In dealing with probable cause,... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949))); Hughes, 233 Wis.2d 280, ¶ 23, 607 N.W.2d 621. In other words, in this case, we must determine whether it was reasonable for Officer Yaghnam and the other police officers to believe that evidence of illegal drug activity would probably be found in Apartment 8. See Hughes, 233 Wis.2d 280, ¶ 23, 607 N.W.2d 621. We conclude that it was.
¶ 27 The officers were acting upon an anonymous informant's tip that Robinson was selling marijuana out of his apartment. Considered within the totality of the circumstances, the value and reliability of an informant's tip "may usefully illuminate the commonsense, practical question whether there is `probable cause' to believe that contraband or evidence is located in a particular place." Gates, 462 U.S. at 230, 103 S.Ct. 2317. The U.S. Supreme Court has recognized the particular value of law enforcement's corroboration of details of an informant's tip. Id. at 241, 103 S.Ct. 2317. "`Because an informant is right about some things, he is more probably right about other facts.'" Id. at 244, 103 S.Ct. 2317 (quoting Spinelli v. United States, 393 U.S. 410, 427, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) (White, J., concurring)). That is, police corroboration of innocent, although significant, details of an informant's tip lend reliability to the informant's allegations of criminal activity. See State v. Williams, 2001 WI 21, ¶¶ 39-40, 241 Wis.2d 631, 623 N.W.2d 106. For purposes of making a practical, commonsense determination of probable cause, that is sufficient. Gates, 462 U.S. at 244-45, 103 S.Ct. 2317 ("It is enough, for purposes of assessing probable cause, that 'corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,' thus providing 'a substantial basis for crediting the hearsay.'" (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960))).
¶ 28 In this case, the officers corroborated three of the four details relayed by the anonymous informant. According to Officer Yaghnam's testimony,[12] the informant provided the following four details: (1) Someone named Terion Robinson, (2) who lived in Apartment 8 at 7233 *474 North 38th Street in Milwaukee (3) with cell phone number [], (4) was selling marijuana out of his apartment. While the informant failed to explain how he came to know of the inside information, the specificity of his information and the fact that he personally walked into the police station supported his credibility. Indeed, the informant was "anonymous" only to the extent that he was nameless. He jeopardized his anonymity by approaching Officer Yaghnam in person. See Limon, 312 Wis.2d 174, ¶ 18, 751 N.W.2d 877. "Risking one's identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster." Williams, 241 Wis.2d 631, ¶ 35, 623 N.W.2d 106.
¶ 29 In the midst of their "knock and talk," the officers corroborated each of the three preliminary details provided by the anonymous informant: Robinson's name, his address, and his cell phone number. According to Officer Yaghnam's testimony, after he knocked on the door to Apartment 8, a male voice questioned from inside, "Who is it?" Officer Yaghnam replied, "Terion?" The male voice then answered, "Yeah." When Officer Yaghnam dialed the cell phone number identified by the informant as Robinson's, a phone immediately rang on the other side of the door. It was therefore reasonable for the officers to believe, just as the informant had said, that Terion Robinson resided in Apartment 8. The officers' corroboration of innocent, although significant, details of the informant's tip lent reliability to the informant's allegation that Robinson was selling marijuana out of his apartment. See Williams, 241 Wis.2d 631, ¶ 40, 623 N.W.2d 106. The officers may not have corroborated the substantive allegation of criminal activity, but that is not what probable cause demands:
[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands....
Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317. Moreover, regardless of whether or not the commitment order constituted an arrest warrant, a question which we do not decide, it remains that the officers believed that Robinson was subject to an outstanding felony arrest warrant for manufacturing or delivering marijuana. In the least, the officers were cognizant of the fact that Robinson was previously charged with illegal drug activity. That knowledge further lent reliability to the informant's allegation that Robinson was selling marijuana. Because the officers corroborated each of the three preliminary details provided by the anonymous informant, we conclude that it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Apartment 8. Accordingly, the State has satisfied its burden of demonstrating that the police officers' warrantless entry into Robinson's apartment was supported by probable cause. We now turn to the State's requisite showing of exigent circumstances.
B. Exigent Circumstances
¶ 30 Consistent with the U.S. Supreme Court, see, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); Georgia v. Randolph, 547 U.S. 103, 116 n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Welsh, 466 U.S. at 750, 104 S.Ct. 2091, this court has recognized four circumstances which, when measured against the time required to procure *475 a warrant, constitute exigent circumstances that justify a warrantless entry: (1) an arrest made in "hot pursuit," (2) a threat to the safety of the suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee. Hughes, 233 Wis.2d 280, ¶ 25, 607 N.W.2d 621; Smith, 131 Wis.2d at 229, 388 N.W.2d 601. Like our analysis of probable cause, the test for determining the existence of exigent circumstances is an objective one. See Brigham City, 547 U.S. at 403-04, 126 S.Ct. 1943; Smith, 131 Wis.2d at 230, 388 N.W.2d 601. We must determine whether the police officers under the circumstances known to them at the time reasonably believed that a delay in procuring a warrant would gravely endanger safety, risk the destruction of evidence, or enhance the likelihood that the suspect will escape. Smith, 131 Wis.2d at 230, 388 N.W.2d 601.
¶ 31 In this case, we conclude that the police officers' warrantless entry into Robinson's apartment was justified by exigent circumstances because the officers reasonably believed that a delay in procuring a warrant would risk the destruction of evidence. Officer Yaghnam testified that after knocking on the door to Apartment 8 and identifying himself as the Milwaukee Police Department, he "heard footsteps running from the door." Because he "fear[ed] for the safety of possibly [Robinson] destroying evidence,"[13] he forced entry into the apartment by kicking open the door. Once Robinson was aware of the officers' presence outside his door and footsteps were immediately heard running from the door, it was certainly reasonable for the officers to assume that Robinson would destroy evidence of his illegal drug activity. Drugs like marijuana are easily and quickly destroyed. See Hughes, 233 Wis.2d 280, ¶ 26, 607 N.W.2d 621; State v. Henderson, 2001 WI 97, ¶ 38, 245 Wis.2d 345, 629 N.W.2d 613. Under all the circumstances of this case, Robinson had every incentive to intentionally destroy evidence of the marijuana in order to avoid its discovery. See Hughes, 233 Wis.2d 280, ¶ 27, 607 N.W.2d 621. "Had the officers stayed outside and called for a warrant, the evidence very likely would have been lost." Id.
¶ 32 Robinson argues that to the extent the officers' knock and announcement led to the running footsteps, the officers manufactured the exigent circumstances and therefore cannot rely on them. This court has recognized that police officers may not benefit from exigent circumstances that they themselves create. Id., ¶ 28 n. 7. However, we disagree with Robinson that the officers impermissibly created the exigent circumstances merely by knocking on his door and announcing their presence. "[W]hen law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances." United States v. MacDonald, 916 F.2d 766, 772 (2d Cir.1990). By knocking on Robinson's door and announcing themselves as the Milwaukee Police Department, an announcement which in fact was invited by Robinson's question of "Who is it?", the officers were conducting themselves in an utterly appropriate and lawful manner. See United States v. Collins, 510 F.3d 697, 700 (7th Cir.2007) ("[T]here is no legal requirement of obtaining a warrant to knock on someone's *476 door.").[14] Simply because Robinson chose to respond to the officers' lawful conduct by running from the door, thereby leading the officers to believe that he would destroy evidence, does not mean that we ought to overlook the exigent circumstances. See MacDonald, 916 F.2d at 771 ("Exigent circumstances are not to be disregarded simply because the suspects chose to respond to the agents' lawful conduct by attempting to escape, destroy evidence, or engage in any other unlawful activity."). It was not the officers' knock and announcement that created the exigent circumstances. To hold otherwise would defy the very standard of reasonableness considered to be the "ultimate touchstone of the Fourth Amendment." See Brigham City, 547 U.S. at 403, 126 S.Ct. 1943. Rather, Robinson's choice to run from the door created the exigent circumstances that justified the officers' warrantless entry.
¶ 33 To complete our analysis, we conclude that once inside the apartment, the officers lawfully seized the evidence in plain view and arrested Robinson. Once inside, the officers identified a strong odor of burnt marijuana and observed loose marijuana in plain view on the coffee table, both facts that Robinson himself conceded. Officer Yaghnam also testified that a digital scale and box of sandwich baggies were in plain view on the kitchen counter. The officers were well within their rights to seize the marijuana, digital scale, and sandwich baggies in plain view. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) ("It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence."); State v. Johnston, 184 Wis.2d 794, 809, 518 N.W.2d 759 (1994). Moreover, Officer Yaghnam was entitled to arrest Robinson because the evidence in plain view gave him probable cause to believe that Robinson had committed a crime. See United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Johnston, 184 Wis.2d at 809, 518 N.W.2d 759. Finally, Officer Yaghnam lawfully searched Robinson's person incident to arrest and seized the large amount of currency and Robinson's cell phone. See Wis. Stat. § 968.11 (2007-08); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
IV. CONCLUSION
¶ 34 Assuming without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers' *477 lawful entry into Robinson's apartment, we conclude that the warrantless entry was nevertheless reasonable because it was supported by probable cause and justified by exigent circumstances. First, we determine that the police officers' warrantless entry into Robinson's apartment was supported by probable cause. Because the officers corroborated each of the three preliminary details provided by the anonymous informant, it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Robinson's apartment. Second, we conclude that the police officers' warrantless entry into Robinson's apartment was justified by exigent circumstances. Once Robinson was aware of the officers' presence outside his door and footsteps were immediately heard running from the door, the officers reasonably believed that Robinson would destroy evidence of his illegal drug activity. Finally, we conclude that once inside the apartment, the officers lawfully seized the evidence in plain view and arrested Robinson.
The decision of the court of appeals is affirmed.
ANN WALSH BRADLEY, J. (dissenting).
¶ 35 Today, this court decides three cases, each of which involves a search of a Milwaukee home where police officers have some suspicion of drug activity but have not procured a warrant. In each of these three cases, a majority of this court refuses to suppress the evidence because it concludes that one of the narrowly drawn and carefully delineated exceptions to the warrant requirement applies.
¶ 36 In State v. Artic, 2010 WI 83, ___ Wis.2d ___, 786 N.W.2d 430, officers knock at the front door of a suspected drug house, and when the resident fails to answer, the officers kick down the door. With guns drawn, they knock on an intermediate door on the second floor, and the homeowner answers. Although the homeowner disputes that he consented to the search, this court determines that he consented, that his consent was voluntary, and that the consent exception to the warrant requirement applies.
¶ 37 In State v. Pinkard, 2010 WI 81, ___ Wis.2d ___, 785 N.W.2d 592, five drug unit officers arrive at an apartment after an anonymous tipster alerts police that there are drugs, a scale, and money present. After the officers knock, announce their presence, and wait for 30 to 45 seconds, they then proceed to enter the residence out of concern for the welfare of the occupants. Although the testimony does not reveal that the officers were concerned about the possibility of an overdose, this court concludes that hypothetically, "an officer could reasonably be concerned that [the occupants] may have overdosed on drugs." Id., ¶ 35. Therefore, it determines that the community caretaking exception to the warrant requirement applies.
¶ 38 In this case, at least seven officers arrive at an apartment to perform a "knock and talk" after an anonymous tip providing unspecified allegations that the resident is dealing drugs out of the apartment. Officers confirm that the resident is in the apartment, the resident fails to open the door, and the officers hear running footsteps. They then proceed to kick down the door. This court determines that because the resident is aware of the officers' presence, he has every incentive to intentionally destroy evidence. Under these facts, it determines that the exigent circumstances exception to the warrant requirement applies.
¶ 39 Courts should refrain from "effectively creat[ing] a situation in which the *478 police have no reason to obtain a warrant when they want to search a home with any type of connections to drugs." See United States v. Ellis, 499 F.3d 686, 691 (7th Cir.2007). Yet, the intersection of these three cases could lead one to conclude that when officers have a generalized suspicion that drug activity is occurring in a home, they need not go through the trouble of procuring a warrant. Rather, they need only execute a knock and talk.
¶ 40 If the suspect opens the door, that suspect may be found to have voluntarily consented to the search. If the suspect refuses to open the door and officers hear movement inside, there may be exigent circumstances due to the possibility of the destruction of evidence. If no one answers the door, concern for the well-being of the occupants of what sounds like a drug house may justify entry under the community caretaker exception.
¶ 41 I am concerned that this case, along with the other two cases decided today, dilute the Fourth Amendment by allowing the knock and talk procedure to justify warrantless entry. Both law enforcement officers and courts alike should be mindful that the knock and talk technique rests on constitutionally thin ice.
¶ 42 In examining the facts of this case, I conclude that the majority errs in determining that probable cause and exigent circumstances were present here. Because I determine that the warrantless search of Robinson's apartment violates the constitutional protections guaranteed by the Fourth Amendment, I respectfully dissent.
I
¶ 43 The majority correctly acknowledges that the State bears the burden of demonstrating that this warrantless home entry was supported by probable cause and justified by exigent circumstances. Majority op., ¶ 24. It determines that prior to breaking down the door to Apartment 8, the officers had probable cause to believe that evidence of illegal drug activity would be found in the apartment because the officers had corroborated three of the four details provided by the anonymous tipster: Robinson's name, address, and cell phone number. Id., ¶¶ 26, 29. Although it recognizes that the only details corroborated were innocent, it suggests that the "specificity" of the anonymous informant's information and "the fact that he personally walked into the police station" supported his credibility. Id., ¶ 28.
¶ 44 The majority further determines that exigent circumstances were present because, once Robinson was aware of the officers' presence and his footsteps were heard running from the door, a reasonable officer would believe that Robinson would destroy evidence. Id., ¶ 31. The majority acknowledges that officers cannot justify a home entry due to exigent circumstances that they themselves create. Id., ¶ 32. However, citing United States v. MacDonald,[1] the majority asserts that officers do not impermissibly create exigent circumstances when they are acting lawfully. Majority op., ¶ 32. Because officers may lawfully execute a warrantless knock and talk, the majority concludes: "It was not the officers' knock and announcement that created the exigent circumstances." Id. Rather, it was "Robinson's choice to run from the door" that created the exigency. Id.
¶ 45 When officers choose to execute a knock and talk rather than seeking a warrant, they are on constitutionally thin ice. The majority fails to recognize this thin *479 ice, and instead ratifies this warrantless search.
¶ 46 In determining that probable cause and exigent circumstances existed under these facts, the majority makes two distinct errors that "cut[] away the core of the Fourth Amendment's protections, in a way the Supreme Court has never sanctioned[.]" United States v. Juan Benet Johnson, 170 F.3d 708, 718 (7th Cir.1999). First, the majority dilutes the requirement that officers assess the reliability of an anonymous tip. Second, it fails to give meaning to the rule that officers cannot benefit from exigent circumstances that they themselves create.
¶ 47 I address first the constitutional implications of the knock and talk technique. Then, I address in turn the two distinct errors of the majority that cut at the core of Fourth Amendment protections.
II
¶ 48 The home occupies a special place in Fourth Amendment jurisprudence. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Warrantless searches of homes are presumptively unreasonable. Id. at 748-49, 104 S.Ct. 2091. In 1948, the United States Supreme Court cogently described the rationale for requiring officers to procure a warrant prior to entering a home. It emphasized the role of the neutral and detached magistrate:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
Anne Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
¶ 49 Here, as with the other two cases decided today, officers engaged in the competitive enterprise of ferreting out crime chose not to seek a warrant. Instead, they opted to go to a suspected drug house and perform a "knock and talk."
¶ 50 A recent commentator has posited that perfunctory review by courts of law enforcement's use of the knock and talk procedure to circumvent the warrant requirement "has severely limited the Fourth Amendment protection afforded to homes, despite the Supreme Court's stance that homes are heavily protected." Craig M. Bradley, "Knock and Talk" and the Fourth Amendment, 84 Ind. L.J. 1099, 1099 (2009). He asserts that the "`[k]nock and talk' has become a talisman before which the Fourth Amendment `fades away and disappears.'" Id. at 1127.[2]
¶ 51 Likewise, courts have been critical of the knock and talk procedure. In Hayes v. State, 794 N.E.2d 492, 497 (Ind. *480 App.2003), the court opined that "[k]nock and talk might more aptly be named `knock and enter,' because it is usually the officer's goal not merely to talk but to conduct a warrantless search of the premises." It explained that "[w]hile not per se unlawful, the knock and talk procedure `pushes the envelope' and can easily be misused." Id.
¶ 52 It is curious that the majority chooses to explain the knock and talk procedure with a quotation from the Seventh Circuit case United States v. Juan Benet Johnson, 170 F.3d 708. See majority op., ¶ 7 n.5.[3] The Johnson court was critical of the use of the knock and talk procedure by Milwaukee police officers who lacked probable cause to secure a warrant. It explained: "We do not hold today that the `knock and talk' technique is automatically unconstitutional. Nevertheless ... the police themselves must recognize the inherent limits in this more informal way of proceeding." Id. at 720 (emphasis added).
¶ 53 The Seventh Circuit is right. Law enforcement officers must recognize the limitations of this more informal way of attempting to gain entry to a home. The three cases decided today demonstrate that this court as well must recognize the limitations of the knock and talk procedure.
¶ 54 In any given case, there is a temptation to stretch and twist the exceptions to the warrant requirement to fit the facts. Often, the court will explain that the case presents a "close call," but an exception to the warrant requirement applies. The exception stretches a little further, and next time it will likely be stretched again. Over time, the narrowly defined exceptions to the Fourth Amendment become the rule.
¶ 55 A court that it is unwilling to provide a check on unconstitutional evidence gathering does a disfavor to law enforcement and citizens alike. It abandons its role and sends the clear message to law enforcement that no one is at the helm. When the players on a team learn that the referee will never call foul, there remains little incentive to play within the rules.
¶ 56 Despite reiterating that warrantless searches are presumptively unreasonable, this court has suppressed evidence procured during a warrantless home search only two times in the last 10 years.[4]
Today, this court ratifies three more warrantless home searches, based on three different exceptions to the warrant requirement. With this track record and the failure of the courts to place meaningful limitations on the knock and talk technique, I fear that the presumption that warrantless home searches are unreasonable has become an example of a rule that has been swallowed by its exceptions.
III
¶ 57 The majority errs when it dilutes the requirement that officers assess the *481 reliability of an anonymous tip. It relies heavily on the fact that the informant jeopardized his anonymity by walking into the police station, rather that relaying the tip over the phone. Majority op., ¶ 28.
¶ 58 Yet, that fact alone is not sufficient indicia of reliability to establish probable cause. Wisconsin courts require additional evidence of the reliability of a tip even when it comes from a confidential informant, known to police officers, who has provided reliable information in the past. State v. Romero, 2009 WI 32, ¶ 26, 317 Wis.2d 12, 765 N.W.2d 756. Independent corroboration of the reliability of the tip is required.
¶ 59 The majority is correct that corroboration of innocent, although significant details may provide indicia of the reliability of an anonymous tip. I agree with the majority that Robinson's name, address, and telephone number are "innocent" details corroborated by the officers prior to their decision to kick in Robinson's door.
¶ 60 However, the corroboration of innocent details is not enough. To support a determination that the anonymous informant is reliable, the details must also be "significant."
¶ 61 Unlike the majority, I cannot conclude that the details about Robinson's name, address, and cell phone number are "significant." Various individuals likely have access to this type of identifying information about all of us.
¶ 62 The innocent details provided by this anonymous informant are a far cry from the innocent details that the Supreme Court relied on in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), to corroborate an anonymous tip. In Gates, an anonymous letter asserted that Gates was planning a trip to Florida to pick up drugs, and the letter provided details, including date, time, and mode of transportation, of this trip. Id. at 213, 103 S.Ct. 2317. The letter's detailed predictions were corroborated by the authorities. Based on these corroborated details, a magistrate issued a warrant to search Gates' car. Id. On review, the Supreme Court indicated that the tipster had insight into Gates' plan. The Court explained: "It is enough, for purposes of assessing probable cause, that corroboration through other sources of information reduced the chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting" the anonymous tip.[5]Id. at 244-45, 103 S.Ct. 2317.
¶ 63 Similarly, in State v. Williams, an anonymous caller described the scene of a purported crime in great detail, including the location of the vehicle, a general description of the vehicle, and the layout of the surroundings. 2001 WI 21, ¶ 39, 241 Wis.2d 631, 623 N.W.2d 106. The police arrived four minutes later and corroborated those details. Because the caller could describe the scene with such specific detail, it was reasonable to conclude that the caller was recently at the scene and in a position to observe the illegal activity. The Williams court explained that its decision conformed with Gates, because "[w]here other indicia of reliability exist, predictive information is not necessary to test an anonymous tipster's veracity[.]" Id., ¶ 42.
¶ 64 In both Gates and Williams, the corroboration of innocent but significant details provided indicia of reliability for the uncorroborated assertions of criminal conduct. The "corroboration" in this case is of an entirely different nature. The fact that the anonymous informant accurately *482 provided Robinson's identifying information is not indicia that the informant has insight into any criminal behavior. It corroborated only that the anonymous informant knew Robinson, or perhaps knew of Robinson.
¶ 65 Reasonable suspicion is a lower standard than probable cause. Yet, the Court has held that the kinds of innocent details provided here are insufficient to establish reasonable suspicion of criminal conduct. Rather than containing "significant" details, the anonymous tip in this case looks like the type of "bare-bones tip" that was rejected in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
¶ 66 In J.L., an anonymous caller reported to the Miami-Dade Police that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Id. at 268, 120 S.Ct. 1375. Officers corroborated details about the suspect's identity, but they frisked the young man without corroborating that he was carrying a gun. The State argued that "the tip was reliable because its description of the suspect's visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop."[6]Id. at 271, 120 S.Ct. 1375.
¶ 67 The Court determined that "the Fourth Amendment is not so easily satisfied." Id. at 273, 120 S.Ct. 1375. It explained that an anonymous tip accurately describing the suspect's location and appearance "is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity." Id. at 272, 120 S.Ct. 1375. To constitute reasonable suspicion, a tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id.
¶ 68 Similar to the tip in J.L., the anonymous tip here provided information sufficient to identify the person that the tipster meant to accuse. However, it did not demonstrate that the tipster had any knowledge of concealed criminal activity. I conclude that corroboration of innocent details provided by this bare-bones tip did not provide these officers with reasonable suspicion, much less probable cause.
IV
¶ 69 Like its determination about probable cause, the majority's analysis of exigent circumstances is also incompatible with controlling law. The majority recognizes that under Wisconsin law, officers cannot justify a warrantless home entry based on exigent circumstances that they create. See State v. Hughes, 2000 WI 24, ¶ 28 n. 7, 233 Wis.2d 280, 607 N.W.2d 621 ("It is also important to note that this is not a situation in which the exigency was created by the police themselves, which would generally not justify a warrantless search of a home.") However, citing a Second Circuit opinion that has been roundly criticized,[7] the majority determines that "when law enforcement agents *483 act in an entirely lawful manner, they do not impermissibly create exigent circumstances." Majority op., ¶ 32 (citing United States v. MacDonald, 916 F.2d 766, 771 (2d Cir.1990)).
¶ 70 The majority's logic appears to be as follows: We know that officers cannot benefit from manufacturing exigent circumstances, thereby circumventing the warrant requirement. However, MacDonald holds that officers do not manufacture exigent circumstances when they are in a lawful place. Given that the officers were executing a lawful knock and talk, it must not have been their knock and announcement that created the exigency. Majority op., ¶ 32. Therefore, someone else must have created the exigency. It must have been Robinson, who invited the police to announce their presence by asking "Who's there?" and who ran from the door rather than answering it. Id.
¶ 71 The MacDonald decision is not supported by the law of Wisconsin. See Hughes, 233 Wis.2d 280, ¶ 28 n. 7, 607 N.W.2d 621. Further, it is contrary to the case law of the Seventh Circuit and other jurisdictions.
¶ 72 In a recent decision, the Seventh Circuit explained that it is lawful "for the government to knock on the front door of [a] home and ask to come in." Ellis, 499 F.3d at 692. However, "once [the resident] said no, the government could not save its case by kicking in the side door." Id.
¶ 73 The facts in the Ellis case are very similar to the facts before the court today. There, five Milwaukee officers decided to perform a knock and talk at a suspected drug house. When officers arrived at the home, they knew that the registered occupant had two prior drug convictions and that an unknown drug supplier had visited the house a week earlier. Id. at 690. Ellis answered the door, but he refused to consent to the officers' warrantless entry. Id. at 688.
¶ 74 Officer Lopez was identified as the officer who was standing at the side of the house. Id. The facts reflect that what he heard was not mere movement in the house. Id. Rather, he heard "a person running up and down the stairs." Id. "Hearing [the] movement, Officer Lopez concluded that the occupants in the home were trying to destroy drugs." Id. He made the decision to break down the door and enter to prevent the destruction of evidence. Id.
¶ 75 The Seventh Circuit held that, under those facts, the officers could not justify their warrantless home entry based upon an exigency that they had created by informing the occupants of their presence:
It was the government's decision to inform the occupants of the 40th Street home that they were targets of a government investigation when the government knocked on the front door and asked for consent to come into the home. The government took a gamble hoping that the occupants would consent to their entry or would open the door revealing contraband in plain sight.
Id. at 692.
¶ 76 The court explained that "once Ellis refused to consent, the occupants knew of *484 the government's investigation of the home and so the government was concerned that the occupants might destroy any drugs that could be in the home." Id. It acknowledged that "[d]rugs are an easily destroyable form of evidence and therefore an officer's suspicions may be raised when he or she hears movement." Id. at 691. Further, "[k]nocking on a door will result in movement in any home because an occupant will move to the door to see who is knocking and possibly to answer the door." Id. However, the court admonished, "it was the government's choice to reveal itself to the home occupants by engaging in a `knock and talk' investigation and its decision backfired." Id. at 692.
¶ 77 "[T]he problem in this case," it explained, "is that the officers and agents lacked a warrant when they approached the home and utilized tactics that, if allowed to go unchecked, would eliminate the Fourth Amendment warrant requirement for a home with any connection to drugs." Id. at 691. "If we affirm the district court's decision [that exigent circumstances were present], we have effectively created a situation in which the police have no reason to obtain a warrant when they want to search a home with any type of connections to drugs." Id.
¶ 78 The Third Circuit Court of Appeals employed a similar analysis in United States v. Coles, 437 F.3d 361 (3d Cir.2006). There, officers were conducting surveillance on a motel room due to suspected drug activity. After knocking on the door and announcing their presence, they heard the "sounds of rustling and running footsteps," and they attempted to open the door using an electronic passkey. Id. at 364. Although the officers' attempt to open the door failed, Coles eventually opened the door and permitted the officers to enter.
¶ 79 In determining whether exigent circumstances were present, the court emphasized that "the officers decided to enter room 511 without a warrant." Id. at 370. "It was that decision to conduct a warrantless entry and search of the room, without any urgent need to do so, that impermissibly created the very exigency relied upon by the government in this case." Id.
¶ 80 The Third Circuit concluded that the officers could not justify their entry with an exigency that did not exist before officers decided to alert the occupants to their presence:
We emphasize that the record reveals no urgency or need for the officers to take immediate action, prior to the officers' decision to knock on Coles's hotel room door and demand entry. It is, of course, true that once the officers knocked on the door and announced, "open the door, this is the police," they heard sounds indicating that evidence was being destroyed. But that exigency did not arise naturally or from reasonable police investigative tactics. Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to room 511, deliberately created the exigency by knocking on the door to room 511 and demanding entry.
Id. at 371.
¶ 81 Like these other courts, I conclude that the MacDonald analysis, which has not been previously adopted in Wisconsin, does not adequately safeguard Fourth Amendment rights. Because I conclude that the officers did not have probable cause and any exigency that existed when Robinson refused to open the door was created by the police, I determine that the exigent circumstances exception to the warrant requirement does not apply. The warrantless search of Robinson's apartment was unconstitutional, and the evidence seized during this search should be suppressed.
¶ 82 For the reasons stated above, I respectfully dissent.
*485 ¶ 83 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
NOTES
[1] State v. Robinson, 2009 WI App 97, 320 Wis.2d 689, 770 N.W.2d 721.
[2] All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
Wisconsin Stat. § 961.41(1m) "Possession with intent to manufacture, distribute or deliver" provides in relevant part:
Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture, distribute or deliver, a controlled substance or a controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation. Any person who violates this subsection is subject to the following penalties:
....
(h) Tetrahydrocannabinols. If a person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14(4)(t), or a controlled substance analog of tetrahydrocannabinols, and the amount possessed, with intent to manufacture, distribute, or deliver, is:
1. Two hundred grams or less, or 4 or fewer plants containing tetrahydrocannabinols, the person is guilty of a Class I felony.
[3] The CIB operates and manages a law enforcement message switch and network system that provides criminal justice employees with a wide variety of information, including "wants and warrants, driver license and vehicle registration information, criminal histories, protection order and injunction files, sex offender and corrections information, stolen property, missing persons and more." Wisconsin Department of Justice, Law Enforcement Services: CIB, http://www.doj.state.wi. us/dles/cib/ (last visited July 6, 2010).
The NCIC, described by the Federal Bureau of Investigation (FBI) as "the lifeline of law enforcement," is an electronic clearinghouse of crime data that enables criminal justice agencies nationwide to "apprehend fugitives, locate missing persons, recover stolen property, and identify terrorists." FBI, NCIC: The National Crime Information Center, http:// www.fbi.gov/hq/cjisd/ncic.htm (last visited July 6, 2010).
[4] According to Officer Yaghnam's testimony, he and his partner were joined by five other squads for a total of eight officers.
[5] The Seventh Circuit Court of Appeals explained the "knock and talk" technique in United States v. Johnson, 170 F.3d 708, 711 (7th Cir. 1999):
[I]n a "knock and talk," the police approach a house or apartment in which they suspect drug dealing is occurring. They listen outside the door for a brief period of time, and then they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia or contraband is in plain view. If it is, then they make a warrantless entry. As this description makes plain, the "knock and talk" procedure typically does not involve the prior issuance of a warrant.
See also State v. Phillips, 2009 WI App 179, ¶ 11 n. 6, 322 Wis.2d 576, 778 N.W.2d 157.
[6] The officers also arrested Reindl. Her arrest is not at issue in this case.
[7] According to the complaint, Robinson was in possession of $1,800.
[8] Officer Yaghnam acknowledged that the second scale was not in plain view and was instead located in a closet adjacent to Robinson's bedroom. The circuit court deemed that scale inadmissible.
[9] Robinson initially denied residing at the apartment, testifying that it was not his residence but instead his girlfriend's. He has since abandoned that argument.
[10] Prior to oral argument before this court, the State filed a letter informing us that Judge Brennan was a member of the court of appeals panel that decided this case. The matter was not brought to the court of appeals' attention, and neither Robinson nor the State has briefed or filed a motion on the issue before this court. We therefore will not address it further.
[11] The Fourth Amendment to the United States Constitution provides in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 11 of the Wisconsin Constitution similarly states:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
As a general rule, we historically interpret the search and seizure provision of our state's constitution consistent with the United States Supreme Court's interpretation of the Fourth Amendment. See State v. Pallone, 2000 WI 77, ¶ 28, 236 Wis.2d 162, 613 N.W.2d 568; State v. Hughes, 2000 WI 24, ¶ 17 n. 6, 233 Wis.2d 280, 607 N.W.2d 621; State v. DeSmidt, 155 Wis.2d 119, 130, 454 N.W.2d 780 (1990); State v. Limon, 2008 WI App 77, ¶ 11 n. 5, 312 Wis.2d 174, 751 N.W.2d 877.
[12] The circuit court adopted Officer Yaghnam's testimony as its findings of fact. We uphold those findings as they are not clearly erroneous. See Pallone, 236 Wis.2d 162, ¶ 27, 613 N.W.2d 568; Hughes, 233 Wis.2d 280, ¶ 15, 607 N.W.2d 621. This is particularly true because, as the circuit court pointed out, Robinson himself confirmed much of Officer Yaghnam's testimony.
[13] Officer Yaghnam also testified that he feared Robinson's escape. Our conclusion that the officers reasonably believed that a delay in procuring a warrant would risk the destruction of evidence is alone sufficient to give rise to exigency. We therefore need not decide whether the officers reasonably believed that a delay in procuring a warrant would enhance the likelihood of Robinson's escape.
[14] Relying instead on United States v. Ellis, 499 F.3d 686 (7th Cir.2007), see dissent, ¶¶ 72-77, the dissent makes no mention of United States v. Collins, 510 F.3d 697 (7th Cir.2007), the more recent Seventh Circuit decision in which the court favorably cited United States v. MacDonald, 916 F.2d 766, 772 (2d Cir.1990). Collins, 510 F.3d at 700. In Collins, the Seventh Circuit distinguished its set of facts, where there was "no evidence that the officers heard the sound of running feet," id. at 699, from those in MacDonald, in which the law enforcement agents heard the sound of shuffling feet from inside the apartment. Id. at 700 (citing MacDonald, 916 F.2d at 771). The Seventh Circuit in Collins agreed that suppression of the evidence would not be justified under the facts of MacDonald. Id.
Moreover, in its discussion of the Seventh Circuit's earlier decision in Ellis, see dissent, ¶¶ 72-77, the dissent leaves out the key facts that distinguish the complicated analysis in Ellis from the facts of this case. Among other things, in Ellis, the police officer who kicked in the side door made no showing to differentiate the movement he heard inside the home from the reasonable type of movement that could be found in any home following a knock at the door. 499 F.3d at 691.
[1] United States v. MacDonald, 916 F.2d 766, 771 (2d Cir.1990).
[2] [T]here is a large swath of police activity that intrudes into dwellings that has been widely allowed by the courts and that often renders the search and arrest warrant requirements nugatory.... Under "knock and talk," police go to people's residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the "knock and talk." When combined with such other exceptions to the warrant requirement as "plain view," consent, and search incident to arrest, "knock and talk" is a powerful investigative technique.
Craig M. Bradley, "Knock and Talk" and the Fourth Amendment, 84 Ind. L.J. 1099, 1099 (2009).
[3] In United States v. Juan Benet Johnson, 170 F.3d 708, 711 (7th Cir.1999), the court explained that the knock and talk procedure was often employed by officers in the hopes that they would be able to conduct a warrantless home entry:
[I]n a "knock and talk," the police approach a house or apartment in which they suspect drug dealing is occurring. They listen outside the door for a brief period of time, and then they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia is in plain view. If it is, then they made a warrantless entry. As this description makes plain, the "knock and talk" procedure typically does not involve the prior issuance of a warrant.
[4] State v. Sanders, 2008 WI 85, 311 Wis.2d 257, 752 N.W.2d 713; State v. Knapp, 2005 WI 127, 285 Wis.2d 86, 700 N.W.2d 899.
[5] Unlike an officer's on-the-spot probable cause determination, an issuing-magistrate's probable cause determination is presumptively reasonable.
[6] Similarly, an amici argued that "a stop and frisk should be permitted `when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability of the tip....'" Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
[7] United States v. MacDonald, 916 F.2d 766 (2d Cir.1990). In dissent, Judge Kearse concluded that "[w]e should not endorse such contrivances by law enforcement officials in their efforts to circumvent the Fourth Amendment's warrant requirement." Id. at 776. The dissent's analysis was cited and adopted in United States v. Coles, 437 F.3d 361 (3d Cir.2006). The Fifth Circuit and the Seventh Circuit have also rejected the assertion that officers do not manufacture exigent circumstances when they are in a lawful place. See United States v. Richard, 994 F.2d 244 (5th Cir.1993); United States v. Ellis, 499 F.3d 686 (7th Cir.2007). See also Jacqueline Bryks, Exigent Circumstances and Warrantless Home Entries: United States v. MacDonald, 57 Brook. L. Rev. 307, 312 (1991) (concluding that "the Second Circuit should revisit this area in order to shape an exigent circumstances exception more consistent with the Fourth Amendment."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603143/ | 418 F.Supp. 157 (1976)
ALLIED FINANCIAL SERVICES, INC., a Nebraska Corporation, Plaintiff,
v.
FOREMOST INSURANCE COMPANY, a Michigan Corporation, Defendant.
Civ. No. 76-0-69.
United States District Court, D. Nebraska.
August 4, 1976.
*158 Jeffrey A. Silver, Omaha, Neb., for plaintiff.
Robert D. Mullin, Jr., Omaha, Neb., for defendant.
MEMORANDUM AND ORDER
DENNEY, District Judge.
This matter comes before the Court on defendant's motion to dismiss Counts I and III of the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and Counts V and VI for lack of jurisdiction of the subject matter, Fed.R.Civ.P. 12(b)(1).
Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332(a) and the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2; 28 U.S.C. § 1337.
Plaintiff, Allied Financial Services (Allied), and defendant, Foremost Insurance Company (Foremost), executed an agreement designating Allied as Foremost's general agent for the sale of mobile home physical damage insurance. Allied employed sub-agents for this purpose.
Allied alleged seven counts charging Foremost with:
I. Breach of contract by "pirating" Allied's sub-agents and circumventing Allied's general agency;
II. Tortious interference with contract by inducing sub-agents to breach agreements with Allied;
III. Breach of contract by competing directly with Allied and employing other agents to do so;
IV. Causing Allied to lose commissions;
*159 V. Monopolization, attempt and conspiracy to monopolize trade and commerce in violation of the Sherman Act, 15 U.S.C. § 2;
VI. Combination and conspiracy to restrain trade and commerce in violation of the Sherman Act, 15 U.S.C. § 1, by the above acts and by imposing restrictive terms on Allied's sale of insurance;
VII. Violation of Neb.Rev.Stat. § 44-1525(4) (Reissue 1974) and Neb.Rev.Stat. § 59-801 et seq. (Reissue 1974) by the above acts and by precluding Allied from selling insurance except on unfavorable terms.
FAILURE TO STATE A CLAIM FOR RELIEF
In Count I, plaintiff claims the "pirating" of its sub-agents by defendant with malice, bad faith, and knowledge that as a consequence plaintiff would be unable to perform its agreement with defendant. The Court liberally construes these allegations[1] as a claim for breach of contract by prevention of performance.
"[A]n implied provision of every contract is that neither party to the contract will do anything to prevent performance thereof by the other party or commit any act that will hinder or delay performance." Peter Kiewit Sons' Co. v. Summit Constr. Co., 422 F.2d 242, 257 (8th Cir. 1969) cited in Investors Thrift Corp. v. Hunt, 387 F.Supp. 517, 524 (W.D.Ark.1974), aff'd, 511 F.2d 1161 (8th Cir. 1975). "A principal who has contracted to afford an agent an opportunity to work has a duty to refrain from unreasonably interfering with his work." Restatement (Second) of Agency § 434 (1958). The motion to dismiss should be denied as to Count I.
Count III essentially charges that defendant distributed insurance through other agents and competed directly with plaintiff, thereby causing plaintiff to lose commissions. These allegations fail to state a claim for relief in contract, agency or tort law.
Unless restrained by contract terms which, for example, create an exclusive agency or a duty by defendant not to compete, defendant is privileged to employ other agents for the sale of its product and to compete directly with plaintiff. "The principal does not, by contracting to pay compensation contingent upon the agent's success in accomplishing a definite result, thereby promise that he will not compete either personally or through another agent." Restatement (Second) of Agency § 449 (1958).
Plaintiff's general allegation that, by competing with plaintiff and employing others to do so, defendant "has unreasonably interfered with and continues to interfere with the work of the plaintiff" fails to state a claim within the principles embodied in the Restatement of Torts § 709 (1938).[2]
JURISDICTION OF THE SUBJECT MATTER
McCarran-Ferguson Act
Defendant bases its motion to dismiss Counts V and VI upon Section 1012(b)[3] of *160 the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (McCarran Act). Section 1012(b) exempts "the business of insurance" from federal regulatory laws including the Sherman Act to the extent such business is regulated by state law.[4]
As plaintiff indicates in opposing the motion to dismiss, "[t]he question which must be resolved is whether the actions forming the basis of Plaintiff's Fifth and Sixth Causes of Action involve the `business of insurance' as that term is used in the McCarran-Ferguson Act, merely because an insurance company and one of its agents is involved." Plaintiff denies that the acts complained of are peculiar to the insurance industry or form part of "the business of insurance" and contends that it is only incidental to this case that one party is an insurance company. The Court finds that the alleged interference with contract relations and other anticompetitive behavior alleged in the complaint only peripherally involve insurance and thus are not removed from this Court's jurisdiction by Section 1012(b) of the McCarran Act.
The Business of Insurance
In 1969, the Supreme Court limited the scope of Section 1012(b) by narrowing the meaning of "the business of insurance." In SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969) (National Securities), a suit contesting the merger of two insurance companies, the Court denied the exemption because the challenged acts (misleading proxy solicitations) were in essence a matter of securities regulation, not insurance regulation. The Court defined the "core" of "the business of insurance" as "the relationship between insurer and insured" and "the contract of insurance," as opposed to conduct which only incidentally involves insurance companies or only peripherally concerns insurance.
Congress was concerned with the type of state regulation that centers around the contract of insurance . . .. The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement these were the core of the "business of insurance." Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus wasit was on the relationship between the insurance company and the policyholder. Statutes aimed at protecting or regulating this relationship, directly or indirectly are laws regulating the "business of insurance." Id. at 460, 89 S.Ct. at 568.
In light of its history,[5] the court explained the purpose and scope of the McCarran-Ferguson Act.
*161 The statute did not purport to make the States supreme in regulating all the activities of insurance companies; its language refers not to the persons or companies who are subject to state regulation, but to laws "regulating the business of insurance." Insurance companies may do many things which are subject to paramount federal regulation; only when they are engaged in the "business of insurance" does the statute apply. Certainly the fixing of rates is part of this business; that is what South-Eastern Underwriters [United States v. South Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440] was all about. The selling and advertising of policies, FTC v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540 (1958), and the licensing of companies and their agents, cf. Robertson v. People of State of California, 328 U.S. 440, 66 S.Ct. 1160, 90 L.Ed. 1366 (1946), are also within the scope of the statute. (Emphasis in original). Id. at 459-60, 89 S.Ct. at 568.
The great majority of the post-1969 decisions analyzing the scope of the McCarran Act exemption have limited Section 1012(b) to practices directly affecting the relationship of insurer and policyholder. Examples of conduct within the meaning of "the business of insurance" include: concerted action in reclassification of risks, Meicler v. Aetna Cas. & Surety Co., 506 F.2d 732 (5th Cir. 1975), aff'ing, 372 F.Supp. 509 (S.D.Tex. 1974); monopolistic prices for title examination and insurance, Commander Leasing Co. v. Transamerica Title Ins. Co., 477 F.2d 77 (10th Cir. 1973); conspiracy to fix prices of automobile insurance premiums, Ohio AFL-CIO v. Ins. Rating Bd., 451 F.2d 1178 (6th Cir. 1971), cert. denied, 409 U.S. 917, 93 S.Ct. 215, 34 L.Ed.2d 180 (1972); conspiracy to impose uniform seller charges for title insurance, Schwartz v. Commonwealth Land Title Ins. Co., 374 F.Supp. 564 (E.D. Pa.1974); conspiracy to inflate the cost of life insurance, Steingart v. Equitable Life Assur. Soc'y of U. S., 366 F.Supp. 790 (S.D. N.Y.1973).
In all of these cases the acts complained of involved the fixing of insurance rates and costs. In Dexter v. Equitable Life Assur. Soc'y of U. S., 527 F.2d 233 (2nd Cir. 1975), the challenged transaction consisted of a tying arrangement conditioning mortgage loans on the purchase of life insurance. As in the cases involving rates, such conduct goes directly to the relationship between the insurer and insured.
An argument can be made that the essence of Allied's complaint is that Foremost unfairly interfered with Allied's conduct of "the business of insurance." The question is close and the cases are divided, see Sanborn v. Palm, 336 F.Supp. 222 (S.D. Tex.1971). In consideration of the cases on both sides of the issue, the Court declines to extend the McCarran Act exemption to a dispute which should have little or no effect on the interests of policyholders and which primarily involves an agency agreement, not "the contract of insurance."
Am. Family Assur. Co. of Columbus v. Planned Marketing Assoc., 389 F.Supp. 1141 (E.D.Va.1974) supports this Court's conclusions. In that case, one insurance company sought to enjoin another from inducing agents to switch companies and from using certain trade secrets and customer lists. Finding that the challenged conduct amounted only to competition between two companies for business, the Court declined to apply Section 1012(b) to activities which "could easily be employed by one stock brokerage firm against another as by one insurance company against another." Id. at 1147.
The plaintiff also argues that business activities not peculiar to the insurance industry are subject to federal regulatory laws by citing Fry v. John Hancock Mutual Life Ins. Co., 355 F.Supp. 1151 (N.D.Tex. 1973). That case has apparently been reversed in an unreported opinion cited in *162 Dexter v. Equitable Life Assur. Soc'y of U. S., 527 F.2d 233, 235 n. 4 (2nd Cir. 1975).
DeVoto v. Pacific Fidelity Life Ins. Co., 516 F.2d 1, 3 (9th Cir. 1975), cert. denied, 423 U.S. 894, 96 S.Ct. 194, 46 L.Ed.2d 126 (1975), supports Allied's position. In that case, a mortgage banker was persuaded to abrogate its contract with one insurance company to deal exclusively with another for the furnishing of customer lists. These acts, which are similar to those alleged by Allied, were declared peripheral to "the business of insurance" and thus subject to federal antitrust law.
STATE LAW
Count VII charges violations of Neb.Rev. Stat. §§ 44-1522 et seq. (Reissue 1974), specifically Section 44-1525(4)[6] of the Nebraska Unfair Competition and Trade Practices Act governing the insurance business and Neb.Rev.Stat. §§ 59-801 et seq. (Reissue 1974) concerning unlawful restraints of trade.
While Section 59-821 provides for private antitrust suits and treble damages, it is unclear whether plaintiff also seeks damages by virtue of Section 44-1525(4). Neb.Rev.Stat. §§ 44-1522 et seq. does not contemplate private suits, but instead vests powers and duties in the State Director of Insurance, who is empowered to enjoin and penalize certain prohibited acts.
IT IS THEREFORE ORDERED that unless plaintiff amends its complaint within ten (10) days hereof to state a claim for which relief may be granted in Count III, defendant's motion to dismiss Count III will be granted.
IT IS FURTHER ORDERED that defendant's motion to dismiss Counts I, V and VI is denied.
NOTES
[1] "A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Morton Bldgs. of Neb., Inc. v. Morton Bldgs., Inc., 333 F.Supp. 187, 191 (D.Neb.1971), citing 2A J. Moore, Federal Practice ¶ 12.08.
[2] "One who engages in a business primarily for the purpose of causing loss of business to another and with the intention of terminating the business when that purpose is accomplished is liable to the other for the loss so caused." Restatement of Torts § 709 (1938). Otherwise, "[o]ne who causes loss of business or occupation to another merely by engaging in a business or occupation in good faith is not liable to the other for the loss so caused, though he knows that the loss will result." Id. § 708.
[3] Section 1012(b) provides: (b) No Act of Congress shall be construed to invalidate, impair, or supercede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That . . . the Sherman Act, . . . the Clayton Act, and . . . the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law.
[4] For tests to determine whether a challenged practice is "regulated by state law," see Dexter v. Equitable Life Assur. Soc'y of U.S., 527 F.2d 233, 236-37 (2nd Cir. 1975); Meicler v. Aetna Cas. & Surety Co., 506 F.2d 732, 734-35 (5th Cir. 1975); Ohio AFL-CIO v. Ins. Rating Bd., 451 F.2d 1178, 1181-84 (6th Cir. 1971). Nebraska law clearly regulates the insurance industry. Neb.Rev.Stat. §§ 44-1522 et seq. (Reissue 1974) prohibits unfair competition and deceptive trade practices in the insurance business, and Neb.Rev.Stat. §§ 59-801 et seq. (Reissue 1974) generally proscribes unlawful restraints of trade. These statutes are broad enough to cover the practices attributed to Foremost. But this finding does not dispose of Counts V and VI if Foremost's alleged conduct is not pursuant to "the business of insurance."
[5] "The McCarran-Ferguson Act was passed in reaction to this Court's decision in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). Prior to that decision, it had been assumed, in the language of the leading case, that "[i]ssuing a policy of insurance is not a transaction of commerce." Paul v. Virginia, 8 Wall. 168, 183, 19 L.Ed. 357 (1869). Consequently, regulation of insurance transactions was thought to rest exclusively with the States. In South-Eastern Underwriters, this Court held that insurance transactions were subject to federal regulation under the Commerce Clause, and that the antitrust laws, in particular, were applicable to them. Congress reacted quickly. . . .
. . . . .
The McCarran-Ferguson Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation."
Id. at 458-59, 89 S.Ct. at 567-68.
[6] This section provides:
"The following shall be unfair methods of competition and unfair or deceptive acts or practices in the business of insurance: . . . (4) Entering into any agreement to commit, or by any concerted action committing any act of boycott, coercion, or intimidation resulting in or tending to result in unreasonable restraint of or monopoly in the business of insurance. . . ."
The Court notes that this language restates 15 U.S.C. § 1013(b), which reserves jurisdiction under the Sherman Act for conduct involving "boycott, coercion or intimidation." See Addrisi v. Equitable Life Assur. Soc'y of the U. S., 503 F.2d 725 (9th Cir. 1974), cert. denied, 420 U.S. 922, 95 S.Ct. 1590, 43 L.Ed.2d 790 (1975). As the parties have not properly presented the question of Section 1013(b)'s application, the Court does not reach this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603158/ | 8 So.3d 492 (2009)
Timothy WALLACE, Appellant,
v.
STATE of Florida, Appellee.
No. 5D07-4031, 5D07-4044.
District Court of Appeal of Florida, Fifth District.
May 8, 2009.
James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant *493 Attorney General, Daytona Beach, for Appellee.
TORPY, J.
In this cocaine possession case, we address whether an experienced police officer's observations of a hand-to-hand exchange in a high crime area, along with other suspicious behavior, gave rise to a "reasonable suspicion" of criminal activity, thereby justifying the detention of Appellant for further investigation. We conclude that the totality of the circumstances in this case justified the detention. Accordingly, we affirm the order that denied the motion to suppress.
During the suppression hearing, the following facts were adduced. On a Friday evening in 2007, a team of officers from the Brevard County Sheriff's Office was conducting a storefront operation at a 7-Eleven in Cocoa, Florida. The area in which the 7-Eleven is located was "generally known as high crimes, high drug traffic area." One of the officers, Sgt. Molyneaux, a sixteen-year veteran officer, was in plain clothes in an undercover truck parked in 7-Eleven's parking lot looking for criminal activity, including drug sales.
At about 9:30 p.m., Sgt. Molyneaux saw Appellant drive into the 7-Eleven parking lot and park on the side of the building away from the general store traffic, although there were spaces available in front of the store. He concluded that Appellant looked "very nervous" because "[h]is eyes were very wide, and he was looking around a lot ... like he was looking for somebody." While Appellant was in the store, he continued to look out toward the parking lot as if he was looking for somebody. Minutes after Appellant entered the store, a white Buick entered the parking lot quickly and abruptly stopped next to Appellant's vehicle. Appellant exited the store, immediately walked over to the Buick and opened the passenger's side door. The Buick's driver handed something to Appellant, who in turn handed something to the driver and shut the door. The Buick then sped off. Sgt. Molyneaux saw Appellant put something in his left front pocket then get into his vehicle and drive off.
Sgt. Molyneaux was approximately forty feet from the transaction with a clear view, but did not see what Appellant and the Buick's driver were handing each other. Nonetheless, based on his training and experience, he believed that he had witnessed a drug transaction and called for police units to stop Appellant and the Buick. After being advised by Sgt. Molyneaux of his observations, Deputy Forrest stopped Appellant's vehicle before it left the 7-Eleven parking lot. When Appellant stepped out of the vehicle, Deputy Forrest saw a small bag of cocaine in plain view, seized it and arrested Appellant.
The trial court denied Appellant's motion to suppress, finding that there was reasonable suspicion to support the investigatory stop of Appellant's vehicle. In its order, the trial court stated:
Here, Officer Molyneaux was a seasoned law enforcement officer with extensive drug training, working six years in the narcotics unit, and vast experience in hand-to-hand drug transactions. The area was known for high drug trafficking, and Officer Molyneaux was there conducting surveillance for drug transactions. In light of Officer Molyneaux's experience, the Defendant's behavior prior to the hand-to-hand transaction was suspicious in that he did not park in the regular traffic area of the convenience store, his eyes were wide, he was acting nervous looking for someone, and while he was in the store, he was looking for someone.
*494 After the court denied Appellant's motion to suppress, he pled guilty, while preserving the dispositive issue of whether the investigatory stop was predicated on "reasonable suspicion."
"Articulating precisely what `reasonable suspicion' ... mean[s] is not possible. [It is a] commonsense, nontechnical" concept. Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). It arises from "specific and articulable facts" and the "rational inferences from those facts." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "While `reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Although not precisely delineated, the minimal level of justification for an investigatory stop has been described as something more than a "mere hunch." United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). A "mere hunch" is simply a suspicion based on bare intuition.
To determine whether an officer's suspicions are supported by "more than a mere hunch," the court must look at the "totality of the circumstances," viewed in light of the officer's "experience and specialized training." Arvizu, 534 U.S. at 273-74, 122 S.Ct. 744. Thus, even seemingly innocent behavior may support an inference that criminal activity is afoot when viewed from the perspective of an experienced officer. Id. at 274-75, 122 S.Ct. 744. It is the function of the trial court to determine the historical facts, which includes a determination of whether a particular police officer has the experience to draw a particular inference from a given circumstance and whether the officer actually drew the inference. We are to give deference to these factual determinations. Id. at 277, 122 S.Ct. 744; see Ornelas, 517 U.S. at 699, 116 S.Ct. 1657 (stating inferences drawn by police and trial judge from historical facts deserve deference). Whether the inference drawn by police was objectively reasonable involves the application of logic and judicial experience and is reviewable de novo. Ornelas, 517 U.S. at 696, 116 S.Ct. 1657.
The seminal case of Terry v. Ohio best illustrates the proper application of these concepts. There, an experienced beat cop saw two men on the street corner in the middle of the afternoon. The men would converse and then take turns walking to the front of a store where they would look in. They repeated this pattern about twelve times. The officer suspected that they might be "casing a job, a stick-up" and feared that they might have weapons. Terry, 392 U.S. at 6, 88 S.Ct. 1868. He confronted the men, identified himself and frisked them for weapons, recovering two handguns. Our high court upheld the detention, concluding that the officer's actions were grounded in the reasonable belief that the men were engaged in criminal activity and might be armed. Although the activities of the men were innocent enough to an untrained eye, when viewed by a police officer with many years of experience, the suspicion amounted to more than a mere hunch; it constituted a reasoned suspicion based upon articulable facts.
Applying these concepts to this case, giving "due weight to the factual inferences drawn by the law enforcement officer and the [trial] judge," as we must, we conclude that the trial court was correct. *495 Arvizu, 534 U.S. at 277, 122 S.Ct. 744. The parking lot was a high crime area of known drug activity. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (stating fact that stop occurred in "high crime area" among relevant contextual considerations in Terry analysis). Appellant appeared nervous. See id. (noting "nervous, evasive behavior" pertinent factor in determining reasonable suspicion). The officer, who was experienced at watching drug transactions in public places and who had discerned certain peculiar habits exhibited by these criminals, articulated the peculiar facts that supported his suspicions. Appellant parked his car in an unusual spot and was only in the store for a short time. While there, he continually watched the parking lot until the Buick arrived, which parked next to his vehicle. Appellant exited the store and exchanged something with the man in the Buick. After the exchange, the Buick left quickly, and Appellant attempted to leave immediately before being stopped by police. Although each individual action might have been innocent enough to an untrained observer, when considered together, from the vantage point of the seasoned police officer, the inference of criminal conduct drawn by the officer was logically deduced, reasonable, and certainly sufficient to satisfy the "more than a mere hunch," standard announced in Terry.
In reaching this conclusion, we have carefully considered the authorities upon which Appellant relies, mindful that precedent is seldom dispositive in resolving these fact-specific legal conundrums. See Ornelas, 517 U.S. at 698, 116 S.Ct. 1657 ("It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multi-faceted, `one determination will seldom be a useful `precedent' for another ....'") (quoting Illinois v. Gates, 462 U.S. 213, 238 n. 11, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). All of the authorities upon which Appellant relies are distinguishable. For example, in Santiago v. State, 941 So.2d 1277 (Fla. 4th DCA 2006), the observation did not occur in a high crime area and no exchange was observed. In Belsky v. State, 831 So.2d 803 (Fla. 4th DCA 2002), the officer did not articulate the facts to demonstrate how he arrived at the conclusion that the defendant had engaged in a "hand-to-hand" drug transaction, and no evidence was adduced that the officer was experienced in making this observation.
Huntley v. State, 575 So.2d 285 (Fla. 5th DCA 1991), is not only factually distinguishable but also of questionable vitality in light of Illinois v. Wardlow. In Huntley, we stated that the "fact that the area was `high crime'" was "irrelevant" to our analysis of whether there existed reasonable suspicion for the detention. In Wardlow, the Supreme Court concluded that the "fact that the stop occurred in a `high crime area'" was among the "relevant contextual considerations in a Terry analysis." 528 U.S. at 124, 120 S.Ct. 673.
Finally, one case cited by Appellant, Marconi v. State, 927 So.2d 215 (Fla. 5th DCA 2006), is legally distinguishable. That case involved probable cause, which requires a considerably greater factual showing than reasonable suspicion. Wardlow, 528 U.S. at 123, 120 S.Ct. 673.
AFFIRMED.
LAWSON, J., and PLEUS, JR., R., Senior Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602926/ | 577 So.2d 409 (1990)
LEISURE AMERICAN RESORTS, INC.
v.
CARBINE CONSTRUCTION COMPANY, INC.
89-574.
Supreme Court of Alabama.
October 26, 1990.
Rehearing Denied March 22, 1991.
Kenneth Lee Cleveland of Cleveland & Cleveland, Birmingham, for appellant.
Rodney B. Slusher, Florence, for appellee.
ADAMS, Justice.
Leisure American Resorts, Inc. ("Leisure American"), appeals from a judgment entered against it after a jury returned a verdict for Carbine Construction Company ("Carbine") in Carbine's suit against Leisure American for breach of contract. We affirm.
Facts
In August 1983, Leisure American was owned in equal shares by two individuals. Winston Biggs, one of the owners, was also a director of the corporation. At that time, Mr. Biggs was also the sole owner of a corporation called Bileco, Inc. Prior to August 1983, Leisure American and Bileco occupied office space in separate buildings in Florence, Alabama.
Sometime in August 1983, officials of both corporations, including Winston Biggs; James Hough, president of Leisure American; and Richard Stafford, chief financial officer for Leisure American, met with Eugene Carbine of Carbine Construction Company regarding renovations to be performed on a building owned by Winston Biggs and another individual. The object of the renovation was to facilitate a proposed joint occupancy of the building by Bileco and Leisure American. A principal element of the renovation was the construction *410 of a partition between the areas to be occupied by the respective companies. In addition, Carbine was to paint, clean the carpets, put in plasterboard and wallpaper, and add a window on the side to be occupied by Leisure American. Carbine agreed to renovate the building on a "cost plus" basis. It is undisputed that none of the officials expressly agreed to pay Carbine for the work.
Carbine worked on one side of the building at a time, completing the remodeling of the side to be occupied by Bileco in September or early October. Bileco moved its offices into the building in October or November 1983. The work on the side to be occupied by Leisure American was performed in December and that company moved its offices into the building just before Christmas.
In January or February 1984, after Leisure American had moved its offices into the building, it called Carbine back to install some bookcases in the area occupied by its employees. Carbine completed the work on the bookcases and on February 27, 1984, sent out a billing invoice for the bookcases in the amount of $1,508.20. It is undisputed that Leisure American never denied responsibility for the work done on the bookcases.
When all of the work was completed, the two companies shared a common reception area and a common receptionist. A visitor entering the building would turn right to go into the space occupied by Bileco and would turn left to go into the area occupied by Leisure American.
As might be expected under these circumstances, responsibility for the cost of the renovations for Leisure American was disputed from the beginning. Most of the testimony at trial focused on which company first received a bill for the work. Evidence on that issue often conflicted sharply. James Hough testified that the bill for the renovations on the Leisure American side was "pushed back and forth" between the offices of Bileco and Leisure American, as both companies disclaimed responsibility for the bill. There was evidence that Bileco paid for the renovations done on its side of the building.
On June 6, 1985, while the bill for the renovation was being "pushed back and forth," Mr. Carbine signed an agreement with Leisure American, the text of which read:
"This is to acknowledge the agreement reached as follows:
"A. That Carbine Const. will be PAID IN FULL on the following debts:
"1) Invoice dated Feb 27, 1984 to Bileco for repairs to office complex (bookcases) in the amount of $1508.20
"2) Disk storage for Leisure Amer. Resorts for Aug 1984-June 1985 11 months @ $25. per mth = $275.00
"B. That Carbine will tender a check to Leisure Amer for $400.00
"C. In consideration of the above Carbine will receive:
"1) Secretarial Desk, wood, right arm
"2) Executive chair, brown.
"3) Four office chairs, rust vinal [sic]
"4) Matching Sofa & Loveseat, white
"5) Coffee table
"(6) Bookcases (2)"
On March 16, 1988, Carbine sued Leisure American for $21,072.67 on counts based on breach of contract, account stated, and work and labor done. The trial judge submitted the breach of contract claim to the jury and directed a verdict for Leisure American on the other two counts. The jury returned a verdict for Carbine in the amount of $19,564.47. The trial judge failed to rule within 90 days on Leisure American's motions for JNOV or new trial, and those motions were deemed denied by operation of law. Ala.R.Civ.P. 59.1.
Leisure American presents only two issues for review. First, it contends that the June 6, 1985, agreement, as a matter of law, constitutes an accord and satisfaction of the disputed claim for the office renovation. Second, it argues that the renovation amounted to a sale of goods and that, as a matter of law, recovery on the oral agreement is barred by the Uniform Commercial Code's statute of frauds provision. Leisure American further asserts that the trial *411 judge erred in denying its motion for a new trial, because, it argues, the verdict for Carbine on the breach of contract claim was against the great weight of the evidence.
A motion for JNOV tests the sufficiency of the evidence and "should be denied if there is any conflict in the evidence for the jury to resolve." Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1251 (Ala.1986). The existence of a conflict in the evidence is to be determined by the "substantial evidence rule." Ala.Code 1975, § 12-21-12. We shall first examine whether, regarding the two issues presented by Leisure American, the trial judge erred in refusing to rule for Leisure American as a matter of law.
Accord and Satisfaction
An accord and satisfaction is an agreement reached between competent parties regarding payment of a debt the amount of which is in dispute. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir.1984); O'Neal v. O'Neal, 284 Ala. 661, 227 So.2d 430 (1969). There can be no accord and satisfaction "without the intentional relinquishment of a known right." Id. at 663, 227 So.2d at 431.
Like any other contract, a valid accord and satisfaction requires consideration and a meeting of the minds regarding the subject matter. Bank Indep. v. Byars, 538 So.2d 432, 435 (Ala.1988); Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305, 310 (Ala.1987); Austin v. Cox, 492 So.2d 1021, 1022 (Ala.1986); Ray v. Alabama Central Credit Union, 472 So.2d 1012, 1014 (Ala.1985).
Whether the parties have reached an accord and satisfaction is almost always a question for the jury. Austin, 492 So.2d at 1022; see also Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305 (Ala.1987); Stephenson Brick Co. v. Bessemer Eng'g & Constr. Co., 218 Ala. 325, 118 So. 570 (1928); W.B. Davis Hosiery Mill, Inc. v. Word Lumber Co., 49 Ala. App. 492, 273 So.2d 469 (1972), cert. denied, 290 Ala. 372, 273 So.2d 474 (1973).
The issue in this case is whether the parties ever reached any agreement regarding the disputed sumthe amount due for the office renovations. The record reflects substantial evidence, much of it contradictory, from which the jury could have found that the parties reached no such agreement.
For example, the verdict indicates a finding that the $21,072.67 reflected amounts due on entirely separate accountsa liquidated debt of $1508.20 for construction of the bookcases and an unliquidated claim of $19,564.47 for office renovations. In that case, any agreement reached between the parties regarding payment of the $1508.20 would not have effected an accord and satisfaction on a separate debt owing for the office renovations.
Indeed, evidence indicated that Carbine performed a number of assorted jobs for Leisure American at various times and at various locations, including Gulf Shores, Talladega, and Florence. Leisure American received a number of bills from Carbine during 1984 for various jobs performed by Carbine. The office space was renovated in October and November 1983, before Leisure American moved its offices into the building, as a necessary prerequisite to the relocation; the work on the bookcases was done after the relocation. The former bookkeeper for Leisure American testified that the invoice of February 27 for $1,508.20, represented a transaction separate from that of the office renovations. Counsel for Leisure American conceded that the work for the bookcases was billed separately from that for the office renovations. The bill for the renovations was disputed from the beginning, while Leisure American never denied liability for the work done on the bookcases.
In addition, the agreement signed on June 6, alleged to constitute an accord and satisfaction, expressly referred only to the $1508.20 debt evidenced by the February 27 invoice. The jury could have found, and apparently did find, that the undisputed amount of $1508.20 shown on the February 27 invoice and payment under the June 6 agreement represented the exact amount due for the construction of the bookcases *412 and did not implicate the disputed amount due for office renovation.
In short, evidence elicited at trial amply supported a finding that the parties failed to reach an accord and satisfaction because of the absence of mutual assent regarding the subject matter of the June 6 agreement. The trial judge did not err, therefore, in denying Leisure American's motion for JNOV on the issue of accord and satisfaction.
Statute of Frauds
Leisure American next contends that Carbine's claim is a claim based on an oral "transaction in goods" valued at $500 or more. Consequently, it contends that the entire claim is barred by Ala.Code 1975, § 7-2-201, the Uniform Commercial Code's statute of frauds. In its brief, it argues that the disputed amount due for the office renovations includes approximately $4,808.07 worth of "goods" and that the trial judge erred in denying its motion for JNOV on the statute of frauds issue.
The trial judge instructed the jury on Leisure American's statute of frauds defense in the following manner:
"The Commercial Code provides that a contract for the sale of goods for a price of $500 or more is not enforceable, unless there is some writing to indicate that a contract for the sale has been made between the parties and signed by the party against whom it is sought to be enforced. A written contract is not required if the goods have been received and accepted."
More specifically, Ala.Code 1975, § 7-2-201(3)(c) provides: "A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable ... [w]ith respect to goods for which payment has been made and accepted or which have been received and accepted."
This section serves to "validate the contract only for the goods which have been accepted." Id. comment 2. Thus, it follows that receipt and acceptance by one party of all of the goods or performance of the other party validates the entire contract. "Receipt and acceptance ... of goods ... constitute[s] an unambiguous overt admission by both parties that a contract actually exists." Id.; Dykes Restaurant Supply, Inc. v. Grimes, 481 So.2d 1149, 1150 (Ala.Civ.App.1985); see also Trimble v. Todd, 510 So.2d 810 (Ala.1987).
The Uniform Commercial Code defines "acceptance" as follows:
"(1) Acceptance of goods occurs when the buyer:
(a) After a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
(b) Fails to make an effective rejection (subsection (1) of section 7-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(c) Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him."
Ala.Code 1975, § 7-2-606. A cursory reading of this section reveals that the issue whether the buyer has accepted the goods is fact specific. Such matters fall squarely within the province of the jury. Engle Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 341, 321 So.2d 679, 682 (Ala. Civ.App.1975).
In this case, the jury could have found a valid acceptance, based on testimony elicited at trial. For example, the evidence tended to show that the office renovations were completed in December 1983, in anticipation of occupation by Leisure American upon completion of the work. The president of Leisure American testified that he personally pointed out the specific improvements and renovations to be done to the portion of the building to be occupied by Leisure American, and he testified that Carbine's performance was satisfactory. Evidence also indicated that immediately after the work was completed, Leisure American moved its offices into the renovated area and that it continued to occupy those offices without any complaint about Carbine's performance.
Carbine contends that the renovation constituted a service and, therefore, falls *413 outside the coverage of the Uniform Commercial Code provision. However, it is unnecessary for us to decide, and we do not decide, whether the Uniform Commercial Code applies in this case, because even if it did, the evidence was sufficient to allow the jury to determine that Leisure American had received and accepted the "goods." That being so, regardless of how we characterize the contract involved in this case, the statute of frauds would be no bar to Carbine's claim. Therefore, the trial judge did not err in denying Leisure American's motion for JNOV.
Breach of Contract
Regarding Leisure American's contention that the verdict finding a breach of contract was against the great weight of the evidence, we note the following well established rule:
"The decision of a trial court refusing to grant a new trial on the ground that the verdict is contrary to the great weight and preponderance of the evidence will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust."
Green Oil Co. v. Hornsby, 539 So.2d 218, 219 (Ala.1989); Jawad v. Granade, 497 So.2d 471, 474 (Ala.1986).
After a careful review of the record, we are unable to say that the verdict was against the great weight of the evidence. An implied-in-fact contract arises where all of the circumstances surrounding the transaction, including the prior relationship and the former course of dealing of the parties, and the "common understanding of men, show a mutual intent to contract." Water Works & Sanitary Sewer Bd. of Montgomery v. Norman, 282 Ala. 41, 45, 208 So.2d 788, 791 (1968); Broyles v. Brown Eng'g Co., 275 Ala. 35, 38, 151 So.2d 767, 770 (1963).
In the instant case, James Hough was president of Leisure American at the time of the August meeting with Eugene Carbine. There was evidence that for a number of years Mr. Carbine had been acquainted with Mr. Hough in Mr. Hough's capacity as president of Leisure American and that Carbine had done construction work for Leisure American through Mr. Hough before the transaction that gave rise to this action. Mr. Carbine testified that Mr. Hough contacted him and set up the August meeting in which the transaction was discussed.
Mr. Hough testified that during the August meeting, he, Richard Stafford, and Philip Williams "walked" Mr. Carbine through the area to be occupied by Leisure American and pointed out the work to be done. More specifically, Mr. Hough testified that he told Mr. Carbine: "Gene, I got to have a window in my office." There was testimony that Winston Biggs, in a similar manner, directed the work to be done on the Bileco side of the building.
Although the record contains evidence from which the jury could have reached a different result, we conclude that, under the circumstances of this case, the evidence supports a finding that an implied-in-fact contract arose as a result of the meeting in August between Eugene Carbine and executive officials of Leisure American, and that Leisure American breached that contract by its failure to pay Carbine. When a motion for a new trial is grounded upon the contention that the verdict is against the great weight of the evidence, we will not reverse a trial judge's denial of the motion if "evidence [is] presented that, if believed, would support the verdict." Stokes v. Long-Lewis Ford, Inc., 549 So.2d 51, 52 (Ala.1989). In such a case, "the trial court's action in denying the motion would not be a clear abuse of some legal right and the record would not plainly and palpably show that the trial court was in error." Id. Because we can find no clear abuse in this case, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602927/ | 8 So.3d 1139 (2009)
DAVIS
v.
STATE.
No. 2D09-1131.
District Court of Appeal of Florida, Second District.
June 9, 2009.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602961/ | 418 F.Supp. 1056 (1976)
Terence Kayo HALLINAN, Plaintiff,
v.
John MITCHELL et al., Defendants.
No. C-75-558 RHS.
United States District Court, N. D. California.
August 30, 1976.
*1057 Benjamin B. Dreyfus, Garry, Dreyfus, McTernan, Brotsky, Herndon & Pesonen, Inc., San Francisco, Cal., for plaintiff.
R. John Seibert, Atty., Crim. Div., Dept. of Justice, Washington, D. C., Richard F. Locke, Asst. U. S. Atty., Dept. of Justice, San Francisco, Cal., for defendants.
MEMORANDUM OPINION AND ORDER
SCHNACKE, District Judge.
The second amended complaint in this action seeks damages under 18 U.S.C. §§ 2510-2520 and U.S.Const., Amends. I, IV, V, VI, on account of defendants' causing certain conversations of plaintiff to be wiretapped without a warrant. This case has been dismissed by stipulation as to all defendants but Mitchell, who was Attorney General of the United States at all relevant times. Mitchell moved for an order dismissing the second amended complaint as to him and for an order granting him summary judgment. This Court recently denied the motion to dismiss, because the pleading, on its face, does state a claim on which relief may be granted, but granted the motion for summary judgment, for reasons that follow herein.
Defendant contends that the wiretapping at issue here was an example of domestic national-security wiretapping. U. S. v. U. S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752, held in 1972 that wiretapping of that type, if done without a warrant, violates U.S.Const., Amend. IV. However, the parties agree that the wiretapping in the case at bar occurred in 1969 and 1970. This Court is inclined to agree with Judge Lloyd Burke who, in the very similar case of Weinberg v. Mitchell, C-75-817 LHB, granted summary judgment for Mitchell on June 25, 1976, stating that it would be grossly unfair to apply U. S. v. U. S. District Court retroactively.
Furthermore, Mitchell would not be liable under any statutory or constitutional provisions if, at the time of the acts complained of, there existed, in light of all the circumstances, reasonable grounds for the belief that the acts were appropriate, and if the acts were done in good faith [Mark v. Groff, 521 F.2d 1376, 1379-1380 (9th Cir. 1975); see also Hutchison v. Lake Oswego School District # 7, 519 F.2d 961, 968 (9th Cir. 1975)].
From a careful review of the record in the case at bar, this Court concludes that a reasonable trier of fact must find that: (a) the wiretapping involved was of the domestic national-security variety; (b) Mitchell's acts met the reasonableness/good faith standard of the just-cited cases. For example, as in Hutchison v. Lake Oswego School District # 7, supra, *1058 Mitchell's acts disregarded no settled, indisputable law. Indeed, these acts, while violative of U.S.Const., Amend. IV, did not violate 18 U.S.C. §§ 2510-2520, since these statutes do not apply to national-security surveillances [U. S. v. U. S. District Court, supra, 407 U.S. at 306, 92 S.Ct. 2125].
Therefore, summary judgment here is appropriate as to Mitchell [see Burgwin v. Mattson, 522 F.2d 1213, 1214-1215 (9th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 879, 47 L.Ed.2d 98 (1976)]. Mitchell shall submit within 10 days from the date of this order a form of final judgment which relates to all persons named as defendants in the second amended complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602963/ | 577 So.2d 195 (1991)
UNITED COMPANIES LIFE INSURANCE COMPANY
v.
CITY OF BATON ROUGE, et al.
consolidated with
UNITED COMPANIES FINANCIAL CORPORATION
v.
CITY OF BATON ROUGE, et al.
Nos. 89 CA 1958, 89 CA 1959.
Court of Appeal of Louisiana, First Circuit.
March 5, 1991.
*196 Theodore L. Jones, Elizabeth Amos, Baton Rouge, for plaintiff-appellant United Companies Life Ins. Co.United Companies Financial Corp.
Gordon A. Pugh, Baton Rouge, for defendant-appellee City of Baton Rouge, etc., et al.
Before LOTTINGER, SHORTESS and CARTER, JJ.
SHORTESS, Judge.
These suits concern appeals taken by United Companies Life Insurance Company and its subsidiary corporation United Companies Financial Corporation (plaintiffs) from adverse judgments that award to the City of Baton Rouge/Parish of East Baton Rouge[1] (defendant) delinquent sales taxes based on retail purchases which were not collected and remitted by various vendors of defendant.
In 1984, defendant conducted a sales and use tax audit of plaintiffs. Taxes covering a period of three and one-half years, from January 1981 to July 1984, were assessed against plaintiffs. The assessment was based upon retail purchases made by plaintiffs from local vendors. Plaintiffs paid the taxes under protest and subsequently filed suit to recover the amounts paid. The trial court ruled adversely to plaintiffs, and they have brought this appeal.
Plaintiffs have limited their appeal to three assignments of error. First, they assert that the Louisiana sales and use tax law only authorizes defendant to pursue the seller for recovery of the unpaid tax. However, a contrary position is consistently taken by the courts of this state. Bill Roberts, Inc. v. McNamara, 539 So.2d 1226, 1229 (La.1989); United Companies Printing Co. v. City of Baton Rouge, 569 So.2d 186, 188 (La.App. 1st Cir.1990), writ denied, 572 So.2d 73 (La.1991); McNamara v. Oilfield Const. Co., Inc., 417 So.2d 1311, 1315 (La.App. 3d Cir.), writ denied, 422 So.2d 157 (La.1982); and Collector of Revenue v. J.L. Richardson Co., 247 So.2d 151, 157 (La.App. 4th Cir.), writ refused, 258 La. 915, 248 So.2d 586 (1971). The rationale behind these cases is grounded in the law of agency. "If the dealer in collecting a sales tax from the purchaser is acting in its capacity as an agent for the State, it would seem logical to assume that the State as principal should not be precluded from collecting the tax directly from the purchaser and not through its agent." J.L. Richardson Co., 247 So.2d at 157. The trial court's ruling on this issue is not manifestly erroneous.
Next, plaintiffs contend that the tax ordinances do not authorize the city to recover attorney fees when delinquent sales taxes are paid under protest. Instead, they urge that attorney fees are recoverable only in a collection action. This assignment of error is without merit. South Central Bell Telephone Co. v. Traigle, 367 So.2d 1143, 1150-51 (La.1978), (Whether the suit is for collection or refund is not determinative. The collection of taxes is not complete until the state obtains full use of the funds); See also United Companies Printing Co. v. City of Baton Rouge, 569 So.2d at 189 (in which the Traigle rationale is applied to the city-parish ordinances in question).
Finally, plaintiffs contend that certain software purchased during the period covered by the assessment is intangible personal property not subject to tax. During the period in question, plaintiffs purchased approximately $243,880.00 in computer software from International Business Machines Corporation (IBM). IBM failed to collect and remit the appropriate sales tax, which subsequently resulted in defendant's assessment against plaintiffs for approximately $7,000.00 in overdue software taxes plus interest.
City-Parish sales tax is imposed on all "tangible personal property," meaning property that can be seen, weighed, measured, *197 felt, or touched, or is otherwise perceptible to the senses. A regulation published by the Louisiana Department of Taxation was issued to provide guidance in determining whether computer software is an intangible exempt from taxation. The regulation as written at the time in question provided that when the selling price of the software is separately set out on the dealer invoice and does not constitute an inseparable part of the hardware, the software shall not be subject to sales tax. In 1984, the regulation was rewritten to also exclude from taxation software that is "canned." In other words, software that is pre-written for use by more than one customer is exempt from tax. The amendment also provided that it is to be applied on a prospective basis application only and will not affect tax liability for periods prior to the effective date shown. Plaintiffs rely heavily on the state regulation as written prior to the 1984 amendment in their argument that software purchased from IBM is excluded from taxation.
At the hearing the regulations published by the Louisiana Department of Taxation were not entered into evidence. The only detailed discussion concerning the taxability of software came via the testimony of Gerald O. Boykin, defendant's supervisor in charge of auditing. Boykin testified that the city-parish used a canned/noncanned distinction to determine the taxability of software, apparently similar to the state regulations as written after the 1984 amendment.
The city-parish ordinances in question authorize the Director of Finance for East Baton Rouge Parish to make and publish reasonable rules for the enforcement and collection of sales taxes. Plaintiffs did not place into evidence any regulations which may have been promulgated by the Finance Director. Nor has plaintiff cited to us any authority by which the city-parish adopted the state regulations by reference.[2] Assuming for the sake of argument the correctness of plaintiffs' assertions concerning the applicability of the state regulations, we find that plaintiffs are still not entitled to the relief they seek.
If both elements contained in the regulation (as written prior to the 1984 amendment) are met, i.e., the selling price is separately set out on the dealer invoice and the software does not constitute an inseparable part of hardware, the software is considered an intangible not subject to sales tax. The cited regulation is considered an exemption from taxation. McNamara v. Electrode Corp., 418 So.2d 652, 662 (La.App. 1st Cir.), writ denied, 420 So.2d 986 (La.1982). Exemptions from taxation are to be strictly construed against the person claiming the exemption, and they must be clearly and affirmatively established. Bill Roberts, Inc. v. McNamara, 539 So.2d at 1229.
The price of the software was separately stated. However, plaintiffs presented virtually no specific evidence concerning the separability of the software from the hardware. On direct examination Henry McCall, senior vice president of United Companies Financial Corporation, stated without elaboration that the software was not taxable during the time period in question. When asked why McCall stated: "It would have been an intangible type property, I would imagine, or considered to be...." Most of the evidence actually presented occurred in the following exchange between McCall and Gordon Pugh, attorney for defendant.
Q. Now, you referred to, you might want to look at it again, to Exhibit-14, the IBM and that shows rental of equipment and software, what kind of software is that?
A. What do you mean "what kind of software"? I'm not sure what you're asking, sir.
Q. Was that software particularly designed for your company or was that what we call software that I could go buy myself and use if I had a similar computer?
*198 A. Well, any software normally, uh, in canned software has modification that has to be done to it.
Q. But this is canned software that you may add some modification to, after you buy it?
A. Just from these notations on this invoice, sir, I couldn't tell you yes or no. All I can tell from this, it is software and normally every time I've ever fooled with software there are modifications you make to software to fit your needs.
Q. I see. Modifications that you, United Company, makes to the software after you buy it, is that correct?
A. When you say "United Company" you're talking about our personnel or [are] you talking about outside personnel or whom?
Q. Well, either your personnel make the modifications or you bring in a hired consultant to do it, is that not correct?
A. Let's say modifications are made.
Q. But they're made after you buy this canned software from IBM, is that correct?
A. Yes, the modifications would be after delivery of the software to us.
McCall's testimony does not specifically address the particular software in question, but instead addresses software in general.
Similarly, Boykin's testimony provided no clear answers to whether the software is a central part of the computer. When questioned about why some software was taxed and other software was not, he replied that rented software is considered "canned" software and is subject to tax. When queried as to specific transactions, Boykin's responses indicated no independent recollection of the matter.
In order to qualify for the software exemption, plaintiffs had to prove that the software was part of the central or basic operational program of the computer; this they failed to establish clearly and unequivocally. Bill Roberts, Inc. v. McNamara, 539 So.2d at 1229.
Also, the trial court's ruling on this aspect of the case is most helpful:
Issue Two: What are the taxes owed on?
(A) Computer software; the plaintiffs argued that the software it purchased is an intangible item and the tax assessed on it was not due. The defendants argued that the tax was owed because canned software is a tangible item, not an intangible item.
Sales and use taxes are only assessed upon tangible personal property. There is a distinction between canned software and software specifically designed for a particular program. The former is considered tangible property while the latter is considered intangible property.
The record reflects that the software purchased by the plaintiffs was canned software. Therefore, it is tangible personal property and the sales and/or use tax was correctly assessed by the taxing authority.
This ruling was not clearly wrong.
The judgment of the trial court is hereby affirmed at plaintiff's cost.
AFFIRMED.
NOTES
[1] Additional nominal defendants are the Department of Finance, Revenue Division, Otha Lynn Scofield, individually and in his capacity as Director of Finance.
[2] Moreover, it is unlikely that Louisiana Code of Evidence article 202 grants us the discretion to take judicial notice of a regulation which is promulgated by a political subdivision of the state and which is generally not made widely available. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602967/ | 8 So.3d 749 (2009)
GOOD ACRES, INCORPORATED
v.
Robert J. JEMISON, II.
No. 2008-CA-0976.
Court of Appeal of Louisiana, Fourth Circuit.
March 11, 2009.
*750 Leonard M. Berins, Gerald Wasserman, Gerald Wasserman, LLC, Metairie, LA, for Good Acres, Incorporated.
Charles L. Rice, Jr., Jonathan R. Bourg, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., New Orleans, LA, for Robert J. Jemison, II.
(Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
TERRI F. LOVE, Judge.
This appeal arises from a suit on a promissory note. The promisor of the note filed a motion for summary judgment alleging that the note prescribed, which the trial court granted. For the reasons that follow, we find that genuine issues of material fact exist as to whether prescription on the note was interrupted and reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 7, 1998, Robert Jemison, II ("Mr. Jemison") signed a promissory note[1] ("Note") for $140,000 to Good Acres, Incorporated ("Good Acres"), which was paraphed to the credit sale of 2442 Dryades Street ("Property"). Mr. Jemison took title to the property in his own name, but the Property was intended for his corporation, On Call Nursing Agency & Association of New Orleans, Incorporated ("On Call"). Denise Holden ("Ms. Holden"), an executive for On Call, signed as a witness on the credit sale.
Upon conclusion of the sale, Robert Lucien, Sr. ("Mr. Lucien"), the president of Good Acres, and Mr. Jemison discussed future communications regarding the Property; whereby, Mr. Jemison allegedly stated that Ms. Holden would handle all payments and other issues regarding the Property. Additionally, Mr. Lucien alleges that Ms. Holden gave him her business card.
The Note required twenty-three monthly payments with a balloon payment of the balance due two years after the act of sale and a maturity date of May 1, 2000. All payments were made through 1999 from an On Call account. Thereafter, the last seven payments were made from an account possessed by Ms. Holden. In 2002, Mr. Lucien wrote a demand letter to Mr. Jemison; however, Ms. Holden responded. The last payment was received around the beginning of October, 2003. Mr. Lucien alleges that he was unable to communicate with Mr. Jemison, but was always redirected to Ms. Holden.
Good Acres filed suit on promissory note and recognition of mortgage on August *751 21, 2006, seeking the unpaid balance on the Note and "recognition of its vendor's lien and mortgage" upon the Property. Good Acres filed a supplemental and amended petition requesting reimbursement for $32,217.68, which was paid at a tax penalty sale to redeem the Property and preserve its rights against the Property. Mr. Jemison then filed a motion for summary judgment alleging that the Note had prescribed. The trial court agreed and granted Mr. Jemison's motion for summary judgment. This appeal followed.
STANDARD OF REVIEW
Appellate courts review summary judgments using the de novo standard of review. Weintraub v. State Farm Fire and Cas. Co., 08-0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196. Summary judgments are favored to "secure the just, speedy, and inexpensive determination of actions." Collins v. State Farm Ins. Co., 08-0790, p. 8 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, 55.
A motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). "[I]f the movant will not bear the burden of proof at trial," he must "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." La. C.C.P. art. 966(C)(2). Once the plaintiff/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).
The Louisiana Supreme Court held that a genuine issue is "an issue in which reasonable persons could disagree." King v. Parish Nat'l Bank, 04-0337 (La. 10/19/04), 885 So.2d 540, 546. Additionally, the Court stated that a material fact is "one in which `its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery.'" Id., quoting Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006.
PRESCRIPTION
Good Acres asserts that the trial court erred in finding that the Note had prescribed because it avers that Ms. Holden's payments interrupted prescription.
An action on a promissory note is "subject to a liberative prescription of five years," which "commences to run from the day payment is exigible." La. C.C. art. 3498. "[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within five years after the due date or dates stated in the note or, if a due date is accelerated, within five years after the accelerated due date." La. R.S. 10:3-118(a).
"Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." La. C.C. art. 3464. "Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways," like being "inferred from the facts and circumstances." Lake Providence Equip. Co. v. Tallulah Prod. Credit Ass'n, 257 La. 104, 241 So.2d 506, 509 (1970). Acknowledgment can also be made by an authorized agent of the debtor. Gibson Greeting Cards, Inc. v. Cabibi, 237 So.2d 897, 899 (La.App. 4th 1970).
*752 Payment on a debt represents acknowledgment. Ford Motor Credit Co. v. Brown, 32,995, p. 3 (La.App. 2 Cir. 4/5/00), 756 So.2d 654, 657. However, "[a] tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability." Lima v. Schmidt, 595 So.2d 624, 634 (La.1992).
The Note became exigible on May 1, 2000. Therefore, as the case sub judice was filed on August 21, 2006, the Note was prescribed on its face. However, Good Acres asserts that prescription on the Note was interrupted by Ms. Holden's payments. An acknowledgment of the debt may be inferred from the facts and circumstances of a case and can be made by an agent of the debtor. Ms. Holden possessed the authority to act on behalf of On Call regarding the Property, but the issue is whether she had continuing authority once the Note was in arrears and if Mr. Jemison acquiesced to the benefit of her payments.
Mr. Lucien's affidavit indicates that Mr. Jemison informed him at the act of sale that all matters regarding the Property would be handled by Ms. Holden. Mr. Lucien also asserts that all communication involving the Property was rerouted to Ms. Holden and that he was never allowed to speak with Mr. Jemison about the Note or payments. Instead, Mr. Lucien spoke with Ms. Holden or left messages for Mr. Jemison, which were returned by Ms. Holden.
Once the Note was in arrears, Mr. Lucien sent a demand letter to Mr. Jemison's home address in July, 2002. The demand letter garnered no response from Mr. Jemison. However, Ms. Holden wrote Mr. Lucien a letter in August, 2002, which referred to Mr. Lucien's previous demand letter to Mr. Jemison. In the letter, Ms. Holden discussed her desire to open a child care facility on the Property and her interest in "redoing" the mortgage on the Property to substitute her name for Mr. Jemison's, assuming all parties agreed. Subsequently, Ms. Holden began making payments to Mr. Lucien through October, 2003, from her own account. Mr. Jemison contends that the payments made by Ms. Holden were insufficient to interrupt prescription and the last payment made by him was in September, 1999.
Mr. Jemison alleges that Ms. Holden was acting in her own interest, which he stated is shown by the payments she made from her account. However, Mr. Jemison began using the Property again following Hurricane Katrina without reimbursement to Ms. Holden. Ms. Holden testified that she did not attempt to collect that money from Mr. Jemison. Mr. Jemison admitted that he was aware of Ms. Holden's payments to Good Acres, to which he did not object.
The conflicting affidavits reflect, at minimum, that an issue exists as to whether Ms. Holden was authorized to conduct business for Mr. Jemison in regards to the Property and the Note after Mr. Lucien mailed the demand letter. Ms. Holden stated in her deposition that Mr. Jemison gave her the letter because he told her to deal with the Property. Thus, if Ms. Holden was authorized to handle all matters regarding the Property initially, the act of giving the demand letter to Ms. Holden, her payments on the Note, coupled with his knowledge of and lack of objection to the payments, could constitute tacit acknowledgment. Because reasonable minds could disagree on an essential element of Good Acres' claim, the alleged tacit acknowledgment, we find that genuine issues of material fact exist. Good Acres might not be able to prevail at trial, but, as this is a motion for summary judgment, a genuine *753 issue of material fact connotes that the matter should proceed in the trial court.
DECREE
For the above mentioned reasons, we find that genuine issues of material fact as to whether the Note prescribed and reverse.
REVERSED.
McKAY, J., concurs.
McKAY, J., concurs.
I agree with the majority that genuine issues of material fact exist in this case and that summary judgment was not appropriate.
NOTES
[1] The record reflects that the Note was lost and is evidenced by the notations in the credit sale. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602969/ | 577 So.2d 650 (1991)
Party Ann ANDREWS, Appellant,
v.
STATE of Florida, Appellee.
No. 89-02395.
District Court of Appeal of Florida, First District.
March 28, 1991.
Rehearing Denied May 2, 1991.
*651 Barbara M. Linthicum, Public Defender, and David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Cynthia Shaw, Asst. Atty. Gen., Tallahassee, for appellee.
BOOTH, Judge.
This cause is before us on appeal from a judgment and sentence for second-degree murder. The primary issues are (1) whether the evidence was sufficient to sustain appellant's conviction for second-degree murder, and/or (2) whether appellant was entitled to a judgment of acquittal on the basis of her claim that she acted in self-defense when she killed her husband Reginald.
At the time of his death in 1988, Reginald had been married to appellant for four years. After the parties' married, Reginald began selling off household appliances, furniture, and appellant's belongings to support his crack cocaine addiction. He also began beating appellant. During the course of the marriage, Reginald regularly beat appellant as frequently as every other weekend, punching her with his fists or stomping on her with his shoes. Several witnesses testified to seeing Reginald punch, beat, or stomp appellant. Appellant's sister testified that she had personally seen Reginald punch or stomp appellant on 20 occasions and try to run her over with his truck. There was evidence that during the course of the marriage, appellant sought treatment at the emergency room countless numbers of times and was hospitalized on three or four occasions as a result of the beatings by Reginald. After a particularly severe beating in November of 1985, appellant attempted suicide. The hospital records which followed this suicide attempt were admitted into evidence.[1]
It was against this background of extreme "domestic" violence that the events giving rise to the last, fatal encounter occurred, late on October 30 and in the early morning hours of October 31, 1988. On October 30, 1988, appellant, her two nieces, and a female acquaintance gathered in a Pensacola lounge. The women had been on a car trip to Alabama and were drinking. Subsequently, Reginald arrived at the parking lot of the lounge in the company of two women. An argument ensued between him and appellant, which resulted in his hitting appellant with his fists in the face and side of the head several times, knocking her down. Reginald started choking appellant, and she burned his arm with her cigarette. When one of appellant's nieces tried to pull him off appellant, he slapped the niece hard. Reginald wandered off the premises. Some time thereafter, appellant left, going to her sister's house, and then taking a taxi home alone.
Appellant testified that she was afraid Reginald would beat her again and hoped to get into the house without waking him. However, as she approached the house, she saw Reginald watching her from a window. After some hesitation, she walked around to the back to wait for him to fall asleep. But then, she heard the front door open and close, and Reginald came into the back yard and said to appellant, "You're not with your nieces now. What are you going to do now?" He then said, "I'm through. This is it. I'm through with it." Hearing this, appellant quickly ran to a neighboring yard. There she waited, hoping that Reginald would calm down. Finally, she returned to her back yard and, according to her testimony, entered the house through the rear door.
By this time, Reginald had gone back inside the house. He approached appellant and began what appeared to her to be an amorous advance. He partially undressed her and then suddenly became angry and grabbed her violently. Appellant broke from his grip and, only partially clothed, ran from the house through the front door. Reginald pursued her and caught her in an area of the yard near his truck. There, he *652 began to choke her. At some point, he took out his knife, gave it to her, saying to appellant, "You can use that if you want to." Either Reginald or appellant put the knife on the truck bed rail, and at some point it fell to the ground. Reginald hit appellant, knocking her down next to the truck. Reginald followed her and began again to choke her. Appellant testified she thought Reginald would kill her. She grabbed the knife and stabbed Reginald once. The single wound, one-half inch long, fatally pierced Reginald's aorta, and he died within minutes. Meanwhile, appellant ran from her yard and hid under a tree on the adjoining property. Subsequently, she went to the house of her sister. The knife was never recovered.
In sum, appellant adduced evidence that Reginald had beaten and injured her on many occasions in the past and had beaten her on the evening of his death. She testified to her fear of another beating and how she tried to hide. When Reginald caught her in the yard with a knife in his possession and began choking her, she was afraid he was going to be kill her. At that time, she reached for the knife that had fallen to the ground and stabbed him in self-defense.
Appellant was convicted of murder in the second degree. In order to sustain appellant's conviction, the State had the burden of proving beyond a reasonable doubt that appellant unlawfully killed Reginald by an act imminently dangerous and evincing a depraved mind regardless of his life, although without any premeditated design to effect his death. § 782.04, Fla. Stat. (1987). We have no difficulty concluding that the State's evidence was insufficient to have allowed the jury to return a verdict of second-degree murder. We therefore reverse as to the first issue.
The next issue is whether there was evidence sufficient to overcome appellant's defense of self-defense. While appellant had the burden of presenting evidence that she acted in self-defense, the burden of proving guilt beyond a reasonable doubt never shifted from the State. Bolin v. State, 297 So.2d 317, 319 (Fla. 3d DCA 1974), cert. denied, 304 So.2d 452 (Fla. 1974). Stated another way, the State had to prove beyond a reasonable doubt that appellant did not act in self-defense when she killed Reginald. State v. Bobbitt, 389 So.2d 1094, 1098 (Fla. 1st DCA 1980), quashed on other grounds, 415 So.2d 724 (Fla. 1982), opinion on remand, 420 So.2d 362, 363 (Fla. 1st DCA 1982); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980); McKnight v. State, 341 So.2d 261 (Fla. 3d DCA 1977); cert. denied, 348 So.2d 953 (Fla. 1977); Bacom v. State, 317 So.2d 148 (Fla. 1st DCA 1975).
In Diaz, supra at 980, wherein the defendant was the only witness to the killing, the court ruled:
The defendant's direct testimony concerning the victim's threats and his menacing approach together with the defendant's assertion that he was in fear of his life made out a prima facie case of self defense under Section 776.012, Florida Statutes (1977). The state presented no evidence to rebut the defendant's direct testimony that he acted in self defense nor was it able to diminish his testimony on cross-examination. Under these circumstances, only those inferences properly arising out of the state's testimony in chief could be considered to rebut the defendant's assertion of self defense. In this posture, that evidence, circumstantial in its entirety, was woefully inadequate to rebut the direct testimony that the defendant committed homicide in self defense.
Accord, Ferguson, supra at 165.
The State's evidence of guilt fell short of its burden of proof, and appellant's motion for judgment of acquittal should have been granted. The testimony of Deputy Wasdin that he did not see any footprints near appellant's truck other than his own and those of the other deputy, is not inconsistent with appellant's testimony that a struggle took place.[2] In fact, Deputy *653 Wasdin found no footprints anywhere, yet the parties had admittedly been in the yard. Likewise, Deputy Wasdin's testimony that he "did not recall" seeing physical injuries to appellant at the time of her arrest is not probative that no physical struggle occurred.[3] That Deputy Wasdin observed cobwebs and draft-blocking material at the back door of appellant's home, indicating the door may not have been used recently, is not a significant contradiction since whether appellant went in the back door to the house prior to the struggle in the yard is not shown to be material. These and other inconsistencies relied on by the State are immaterial in that they do not substantially contradict appellant's claim of self-defense. See, e.g., State v. Law, 559 So.2d 187, 189 (Fla. 1989).
In summary, the State's evidence was insufficient to allow a jury to conclude that, beyond a reasonable doubt, appellant did not act in self-defense. We therefore reverse the instant judgment and sentence, and remand this cause with directions to discharge appellant.
SMITH, J., and WENTWORTH, Senior Judge, concur.
NOTES
[1] Appellant's counsel did not seek to establish "spouse abuse syndrome." The court excised parts of hospital records which indicated appellant was the victim of spouse abuse. Those evidentiary rulings are not issues on appeal. The State, on the other hand, did not contest appellant's evidence of abuse.
[2] Photographs taken November 1, more than a day after the homicide and after a rain storm, were admitted into evidence as showing the scene.
[3] Hospital records show that appellant is a black woman. There was no evidence that, given appellant's skin type and coloration, bruises or other similar injuries would have been readily visible even had Deputy Wasdin specifically looked for them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602971/ | 8 So.3d 175 (2009)
Naomi Ruth McDONALD and Janella Lavette McDonald
v.
MEMORIAL HOSPITAL AT GULFPORT and Dr. Juan Carlos Teran-Benitez.
Naomi Ruth McDonald and Janella Lavette McDonald
v.
Memorial Hospital at Gulfport and Dr. Juan Carlos Teran-Benitez.
Nos. 2007-CA-01743-SCT, 2007-CA-02169-SCT.
Supreme Court of Mississippi.
April 30, 2009.
*177 F. Gerald Maples, Attorney for Appellants.
Shellye Vines McDonald, Gulfport, William E. Whitfield, III, Kimberly S. Rosetti, Biloxi, Attorneys for Appellees.
Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
CARLSON, Presiding Justice, for the Court.
¶ 1. Naomi Ruth McDonald filed this wrongful-death/medical-malpractice action against several medical providers arising out of the treatment and care of her husband, Janella Lavette McDonald. Defendant Memorial Hospital at Gulfport filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment, asserting that McDonald's claims were time-barred under the Mississippi Tort Claims Act. Defendants Dr. Juan C. Teran-Benitez and Gastroenterology Center, P.A., filed a Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment. The Circuit Court for the First Judicial District of Harrison County ultimately granted both motions, thus dismissing these defendants from the suit. Aggrieved, McDonald appealed both final judgments, properly certified pursuant to Mississippi Rule of Civil Procedure 54(b), and this Court consolidated the appeals. Finding no error, we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 2. On March 7, 2003, Janella Lavette McDonald (Mr. McDonald) was admitted to Memorial Hospital at Gulfport (MHG) by Dr. David LaRosa for treatment of pneumonia. Dr. Frederick Pakron was consulted, and on March 14, 2003, Mr. McDonald was discharged from MHG, and Dr. Pakron took over Mr. McDonald's care, admitting him to Select Specialty Hospital (SSH). SSH is a long-term, acute-care hospital located on the fifth floor of MHG.
¶ 3. On March 24, 2003, while still a patient at SSH, Mr. McDonald experienced nausea and vomiting of brown material or blood, and Dr. Juan C. Teran-Benitez (Dr. Teran-Benitez) was consulted. Dr. Teran-Benitez ordered an endoscopic procedure, and Mr. McDonald was sent to the endoscopy suite at MHG, where Dr. Teran-Benitez attempted to perform an esophagogastroduodenoscopy (EGD). Foreign or coffee-ground-appearing material was encountered upon insertion of the scope. Due to Mr. McDonald's Do-Not-Resuscitate (DNR) status as noted on his chart, Dr. Teran-Benitez and members of the lab staff consulted Mr. McDonald's wife, Naomi Ruth McDonald, regarding the insertion of an endotracheal tube to protect Mr. McDonald's airway. Mrs. McDonald refused, and Mr. McDonald expired in the endoscopy lab on March 24, 2003.
¶ 4. Naomi Ruth McDonald (McDonald), as widow of Janella Lavette McDonald, deceased, and as personal representative of statutory heirs, originally filed this wrongful-death and medical-malpractice action on June 9, 2004. Subsequent amended complaints also were filed, and in *178 the end, several medical providers were named as defendants. McDonald gave previous notice of her claim to MHG on March 22, 2004, pursuant to the Mississippi Tort Claims Act, more specifically, Mississippi Code Annotated Section 11-46-11(1) (Rev.2002).
¶ 5. On July 25, 2005, McDonald designated as experts Dr. Rodrigo Galvez, Dr. George Nichols, and Judith Kidd, a registered nurse. On December 9, 2005, Dr. Teran-Benitez and Gastroenterology Center, P.A., filed their Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment, asserting that Dr. Galvez and Dr. Nichols were not qualified to offer opinions regarding the standard of care for a gastroenterologist. Also on December 9, 2005, MHG filed its Motion to Dismiss or in the Alternative Motion for Summary Judgment, stating that McDonald did not substantially comply with Mississippi Code Section 11-46-11(3). The Circuit Court for the First Judicial District of Harrison County, Judge Stephen B. Simpson presiding, conducted a hearing on the aforementioned motions. The trial court subsequently granted summary judgment in favor of Dr. Teran-Benitez and Gastroenterology Center, P.A., and MHG, and entered final judgments consistent with the grant of summary judgment.
¶ 6. More specifically, as to Dr. Teran-Benitez and Gastroenterology Center, P.A., Judge Simpson entered a judgment of dismissal which stated, inter alia, that the judgment was entered pursuant to the provisions of Mississippi Rule of Civil Procedure 54(a), and that, pursuant to the provisions of Mississippi Rule of Civil Procedure 54(b), the final judgment should be entered as to Dr. Teran-Benitez and Gastroenterology Center, P.A., "as there is no just reason for delay." As to MHG, Judge Simpson entered a judgment of dismissal which stated, inter alia, that MHG's "[m]otion to [d]ismiss or in the alternative for [s]ummary [j]udgment is granted and final judgment is hereby entered, as there is no just reason for delay."
¶ 7. From these final judgments entered in favor of Dr. Teran-Benitez, Gastroenterology Center, P.A., and MHG, and properly certified pursuant to Mississippi Rule of Civil Procedure 54(b), McDonald appealed to us asserting two issues: (1) whether the trial court erred in dismissing the plaintiffs' claims against MHG based on the one-year statute of limitations set forth in Mississippi Code Section 11-46-11(3); and (2) whether the trial court erred in ruling the plaintiffs' expert witnesses were not qualified to testify regarding the standard of care applicable to Dr. Teran-Benitez, and in consequently granting the motion for summary judgment, entering a judgment of dismissal in favor of Dr. Teran-Benitez and Gastroenterology Center, P.A.
DISCUSSION
¶ 8. This Court's well-established standard of review in reviewing a trial court's grant or denial of summary judgment is de novo. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007) (citing Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007)). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). "We will not reverse the trial court's decision unless it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party." Moore v. Mem'l Hosp., 825 So.2d 658, 663 (Miss.2002) (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, *179 207 (Miss.1999)). However, "[a]bsent an abuse of discretion, a judge's determination as to the qualifications of an expert witness will remain undisturbed on appeal." Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007) (citing Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1357 (Miss.1990) (citation omitted)). This Court stated:
The law empowers a trial judge to determine whether a proffered expert is qualified to testify and does not restrict exercise of this power to the trial stage only. That is, a judge has as much power to resolve doubts on qualifications of proffered experts during the summary judgment stage as he has during the trial stage. And of course, the standard which this Court must apply when reviewing a trial judge's decision to disqualify remains unchanged-notwithstanding that the decision was made during the summary judgment stage. That is, this Court will determine whether the trial judge abused his discretion.
Id.
I. WHETHER THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CLAIMS AGAINST DEFENDANT MEMORIAL HOSPITAL AT GULFPORT BASED ON THE ONE-YEAR STATUTE OF LIMITATIONS SET FORTH IN MISSISSIPPI CODE SECTION 11-46-11(3).
¶ 9. The trial court granted MHG's Motion to Dismiss or in the Alternative Motion for Summary Judgment; thus, dismissing the action against MHG as time-barred pursuant to Mississippi Code Section 11-46-11(3), which states in part:
All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (120) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim....
Miss.Code Ann. § 11-46-11(3) (Rev.2002). The trial court determined that "any negligence for which MHG would be liable had to have occurred on or before March 14, 2003," the date on which Mr. McDonald was discharged from MHG and admitted to SSH. The trial court ruled that since MHG did not receive notice of the claim until March 22, 2004, a little more than one year after Mr. McDonald's discharge from MHG, the action was barred by the statute of limitations.
¶ 10. However, since the trial court did not address the discovery rule with respect to section 11-46-11(3), we must do so today for the sake of clarity. This Court has held that a discovery rule applies to claims under the Mississippi Tort Claims Act (MTCA). See Caves v. Yarbrough, 991 So.2d 142, 154 (Miss.2008) ("we therefore shall continue to recognize a discovery rule with respect to Section 11-46-11(3)"). In Caves, decided after the trial judge's entry of judgments in today's case, this Court stated:
We hold today that the MTCA's one-year statute of limitations begins to run when the claimant knows, or by exercise of reasonable diligence should know, of both the damage or injury, and the act or omission which proximately caused it. We further hold that the finder of fact *180 (in this case, the trial judge) must decide when those requirements are satisfied.
Caves, 991 So.2d at 155. Therefore, when analyzing claims under the MTCA one-year statute of limitations, trial courts must employ the discovery rule. When applying this rule to the facts of the case sub judice, it is evident that McDonald complied with the one-year statute of limitations. McDonald assuredly had no way of knowing "of both the damage or injury, and the act or omission which proximately caused it" until at least March 24, 2003, when her husband vomited blood and eventually died later that day. Id. McDonald submitted the statutory notice to MHG on March 22, 2004; so, even assuming arguendo that she discovered an actionable injury on March 24, 2003, McDonald complied with the one-year statute of limitations imposed by Section 11-46-11(3). Thus, the trial court erred in ruling that McDonald's claims were barred based on the statute of limitations.
¶ 11. However, the trial court correctly determined that "[w]ithout a genuine issue of material fact as to causation established by experts plaintiff cannot survive summary judgment." McDonald designated three experts: Judith Kidd, Dr. Galvez, and Dr. Nichols. As addressed by the trial court, Nurse Judith Kidd testified via deposition to alleged breaches of nursing standards of care and their application to Mr. McDonald's treatment while a patient at MHG, but she failed to address causation. In her deposition testimony, Nurse Kidd (a registered nurse certified as a medical/surgical nurse and as a gerontological nurse) stated "I don't speak to medical causation," acknowledging that she was not competent to testify as to medical causation. The two other experts, Dr. Galvez and Dr. Nichols, did not offer testimony regarding any alleged breach by MHG.
¶ 12. In order to establish a prima facie case of medical negligence, McDonald must prove "that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury, and; (4) the plaintiff was injured as a result." Delta Reg'l Med. Ctr. v. Venton, 964 So.2d 500, 504 (Miss. 2007) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). As a general rule, expert testimony must be used in proving these elements. "Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries." Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992) (citing Latham v. Hayes, 495 So.2d 453 (Miss.1986)). Although McDonald offered evidence regarding breach of duty, she failed to produce any expert testimony that MHG or its agents were the cause of Mr. McDonald's injuries or death. As a result, the trial judge did not err in finding that there was no genuine issue of material fact as to causation, and the trial court thus properly granted summary judgment in favor of MHG.
¶ 13. We thus find this issue to be without merit.
II. WHETHER THE TRIAL COURT ERRED IN RULING PLAINTIFF'S EXPERT WITNESSES UNQUALIFIED TO TESTIFY REGARDING THE STANDARD OF CARE APPLICABLE TO DR. TERAN-BENITEZ, AND CONSEQUENTLY GRANTING DR. TERAN-BENITEZ'S MOTION FOR SUMMARY JUDGMENT.
*181 ¶ 14. McDonald argues that the trial court misapplied Mississippi Rule of Evidence 702 in granting the Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment filed by Dr. Teran-Benitez and Gastroenterology Center, P.A. Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Miss. R. Evid. 702.
¶ 15. Expert testimony should only be admitted if it withstands the two-prong inquiry under Rule 702. "First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Second, the witness's scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue." Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 35 (Miss.2003) (citing Miss. R. Evid. 702) (citation omitted). Generally, it is not required that an expert in a medical-malpractice case be of the same specialty as the doctor about whom the expert is testifying. Hubbard, 954 So.2d at 957 (Miss. 2007).[1] "It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of admissibility." Id. (quoting West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995)). However, the expert still must show satisfactory familiarity with the specialty of the defendant doctor in order to testify as to the standard of care owed to the patient. Id. (citing West, 661 So.2d at 718-19).
¶ 16. McDonald designated Dr. Rodrigo Galvez and Dr. George Nichols to offer testimony regarding the standard of care applicable to Dr. Teran-Benitez. In ruling on the motion, the trial court determined that the "[p]laintiffs have offered no evidence that either of their experts have any familiarity with the standard of care applicable to Dr. Teran, a gastroenterologist." Dr. Galvez, a board-certified pathologist and psychiatrist, has practiced pathology since 1968 and both pathology and psychiatry since 1981. He has never practiced in the field of gastroenterology, and since medical school has not performed any procedures in this field other than one colonoscopy in 1976. Further, Dr. Galvez has never admitted a patient to an acute-care facility other than a psychiatric facility, and he has not performed an EGD, the procedure Mr. McDonald was undergoing, since medical school in the 1960s. He last intubated a patient in 1963. Dr. Galvez also has never been involved in a procedure with a DNR patient, where consent from a family member was necessary to take action to save the patient's life.
¶ 17. In order to testify, Dr. Galvez, while not required to be a gastroenterologist, had to at least be familiar with the standard of care to which a gastroenterologist is held. See Troupe v. McAuley, 955 So.2d 848, 856-57 (Miss.2007). Based on Dr. Galvez's deposition testimony and curriculum vitae, the trial court found that Dr. Galvez was not familiar with the proper standard of care and had not exercised the same level of intellectual rigor that characterizes the practice of an expert in the field of gastroenterology. Poole v. Avara, *182 908 So.2d 716, 724 (Miss.2005) (citing McLemore, 863 So.2d at 37-38).
¶ 18. Regarding the standard of care applicable to Dr. Teran-Benitez, Dr. Nichols, a pathologist, testified in his deposition that he (Dr. Nichols) had never treated a patient in Mr. McDonald's situation. Dr. Nichols also admitted that "I have never written DNR orders or been involved in those discussions about anyone other than my own relatives." McDonald presented no evidence that Dr. Nichols was familiar with the standard of care attributable to gastroenterologists. When questioned about his standard-of-care testimony, Dr. Nichols responded that he was not really there to offer standard-of-care testimony "other than standard of care for a proven practicing physician" ... "a plain M.D." Dr. Nichols offered no testimony that he was competent to testify to the standard of care of a gastroenterologist. As this Court stated in Hubbard, "[i]t is illogical to allow a proposed expert to testify as to the standard of care of a specialty with which he has demonstrated no familiarity." Hubbard, 954 So.2d at 958.
¶ 19. The trial court did not abuse its discretion in granting the Motion to Strike Expert Witnesses of Plaintiff filed by Dr. Teran-Benitez and Gastroenterology Center, P.A. The trial court committed no error in ruling that the "experts offered no testimony that convinces this Court that either of them is competent to testify as to that standard of care." Thus, the trial court did not err in granting summary judgment. As previously discussed, as a general rule, expert testimony must be used in proving the elements of medical negligence. Absent expert testimony, there is no triable issue of fact with regard to the alleged medical negligence of Dr. Teran-Benitez. See Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346 (Miss. 1990).
¶ 20. This issue is without merit.
CONCLUSION
¶ 21. For the reasons stated, the final judgments of dismissal entered in favor of Memorial Hospital at Gulfport, Dr. Juan Carlos Teran-Benitez, and Gastroenterology Center, P.A., by the Circuit Court for the First Judicial District of Harrison County are affirmed.
¶ 22. AFFIRMED.
WALLER, C.J., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.
KITCHENS, Justice, Concurring in Part and Dissenting in Part:
¶ 23. I agree with the majority's analysis regarding Memorial Hospital at Gulfport, insofar as today's decision holds that McDonald's case is not time-barred by virtue of the discovery rule but that the plaintiff offered no evidence of causation against MHG. However, I find fault with the majority's analysis concerning expert witnesses, and therefore, I dissent from the determination that the plaintiff failed to offer qualified experts.
¶ 24. It is undisputed that, generally speaking, Mississippi law requires medical-malpractice plaintiffs to use expert witnesses to "identify and articulate the requisite standard that was not complied with... [and] also [to] establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries." Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992). The use of expert witnesses in Mississippi courtrooms is governed by *183 Mississippi Rule of Evidence 702, which defines an expert as one "qualified ... by knowledge, skill, experience, training, or education" who may impart that expertise "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Miss. R. Evid. 702. Rule 702 serves only to distinguish fact witnesses from witnesses with some degree of specialized knowledge who may provide assistance to jurors in their labors as finders of fact. The rule serves to separate witnesses possessed of relevant factual information from those who, because of special knowledge about a particular subject are, for evidentiary purposes, deemed experts and are allowed to give opinions.
¶ 25. The courts of this state and others acknowledge this principle through the recognition that a plaintiff's medical-expert witness need not be "of the same specialty as the doctor about whom the expert is testifying," Hubbard v. Wansley, 954 So.2d 951, 957 (Miss.2007), because "[i]t is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of admissibility." Id. (quoting West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995)). Rule 702 is broadly constructed and broadly construed. It "seeks to encourage the use of expert testimony in non-opinion form when counsel believes the trier can draw the requisite inference." Miss. R. Evid. 702 cmt. (emphasis added). It does not purport to restrict expert testimony to the domain of a tiny class of geniuses, but merely to differentiate between experts and laypersons. Rule 702 sets a "low threshold for competency" in favor of courts' "preference for leaving matters of credibility to the judgment of the jury...." State v. Calliham, 2002 UT 86, ¶ 27, 55 P.3d 573, 583 (Utah 2002).
¶ 26. Despite such traditionally broad treatment, in recent years, this Court consistently has tightened the requirements for expert testimony in medical-malpractice cases. See Hubbard, 954 So.2d at 966-67 (Diaz, J., dissenting). In 1987, for example, the Court followed the consensus approach, quoting the third edition of McCormick on Evidence, by holding that although expert testimony was required, "a specialist in a particular branch within a profession will not be required." Brown v. Mladineo, 504 So.2d 1201, 1202 (Miss. 1987). Today, the national consensus remains broadly permissive of expert testimony; a party seeking to admit expert testimony need only demonstrate "that the witness has sufficient skill or knowledge related to the pertinent field or calling that his inference will probably aid the trier in the search for truth." McCormick on Evidence § 13 (Kenneth S. Broun ed., 6th ed.2006) (emphasis added). As recently as 2002, Mississippi courts treated Rule 702 broadly enough to permit "a physician in one specialty [to] testify as to the standard of care in another specialty, provided he is familiar with the standards of that other specialty." Robert A. Weems & Robert M. Weems, Mississippi Law of Torts § 4:1, at 48 (2002). This rule is as pragmatic as it is principled. In addition to adhering to the broad construction of Rule 702, courts' permissive attitudes toward expert witnesses in medical-malpractice suits recognize "the traditional reluctance of members of the profession to testify against each other, and the difficulty of securing the testimony of a specialist in the same field as the defendant." Bender on Medical Malpractice § 29.02(3) (2008).
¶ 27. More recently, though, Mississippi's longstanding, broad treatment of Rule 702 has been cast aside in favor of increasingly demanding requirements. Although our most recent decisions purport to adhere to the traditional standard, this Court *184 has demanded more and more that "an expert ... be of the same specialty as the doctor about whom the expert is testifying," while professing that such a rigid standard "is generally not required." Hubbard, 954 So.2d at 957.
¶ 28. In 2004, for example, the Court found no error in a trial court's decision to allow a defendant's expert witness because all that was required to satisfy Rule 702 was "something more than unsupported speculation of subjective belief that is grounded in methods and procedures of science." Poole v. Avara, 908 So.2d 716, 723 (Miss.2005). Whatever imperfections existed in the witness's qualifications, the Court reasoned, would be properly addressed during cross-examination. Id. at 724. That same holding described Rule 702 as "unquestionably flexible." Id. at 723. But only a year later, the Court found that a trial court correctly disqualified a family physician from testifying for a plaintiff about dialysis, a common procedure, because the witness "did not have the specialized knowledge to assist the trier of fact to understand the evidence...." Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117, 121 (Miss.2005). By 2007, the Court's application of our "unquestionably flexible" Rule 702 had grown so rigid that it found no error in a trial court's decision to disqualify a seasoned neurologist seeking to testify about a neurological condition because, according to the Court, the plaintiff offered no evidence that this neurologist "ha[d] any familiarity with" the relevant neurological condition. Hubbard, 954 So.2d at 958.
¶ 29. Our case law now stands witness to the simple truth that Mississippi no longer adheres to the national standard. The restrictive approach enunciated in Hubbard, and built upon today, conflicts with the expert-witness evidentiary rules of virtually every state in the country and may very well be the most restrictive approach in the nation. While this Court now requires nearly identical curricula vitae between defendant and witness, other states generally accept witnesses based not on their particular specialties but on the extent of their knowledge. In Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989) (superseded by statute on other grounds), the Connecticut Supreme Court allowed a neurologist to testify as an expert against a general surgeon, despite the fact that the witness was not a professional clone of the defendant. "[T]he crucial question is whether the expert knows what the standards of practice are." Id. at 542, 551 A.2d 1254 (citations omitted). In Roberts v. Warren, 791 So.2d 1278 (La.2001), the Louisiana Supreme Court found an oral surgeon qualified to testify as an expert in a dental malpractice trial, not because the expert was familiar with the relevant procedure or even because of his particular expertise with oral surgery, but because "where there is a uniform nationwide method of performing a particular medical procedure, an expert having knowledge of such method is qualified to testify, and the testifying expert in this circumstance is not constrained by the need to have practiced... under similar circumstances." Id. at 1280. Georgia law, similarly, does not require an expert witness in a medical-malpractice case to be a specialist in the same area of medicine as the defendant. Rixey v. West Paces Ferry Hosp., Inc., 916 F.2d 608, 612 (11th Cir.1990) (applying Georgia law described in Beatty v. Morgan, 170 Ga.App. 661, 317 S.E.2d 662, 664 (1984)). Florida has permitted a neurosurgeon to testify against a gynecologist, Brown v. Sims, 538 So.2d 901 (Fla.Dist.Ct. App.1989), just as the South Carolina Supreme Court found an emergency medical technician qualified to testify to the standard of care owed by a defendant anesthesiologist for the latter's performance during *185 an intubation. Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 487 S.E.2d 596 (1997). "A medical practitioner's experience teaching and interacting with persons in the applicable specialty are sufficient to support his qualification as an expert. Qualification depends on the particular witness' reference to the subject." Id. at 253, 487 S.E.2d 596.
¶ 30. Simply put, this Court has abandoned adherence to the traditional interpretation of Rule 702. Gone are the days when this Court found Rule 702 satisfied when an expert was qualified to testify with an opinion grounded in "something more than unsupported speculation of subjective belief that is grounded in methods and procedures of science," Poole v. Avara, 908 So.2d 716, 723 (Miss.2005), and this Court seems increasingly disinterested in the plain language of the rule itself, which clearly notes that expert witnesses may be qualified not only by virtue of experience, but also by knowledge, skill, training, or education. Miss. R. Evid. 702. In the case at bar, any deficiencies in these experts' knowledge could have been exposed by competent cross-examination.
¶ 31. Plaintiff's expert witnesses in the instant case undoubtedly satisfy Mississippi's traditional requirements for qualification of expert witnesses. Dr. Rodrigo Galvez, one of McDonald's proffered witnesses, testified in his deposition that he has knowledge of ear, nose, and throat treatment dating back to his days as an intern in New York in the 1960s. He performed intubations and EGDs during his time in medical school, and he has experience charting patients under do-not-resuscitate status and explaining that status to patients' families. Likewise, Dr. George Nichols is also qualified to testify under the Court's longstanding Rule 702 treatment. As a forensic pathologist, Nichols's curriculum vitae undoubtedly does not parallel Teran's, but he deposed that he is well studied in the area of "human biologic fluids ... [,] how they relate to disease or to health ... [and] how a person goes from alive to dead." Nichols and Galvez certainly have the "knowledge, skill, experience, training, or education" necessary to "assist the trier of fact to understand the evidence...." Miss. R. Evid. 702.
¶ 32. But even under the Court's new, overly restrictive approach legislated in Hubbard, the proffered experts still should have been permitted to testify. As forensic pathologists, Galvez and Nichols both are deeply experienced in the innumerable causes of death that human beings encounter. In Hubbard, this Court found "no evidence that [the proffered expert witness] has any familiarity with the standard of care that would be required...." Hubbard, 954 So.2d at 958 (emphasis added). No such lack of evidence exists in this case. As Galvez told his deposer, "I know the lung pathology very well, but I wouldn't dare to treat anybody with a lung problem. But I know when the treatment is good or causes some damage to the patient; that's part of pathology." As was the case in the Pennsylvania case of Smith v. Paoli Memorial Hospital, 885 A.2d 1012 (Pa.Super.2005), the experts' bodies of knowledge overlap the relevant area of medical care to a sufficient degree to make their testimony helpful to the trier of fact. Unless we are prepared again to trim back Rule 702 and, for all practical purposes, jettison the notion that "the artificial classification by title ... should [not] govern the threshold question of admissibility," Hubbard, 954 So.2d at 957, then it cannot be said that McDonald's experts lacked the "knowledge, skill, experience, training, or education" to "assist the trier of fact to understand the evidence...." Miss. R. Evid. 702.
*186 ¶ 33. A trial court necessarily abuses its discretion when it applies an incorrect legal standard. See Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989). In this case, the trial court failed to look beyond the proffered experts' professional titles to consider knowledge, training, or education. As a violation of the plain language of Rule 702, this oversight amounts to an abuse of discretion.
¶ 34. Therefore, I would reverse the trial court's grant of summary judgment in favor of Dr. Teran and remand McDonald's relevant claims for trial. From my learned colleagues' decision to the contrary, I respectfully dissent.
GRAVES, P.J., JOINS THIS OPINION.
NOTES
[1] With all due respect, we disagree with the separate opinion's interpretation of Hubbard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602994/ | 418 F.Supp. 1037 (1976)
W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Plaintiff,
v.
BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PITTSBURGH, Defendant.
Civ. A. No. 76-239.
United States District Court, W. D. Pennsylvania.
August 25, 1976.
Marshall Harris, Regional Solicitor, U. S. Dept. of Labor, Philadelphia, Pa., Blair Griffith, U. S. Atty., Pittsburgh, Pa., for plaintiff.
Howard A. Specter, Pittsburgh, Pa., for intervenor.
Walter P. DeForest, Justin M. Johnson, Pittsburgh, Pa., for School District of Pittsburgh.
OPINION
WEBER, District Judge.
On February 23, 1976, the Secretary of Labor filed a complaint in this court against the Pittsburgh School District asserting a cause of action under the Fair Labor Standards Act of 1938, 29 U.S.C. § 217. The action concerns the equal pay provisions of the Act. Contemporaneously with the filing *1038 of the complaint a Consent Judgment signed by the counsel for the parties was presented to the court and approved and signed. Later all employees were notified by mail of the amount of back wages to which they were entitled under the Consent Judgment and were asked to return these forms to facilitate distribution of the funds. One of the parties to whom such notice was mailed is the proposed Intervenor.
Some four and one-half months later a petition was filed on behalf of one of those parties asking for leave to intervene in the litigation. The ground asserted in the petition for leave to intervene was the inadequacy of the award to the Intervenor.
Both plaintiff and defendant oppose the motion to intervene on the grounds that the statute terminates the right of any employee to bring an action upon the filing of a complaint by the Secretary of Labor.
Section 17 of the Act (29 U.S.C. § 217) grants to the United States District Courts jurisdiction to restrain violations of the Act and restrain the withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under the Act.
Section 16(b) and Section 16(c) provides for enforcement of the Act by civil actions. Section 16(b) provides in its pertinent parts as follows:
Action to recover such liability may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought . . . The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 17 in which restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be . .
Section 16(c) provides in pertinent part:
The Secretary is authorized to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee . . . The Secretary may bring an action in any court of competent jurisdiction to recover the amount of the unpaid minimum wages or overtime compensation . . .. The right provided by subsection (b) to bring an action by or on behalf of any employee and of any employee to become a party plaintiff to any such action shall terminate upon the filing of a complaint by the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation . . .
Despite the apparently clear mandate of the statute the proposed Intervenor argues that the express terms of the statute or any judicial construction thereof do not preclude intervention either as a right under Fed.R. Civ.P. 24(a) or permissive intervention under Fed.R.Civ.P. 24(b). The Intervenor argues that the proper interpretation of the Act is that once the Secretary has filed his complaint, an employee is expressly proscribed from intervening in a prior or private suit.
We cannot accept this argument against the plain language of the statute. Both Section 16(b) and Section 16(c) recite that the right to bring an action by or on behalf of any employee and of any employee to become a party plaintiff to any such action shall terminate. The plain meaning of this language is that the employee cannot become a party in any capacity, including that of an intervenor, once the Secretary has filed suit. The Intervenor's brief cites the Conference Report accompanying the 1961 Amendments which added this provision in support of a right of intervention by quoting the following:
The bringing of an action by the Secretary seeking such relief with respect to *1039 such compensation owing to any employee would, after filing of the complaint in the Secretary's action, preclude such employee from becoming a party plaintiff in a private action to recover the amounts due and an additional equal amount as liquidated damages. Conference Report No. 327, 2 U.S.Code Cong. & Admin. News, 87 Cong., 1st Session, 1961, pp. 1713-1714.
It is argued that this prohibition would only apply to private actions but would not apply to intervention in the Secretary's action. However, intervention in the Secretary's action to establish a right conferred by the Act could only be accomplished by the Intervenor becoming a party plaintiff which is clearly proscribed by the language of the Act, "and the right of any employee to become a party plaintiff to any such action, shall terminate . . .."
The same legislative history is cited to support the Intervenor's argument that the intention of Congress was to avoid a multiplicity of suits once the Secretary had asserted the collective claims.
This would then relieve the courts and employers of the burden of litigating a multiplicity of suits based on the same violations of the act by an employer. Senate Report No. 1452, U.S.Code Cong. & Admin.News, 87th Cong., 1st Session, 1961, pp. 1658-1659.
However, we find that the attempt of an individual employee to intervene in the Secretary's suit to establish her right to damages different from those allocated to her in the Secretary's consent order would effect the very result which Congress sought to avoid. If this individual employee's discontent with the settlement gives a basis for intervention then every other employee covered by the settlement would have a similar right and each would be attempting to enforce this right as an intervening plaintiff, a situation clearly proscribed by the statute.
One case involving the identical statute has been found in which such intervention was denied. EEOC v. A.T. & T., 365 F.Supp. 1105 [E.D.Pa.1973]. There a combined action by the Equal Employment Opportunities Commission and the Secretary of Labor sought to enforce rights under both the Fair Labor Standards Act, 29 U.S.C. § 217, and the Equal Employment Opportunity Act of 1972, 42 U.S.C.A. § 2000e-5(f)(1). The attempted intervenor in that case was a labor union. The court found that under Section 16(b), a labor union was not permitted to bring a representative action on behalf of all the union members and employees for recovery of back wages because the statute gave the right to bring the action only to the individual employees in Section 16(b) or to the Secretary of Labor in Section 16(c), and Section 17. Individual employees were encouraged to bring their own suits by the provisions in Section 16(b) for an award of liquidated damages in addition to the unpaid minimum wages, whereas under Section 16(c) providing for suit by the Secretary no such provision for liquidated damages was contained. Thus only employees and the Secretary of Labor are authorized to commence legal actions under this statute. In sum, only the Secretary of Labor is authorized to bring actions under Section 16(c) and Section 17; the right of individuals to bring an action under Section 16(b) is terminated upon the commencement of an action by the Secretary of Labor, and that terminates the right to become a party plaintiff to such action by way of intervention in the Secretary's suit. While it is noted that EEOC v. A.T. & T., was affirmed on other grounds, 506 F.2d 735, [3rd Cir. 1974], because the district court had allowed limited intervention in the Title VII cause of action alleged, and this was the only grounds alleged on appeal, the Court of Appeals did indicate its agreement with the denial of intervention in the equal pay cause of action:
For the reasons which will be elaborated we think that the district court did not err in denying CWA the right to intervene generally as a party plaintiff in this action . . .
* * * * * *
*1040 The district court held that the Fair Labor Standards Act does not confer such a right of intervention in an action brought, as was Count 1 of the complaint in this case, by the Secretary of Labor under section 17 of that Act. That ruling is not here contested by the CWA. 506 F.2d at p. 739.
Intervenor places considerable reliance on Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 [1972]. In Trbovich, the Supreme Court allowed intervention by a union member in a suit brought by the Secretary of Labor to set aside a union election pursuant to the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 482(b). The LMRDA provides that upon complaint of a union member who has exhausted any remedies available to him through his union the Secretary may bring an action to set aside a union election. With respect to an election already conducted, this remedy is "exclusive." LMRDA § 403, 29 U.S.C.A. § 483. Nevertheless, the Supreme Court held that nothing in the LMRDA barred intervention by a union member who had previously filed the complaint with the Secretary and that intervention would be permitted limited to the claims of illegality presented by the Secretary's complaint.
We hold that Trbovich is distinguishable from the case at bar for several reasons. First, we are here dealing with a completely different statute that unlike the statute in Trbovich explicitly limits the right of individual grievants to intercede once the Secretary has filed suit. While the statute in Trbovich made the Secretary's suit the "exclusive" remedy, it was in fact silent as to whether individuals could join the suit and be heard. In the present case the statute explicitly limits the right of intervention.
Secondly, the scope of intervention permitted in Trbovich was considerably narrower than what is sought here. Trbovich limited intervention to the claims of illegality presented in the Secretary's complaint and did not permit the intervenor to raise two additional grounds which the Supreme Court presumed the Secretary had determined to be without merit. In the case at bar intervention would completely disrupt the status of the proceedings. Although intervenor purports to limit her role to fashioning an appropriate remedy,[1] it is obvious that her attempt to vitiate the consent judgment entered by the parties would, if successful, result in reopening all the legal and factual questions involved in this suit. A consent judgment cannot be amended or modified without the consent of the parties. United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256 [1971].
The district court in EEOC v. A.T. & T. cit. supra, distinguished the Trbovich holding, stating that under Section 17 of FLSA, there do not exist the same dual interest:
First, with regard to intervention in a suit commenced by the Secretary of Labor under Section 17 of FLSA, there exist no dual interests as were present in Trbovich. A Section 17 action, as heretofore noted, was brought to vindicate a public interest and to effect the elimination of unfair labor practices and conditions. Moreover, the approach under Section 17 complemented the coordinate methods existing under Section 16(b) and (c). While Section 17 litigation would oust jurisdiction from all other persons, there is neither any further relief which could be obtained by the intervening parties (maybe with the exception of securing liquidated damages) nor any additional representation which could be provided. And certainly, the union cannot be contending it has the right to resist or oppose a court's compelling AT&T to comply with the Equal Pay Act. The rights secured and guaranteed to employees by 29 U.S.C. § 206(d) cannot be collectively bargained away. 29 U.S.C. § 206(d)(2); *1041 Hodgson v. Sagner, Inc., 326 F.Supp. 371 (D.Md.1971), aff'd sub nom., Hodgson v. Baltimore Reg. Joint Bd., 462 F.2d 180 [4th Cir. 1972] (per curiam).
While we have disposed of the matter under the statute, we might add our conclusion that even if we were to conclude that the applicant had standing to assert a claim, we would have to deny the application under Fed.R.Civ.P. 24 because it is untimely. Final judgment was entered four and one-half months ago and two-thirds of the funds have been disbursed. We would again have to determine whether applicant has a legally cognizable claim which we cannot do without her having submitted a separate pleading as required by Rule 24(c), which she failed to do. Lastly, applicant has failed to establish that the Secretary of Labor is an inadequate representative. The timeliness requirement applies whether intervention is claimed of right under Fed.R.Civ.P. 24(a) or permissive under Fed.R.Civ.P. 24(b).
ORDER
AND NOW, August 25, 1976, it is ORDERED that the application of Catherine Keeley to intervene in the above action is DENIED.
It is further ORDERED that no waiver of any rights claimed by Catherine Keeley in the within application to intervene shall be effected by her applying for or cashing the check for the funds made payable to her by the Order in the case during the period allowed for appeal from this Order.
NOTES
[1] Intervenor has failed to submit with her motion a pleading setting forth her claim for which intervention is sought, as required by Rule 24(c), F.R.Civ.P. Although the court has chosen to ignore this technical objection in order to reach the merits of this claim, some uncertainty as to intervenor's precise role in this litigation has been created. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1036056/ | Filed 7/31/13 P. v. Hamilton CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C068430
Plaintiff and Respondent, (Super. Ct. No. 09F01253)
v.
ALONZO HAMILTON,
Defendant and Appellant.
THE PEOPLE, C069220
Plaintiff and Respondent, (Super. Ct. Nos.
09F01253 & 10F03051)
v.
HOLLIE GARRETT,
Defendant and Appellant.
Following a joint trial, a jury found defendants Alonzo Hamilton and Hollie
Garrett each guilty of one count of forcible oral copulation of 14-year-old C.G.
1
(Pen. Code,1 § 288a, subd. (c)(2)(A); count one), and four counts of forcible oral
copulation of C.G. in concert with another (id., subd. (d)(1); counts two through five).
The trial court sentenced Hamilton to an aggregate term of 34 years in state prison,
consisting of 6 years (the middle term) on count one, and a full consecutive 7 years (the
middle term) on each of the remaining counts (§ 667.6, subd. (d)). The court sentenced
Garrett to an aggregate term of 20 years in state prison, consisting of 6 years on count
one, and a full consecutive 7 years on counts three and four. The trial court stayed
Garrett’s sentence on count two pursuant to section 654, and count five was dismissed on
the prosecutor’s motion.
Defendants filed separate appeals, which we consolidated for purposes of oral
argument and disposition. Hamilton contends (1) the trial court abused its discretion in
admitting evidence C.G. was forced to orally copulate four, as opposed to three, men;
(2) there is insufficient evidence to support two of his four convictions for forcible oral
copulation in concert; (3) the trial court erred in failing to instruct the jury sua sponte on
battery, assault, and attempt as lesser included offenses of forcible oral copulation in
concert; and (4) his conviction for forcible oral copulation must be reversed because it is
a necessarily included offense of forcible oral copulation in concert. We shall conclude
that the challenged evidence properly was admitted because it falls within the prior
inconsistent statement exception to the hearsay rule. (Evid. Code, § 1235.) We shall
further conclude that Hamilton’s convictions are supported by sufficient evidence, and
that forcible oral copulation is not a lesser included offense of forcible oral copulation in
concert, but that Hamilton’s sentence on one count (forcible oral copulation) must be
stayed pursuant to section 654. Finally, we shall reject Hamilton’s assertion that the trial
court erred in failing to instruct the jury on assault, battery, and attempt as lesser included
1 Further undesignated statutory references are to the Penal Code.
2
offenses of forcible oral copulation in concert because there is no evidence that the
offenses committed by Hamilton were less than those charged. Accordingly, we shall
stay Hamilton’s sentence on count one (forcible oral copulation) and affirm the judgment
against him in all other respects.
Garrett contends (1) none of his convictions are supported by substantial evidence;
(2) the judgment must be reversed to remedy the jury’s exposure to evidence C.G. offered
to take a polygraph test; (3) the trial court erred in instructing the jury in the language of
CALCRIM No. 400 (Aiding and Abetting: General Principles); (4) the prosecutor
committed misconduct by advising the jury that an aider and abettor is “just as guilty as”
the perpetrator; (5) his convictions must be reversed because the DNA evidence upon
which they are based is unreliable; and (6) his trial counsel was ineffective in failing to
move for a separate trial or separate jury. We shall conclude that each of Garrett’s
convictions is supported by substantial evidence; Garrett forfeited his challenge to the
introduction of evidence that C.G. offered to take a polygraph test by failing to object at
trial, and in any event, the admission of such evidence is harmless; the trial court properly
instructed the jury on aider and abettor liability; the prosecutor did not commit
misconduct; the DNA evidence against Garrett was reliable; and Garrett failed to meet
his burden of establishing his trial counsel was ineffective. Accordingly, we shall affirm
the judgment against him in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
In mid-July 2000, 14-year-old C.G. went to the movies with her boyfriend Cameo,
a guy named “Chris,” and her neighbor. During the movie, C.G. orally copulated Cameo.
A couple of days later, on the evening of July 18, Chris showed up at C.G.’s mother’s
apartment and invited C.G. to watch a movie at his grandmother’s home. As C.G.
walked to the car with Chris, she noticed there was another person inside the car. Once
inside the car, she saw Chris wave to two occupants of another car, who then followed
them to a nearby park. When they arrived, C.G. asked Chris why they were at the park
3
and not at his grandmother’s house, and he told her not to worry, and that they would go
to his grandmother’s later. C.G. and the four men sat at a table in front of the restroom.
All of the men were African-American and were in their late teens or early twenties.
While they were sitting at the table, Chris told C.G. that he needed to talk to her,
took her by the wrist, and led her into the restroom. Once inside, Chris stood in front of
the door, pulled his pants down, pushed C.G. down, and inserted his penis in her mouth.
She slapped his legs and attempted to stand up, but he “kept pushing it.” At that point,
she “started getting scared because in the bathroom it was real dark.” After several
minutes, one of the three other men from the table entered the restroom. She could not
recall which one.
The second man pulled out his penis and began to “play” with himself. At that
point, Chris and the second man “were over [C.G.] with their penises out.” At some
point Chris ejaculated, moved to the side, and the second man placed his penis in C.G.’s
mouth. C.G. did not feel free to leave because Chris and the second man were holding
her. She attempted to resist the second man, but he and Chris laughed and made
derogatory comments directed at her. As C.G. was being forced to orally copulate the
second man, Chris left for a while. C.G. was not sure whether the second man ejaculated.
When Chris returned, the other two men from the table were with him. At that
point, there were “four people surrounding” C.G. in the restroom. She was scared. She
tried to leave, but they would not let her. She did not know what they were going to do,
so she just complied. A third man put his penis in her mouth while the other men
laughed. She attempted to push the third man away. One of the men stopped after she
slapped at his legs, but she could not recall which one. At trial, C.G. testified that she
was sure she was forced to orally copulate three of the men but was unsure whether she
was forced to orally copulate the fourth.
When the men finished forcing C.G. to orally copulate them, all four men stood
over her and masturbated as she squatted down on the floor, and at least three of them
4
ejaculated on her. At some point, Chris told the other men, “Her mom’s on us. So we
got to be cool,” or something like that.
When the men were through, they allowed C.G. to leave the restroom. When she
left, she rolled around on the grass in an attempt to get the semen off her clothes and hair.
The men left in their respective cars. As they drove away one man shouted, “[T]hat’s
what you get for being so trusting, bitch,” and another flipped her off. C.G. estimated
that she was in the restroom for about an hour.
After rolling in the grass, C.G. began walking to her mother’s apartment. On the
way, she ran into a man who asked her if she was okay, and when she responded that she
was not, he drove her home. When C.G. returned home, her hair and clothing were “all
messed up” and she was crying. She told her mother she had been “violated,” and that
“they” had taken her to a park, drug her into a restroom, and “performed sexual acts on
her.” Her mother summoned the police and C.G.’s brother’s girlfriend. The girlfriend
arrived about five minutes later, before the police. C.G. was distraught and crying. C.G.
told the girlfriend that she was in the restroom with some boys, and they made her
perform oral sex on them.
Sacramento Police Officer Darrel Johnson was dispatched to C.G.’s mother’s
apartment at 9:40 p.m. When he arrived, C.G. was sitting on the floor with her hands
covering her face and crying. She had scratches on her shoulder and white stains on the
right thigh and left knee areas of her pants. C.G. told Johnson that she had gone to a park
with “Chris, and another suspect who met up with another group of male blacks in
another car,” and she was forced to orally copulate “[a]ll four suspects.” She also told
him “that two of the suspects began rubbing their penises in their hands and ejaculated on
her.” Johnson transported C.G. to U.C. Davis Medical Center for an evidentiary exam.
C.G. arrived in the emergency department at 11:00 p.m. and was examined for
approximately two and one-half hours by Sheridan Miyamoto, a nurse practitioner with
the Child and Adolescent Resource and Evaluation Diagnostic and Treatment Center.
5
When Miyamoto asked her what had happened, C.G. stated that “she had gone to the park
with a male she called Chris and some of his friends, and . . . he had taken her into a
bathroom and forced oral copulation on her. Then his friends came in and all of them
forced oral copulation on [her].” C.G. also told Miyamoto that there were four men in
the bathroom and that “all four of them began oral copulation and two actually stopped
once she struck out at them and hit them.” When taking notes during her examination,
Miyamoto detailed the perpetrators by number so she could keep them straight. C.G. told
Miyamoto that “number one and number two ejaculated and wouldn’t stop despite
[C.G.’s] protests. Number three and number four began to do oral copulation but stopped
when [C.G.] hit them.” She further indicated that three of the four men “ejaculated on to
her body” after masturbating. Miyamoto collected C.G.’s clothing and scanned her body
with a black light, looking for “any kind of a dried secretion on her skin.” Miyamoto
took samples of the dried secretions found on C.G.’s skin and cuttings from her hair.
Miyamoto also collected C.G.’s clothing, placing each piece in a separate bag. The
samples and the clothing then were sent to the Sacramento County crime lab.
Initially, the police were unable to identify any of the men, and C.G. “gave up”
and attempted to block the incident from her mind. Eight years later, in 2008, she was
contacted by Retired Reserve Officer Peter Willover, who works “cold” cases for the
Sacramento Police Department. Willover advised C.G. that there had been a DNA
“match” as to one of the men who assaulted her but did not tell her the individual’s name.
He asked her to look at a photographic lineup, and when she did so, she pointed to
Hamilton. She told Willover, “I know this guy, but it’s not [from] that. The guy, Chris,
looks similar to him.” C.G. later explained that her cousin had introduced her to
Hamilton in 2004 or 2005, the two became friends and were intimate a couple of times.
At no point during the time she was intimate with Hamilton did she think he was the
person she knew as “Chris” from the park. She cried when she learned that the DNA
found on her following the incident was a match for Hamilton and said she could not
6
believe that Chris and Hamilton was the same person. At trial, C.G. identified Hamilton
as the person she formerly knew as “Chris.”
Officer Willover interviewed Hamilton on November 6, 2008, while Hamilton was
in custody at Rio Consumnes Correctional Center. Willover explained that he worked
cold cases and that Hamilton’s name “ha[d] come up as a suspect in a sexual assault that
occurred back in 2000, involving a 14-year-old girl in a park rest room at Wood Park on
Bodine Circle.” Willover also showed Hamilton a photograph of the victim, whom
Hamilton immediately recognized as C.G. Hamilton said he did not “recall any of that
happening” but that he did recall “getting with” C.G. within the last year. He denied ever
“raping” or “sexually assaulting” C.G. and stated that “[e]ight years ago I didn’t even talk
to [C.G.].” He denied ever having sex with C.G. in a park restroom and did not recall
ever having sex with her when she was 14. He told Willover he “never forced that girl to
do a damn thing” and that she is a “fucking liar.” He also stated that “if it did happen, it
happened, and she did it willingly.” Finally, he denied ever going by the name “Chris.”
Following the interview, Hamilton telephoned his “baby momma” Jasmine and
told her that earlier that morning the police told him “this bitch [C.G.] said I raped her”
and that it was “eight years ago” with “three other guys.” Hamilton also said that he did
not “remember dealing with [C.G.] in no . . . 2000 period.” During the conversation,
Hamilton and Jasmine repeatedly referred to C.G. as a “bitch,” and Jasmine said she
wanted to kill C.G. After a while, Jasmine telephoned C.G., and Jasmine, C.G., and
Hamilton engaged in a three-way conversation. Hamilton asked C.G. if he raped her
eight years earlier, and C.G. responded, “You didn’t rape me.” C.G. told Hamilton that
he and “three other dudes took me to that park, and you all had me give you ass and then
you all left me up there.” Hamilton responded, “I don’t even remember that bro.” C.G.
explained, “I didn’t know you. I knew you as Chris like but I didn’t [put] those two
together.” Hamilton insisted he did not remember the incident in the restroom, and C.G.
explained that “two days before we had went to the movie” with Cameo and C.G.’s
7
neighbor. C.G. told Hamilton, “I don’t know how you couldn’t remember it’s you and
three other dudes. [¶] . . . [¶] It done messed me up share.” Hamilton asked C.G. if they
had been drunk” because he did not remember any such incident. Hamilton said that he
remembered the movie with Cameo, but “that’s the only thing I remember. I swear to
God. So I’m like, was we drunk?” He also asked C.G. if he forced her to do anything,
and she responded that she “did not want to do that.” Eventually, Jasmine hung up on
C.G., reminding Hamilton that his lawyer had told him not to talk to anyone.
In March 2010, Officer Willover received information that there had been a
second DNA “hit” from the evidence collected from C.G. in 2000. He was informed that
the DNA was a match for Garrett. Prior to that time, Garrett’s name had never come up
in Johnson’s investigation. C.G. did not recognize Garrett from the incident or anywhere
else.
Hamilton’s DNA profile was found in samples taken from C.G.’s hair, tank top,
and jeans. Garrett’s DNA profile was found in samples taken from C.G.’s tank top, left
arm, back, and jeans. DNA from a third unidentified male was also found. Hamilton’s
DNA profile is estimated to occur at random among unrelated individuals in
approximately one in two quintillion of the African-American population, one in three
sextillion of the Caucasian population, and one in eleven sextillion of the Hispanic
population. Garrett’s DNA profile is estimated to occur at random among unrelated
individuals in approximately one in one sextillion of the African-American population,
one in a hundred sextillion of the Caucasian population, and one in two hundred and
seventy sextillion of the Hispanic population.
8
DISCUSSION
I
C.G.’s Out of Court Statements Concerning the Number of Men She Was Forced to
Orally Copulate Were Properly Admitted Under the Prior Inconsistent Statement
Exception to the Hearsay Rule
Hamilton first contends that the trial court erred in allowing the prosecution “to
rely on hearsay reports allegedly made by [C.G.] to a law enforcement officer [(Johnson)]
and a forensic examiner [(Miyamoto)] to prove that four acts of oral copulation occurred,
rather than three as testified to by [C.G.] in her sworn testimony at trial.” As we shall
explain, the trial court did not err by admitting the challenged statements because they
fall within the prior inconsistent statement exception to the hearsay rule. (Evid. Code,
§ 1235.)
The prosecution moved in limine to introduce C.G.’s statements to her mother, her
brother’s girlfriend, Johnson, and Miyamoto under the fresh complaint doctrine. Under
that doctrine, “proof of an extrajudicial complaint, made by the victim of a sexual
offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay
purpose--namely, to establish the fact of, and the circumstances surrounding, the victim’s
disclosure of the assault to others . . . .” (People v. Brown (1994) 8 Cal.4th 746,
750-751.) Evidence admitted under the fresh complaint doctrine may be considered by
the trier of fact for the purpose of corroborating the victim’s testimony, but not to prove
the occurrence of the crime. (People v. Bernstein (1959) 171 Cal.App.2d 279, 285.)
The trial court indicated that C.G.’s statements, minus the details, were admissible
under the fresh complaint doctrine. The court also observed that C.G.’s statements to her
mother were admissible under the spontaneous statement exception to the hearsay rule
(Evid. Code, § 1240), and that her statements to Officer Johnson “probably” were
admissible on the same basis. Hamilton’s trial counsel objected to the admission of
C.G.’s statements as spontaneous statements, arguing that C.G. had time to reflect before
9
going home and reporting the incident. The trial court overruled Hamilton’s objection, at
least as to C.G.’s statements to her mother, describing the issue as “a slam dunk” and
advising Hamilton’s trial counsel that his arguments were not “even in the ball park . . . .”
At trial, C.G. testified to a total of three acts of oral copulation. When specifically
asked whether she was forced to orally copulate all four men, she responded, “I
remember three for sure. [¶] . . . [¶] . . . There’s one I’m unsure.” The only evidence that
C.G. was forced to orally copulate all four men came from Johnson and Miyamoto, both
of whom testified that C.G. told them that she was forced to orally copulate all four men.
As a preliminary matter, the People assert that Hamilton forfeited his argument
concerning the admissibility of the challenged evidence by failing to “object at the time
the testimony was given” or “press for a ruling when the prosecutor’s motion was heard
in limine.” Hamilton responds that any further objection or renewal of his prior
objections would have been futile given the trial court’s remarks, and defense counsel is
not required to make a futile objection to preserve an issue for appeal. (People v. Hill
(1998) 17 Cal.4th 800, 820.) The trial court clearly ruled that C.G.’s statements to her
mother were admissible under the spontaneous statement exception to the hearsay rule. It
is less clear, however, whether the trial court’s ruling extended to C.G.’s statements to
Johnson or Miyamoto. Even assuming arguendo that the ruling did extend to those
statements and that Hamilton preserved the issue on appeal, his assertion that the trial
court erred in admitting the statements fails on the merits.
Although Hamilton challenges the grounds for admission--the fresh complaint
doctrine and the spontaneous statement exception to the hearsay rule-- “[w]e review
judicial action and not judicial reasoning.” (People v. Franklin (2003) 105 Cal.App.4th
532, 535.) Thus, our focus is on whether the evidence was admissible on any ground, not
whether it was admissible on the particular basis articulated by the trial court. (Wilcox v.
Berry (1948) 32 Cal.2d 189, 192.) As we shall explain, C.G.’s statements to Johnson and
10
Miyamoto concerning the number of men she was forced to orally copulate were
admissible under the prior inconsistent statements exception to the hearsay rule.
“ ‘ “A statement by a witness that is inconsistent with his or her trial testimony is
admissible to establish the truth of the matter asserted in the statement under the
conditions set forth in Evidence Code sections 1235 and 770.” [Citation.] “The
‘fundamental requirement’ of section 1235 is that the statement in fact be inconsistent
with the witness’s trial testimony.” [Citation.] “ ‘Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a witness’[s] prior statement
. . . .’ ” [Citation.]’ [Citation.]”2 (People v. Homick (2012) 55 Cal.4th 816, 859, fn.
omitted; see also People v. Hovarter (2008) 44 Cal.4th 983, 1008-1009 (Hovarter).)
In Hovarter, the defendant was charged with the first degree murder, kidnapping,
and forcible rape of Danna Elizabeth Walsh. (Hovarter, supra, 44 Cal.4th at p. 989.)
Before the trial in that case, the defendant was convicted of the rape, kidnapping, and
attempted murder of A.L. (Id. at p. 992.) At the trial involving Walsh, A.L. testified that
she accepted a ride from the defendant while hitchhiking to school. Rather than take her
to school, however, the defendant pulled off the highway, pushed A.L. into the sleeper
compartment of his truck and told her to remove her clothes. After touching A.L.’s
vagina, the defendant decided to drive somewhere safer. Around this time, the defendant
told her he knew what he was doing. He eventually stopped the truck and raped her.
2 Evidence Code section 1235 provides: “Evidence of a statement made by a witness is
not made inadmissible by the hearsay rule if the statement is inconsistent with his
testimony at the hearing and is offered in compliance with Section 770.” Evidence Code
section 770 provides: “Unless the interests of justice otherwise require, extrinsic
evidence of a statement made by a witness that is inconsistent with any part of his
testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined
while testifying as to give him an opportunity to explain or to deny the statement; or [¶]
(b) The witness has not been excused from giving further testimony in the action.”
(Italics added.) Here, C.G. had not been excused from giving further testimony in the
action. Thus, the foundation requirements of Evidence Code section 770 were met.
11
(Id. at p. 992.) On cross-examination, defense counsel asked A.L. whether she
remembered the defendant saying anything more than he knew what he was doing, and
she said she did not. (Id. at p. 1006.) Defense counsel then asked her if she thought the
comment was made in relation to “ ‘what he was doing in terms of raping you,’ ” and
A.L. responded, “ ‘That’s the idea that I got.’ ” (Id. at p. 1007, italics omitted.) On
redirect, the prosecutor asked her whether she told a detective “ ‘that the man who had
done these things to you told you that this was not the first time that he had done this and
that he knew what to do?’ ” (Ibid.) A.L. responded, “ ‘He said that he knew what he was
doing. I remember that. I don’t remember if he said specifically that he had done it
before.’ ” (Ibid.) The prosecutor then called the detective, who testified that when he
interviewed A.L., she told him “ ‘her assailant said to her that this was not the first time
that he had done this and that he knew what to do.’ ” (Ibid.) In rejecting the defendant’s
contention that the detective’s testimony (that A.L. told him the defendant said he had
done this before) should have been excluded as hearsay, the court explained: “When she
testified at trial that she did not ‘remember if he said specifically that he had done it
before,’ a question arose whether her proclaimed lack of memory was a deliberate
evasion, which could give rise to an implied inconsistency [citation], or a true case of a
failed memory. Of course, dealing with a sexual assault victim’s memory of the
traumatic event can be a delicate matter and one committed to the trial court’s discretion.
. . . [The detective’s] testimony recounting A.L.’s prior statement was sufficiently
inconsistent in effect to qualify as a prior inconsistent statement. [Citation.] ‘Generally it
is true that the testimony of a witness indicating that he or she does not remember an
event is not inconsistent with a prior statement describing the event. [Citation.] “But
justice will not be promoted by a ritualistic invocation of this rule of evidence.
Inconsistency in effect, rather than contradiction in express terms, is the test for admitting
a witness’[s] prior statement [citation], and the same principle governs the case of the
forgetful witness.” ’ [Citation.]” (Id. at pp. 1008-1009.)
12
Likewise, in this case, when C.G. testified that she was not sure if she was forced
to orally copulate all four men, a question arose whether her proclaimed lack of memory
was a deliberate evasion, which could give rise to an implied inconsistency, or a true case
of failed memory. (See Hovarter, supra, 44 Cal.4th at p. 1008.) Johnson’s and
Miyamoto’s testimony recounting C.G.’s prior statements were sufficiently inconsistent
in effect to qualify as prior inconsistent statements. (Ibid.) Accordingly, those
statements were admissible both to impeach the credibility of C.G.’s contrary trial
testimony and for the truth that she was forced to orally copulate all four, as opposed to
just three, men.
II
Hamilton Was Properly Convicted of Four Counts of Forcible Oral Copulation in
Concert, but His Sentence on Count One (Forcible Oral Copulation) Must Be Stayed
Hamilton contends there is insufficient evidence to support his convictions for one
count of forcible oral copulation and four counts of forcible oral copulation in concert
where, as here, there is evidence of four, not five, acts of oral copulation. According to
Hamilton, “[a] defendant may not be convicted of both oral copulation and oral
copulation in concert for [the same] act of oral copulation.” Thus, he argues that absent
evidence of a fifth act of oral copulation, he “could only be convicted of a maximum of
one act of oral copulation as principal and [three] additional acts of oral copulation in
concert.”3 As we shall explain, his convictions are proper but his sentence on count one
(forcible oral copulation) must be stayed.
3 Erroneously assuming that we would conclude that evidence C.G. orally copulated
four, as opposed to three, men should have been excluded, Hamilton argues that he could
be convicted of a maximum of two additional acts of oral copulation in concert. As
detailed above, evidence C.G. orally copulated all four men was properly admitted.
Thus, the question is whether Hamilton could be convicted of a maximum of three
additional acts of oral copulation in concert.
13
“While section 654 prohibits multiple punishments, it is generally permissible to
convict a defendant of multiple charges arising from a single act or course of conduct.
[Citations.] However, a ‘judicially created exception to this rule prohibits multiple
convictions based on necessarily included offenses. [Citations.]’ [Citation.] [¶] When a
defendant is found guilty of both a greater and a necessarily lesser included offense
arising out of the same act or course of conduct, and the evidence supports the verdict on
the greater offense, that conviction is controlling, and the conviction of the lesser offense
must be reversed. [Citations.] If neither offense is necessarily included in the other, the
defendant may be convicted of both, ‘even though under section 654 he or she could not
be punished for more than one offense arising from the single act or indivisible course of
conduct.’ [Citation.]” (People v. Sanders (2012) 55 Cal.4th 731, 736 (Sanders).)
Here, Hamilton was convicted of one count of forcible oral copulation and four
counts of forcible oral copulation in concert. The evidence established that C.G. was
forced to orally copulate at most four men. Thus, Hamilton necessarily was convicted of
one count of forcible oral copulation and one count of forcible oral copulation in concert
based on the same act of oral copulation.
“ ‘In deciding whether multiple conviction is proper, a court should consider only
the statutory elements.’ [Citation.] ‘Under the elements test, if the statutory elements of
the greater offense include all of the statutory elements of the lesser offense, the latter is
necessarily included in the former.’ [Citation.] In other words, ‘ “[i]f a crime cannot be
committed without also necessarily committing a lesser offense, the latter is a lesser
included offense within the former.” ’ [Citations.]” (Sanders, supra, 55 Cal.4th at
p. 737.)
Section 288a, subdivision (d)(1) provides in pertinent part: “Any person who,
while voluntarily acting in concert with another person, either personally or by aiding and
abetting that person, commits an act of oral copulation (1) when the act is accomplished
against the victim’s will by means of force or fear of immediate and unlawful bodily
14
injury on the victim or another person . . . shall be punished by imprisonment in the state
prison for five, seven, or nine years.” Section 288a, subdivision (c)(2)(A) provides:
“Any person who commits an act of oral copulation when the act is accomplished against
the victim’s will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.” The addition of the
“acting in concert with another” language in section 288a, subdivision (d)(1) means that
it is possible to violate section 288a, subdivision (c)(2)(A) without also violating section
288a, subdivision (d)(1). In other words, a defendant who, acting alone, commits an act
of forcible oral copulation, would violate subdivision (c)(2)(A) but not subdivision (d)(1).
Similarly, the addition of the “by aiding and abetting that other person” language in
section 288a, subdivision (d)(1) means that it is possible to violate subdivision (d)(1)
without necessarily violating subdivision (c)(2)(A). In other words, a defendant who
voluntarily aids and abets another in committing an act of oral copulation by force would
violate subdivision (d)(1) but not subdivision (c)(2)(A).4 Thus, the elements test is not
satisfied. Accordingly, Hamilton was properly convicted of all four counts of forcible
oral copulation in concert, even though one of those counts necessarily was based on the
same act of oral copulation as his conviction for forcible oral copulation.5
4 Given our conclusion, we need not consider Hamilton’s contention that “his
conviction on count one [(forcible oral copulation)] must be vacated because it was an
offense necessarily included in one of the other counts [(forcible oral copulation in
concert)] for which [he] was convicted.”
5 The related question whether a defendant may be convicted of both oral copulation of
an unconscious person and oral copulation of an intoxicated person where the defendant
committed only one act of unlawful copulation is currently pending before the Supreme
Court in People v. Gonzalez (2012) 211 Cal.App.4th 405, review granted February 27,
2013, S207830.
15
Hamilton, however, may not be separately punished for violations of section 288a,
subdivision (c)(2)(A) and subdivision (d)(1) based on the same act of oral copulation
even though multiple convictions for both offenses were proper. (Sanders, 55 Cal. 4th at
p. 743.) Thus, the question is which of Hamilton’s sentences must be stayed. As
relevant, section 654, subdivision (a), provides: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (Italics added.) The punishment
for violating section 288a, subdivision (c)(2)(A) was three, six, or eight years. The
punishment for violating section 288a, subdivision (d)(1) was five, seven, or nine years.
Accordingly, section 288a, subdivision (d)(1) provided for the longest potential term of
imprisonment. Thus, Hamilton’s sentence on count one for violating section 288a,
subdivision (c)(2)(A) must be stayed.
III
The Trial Court Did Not Err in Failing to Instruct the Jury Sua Sponte on Assault,
Battery, or Attempt as Lesser Included Offenses of Forcible Oral Copulation in Concert
Hamilton next contends the trial court erred in failing to instruct the jury sua
sponte on assault (§ 240), battery (§ 242), and attempt (§§ 664/288a, subd. (d)(1)) as
lesser included offenses of forcible oral copulation in concert. We disagree.
“ ‘The trial court has a sua sponte duty to instruct on lesser included offenses
when the evidence raises a question as to whether all of the elements of the charged
offense were present and there is evidence that would justify a conviction of such a lesser
offense.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) “[E]ven on request, a
trial judge has no duty to instruct on any lesser offense unless there is substantial
evidence to support such instruction.” (People v. Cunningham (2001) 25 Cal.4th 926,
1008.) A trial court need not instruct on a lesser included offense “when the evidence
shows that the defendant is either guilty of the crime charged or not guilty of any crime
16
(for example, when the only issue at trial is the defendant’s identity as the perpetrator).”
(People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.) Stated another way, a trial court
need not instruct on a lesser included offense if there is insufficient evidence that the
offense committed, if any, was less than that charged. (People v. Duncan (1991) 53
Cal.3d 955, 970.)
The People concede that assault and battery are lesser included offenses of forcible
oral copulation in concert but dispute that attempted forcible oral copulation in concert is
a lesser included offense of the same. We need not decide whether attempted forcible
oral copulation is a lesser included offense of forcible oral copulation in concert because
there is no evidence that the offenses committed by Hamilton, if any, were less than
forcible oral copulation in concert. The evidence was not equivocal as to whether
Hamilton was successful in forcing C.G. to orally copulate him or in aiding and abetting
the others in forcing C.G. to do the same to them such that the jury might have concluded
that Hamilton’s conduct amounted to assault, battery, or attempted forcible oral
copulation in concert but fell short of forcible oral copulation in concert. As the People
correctly observe, “The fact that [two of the four men] stopped after initially succeeding
does not render the act a failed attempt.” Thus, the crimes charged in counts two through
five were either forcible oral copulation in concert or nothing. Accordingly, instructions
on assault, battery, and attempt were not required.
IV
Garrett’s Convictions Are Supported by Substantial Evidence
Garrett first contends that “there was no proof of forcible oral copulation by
[him],” or that he “acted in concert with anyone to commit an act of oral copulation
against [C.G.’s] will.” He is mistaken.
In addressing whether there is sufficient evidence to support Garrett’s convictions,
we view the entire record in the light most favorable to the judgment and presume in
17
support of the judgment the existence of every fact that the jury reasonably could deduce
from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Golde (2008)
163 Cal.App.4th 101, 108.)
Viewed in the light most favorable to the judgment, the evidence shows that on the
night in question, C.G. was forced to orally copulate four men in a public restroom.
Thereafter, the same four men stood over her masturbating, and at least three of them
ejaculated on her. Garrett’s DNA was found in samples taken from C.G.’s left arm, back,
and clothing on the night in question. Moreover, Garrett was one of three of the men
who waited outside C.G.’s apartment when Hamilton picked her up and then reconvened,
along with C.G., at a nearby park. While C.G. was in the restroom being assaulted,
Garrett was either inside the restroom or at a table just outside.
On this record, a jury reasonably could conclude that Garrett forced C.G. to orally
copulate him, and that he intended to and did aid and the other men in forcing C.G. to do
the same to them. Even assuming Garrett was the last man to enter the restroom, the jury
reasonably could conclude that his presence at the table just outside the restroom aided
the others by, among other things, deterring C.G. from attempting to flee.
Garrett’s convictions for forcible oral copulation and forcible oral copulation in
concert are supported by substantial evidence.
V
Defendant’s Failure to Object to Evidence That C.G. Offered to Take a Polygraph Test
Forfeited the Issue on Appeal, and In Any Event, the Admission of Such Evidence Was
Harmless
Garrett next contends “[t]he judgment should be reversed to remedy [the jury’s]
erroneous exposure to evidence that [C.G.] offered to take a polygraph test.” We are not
persuaded.
During his cross-examination of C.G., Hamilton’s trial counsel stated to C.G., “In
fact, you wanted to take a lie detector test” when Officer Willover indicated that he did
18
not believe her when she said that she did not know Hamilton from the incident in the
restroom, and C.G. responded, “Yeah.” Garrett did not object to the questioning or
request an admonition or curative instruction.
In People v. Leonard (2007) 40 Cal.4th 1370, 1408, our Supreme Court found that
“[a]lthough the portion of defendant’s statement in which he refused to take the
[polygraph] test was subject to exclusion upon proper objection (Evid. Code, § 351.1),
the defense did not object, and the prosecutor was free to comment on it once it was
admitted into evidence.”6
Here, Garrett forfeited his challenge to the admission of evidence C.G. wanted to
take a polygraph test by failing to object to the questioning or request an admonition or
curative instruction. (People v. Leonard, supra, 40 Cal.4th at p. 1408.) Even assuming
for argument’s sake that the issue was preserved on appeal, the passing reference to
C.G.’s desire to take a polygraph test was harmless. Garrett acknowledges that C.G.’s
desire to take a polygraph test was not mentioned during closing arguments. Moreover,
C.G. wanted to take a polygraph test to establish her credibility concerning an issue that
had little, if any, bearing on Garrett’s guilt -- whether she recognized Hamilton from the
restroom incident. Under these circumstances, we find the passing reference to C.G.’s
desire to take a polygraph test was harmless under any standard. (See Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Watson (1956)
46 Cal.2d 818, 836.)
6 Evidence Code section 351.1, subdivision (a) provides in pertinent part:
“Notwithstanding any other provision of law, . . . any reference to an offer to take, failure
to take, or taking of a polygraph examination, shall not be admitted into evidence in any
criminal proceeding, . . . unless all parties stipulate to the admission of such results.”
19
VI
The Jury Was Properly Instructed with CALCRIM No. 400
The trial court instructed the jury in the language of CALCRIM No. 400 as
follows: “A person may be guilty of a crime in two ways: [¶] One, he or she may have
directly committed the crime. I would call that person the perpetrator. [¶] Two, he or she
may have aided and abetted the perpetrator who directly committed the crime. [¶] A
person is guilty of a crime whether he or she committed it personally or aided and
abetted the perpetrator.” (Italics added.) Garrett contends the trial court erred in so
instructing the jury because the italicized portion of the instruction “suggests that an aider
and abettor is vicariously responsible for the intent as well as the acts of the perpetrator
and is equally guilty with the direct perpetrator.” He further asserts that the error was
exacerbated by the prosecutor’s statement that an aider and abettor is “just as guilty as”
the perpetrator. Again, we are not persuaded.
Garrett bases his contentions on People v. Nero (2010) 181 Cal.App.4th 504, 514
(Nero), which found that an aider and abettor can be found guilty of a crime lesser than
the crime committed by the perpetrator, and thus, an earlier version of CALCRIM No.
400 that stated that “ ‘ “[a] person is equally guilty of the crime whether he or she
committed it personally or aided and abetted the perpetrator who committed it” ’ ” was
misleading. (Nero, supra, at p. 517.)
The word “equally” has since been removed from CALCRIM No. 400, which now
reads in pertinent part: “A person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator.” The jury in this case was instructed with
the current version of CALCRIM No. 400. Even assuming, as Garrett claims, that, as
amended, CALCRIM No. 400 could be interpreted as suggesting that an aider and abettor
is vicariously responsible for the intent and the acts of the direct perpetrator and are
equally guilty as the direct perpetrator, we find there is no chance the jury was misled
20
here. Reviewing the instructions as a whole, as we must (People v. Whisenhunt (2008)
44 Cal.4th 174, 220), we find no “reasonable likelihood that the instruction [on aider and
abettor liability] caused the jury to misconstrue or misapply the law.” (People v.
Thornton (2007) 41 Cal.4th 391, 436).
Immediately after instructing the jury in the language of CALCRIM No. 400, the
trial court instructed the jury in the language of CALCRIM No. 401 as follows: “To
prove that the defendant is guilty of a crime based on aiding and abetting that crime, the
People must prove that: [¶] One, the perpetrator committed the crime. [¶] Two, the
defendant knew . . . the perpetrator intended to commit the crime; and [¶] Three, before
or during the commission of the crime the defendant intended to aid and abet the
perpetrator in committing that crime; and [¶] Four, the defendant’s words or conduct did
in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and
abets a crime if he or she knows of the perpetrator’s unlawful purpose, and he or she
specifically intends to and does in fact aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.” The additional instructions clarified any
possible ambiguity concerning the intent required for Garrett to be convicted as an aider
and abettor. In particular, CALCRIM No. 401 ensured that the jury understood that to
find Garrett guilty as an aider and abettor, they had to conclude that he knew Hamilton
and the other men intended to force C.G. to orally copulate them and that Garrett himself
intended to aid and abet in the commission of those forcible oral copulations.7
Accordingly, the trial court properly instructed the jury on aider and abettor liability.
Moreover, we reject Garrett’s claim that the prosecutor misstated the law on
aiding and abetting liability during his closing and rebuttal arguments. During his closing
7 Because we conclude the jury was properly instructed with CALCRIM No. 400, we
need not consider Garrett’s claim that his trial counsel was ineffective in failing to object
to the giving of that instruction.
21
and rebuttal arguments, the prosecutor told the jury that an aider and abettor is “just as
guilty as” a direct perpetrator. In each case, however, the prosecutor went on to explain
that someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose
and intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime. Thus, when considered in context, there is no
reasonable likelihood the jury understood the prosecutor’s remarks as stating that an aider
and abettor is vicariously responsible for the intent as well as the acts of the perpetrator
and is equally guilty with the direct perpetrator, as Garrett claims. Furthermore, the trial
court instructed the jury to “follow the law as I explain it to you” and “[i]f you believe
that the attorneys’ comments on the law conflict with my instructions, you must follow
my instructions,” and we assume the jury followed the instructions. (People v. Holt
(1997) 15 Cal.4th 619, 662.)
VII
The DNA Evidence Is Not Unreliable
Garrett also claims that the judgment must be reversed because “it rests on
unreliable DNA evidence.” As we shall explain, there is no evidence to support Garrett’s
charge.
The prosecution’s DNA expert Angelynn Shaw testified that Garrett’s DNA
profile was found in five different areas on C.G.’s body and clothing, namely her tank
top, left arm, back, and two stains on her jeans. Garrett’s DNA profile was estimated to
occur at random in one in one sextillion of the African-American population; one in one
hundred sextillion of the Caucasian population; and one in two hundred and seventy
sextillion of the Hispanic population.
Defense expert Nikki Sewell, a colleague of Shaw’s, reviewed Shaw’s findings
and obtained the same profiles for Garrett and Hamilton. Sewell did not disagree with
any of Shaw’s findings pertaining to Garrett, including Shaw’s findings that Garrett’s
22
DNA profile matched the DNA samples taken from C.G. Sewell did, however, disagree
that Hamilton’s profile included a tri-allele in the form of a 24 at location D2. Sewell
noted that tri-alleles are difficult to diagnose and subject to interpretation by the analyst
within lab guidelines. Sewell determined that the 24 at location D2 was high stutter,
while Shaw analyzed it as a tri-allele. Sewell did not think either interpretation was
incorrect because lab protocol granted leeway as to whether to analyze the 24 at location
D2 as high stutter or an actual allele peak. Sewell’s determination that the 24 at location
D2 was high stutter as opposed to a tri-allele does not in any way undermine Shaw’s
findings concerning Garrett’s DNA profile, with which Sewell agreed.
There is no evidence to support Garrett’s charge that the DNA evidence upon
which his convictions are based is unreliable.
VIII
Garrett’s Trial Counsel Was Not Ineffective for Failing to Move for a Separate Trial or
Jury
Finally, Garrett contends that his trial counsel provided ineffective assistance by
failing “to move for a separate trial or separate jury to avoid jury exposure to the
recordings of Hamilton’s hearsay statements.” According to Garrett, the “[j]oint trial
resulted in the jury . . . hearing Hamilton’s hearsay statements to detectives and
statements during jail telephone calls making false denials and admissions related to this
case, as well as nasty, inflammatory, derogatory expletive-laced comments by Hamilton
and paramour Jasmine Hall regarding [C.G.]” As we shall explain, it was not reasonably
probable that a different outcome would have ensued absent the alleged error.
Officer Willover interviewed Hamilton while he was in custody. During the
interview, Hamilton identified C.G. from a photograph and acknowledged that he knew
her. He said they were close friends and had consensual sex one year earlier. He
repeatedly denied engaging in any nonconsensual sexual act with C.G. or engaging in any
sexual act with C.G. when she was a minor. He also denied ever going by the name
23
“Chris.” He said C.G. was lying if she accused him of forcible sexual conduct with her.
He did not recall an incident in a park restroom with C.G. but said that if such an incident
did occur it was consensual.
After being interviewed by Officer Willover, Hamilton telephoned his girlfriend
and prevailed upon her to make a three-way call to C.G. Before doing so, Hamilton told
his girlfriend that C.G. had accused him of raping her, and both he and his girlfriend
repeatedly referred to C.G. as a “bitch.” During the three-way call with C.G., Hamilton
told C.G. that the police told him that she had accused him of rape, and C.G. denied
making such an accusation. C.G. told Hamilton that he and “three other dudes” took her
to a park “and you all had me give you ass and then you all left me up there.” Hamilton
said that he did not remember any such incident. C.G. told Hamilton that the incident
occurred in the summer of 2000. Hamilton said he recalled going to the movie with
Cameo but that was it. C.G. told Hamilton that she knew him as “Chris” but did not
associate him with the incident in the restroom until recently. C.G. also said that she did
not know how Hamilton could not remember the incident and explained, “It done messed
me up share.” Hamilton asked if he forced her to do anything, and C.G. responded that
she did not want to do it.
To prevail on his ineffective assistance of counsel claim, defendant must show his
counsel’s representation fell below an objective standard of reasonableness and, but for
counsel’s error, there is a reasonable probability of a more favorable outcome. (See
Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L. Ed. 2d 674];
People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Where, as here, a claim of
ineffective assistance of counsel is based on trial counsel’s failure to make a motion or
objection, the defendant must demonstrate not only the absence of a tactical reason for
the omission, but also that the motion or objection would have been meritorious if the
defendant is to bear his burden of demonstrating that it is reasonably probable that absent
the omission a determination more favorable to defendant would have resulted. (People
24
v. Fosselman (1983) 33 Cal.3d 572, 584; Strickland v. Washington, supra, 466 U.S. at
p. 696 [80 L.Ed.2d at p. 699].)
Here, Garrett makes no attempt to establish that a motion for a separate trial or
separate jury would have been meritorious. Thus, he has failed to meet his burden of
demonstrating it is reasonably probable that absent the omission a determination more
favorable to him would have resulted.
Even assuming one of the motions would have been granted, the state of the
evidence is such that it is not reasonably probable that a more favorable outcome would
have ensued had separate trials been held or separate juries empanelled. Garrett was not
mentioned during any of the conversations. Hamilton did not admit to forcing C.G. to
orally copulate him or aiding and abetting anyone else in doing so. To the contrary, he
denied ever forcing C.G. to do anything and said that while he did not remember any
incident in a park restroom, if such an incident did occur, it was consensual. Hamilton
admitted going to a movie with Cameo during the relevant time period, thereby
suggesting that he was the person C.G. knew as Chris. However, his admission did not
implicate Garrett in any way. C.G.’s statements to Hamilton were consistent with her
testimony at trial. As the prosecutor told the jury, “what you can do is you can listen to
those calls and see how they corroborate, how they give support, how they line up really
with what [C.G.] testified to when she was in court.” C.G.’s statements to her mother,
brother’s girlfriend, Johnson, and Miyamoto were also consistent with her statements to
Hamilton, i.e., that she was forced to orally copulate four men in a park restroom.
We conclude that where, as here, Hamilton’s incriminating statements do not
implicate Garrett in the crimes charged, C.G.’s statements are merely cumulative, and the
properly admitted evidence (namely the presence of Garrett’s DNA on five places on
C.G.’s body and clothing) is overwhelming, it is not reasonably probable that a different
outcome would have ensued absent the alleged error.
25
Accordingly, Garrett has failed to meet his burden of establishing that his trial
counsel rendered ineffective assistance.
DISPOSITION
Hamilton’s sentence on count one (forcible oral copulation) is stayed pursuant to
section 654. The judgments are affirmed in all other respects. The trial court is directed
to prepare and amended abstract of judgment consistent with this opinion and to forward
a copy of the amended abstract to the Department of Corrections and Rehabilitation.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
HOCH , J.
26 | 01-03-2023 | 08-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/462718/ | 780 F.2d 835
Betty I. GARDNER, Plaintiff/Appellant,v.UNITED STATES of America, Defendant/Appellee.
No. 84-6615.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 9, 1985.Decided Jan. 16, 1986.
Larry Nathenson, Mantalica & Treadwell, Los Angeles, Cal., for plaintiff/appellant.
Elgin Edwards, Asst. U.S. Atty., Los Angeles, Cal., for defendant/appellee.
Appeal from the United States District Court for the Central District of California.
Before DUNIWAY, Senior Circuit Judge, TANG and BOOCHEVER, Circuit Judges.
BOOCHEVER, Circuit Judge:
1
Betty Gardner appeals a judgment for the United States in her suit for the wrongful death of her husband, Semer Robert Gardner (Gardner), who was electrocuted while working for an independent contractor, Action Industries, Inc. (Action), on government property. She brought suit in district court under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2674 (1982), alleging that the death of her husband was due to the failure of the United States to provide a safe working place, supervise the work performed, and supply proper safety equipment. The district court entered judgment for the United States. It held that the United States delegated to Action responsibility for safety and that the acts of the United States were not the proximate cause of Gardner's death. We reverse and remand for a determination of whether, under California's nondelegable duty doctrine, the United States breached its duty to Gardner.
I. FACTUAL BACKGROUND
2
On July 1, 1975, the United States, through the Air Force, entered into a contract with Action to provide mechanical, structural and electrical maintenance support to facilities located at Los Angeles Air Force Station, El Segundo, California. On November 17, 1978, Action assigned electrician Gardner to remodel office space in Building 100, Los Angeles Air Force Station. The electrical work included removal and relocation of electrical wiring, light switches, electrical outlets and the installation of new light fixtures.
3
The contract designated Colonel Raymond Thompson, Base Civil Engineer (BCE), to supervise the rewiring operations. Section 1.17 of the contract required the BCE to approve individual work orders for each separate construction project under the contract. Gardner was working under such an order at the time of his death.
4
In addition, the contract provided that the BCE supervise procedures1 and that Action request authorization from the BCE before de-energizing utilities.2 Further, the contract incorporated into its terms the Electrical Facilities Safe Practices Handbook (Handbook) which set out safety procedures.
5
The Handbook also vested in the BCE sole authority to authorize work on energized lines and equipment.3 Under Sections 1-9, 7-1, and 7-4 of the Handbook, work on energized lines could not be performed without the BCE certifying that (1) de-energized lines and equipment would create health or safety hazards or disrupt critical operations, (2) at least two electricians would be present, (3) all necessary protective equipment and special tools would be available, and (4) all other energized or grounded conductors or equipment within reach or which must be climbed through would be covered with rubber lined hose, insulator hoods, rubber blankets, or would be isolated with suitable barriers.
6
The contract provided that the technical representative of the contracting office would monitor compliance with the health and safety standards and report violations to the BCE. If a safety violation were noted, the BCE would stop work.
7
At the time of his death, Gardner was working on a junction box containing various electrical circuits. He had de-energized the circuit on which he was working but left nearby circuits energized. Gardner was working in violation of the Electrical Facilities Safe Practices Handbook; he was working without certification from the BCE, without a second electrician, without a rubber blanket over the circuits, and without an insulator hood. While working, he came into contact with the energized lines causing electrocution.
II. ANALYSIS
8
Betty Gardner brought her claim under the Federal Tort Claims Act which holds the United States is liable "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. Sec. 2674, and "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b). Because Gardner's injury occurred at Los Angeles Air Force Station, California law applies.
9
California follows the Restatement (Second) of Torts by imposing a nondelegable duty on the employer of an independent contractor where the work to be performed involves special danger. Such work includes work dangerous in the absence of special precautions. Van Arsdale v. Hollinger, 68 Cal.2d 245, 253, 66 Cal.Rptr. 20, 437 P.2d 508 (1968).
10
In Rooney v. United States, 634 F.2d 1238 (9th Cir.1980), we held pursuant to California's nondelegable duty doctrine that the United States was liable under the Federal Tort Claims Act for breaching its nondelegable duty to ensure adequate safety precautions were taken by an independent contractor who contracted to paint and maintain radar domes.
11
Where ... danger is present in the work, the Government may be held liable for injuries to an employee of an independent contractor caused by the absence of the proper precautions, even though in its contract the Government merely reserved the rights to inspect the work performed and to stop the work if adequate precautions were not taken.... The fact that the contract requires specified safety precautions does not negate the employer's liability where the contractor fails to follow those specifications.
12
634 F.2d at 1244. See also McGarry v. United States, 549 F.2d 587, 590 (9th Cir.1976), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977) (When independent contractor is employed to do extra-dangerous work, employer has duty to see contractor takes proper precaution to protect those who might sustain injury.); Thorne v. United States, 479 F.2d 804, 808 (9th Cir.1973) (Where independent contractor's work digging trenches across steep slope is dangerous, United States Bureau of Reclamation is under duty to see independent contractor takes proper precautions.).
13
Specifying safety precautions and retaining the right to inspect and stop work are thus not sufficient to relieve an employer of liability when it has contracted out extradangerous work. California law imposes upon an employer an independent duty to ensure safety precautions are followed.
14
Although the United States correctly contends that it may not be vicariously or strictly liable for negligent acts of its independent contractor under 28 U.S.C. Sec. 1346(b), in Borquez v. United States, 773 F.2d 1050, 1053 (9th Cir.1985), we held that the government may be liable under the Tort Claims Act for a breach of a nondelegable duty. The phrase "nondelegable duty" suggests a type of vicarious or strict liability, but we explained in McGarry v. United States, that:
15
liability for breach of such [non-delegable] duty is neither strict nor vicarious liability. It is not liability for the contractor's failure to exercise due care or to employ proper safety precautions. It stems from the duty of the contractor's employer to exercise reasonable care to see that the contractor abides by his responsibilities in that respect.
16
549 F.2d at 590. Judge Merrill, in his concurrence in Thorne v. United States, also explained,
17
while the phrase "non-delegable duty" may conjure up visions of vicarious liability beyond the scope of the Tort Claims Act, the duty here owed ... was to exercise reasonable care to see that proper precautions were taken by the contractor. It was breach of this duty ... that results in liability of the United States.
18
Thorne, 479 F.2d at 810 (Merrill, J., concurring).
19
Thus, under California's nondelegable duty doctrine the United States is directly liable for its own negligence when it fails to ensure that an independent contractor takes adequate safety precautions and the work to be performed involves special dangers. Betty Gardner's claim of breach of the United States' nondelegable duty is thus within the scope of the Federal Tort Claims Act.
20
While the district court stated in its conclusions of law that the United States had a duty to Gardner and the United States did not breach that duty, the district court did not address the evidence set forth at trial. Specifically, the district court did not address the plaintiff's contentions that (1) at the time of his death, Gardner was working within reach of energized circuits without a second electrician, without a rubber blanket and without an insulator hood, all in violation of the USAF Electrical Facilities Safe Practices Handbook; (2) the BCE did not comply with his contractual duty (a) to supervise the rewiring operations, (b) to approve the individual work orders and particularly the work order for the project on which Gardner was working, and (c) to supervise procedures to assure compliance with the requirements of the Electrical Facilities Safe Practices Handbook; and (3) the BCE was not, but should have been, aware that Gardner was working within reach of energized circuits without compliance with safety practices.
21
If the trial court finds that the evidence supports the above contentions, then it appears the United States breached its nondelegable duty to Gardner. However, because the trial court's findings are not sufficiently clear to determine whether California's nondelegable duty doctrine was breached, we reverse and remand for amplification of the findings and, depending on the result thereof, reconsideration of the conclusions of law consistent with this opinion.
22
REVERSED and REMANDED.
1
Attachment 1, section 1.16 of the contract provides:
The contractor shall develop operating instructions for certain functional areas as directed by the BCE covering methods and techniques to be utilized in the performance of this contract. Functional areas shall include, but not be limited to, procedures for ... interruption of utility services....
2
Attachment 1, section 1.21 of the contract provides:
Prior to cutting off any utility system or a portion thereof, the contractor shall effect necessary coordination between affected parties and obtain an authorization from the BCE before starting the work.
3
Section G Sec. 7-1 "Work On Lines and Equipment" states:
Work on electric lines and equipment, requiring the opening or closing of a switching and/or disconnecting device out of sight from the working area, or affecting operational facilities requiring the coordination of an operating organization, will be accomplished under the safe clearance procedures prescribed in this section. These procedures will be administered by the Base Civil Engineer or a designated subordinate supervisor of his organization. Clearance for work on energized lines and equipment will NOT be issued without a certification as provided for in paragraph 1-9. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1036068/ | Filed 7/31/13 Nava v. Safeway CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JUAN NAVA,
F063775
Plaintiff and Appellant,
(Super. Ct. No. CV001882)
v.
SAFEWAY INC., OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
Whelan Law Group, Walter W. Whelan and Brian D. Whelan for Plaintiff and
Appellant.
Littler Mendelson, Bren K. Thomas, Ryan L. Eddings and Elisabeth F. Tietjen for
Defendant and Respondent.
Shelbi D. Day and Jennifer C. Pizer for Lambda Legal Defense and Education
Fund as Amicus Curiae on behalf of Defendant and Respondent
-ooOoo-
Defendant Safeway, Inc. (Safeway), a large supermarket chain, frequently
displayed thematic posters in its stores and distribution centers as a way of promoting a
corporate policy of diversity. In June 2009, a new poster entitled “GAY/LESBIAN PRIDE
MONTH” was displayed by Safeway in the employee break room of its distribution center
in Merced, California, where plaintiff Juan Nava was employed. Plaintiff was offended
by the poster and removed it. When his supervisors confronted him about removing the
company poster, plaintiff explained that he disagreed with the poster’s political message.
It appeared to plaintiff that Safeway was taking sides in the statewide political debate
over same-sex marriage, a matter on which plaintiff had strong convictions. One week
after this conversation took place, Safeway terminated plaintiff’s employment.
Plaintiff then commenced the present action against Safeway for wrongful
termination in violation of Labor Code sections 1101 and 1102, which statutes prohibit an
employer from attempting to coerce or influence its employees’ political activities
through threat of discharge. Safeway responded to the lawsuit by filing a demurrer and
special motion to strike (or anti-SLAPP motion) pursuant to Code of Civil Procedure
section 425.16.1 In addressing the anti-SLAPP motion, the trial court found that
(1) plaintiff’s claims arose out of conduct protected by section 425.16 and (2) there was
no factual support for the alleged violation of Labor Code sections 1101 and 1102. More
specifically, the trial court concluded there was no evidence to support plaintiff’s theory
that Safeway fired him from his job to punish him for having a particular political
viewpoint or affiliation (i.e., pro-Proposition 8) or to intimidate other employees in the
workforce who might agree with plaintiff’s stance. Instead, it appeared to the trial court
that plaintiff was terminated solely because he removed and damaged Safeway’s poster,
1 Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure.
The term “SLAPP” is “an acronym for ‘strategic lawsuit against public participation.’”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
2.
which conduct amounted to plaintiff trying to censor Safeway’s freedom of expression.
Accordingly, the trial court granted the anti-SLAPP motion and dismissed plaintiff’s
action. Plaintiff appeals, arguing he made a sufficient showing in the trial court to
overcome the anti-SLAPP motion. Although a close call, we think plaintiff is correct.
Because the evidence presented in connection with the anti-SLAPP motion was
minimally adequate to establish that plaintiff could potentially prevail on his wrongful
termination claim, the trial court erred in granting the motion. Therefore, we reverse the
judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Plaintiff’s First Amended Complaint
We begin by briefly summarizing the facts as alleged in plaintiff’s first amended
complaint filed August 15, 2011, which is the operative pleading. At the time of the
poster incident, plaintiff had been an employee of Safeway for approximately ten years
and was working as a forklift driver for Safeway at its Merced distribution center. On
Monday, June 1, 2009, at about 4:40 a.m., plaintiff walked into the break room of the
distribution center and saw the poster celebrating “GAY/LESBIAN PRIDE MONTH.”
Plaintiff removed the poster “because he was offended by the political message being
espoused by Safeway.” Allegedly, plaintiff believed that Safeway was trying to influence
employees and customers regarding the political debate in California over same-sex
marriage. At that time, Proposition 8 had recently been passed by California voters in
November 2008, and there continued to be controversy about the issue of same-sex
marriage.2
2 Proposition 8, also known as the California Marriage Protection Act, was passed by a
majority of California voters in the November 2008 election. (Cal. Const., art. I, § 7.5; Strauss v.
Horton (2009) 46 Cal.4th 364, 385.) It provides: “Only marriage between a man and a woman
is valid or recognized in California.” (Cal. Const., art. I, § 7.5.) At the time of the events set
forth in plaintiff’s complaint, this issue was still very much in the public limelight. For example,
in the week prior to Safeway’s display of the subject poster, the California Supreme Court issued
3.
The poster announced that June 2009 was “GAY/LESBIAN PRIDE MONTH” and
focused on the life of Harvey Milk, whose picture was displayed. Under the word
“[C]ourage,” the poster stated: “We honor Harvey Milk, an Icon of the gay rights
movement. Harvey Milk, a camera shop owner and vocal advocate of civil rights, made
history in 1977 by capturing a seat on the San Francisco Board of Supervisors. The first
openly gay person to win an elected office in the U.S., he fought for gay rights and led
the battle to defeat a state proposition that would have banned gays and lesbians from
working in California public schools. Milk’s political career ended tragically with his
assassination, but his legacy of civil activism lives on.”
Safeway discovered that plaintiff had removed the poster because his conduct was
recorded on a surveillance video. On June 4, 2009, Sue Carol, a corporate human
resources representative, confronted plaintiff about removing the poster. Another
Safeway manager was also present to observe the conversation. When confronted,
plaintiff explained that he took down the poster because he was “extremely bothered” by
the political agenda Safeway was apparently promoting (i. e., same-sex marriage). The
two managers who heard plaintiff’s explanation allegedly reacted by expressing
“disapproval of [p]laintiff’s position.” On June 10, 2009, Safeway terminated plaintiff’s
employment. According to plaintiff’s allegations, he was terminated “because he
objected to Safeway’s policy of seeking to have its employees and customers support the
gay/lesbian political agenda.” Plaintiff further alleged that “Safeway took such action to
influence and to coerce the remaining Safeway employees’ beliefs and their political
its decision that Proposition 8 did not violate the California constitution (Strauss v. Horton,
supra, at pp. 364, 391 [decided May 26, 2009]), and a new lawsuit was filed in the United States
District Court before Judge Vaughn R. Walker, challenging Proposition 8 on the ground that it
violated the United States Constitution (Perry v. Schwarzenegger (N.D.Cal. 2010) 704
F.Supp.2d 921, 928 [complaint filed May 22, 2009]). On June 1, 2009, the same day that the
poster was displayed by Safeway, President Obama proclaimed June 2009 as “Lesbian, Gay,
Bisexual, and Transgender Pride Month.”
4.
action relating to the gay/lesbian political agenda.” Additionally, plaintiff alleged that
two other employees (i.e., Rob Fuentes and Doug Davis) were disciplined for separate
incidents of taking down the poster or turning it around. Mr. Fuentes and Mr. Davis were
suspended for several days.
Based on these allegations, plaintiff claimed that Safeway violated Labor Code
sections 1101 and 1102. The first amended complaint set forth causes of action against
Safeway for (1) wrongful termination in violation of public policy, (2) violation of Labor
Code sections 1101 and 1102, (3) wrongful termination in violation of the whistleblower
protections set forth in Labor Code section 1102.5, (4) unfair business practices, and
(5) intentional infliction of emotional distress. Each cause of action, however labeled,
was premised on the alleged violation of Labor Code sections 1101 and 1102.
Safeway’s Anti-SLAPP Motion and Demurrer
Safeway responded to plaintiff’s lawsuit by filing an anti-SLAPP motion pursuant
to section 425.16. Safeway argued in its motion that plaintiff’s causes of action were all
based on conduct protected under section 425.16, since Safeway’s display of the
“diversity poster” clearly arose from its own exercise of free speech protected under the
California and federal Constitutions. Additionally Safeway argued that the message
contained in the subject poster—that of promoting diversity and tolerance—was of public
interest and fully consistent with the legislative policy goals set forth in California’s Fair
Employment and Housing Act (FEHA), codified at Government Code section 12900 et
seq. Safeway also addressed the second step of the analysis under its anti-SLAPP
motion, which is whether or not plaintiff established “a probability that [he] will prevail
on the claim.” (§ 425.16, subd. (b).) Safeway argued there was no support or
substantiation for a cause of action premised on the referenced Labor Code provisions,
since the poster did not involve a rule or policy with respect to political actions or
affiliations and did not control, direct or coerce any political course of action whatsoever.
5.
Moreover, Safeway asserted that plaintiff was terminated solely because he “took down
the Harvey Milk Poster and damaged it.”3
In opposition to the motion, plaintiff submitted several declarations in an effort to
show that his termination was because of his political stance or platform, which Safeway
found to be politically incorrect. Plaintiff’s own declaration stated: “I viewed Safeway’s
placement of the gay and lesbian pride poster in the employee break room as Safeway’s
expression of its position on the debate concerning [P]roposition 8 and Safeway’s
declaration to its employees of its views and a mandate to employees to conform with
those views. [¶] … I was offended by the political message of the gay and lesbian pride
poster in the break room and I did not agree with it. I was not alone in this feeling. Other
employees felt similarly…. Because I refused to agree with Safeway’s political policy
and message, I removed the poster and placed it outside of the break room in the adjacent
wash room. Consequently, I was terminated. [¶] … When I was confronted about the
poster, I expressed that I did not agree with the political message, that I was not alone,
and that I did not wish to have the poster back in the break room. I believe that my
termination was Safeway’s attempt to make an example of me to others that might
express similar and contrary political views to Safeway’s political view.”
Former Safeway employee Doug Davis submitted a declaration stating that he too
was “offended by the political message” of the poster, which he understood to be that
“the company [was] making a statement and pushing a gay [political] agenda.”
Mr. Davis turned the poster around on one occasion and he put it behind the vending
machine in the break room on another occasion. He told a supervisor, Gardner Bullard,
who he understood to be one of the persons in charge of placing such posters in the break
3 This assertion was made in the declaration of Chris Nenoff, who was Safeway’s Human
Resource Manager of its Diversity and Inclusion Department. We note Mr. Nenoff’s declaration
stated that this was merely his understanding of why plaintiff was terminated.
6.
room, that he disagreed with its placement. Mr. Bullard told him that he (Bullard)
disagreed with the poster’s message also. For his conduct, Mr. Davis was suspended for
approximately one week. Safeway employee Rob Fuentes stated in his declaration that
he was “very offended” by the political message of the poster. He was confronted by
Mr. Bullard. He admitted to taking down the poster and turning it around because he
didn’t agree with its message. He also declared that he told management that if they put
the poster up again he would “do that again to the poster.” Mr. Fuentes was suspended
for three days for taking the poster down and for turning it around on the easel.
Plaintiff’s opposition evidence also included the declaration of another
coemployee, Michael Homick, who stated as follows: “In 2009 a gay pride poster was
displayed on an easel in the break-room in the Safeway distribution center in Merced.
Over the course of a couple of days the poster was either taken down or placed in such a
way that it could not be seen. When this happened, I would place the poster back in its
place on the easel. One day, I found the poster crumpled in the wash room. I brought the
poster and an accompanying note that I wrote to management. I told management that I
did not want anyone to lose their job, but I wanted the matter looked into. [¶] … Later, it
came to my attention that [plaintiff] was terminated for his involvement with the poster. I
approached Sue Carol and told Ms. Carol that I did not believe that [plaintiff] should be
terminated under the circumstances. [¶] … I am a gay man, and I have had occasion to
interact with [plaintiff] in the work place over the years. [Plaintiff] has always been
respectful to me and has never displayed any animosity or negativity to me because of
my sexual orientation. I was surprised that [plaintiff] was terminated.”
In addition to filing the anti-SLAPP motion, Safeway also demurred to the first
amended complaint. The demurrer contended that plaintiff failed to state any cause of
action premised on the alleged violation of Labor Code sections 1101 and 1102 because
the poster was not political speech and, in any event, there was no influence, control or
coercion by Safeway in regard to anyone’s political action or affiliation.
7.
Trial Court’s Rulings
In its ruling on Safeway’s anti-SLAPP motion, the trial court preliminarily
observed the statewide political environment in which the underlying events took place:
“The context in which this arose was that in November, 2008 California Electorate
passed Proposition 8, the California Marriage Protection Act. Following enactment of
the California Marriage Protection Act, litigation was filed attacking its constitutionality.
In San Francisco, the issue received considerable attention in the news. The issue was a
matter of public interest throughout the State. Safeway is based in the bay area. The
litigation was pending in Federal Court before Judge [Walker]. The poster was put up
during the time in which there was considerable public debate as to whether gays should
be allowed to marry.”
In its analysis of the motion, the trial court determined that the lawsuit arose out of
protected activities under section 425.16. In the trial court’s assessment, the lawsuit was
based on the poster and the poster was Safeway’s expression of its constitutional right of
free speech on matters of public interest. (See § 425.16, subd. (e).) Thus, the trial court
concluded the first prong of the anti-SLAPP motion was satisfied. Then, turning to the
second prong of the motion, the trial court concluded that there was no supporting factual
basis for plaintiff’s claim that sections 1101 and 1102 of the Labor Code were violated by
Safeway. The trial court found that plaintiff’s termination was based on the removal of
Safeway’s poster. That conduct was an attempt by plaintiff to censor Safeway’s free
speech and was also insubordination on the part of plaintiff. Consequently, the trial court
found the termination was clearly within the bounds of Safeway’s rights as plaintiff’s
employer. (See Lab. Code, § 2922.)
As part of its ruling, the trial court indicated that it would not consider plaintiff’s
argument that Safeway actually fired him because of his opposing political stance on the
gay rights political movement or Proposition 8. Apparently, the trial court was persuaded
8.
that for purposes of the anti-SLAPP motion, it could not consider Safeway’s motive in
terminating plaintiff’s employment.
In a separate ruling, the trial court sustained the demurrer to the first, second,
fourth and fifth causes of action of the first amended complaint with leave to amend.
Only the demurrer to the third cause of action (for alleged violation of the whistleblower
statute, Lab. Code, § 1102.5) was sustained without leave to amend.
After granting the anti-SLAPP motion, the trial court dismissed the entire action
with prejudice. Plaintiff’s timely appeal followed.
DISCUSSION
I. Standard of Review
We review de novo the trial court’s ruling on an anti-SLAPP motion. (Flatley v.
Mauro (2006) 39 Cal.4th 299, 325.) “Resolving the merits of a section 425.16 motion
involves a two-part analysis, concentrating initially on whether the challenged cause of
action arises from protected activity within the meaning of the statute and, if it does,
proceeding secondly to whether the plaintiff can establish a probability of prevailing on
the merits. [Citation.]” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699 (Overstock.com).) In our de novo review, “‘[w]e consider “the
pleadings, and supporting and opposing affidavits … upon which the liability or defense
is based.” (§ 425, subd. (b)(2).) However, we neither “weigh credibility [nor] compare
the weight of the evidence. Rather, [we] accept as true the evidence favorable to the
plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]”
(Flatley v. Mauro, supra, at p. 326.)
II. Overview of the Anti-SLAPP Statute
“[T]he Legislature enacted section 425.16, the anti-SLAPP statute, to provide for
the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances.
9.
[Citation.]” (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309,
315.) “‘[T]he point of the anti-SLAPP statute is that you have a right not to be dragged
through the courts [in a meritless litigation] because you exercised your constitutional
rights.’ [Citations.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,
193.) The resolution of an anti-SLAPP motion requires the court to engage in a two-step
process: “First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected activity.… [Second, i]f
the court finds such a showing has been made, it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).) However,
“‘[o]nly a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that
arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP,
subject to being stricken under the statute.’ [Citation.]” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820.)
III. The Trial Court Improperly Granted the Anti-SLAPP Motion
A. First Prong
Under the first step or prong of the analysis under section 425.16, the moving
party must make a threshold showing that the challenged cause of action arose from
protected activity within the meaning of the statute. (§ 425.16, subd. (b)(1); Equilon
Enterprises, supra, 29 Cal.4th at p. 67; Overstock.com, supra, 151 Cal.App.4th at p. 699.)
The activity protected by section 425.16 is described in subdivision (e) thereof, and
includes “any … conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e).) The trial court found the poster’s message
was an endorsement or promotion of gay rights and, as such, was an expression of
Safeway’s free speech on an issue of public interest or concern. (See Lockheed Aircraft
Corp. v. Superior Court (1946) 28 Cal.2d 481, 486 (Lockheed) [nothing in Lab. Code,
10.
§ 1101 “deprives an employer of the right of free speech and prevents him from
publishing his political beliefs or views among his employees”].) The trial court also
concluded the lawsuit arose out of Safeway’s display of the poster. Safeway agreed with
the trial court on both of these points.
On appeal, plaintiff argues the issues were not sufficiently public in nature, since
this was merely a private workplace dispute involving a few people. (See Olaes v.
Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1511 [a workplace
investigation of sexual harassment by a private employer and involving only a few
individuals did not rise to level of a broad public interest under § 425.16, subd. (e)].)
One flaw in plaintiff’s argument is that his own pleading asserted the existence of
significant statewide interest and concern relating to what he referred to as “the
gay/lesbian political agenda,” and to Proposition 8 in particular, which interest was
allegedly reflected in “highly politicized debates” that were still “ongoing throughout the
state.” Plaintiff further alleged that he believed it was inappropriate for Safeway, by
displaying the subject poster, to “take sides in the dispute.” Thus, if we take plaintiff’s
allegations at face value, it would seem that he has virtually conceded the public nature of
the speech entailed in this case.
Although we have briefly introduced the parties’ positions, we decline to decide
the issue of whether plaintiff’s causes of action arose out of Safeway’s protected exercise
of free speech in connection with an issue of public concern. Due to uncertainty in the
evidence whether plaintiff was terminated because of (1) his removal of Safeway’s poster
(on the one hand) or (2) the political viewpoint maintained by plaintiff (on the other
hand), we find it simpler to resolve the anti-SLAPP motion by turning to the second
11.
prong of the motion. As will be seen, plaintiff met his burden of demonstrating a
reasonable probability of prevailing on a cause of action.4
B. Second Prong
In order to establish a probability of prevailing on a cause of action in the context
of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim.
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “‘Put another way, the plaintiff “must
demonstrate that the complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence submitted by
the plaintiff is credited.” [Citations.]’ [Citation.]” (Ibid.) That is, the plaintiff must
“‘“‘make a prima facie showing of facts which would, if proved at trial, support a
judgment in plaintiff’s favor. [Citation.]’”’” (ComputerXpress, Inc. v. Jackson (2001) 93
Cal.App.4th 993, 1010.) In deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant; however, the court does not weigh the credibility or comparative probative
strength of competing evidence. (Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 821.)
“Precisely because the statute (1) permits early intervention in lawsuits alleging
unmeritorious causes of action that implicate free speech concerns, and (2) limits
opportunity to conduct discovery, the plaintiff’s burden of establishing a probability of
prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the
evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the
defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter
of law.” (Overstock.com, supra, 151 Cal.App.4th at pp. 699-700.) The plaintiff need
4 It is not unprecedented for an appellate court to review an anti-SLAPP motion by
skipping to the second prong of the analysis. (See, e.g., Oasis West Realty, LLC v. Goldman,
supra, 51 Cal.4th at p. 820; Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988-989.)
12.
only show a “minimum level of legal sufficiency and triability” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 438, fn. 5), or a case of “‘minimal merit’” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 95, fn. 11). Thus, the standard is similar to that employed in
determining summary judgment, directed verdict or nonsuit. (Grewal v. Jammu, supra,
191 Cal.App.4th at p. 990.) “Section 425.16 therefore establishes a procedure where the
trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure
at an early stage of the litigation. [Citation.]” (Varian Medical Systems, Inc. v. Delfino,
supra, 35 Cal.4th at p. 192.)
We shall first consider whether plaintiff adequately stated or pled a viable claim
for violation of Labor Code sections 1101 and 1102, since the alleged statutory violations
are the foundation for all of plaintiff’s claims. Our evaluation thereof will require a brief
review of the intent and scope of said statutes. Assuming the pleading was sufficient to
allege the statutory violations, we will then proceed to consider the evidence submitted
by the parties in connection with the anti-SLAPP motion.
Labor Code Sections 1101 and 1102
In 1937, “the California Legislature, recognizing that employers could misuse
their economic power to interfere with the political activities of their employees, enacted
Labor Code sections 1101 and 1102 to protect the employees’ rights.” (Gay Law
Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 486-487 (Gay Law
Students).) Labor Code section 1101 provides: “No employer shall make, adopt, or
enforce any rule, regulation, or policy: [¶] (a) Forbidding or preventing employees from
engaging or participating in politics …. [or] (b) Controlling or directing, or tending to
control or direct the political activities or affiliations of employees.” Labor Code section
1102 provides: “No employer shall coerce or influence or attempt to coerce or influence
his employees through or by means of threat of discharge or loss of employment to adopt
or follow or refrain from adopting or following any particular course or line of political
action or political activity.” These sections are designed to protect “‘the fundamental
13.
right of employees in general to engage in political activity without interference by
employers.’” (Gay Law Students, supra, 24 Cal.3d at p. 487, citing Fort v. Civil Service
Commission (1964) 61 Cal.2d 331, 335.)
What constitutes political activity under these provisions was described by the
California Supreme Court in its Gay Law Students decision as follows: “These statutes
cannot be narrowly confined to partisan activity.[5] As explained in Mallard v. Boring
(1960) 182 Cal.App.2d 390, 395: ‘The term “political activity” connotes the espousal of
a candidate or a cause, and some degree of action to promote the acceptance thereof by
other persons.’ (Italics added.)” (Gay Law Students, supra, 24 Cal.3d at p. 487.) It was
further observed that “[t]he [United States] Supreme Court has recognized the political
character of activities such as participation in litigation [citation], the wearing of
symbolic armbands [citation], and the association with others for the advancement of
beliefs and ideas [citation].” (Ibid., fn. omitted.) “Measured by these standards,” the
Supreme Court determined in the Gay Law Students case that advocacy for homosexual
rights, or identifying oneself with that cause, was a form of political activity. (Id. at
p. 488.) Since the employer in that case allegedly had a practice of discriminating against
persons who identified themselves as homosexuals, or defended homosexuality or
affiliated with organizations promoting such cause, a violation of Labor Code
sections 1101 and 1102 was adequately stated in the complaint, giving the plaintiffs a
cause of action for damages against the employer. (Gay Law Students, supra, at pp. 488-
489.)
5 Partisan activity would obviously include one’s political affiliation, such as whether one
is a Republican or Democrat. The Supreme Court indicated in a footnote that an employer’s
practice of hiring or firing employees based on their political party affiliation would violate the
statutes. (Gay Law Students, supra, 24 Cal.3d at p. 487, fn. 16.) Of course, an important point
of the Gay Law Students case was that the statutes are not to be narrowly restricted to such
partisan activity.
14.
Following these principles in the present appeal, it would seem that plaintiff’s
personal political views and advocacy relating to a cause or issue such as same-sex
marriage would come within the definition of political activity protected under the
statutes. The key question in this case is: was that the reason he was fired? Or, on the
other hand, was plaintiff fired for removing and disposing of Safeway’s poster? If it was
the latter, we agree with the trial court that Safeway was within its rights in terminating
plaintiff’s employment. We briefly elaborate why that is so.
If Termination Was Based on Tearing Down Safeway’s Poster
As the trial court correctly pointed out, Safeway had a right of free speech and was
clearly entitled to display the subject poster in this case. (See Lockheed, supra, 28 Cal.2d
at p. 486 [nothing in Lab. Code, § 1101 “deprives an employer of the right of free speech
and prevents him from publishing his political beliefs or views among his employees”].)
Additionally, we agree with the trial court that merely displaying a poster with a political
message was not a violation of Labor Code sections 1101 and 1102. The trial court aptly
explained: “A poster regarding Gay Rights Month commemorating a gay politician’s life
for advocating gay rights in no way moves or directs a Safeway employee towards a
particular direction as far as political action. We are all confronted with posters
advertising particular activities or points of view. Placing a poster is a mere suggestion to
consider another point of view regarding political issues that are of public interest.”
Moreover, the language of Labor Code sections 1101 and 1102 indicates that to constitute
a violation, there must be a coercive element to the employer’s conduct. In section 1101,
an employer is prohibited from adopting or enforcing a “rule” or “policy” to “control” or
“direct” employees’ political activities or affiliations; in section 1102, the coercion or
15.
influence on political activity is exerted through the “threat of discharge.” None of these
coercive aspects were present here in merely displaying the poster.6
Consequently, when plaintiff removed the poster and discarded it into the wash
room, he was, in effect, interfering with Safeway’s right to free expression. Obviously,
the mere fact that he disagreed with Safeway’s real or apparent political views did not
give him a right to remove Safeway’s property or censor its free speech. Additionally,
plaintiff’s conduct could be construed by Safeway as a form of insubordination—that is,
of tampering with or disposing of company property. These are obviously valid grounds
on which the employer may take action that are not based on the employee’s political
activity or affiliation. While terminating a 10-year employee for removing a poster may
seem severe, such is an employer’s broad prerogative (see Lab. Code, § 2922). The
important thing here is that if that was the reason for plaintiff’s termination, it would not
constitute a violation of Labor Code sections 1101 or 1102.7
If Termination Was Based on Plaintiff’s Subsequent Political Identification
On the other hand, it is possible under the allegations that the poster incident was
not the real reason for plaintiff’s termination. According to plaintiff’s first amended
complaint, when plaintiff was confronted about his removal of the poster, he explained to
two Safeway managers that he took down the poster because he was “extremely
bothered” by the political agenda Safeway was apparently promoting by displaying the
poster (e.g., same-sex marriage). Allegedly, when the managers heard plaintiff’s
explanation, they reacted by expressing “disapproval of [p]laintiff’s position.” One week
6 To the extent the poster reflected the promotion of an official company policy of diversity
or tolerance, we note there is nothing about such a policy that would tend to control or direct any
employee’s political activities or affiliations.
7 Our opinion is not based on the particular message involved. Hypothetically, if an
employer displayed a poster with a different emphasis—say, promoting the value of traditional
marriage between a man and a woman—and an employee who did not like the poster tore it
down, our opinion would be the same.
16.
later, plaintiff was fired. Under these allegations, construed liberally, one theory of
plaintiff’s case was that he was fired because of the political perspective or cause that he
identified with and espoused in his discussion with Safeway’s managers. If plaintiff was
fired for his particular political perspective, affiliation or cause of favoring Proposition 8
or being against same-sex marriage, so that it may be inferred that (as plaintiff alleged)
Safeway was in effect declaring that the espousal or advocacy of such political views will
not be tolerated—then Safeway’s action constituted a violation of Labor Code sections
1101 and 1102.8 (Gay Law Students, supra, 24 Cal.3d at pp. 487-489; Ali v. L.A. Focus
Publication (2003) 112 Cal.App.4th 1477, 1487 [wrongful termination in violation of
public policy may be based on the employer’s violation of Lab. Code, §§ 1101 & 1102].)
Therefore, we conclude that plaintiff adequately alleged a cause of action for wrongful
termination in violation of Labor Code sections 1101 and 1102.
Factual Showing in Connection with Anti-SLAPP Motion
Of course, in response to an anti-SLAPP motion, a plaintiff must do more than
state a valid cause of action. He or she must also substantiate the claim “‘“by a sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence submitted by
the plaintiff is credited.” [Citations.]’ [Citation.]” (Rusheen v. Cohen, supra, 37 Cal.4th
at p. 1056.) A plaintiff must make a factual showing that his or her case has at least
“‘minimal merit’” or triability. (Navellier v. Sletten, supra, 29 Cal.4th at p. 95, fn. 11;
Grewal v. Jammu, supra, 191 Cal.App.4th at pp. 989-990 [noting that the minimal
showing necessary to overcome an anti-SLAPP motion is similar to what is required in
the context of a summary judgment motion or nonsuit].)
As alluded to already, plaintiff’s declaration averred that when he met with
Safeway’s managers about the poster incident, he expressed to them his disagreement
8 We are not saying an employee is entitled to get away with malicious words or disruptive
or offensive conduct in the workplace by calling it political.
17.
with “the political message” of the poster and explained that there were others who stood
with him and shared this same political perspective. The fact that plaintiff was abruptly
terminated after making such disclosures to Safeway regarding his political beliefs during
a time period in this state when issues such as Proposition 8 and same-sex marriage were
“hotly contested political issue[s],” combined with other circumstances, permits a
reasonable inference that his termination was based on the political views he expressed.
Those other circumstances include: plaintiff’s employment longevity; his coemployees’
observation that he was a thorough and conscientious worker; receiving the ultimate
sanction of termination for discarding a company poster without receiving any verbal or
written warning, or lesser sanction; Mr. Davis and Mr. Fuentes were suspended rather
than terminated after being confronted by Mr. Bullard, who told Mr. Davis he didn’t
agree with the poster’s message either; and, while plaintiff told management he “did not
wish to have the poster back in the break room,” Mr. Fuentes was only suspended for
three days even though he threatened management that “if they were going to put the
poster up again, that [he] would do that again to the poster.”
This evidence and all reasonable inferences derived therefrom tend to support
plaintiff’s contention that he was terminated for reasons other than simply taking down
and discarding the poster. Such reasons could include punishing him for expressing
political views contrary to Safeway’s or, by discharging plaintiff, attempting to
discourage other employees from expressing political views different from Safeway’s in
violation of Labor Code sections 1101 and 1102. The plaintiff need only show a
minimum level of legal sufficiency and triability to defeat an anti-SLAPP motion.
(Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429, 438, fn. 5.) We accept as true all
evidence favorable to the plaintiff and assess the defendant’s evidence only to determine
if it defeats the plaintiff’s submission as a matter of law. (Overstock.com, supra, 151
Cal.App.4th at pp. 699-700.)
18.
Safeway’s evidence was inadequate to defeat plaintiff’s showing. Safeway
presented the declaration of Mr. Nenoff, the Human Resource Director of Safeway’s
Diversity and Inclusion Department. Mr. Nenoff merely stated it was his understanding
that plaintiff was fired because he “took down the Harvey Milk Poster and damaged it.”
There was no indication in Mr. Nenoff’s declaration that he had any personal knowledge
of what happened or why.9 At best, Safeway’s evidence does no more than confirm the
existence of a factual dispute as to why plaintiff was terminated. On this record, we
believe that plaintiff barely made a sufficient factual showing to establish the minimal
merit necessary to overcome the anti-SLAPP motion. Therefore, we conclude the trial
court erred in granting the motion.
The Trial Court Erroneously Refused to Consider the Employer’s Motive
One further comment regarding the trial court’s ruling is necessary. The trial court
was of the opinion that it was precluded from considering the issue of Safeway’s motive
in terminating plaintiff’s employment. To the contrary, as we have made clear,
Safeway’s motive or reason for terminating plaintiff’s employment is the dispositive
factual issue in this case. The explanation for the trial court’s error is easy to trace.
There is a rule to the effect that in deciding the first prong of an anti-SLAPP motion (i.e.,
whether or not the cause of action was based on protected activity), the moving party
need not prove the plaintiff’s subjective motive or intent to chill the defendant’s freedom
of speech or petition. (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 271 [so
holding]; Equilon Enterprises, supra, 29 Cal.4th at p. 68 [if moving party shows suit
arises out of protected activity, it has no additional burden to prove the plaintiff’s
subjective intent].) The error made by the trial court was in applying that same rule to the
9 Unfortunately, neither party produced any evidence about the specifics of what was said
at the meeting between plaintiff and Safeway’s managers.
19.
second prong of the analysis, where the viability of plaintiff’s cause of action was being
considered.
IV. The Demurrer
Plaintiff argues the trial court erred in sustaining the demurrer because plaintiff
adequately alleged “the requisite elements for a claim of violation of Labor Code §1101,
§1102, and wrongful termination in violation of the public policy underlying these
statutes.” As explained herein, we agree. We have held that plaintiff adequately pled a
cause of action for violation of Labor Code sections 1101 and 1102, and for wrongful
termination in violation of the public policy embodied in those statutes. On appeal,
plaintiff does not argue that the trial court erred in sustaining the demurrer as to any of
the other causes of action in his first amended complaint. Therefore, we do not address
the sufficiency of those other causes of action in this appeal, which plaintiff has
apparently abandoned.10
DISPOSITION
The trial court’s order granting the anti-SLAPP motion is reversed. The matter is
remanded to the trial court for further proceedings consistent with this opinion. Plaintiff
is awarded costs on appeal.
_____________________
Kane, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Peña, J.
10 It is doubtful we would be required to address the demurrer to the other causes of action
in any event, because the trial court sustained the demurrer with leave to amend, which is not an
appealable order.
20. | 01-03-2023 | 08-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2690334/ | [Cite as Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026.]
DISCIPLINARY COUNSEL v. HARRIS.
[Cite as Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026.]
Attorneys—Misconduct—Attorney not licensed in Ohio practicing in federal
district court located in Ohio—Ohio has no authority to enforce Ohio
Rules of Professional Conduct against attorney not licensed in Ohio—
Complaint dismissed and matter referred to Board on Unauthorized
Practice of Law for further proceedings.
(No. 2012-1698—Submitted February 26, 2013—Decided September 26, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-077.
____________________
O’DONNELL, J.
{¶ 1} This issue in this case is whether Donald Harris, an attorney who is
admitted to the practice of law in the District of Columbia and the Northern and
Southern Districts of Ohio, but who is not admitted to the practice of law in the
state of Ohio, is subject to the disciplinary authority of this court. Because Harris
is not a member of the Ohio bar and has not taken an oath to be bound by the
Ohio Rules of Professional Conduct, these rules do not apply to him; rather, his
conduct is subject to review by the Board on the Unauthorized Practice of Law
(“UPL Board”).
{¶ 2} Accordingly, we dismiss the Aimee Skeel matter in deference to
the authority of the bankruptcy court, and we dismiss the remaining matters and
refer them to the UPL Board for further proceedings.
Factual and Procedural Background
{¶ 3} Donald Harris has never been admitted to the practice of law in the
state of Ohio. However, as a member of the District of Columbia bar and of the
SUPREME COURT OF OHIO
bars of the United States District Court for the Northern and Southern Districts of
Ohio, he has focused his practice in bankruptcy law before the federal courts
geographically located in Ohio.
{¶ 4} In August 2011, disciplinary counsel filed a four-count complaint
against Harris relating to his representation of an Ohio client in bankruptcy
proceedings before the United States District Court for the Northern District of
Ohio, his establishment of a limited-liability company on behalf of an Ohio client,
his assistance to an Ohio client in a mortgage modification, and representations
regarding the relationship between an Ohio-licensed attorney and the Donald
Harris Law Firm. Disciplinary counsel maintains that since Harris is an out-of-
state attorney practicing federal law within Ohio’s boundaries, he is subject to the
disciplinary authority of this state pursuant to Prof.Cond.R. 8.5.
{¶ 5} A hearing panel of the Board of Commissioners on Grievances and
Discipline concluded that disciplinary counsel had properly filed the complaint
against Harris pursuant to Prof.Cond.R. 8.5. The panel further found that Harris
had engaged in numerous violations of the Ohio Rules of Professional Conduct
and recommended that Harris be indefinitely suspended from representing Ohio
citizens in the state of Ohio. Upon review, the board adopted the findings of fact,
conclusions of law, and recommendation of the panel.
{¶ 6} In his objections to the report and recommendation of the board,
Harris asserts that Prof.Cond.R. 8.5 does not authorize this court to enforce the
Ohio Rules of Professional Conduct against attorneys who are not licensed in
Ohio. Moreover, Harris maintains that Prof.Cond.R. 5.5(a)—which prohibits a
lawyer from practicing law in a jurisdiction in violation of its regulation of the
legal profession—applies only to attorneys licensed in Ohio who practice in
another jurisdiction. And he further contends that the federal courts and the
District of Columbia have jurisdiction over any disciplinary matters relating to his
practice in the federal bankruptcy courts.
2
January Term, 2013
The Court’s Authority to Regulate the Practice of Law in Ohio
{¶ 7} Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants this
court “ ‘exclusive power to regulate, control, and define the practice of law in
Ohio.’ ” Greenspan v. Third Fed. S. & L. Assn., 122 Ohio St.3d 455, 2009-Ohio-
3508, 912 N.E.2d 567, ¶ 16, quoting Cleveland Bar Assn. v. CompManagement,
Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39. We have
explained that “[a]ny definition of the practice of law inevitably includes
representation before a court, as well as the preparation of pleadings and other
legal documents, the management of legal actions for clients, all advice related to
law, and all actions taken on behalf of clients connected with the law.” Cleveland
Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, 857
N.E.2d 95, ¶ 22.
{¶ 8} We have defined the unauthorized practice of law as “ ‘the
rendering of legal services for another by any person not admitted to practice in
Ohio under Rule I and not granted active status under Rule VI, or certified under
Rule II, Rule IX, or Rule XI of the Supreme Court Rules for the Government of
the Bar of Ohio.’ ” (Emphasis added.) Lorain Cty. Bar Assn. v. Kocak, 121 Ohio
St.3d 396, 2009-Ohio-1430, 904 N.E.2d 885, ¶ 17, quoting former Gov.Bar R.
VII(2)(A), 103 Ohio St.3d XCIX, CI. Gov.Bar R. VII(2)(A)(4) defines the
unauthorized practice of law to include “[h]olding out to the public or otherwise
representing oneself as authorized to practice law in Ohio by a person not
authorized to practice law by the Supreme Court Rules for the Government of the
Bar or Prof.Cond.R. 5.5.” And controlling in this case is our own precedent: “a
lawyer admitted to practice in another state, but not authorized to practice in
Ohio, who counsels Ohio clients on Ohio law and drafts legal documents for them
is engaged in the unauthorized practice of law in Ohio.” Cleveland Bar Assn. v.
Moore, 87 Ohio St.3d 583, 584, 722 N.E.2d 514 (2000), citing Cleveland Bar
Assn. v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998).
3
SUPREME COURT OF OHIO
Rules of Professional Conduct Do Not Apply to Harris
{¶ 9} Although Harris is licensed to practice law in another jurisdiction,
because he is not admitted to the Ohio bar, our Rules of Professional Conduct,
designed to regulate conduct of attorneys admitted to practice law in Ohio, do not
apply to him. He never subjected himself to them because he has never been
admitted to practice law in this state.
{¶ 10} Every lawyer who is admitted to practice law in Ohio takes an oath
of office. See Gov.Bar R. I(1)(F). As part of that oath, the attorney swears or
affirms to support the Constitutions of the United States and the state of Ohio and
to “abide by the Ohio Rules of Professional Conduct.” Gov.Bar R. I(8)(A).
{¶ 11} Harris never took that oath and never agreed to abide by our rules,
and we are reluctant to impose our rules of conduct on him or other such attorneys
who engage in the practice of law in our state. It appears that this is precisely
why we have created the UPL Board and why we have defined the unauthorized
practice of law as “ ‘[t]he rendering of legal services for another by any person
not admitted to practice in Ohio.’ ” Kocak, 121 Ohio St.3d 396, 2009-Ohio-1430,
904 N.E.2d 885, ¶ 17, quoting former Gov.Bar R. VII(2)(A), now Gov.Bar R.
VII(2)(A)(1).
{¶ 12} In this regard, Harris is no different from an accountant, a real
estate agent, or a financial planner who undertakes activity that constitutes the
practice of law and who becomes subject to discipline pursuant to the
unauthorized practice of law framework. It is inconsistent to conclude that an
attorney admitted in another jurisdiction who engages in the unauthorized practice
of law in Ohio becomes subject to the Board of Commissioners on Grievances
and Discipline when another professional, such as a real estate agent, who
engages in the unauthorized practice of law becomes subject to the UPL Board.
Similarly, our decision today is in accordance with Gov.Bar R. VI(3)(C), which
provides:
4
January Term, 2013
An attorney who is admitted to the practice of law in
another state or in the District of Columbia, but not in Ohio, and
who performs legal services in Ohio for his or her employer, but
fails to register in compliance with this section or does not qualify
to register under this section, may be referred for investigation of
the unauthorized practice of law under Gov.Bar R. VII * * *.
(Emphasis added.)
{¶ 13} Additionally, our sanctions for serious violations of the Rules of
Professional Conduct, suspension and disbarment, are ineffective and meaningless
to Harris because he is not a member of the Ohio bar. We cannot suspend or
disbar an attorney who is not a member of the Ohio bar. Thus, we consider these
matters as alleged unauthorized practice of law violations.
Harris’s Conduct
The Bankruptcy Proceedings
{¶ 14} Harris represented Aimee Skeel in two bankruptcy petitions filed
in the United States Bankruptcy Court for the Northern District of Ohio. We
determine that Harris did not engage in the unauthorized practice of law when he
represented Skeel because, as a member of the District of Columbia bar, and
having been admitted to practice in the Northern District of Ohio, he was
authorized to practice before the United States Bankruptcy Court for the Northern
District of Ohio. As such, he becomes subject to the disciplinary authority of
those federal courts.
{¶ 15} As the Bankruptcy Court for the Northern District of Ohio
explained, “[a] bankruptcy court has the power to regulate the practice of law in
the cases before it.” In re Ferguson, 326 B.R. 419, 422 (Bankr.N.D.Ohio 2005),
citing United States v. Johnson, 327 F.3d 554, 560 (7th Cir.2003); see also
5
SUPREME COURT OF OHIO
Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27
(1991) (“the Court has held that a federal court has the power to control admission
to its bar and to discipline attorneys who appear before it”). Specifically, Loc.R.
2090-2(b) of the United States Bankruptcy Court for the Northern District of Ohio
states that “[p]rofessional conduct and attorney discipline shall be governed by
Local Civil Rule 83.7,” which provides that “any attorney admitted to practice
before this Court may be subjected to such disciplinary action as the
circumstances warrant.” Loc.Civ.R. 83.7(b)(1) of the United States District Court
for the Northern District of Ohio.
{¶ 16} Here, the United States Bankruptcy Court for the Northern District
of Ohio exercised its authority and declined to sanction Harris or order the
disgorgement of attorney fees for his representation of Skeel in bankruptcy
proceedings. Because the alleged misconduct involving Skeel occurred before the
United States Bankruptcy Court for the Northern District of Ohio and because that
court has the power to discipline Harris for his practice before it, we dismiss this
charge in deference to the disciplinary authority of the United States Bankruptcy
Court for the Northern District of Ohio.
Formation of an L.L.C.
{¶ 17} Darlene Martincak engaged Harris to file a petition in bankruptcy.
She also asked Harris to help her transfer five properties owned by her company
to Alexander Roussos. Prior to the filing of the bankruptcy, Harris met with
Martincak and Roussos to discuss the property transfers and agreed to assist them.
In relation to these transactions, during oral argument, Harris’s counsel admitted
that Harris had formed an L.L.C. Harris did not inform Martincak or Roussos that
he was not licensed to practice law in Ohio.
{¶ 18} Harris has never been admitted to the practice of law in Ohio, does
not have active status, and is not certified. By definition, then, Harris did not
commit a disciplinary violation because he never became subject to our
6
January Term, 2013
disciplinary rules by gaining admission to the bar of the state of Ohio. Rather,
Harris may have engaged in the unauthorized practice of law when he assisted
Roussos in establishing an L.L.C. in accordance with Ohio law and when he
participated in transferring properties to that L.L.C. See Columbus Bar Assn. v.
Verne, 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 1-4. In addition,
by his silence, he may have further engaged in the unauthorized practice of law by
leading Roussos and Martincak to believe that he was a member of the Ohio bar.
See Gov.Bar R. VII(2)(A)(4), which defines the unauthorized practice of law to
include holding out to the public or otherwise representing oneself as authorized
to practice law. Thus, since Harris is not admitted to the Ohio bar and because the
conduct with which he is charged has been defined by this court to constitute the
unauthorized practice of law, we dismiss the disciplinary action and refer this
matter to the UPL Board.
Modification of a Mortgage
{¶ 19} Harris also agreed to seek modification of a mortgage that Ronald
Sharp—a client whom Harris had represented in two prior bankruptcy
proceedings—held on his residence and failed to inform Sharp that he was not
licensed to practice law in Ohio.
{¶ 20} While we agree with the board that there is insufficient evidence to
support the allegations that Harris committed any disciplinary violations relating
to the modification of Sharp’s mortgage, we refer this matter to the UPL Board
for its consideration and review.
Violations Involving Information about Legal Services
{¶ 21} Harris formed the Donald Harris Law Firm in 2004. The firm
maintained a website, which indicated that unnamed attorneys in his firm were
licensed in various states, including Ohio. In addition, Harris’s letterhead stated,
“Attorneys at Law” below the firm name and listed Loretta Riddle, a member of
the Ohio bar, as an attorney. However, the nature of the working relationship
7
SUPREME COURT OF OHIO
between Harris and Riddle is unclear. Thus, by holding out to the public that
Riddle was a member of the Donald Harris Law Firm, he may have engaged in
the unauthorized practice of law in Ohio. See Gov.Bar R. VII(2)(A)(4). We
therefore refer this matter to the UPL Board for its consideration and review.
Conclusion
{¶ 22} Because Harris is not a member of the Ohio bar, he is not subject
to this court’s disciplinary authority. Rather, as an attorney not admitted to
practice in Ohio, he may have engaged in the unauthorized practice of law by
rendering legal services in Ohio to Ohio clients.
{¶ 23} Therefore, in conformity with our previous decisions in Moore and
Misch and our longstanding definition of the unauthorized practice of law, we
dismiss the Skeel matter in deference to the authority of the bankruptcy court.
We further dismiss the Roussos/Martincak matter, the Sharp matter, and the
charges relating to information about legal services and refer these matters to the
UPL Board for further proceedings.
So ordered.
O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
____________________
Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant
Disciplinary Counsel, for relator.
Oglesby & Oglesby, Ltd., and Geoffrey L. Oglesby, for respondent.
________________________
8 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2349793/ | 857 A.2d 473 (2004)
Morris ARTHUR, Appellant,
v.
DISTRICT OF COLUMBIA, et al., Appellees.
Nos. 00-CV-1389, 00-CV-1413.
District of Columbia Court of Appeals.
Argued May 26, 2004.
Decided September 9, 2004.
*475 Barbara McDowell, Legal Aid Society, with whom Rochanda F. Hiligh, Neighborhood Legal Services Program, was on the brief, for appellant.
Donna M. Murasky, Assistant Attorney General and Senior Litigation Counsel and Marc B. Tucker, with whom Robert J. Spagnoletti, Attorney General, Edward E. Schwab, Deputy Attorney General, Appellate Division, and Jennifer Ancona Semko, were on the brief, for appellees.[1]
Bernard A. Nigro, Jr. filed a brief in behalf of amici curiae: The Washington Council of Lawyers, AYUDA, Inc., Consortium of Legal Services Providers, Council of Latino Agencies, Partnership for Civil Justice, and Public Citizen Litigation Group.
Before SCHWELB, RUIZ and REID, Associate Judges.
REID, Associate J.
This case involves very contentious, labyrinthine litigation relating not only to marital property belonging to appellant Morris Arthur and his wife, Christine Arthur, but also to questions pertaining to interest on sums of money deposited initially in the court registry but later transferred to the District of Columbia Treasurer. Specifically, the issues presented in this appeal concern the trial court's decision to vacate the entry of default against Ms. Arthur in one aspect of the litigation, the relative equities of Mr. and Ms. Arthur in their marital property, and the interest earned, if any, on the principal sums paid into the court registry in this case. Because the trial court did not address or decide questions essential to appellate resolution, we vacate the trial court's judgment and remand the case to the trial court with instructions to address and resolve three matters consistently with this *476 opinion: (1) the reason for its decision to vacate the entry of default against Ms. Arthur; (2) the question of ownership of the $14,500.00 principal paid into the court registry, and whether Mr. and Mrs. Arthur have consented to a partition of their marital property which they acquired as tenants by the entireties and if they have consented, their relative equities in the property; and (3) the determination of how much interest, if any, was earned on the $14,500.00 principal sum and the court-ordered $350.00 security deposited in the court registry and later transferred to the District's general fund; and whether the District had a fiduciary duty to see that interest was earned and computed. Furthermore, we hold that any interest earned or which should have been earned on the sums deposited in the court registry and later transferred to the District's general fund belonged to Mr. or Ms. Arthur, or both, and that the District's retention of such interest constituted a taking for public use under the Fifth Amendment to the Constitution of the United States; such taking may or may not require just compensation, depending on the net loss suffered by the owner(s) of the deposited funds.
FACTUAL SUMMARY
The record shows that this matter has been in the courts since 1980 and has had a complicated procedural history, including a period of dormancy from around 1982 to 1996, traceable in part to Mr. Arthur's incarceration from about 1985 to 1996. The case commenced on July 7, 1980, when Mr. Arthur filed a complaint for injunction against a foreclosure sale of the Arthurs' marital property (held under a tenancy by the entireties), located in the 2600 block of Tenth Street, in the Northeast quadrant of the District of Columbia. The complaint against Irving Kamins and others alleged that Ms. Arthur's "whereabouts is presently unknown," and that Mr. Kamins had served Mr. Arthur with a foreclosure notice due to failure to pay a promissory loan note of $14,500.00. Since he had not been informed of the loan and the signature on the loan documents was not his, Mr. Arthur sought a judgment declaring the note and the accompanying deed of trust null and void due to forgery.[2] He also requested a temporary restraining order, as well as a preliminary injunction, both of which were granted.[3] However, the Honorable Paul R. Webber, III ordered him to "deposit additional security of $650 cash into the registry of the Court, in monthly installments of $65 each by the 10th day of each month commencing October 10, 1980."[4]
When Mr. Arthur was unable to meet monthly mortgage payments on the marital property, he and Mr. Kamins reached an agreement to avoid foreclosure. To reflect their agreement, they filed a stipulation in the trial court on February 9, 1981, designed "to permit the sale of the property...." "[T]he sum of $14,500.00 of the gross proceeds of [the] sale [of the marital property] [was] place[d] ... into the Registry of the Court, to be held pending *477 final disposition of this suit." The stipulation required whatever sum remained after the "satisfaction of the note" to be "disburse[d] ... to [Mr. and Ms.] Arthur... in accordance with their equities in [the marital property]." Ms. Arthur was not a party to the stipulation.
In light of the stipulation and the deposited funds, however, Ms. Arthur was a necessary party. See Super. Ct. Civ. R. 19(b).[5] Hence, on September 16, 1982, the trial court, the Honorable Joseph M. Hannon, "removed [the case of Morris Arthur v. Irving Kamins, et al.] from the trial calendar" and ordered Mr. Arthur's counsel to make Ms. Arthur a party to his lawsuit, and to serve her with a copy of the complaint within 30 days. In response to Mr. Arthur's motion, the time to serve Ms. Arthur was extended to November 15, 1982.[6] At this point, the case became dormant since Ms. Arthur was not served and the case was not restored to the calendar.
On February 17, 1988, the civil finance office of the Superior Court of the District of Columbia sent a check to the D.C. Treasurer in the amount of $14,850.00.[7] A praecipe noted, "Unclaimed deposits over 3 years old." Consequently no funds pertaining to this case remained in the court registry. There is no indication in the record that the parties were notified about the transfer of the deposit from the court registry to the D.C. Treasurer.
The case was lifted from its dormancy when Abraham Zaiderman, successor in interest to Mr. Kamins, duly moved on July 30, 1995, to restore the case to the active docket. He indicated that he would take steps to locate Mr. and Mrs. Arthur, and would "request that funds released from the court registry be restored...." The court granted the motion on August 29, 1995. Thereafter, in mid-October 1995, Mr. Zaiderman filed two motions, one to join the District of Columbia as a party or third party plaintiff, and the other to restore the $14,850.00 to the court registry. On December 22, 1995, the District responded, asserting that the funds should be deemed abandoned under the [District of Columbia] Disposition of Unclaimed Property Act, D.C.Code §§ 42-201 et seq. (1990). The Honorable Stephen Milliken denied Mr. Zaiderman's motion relating to the restoration of the $14,850.00 to the court registry and granted the sum to the District as abandoned property.
In addition to his effort to restore the funds to the court registry, Mr. Zaiderman filed a counterclaim against Mr. Arthur on August 31, 1996, seeking to have disbursed to him (that is, to Mr. Zaiderman) "$14,500.00 plus interest from March 10, 1980, to date of the entry of judgment at the rate provided for in the [promissory loan] Note." He also moved to add Ms. Arthur's name as a party plaintiff; this motion was granted on September 23, 1996.
New attorneys for Mr. Arthur entered their appearance on March 12, 1997, and filed motions designed to secure for Mr. Arthur all the funds originally placed in the court registry, and interest thereon. For example, on August 6, 1997, Mr. Arthur filed a motion for "summary judgment *478 against the District of Columbia on any claim it may have as a third-party defendant to the $14,850.00 paid into the court registry in this matter and to the interest earned (approximately $8,000.00 to date) on that sum since February 17, 1988."[8] The motions were intended to establish that neither Ms. Arthur, Mr. Zaiderman, nor the District had any right to those funds or the interest that Mr. Arthur alleged should have accumulated through the years, and that such interest properly belonged to him. In 1998, the Honorable Shellie Bowers entered a "default judgment" against Ms. Arthur, subject to review by the trial judge scheduled to take over the later stage of the case, the Honorable Gregory Mize. When Judge Mize assumed responsibility for the case, he scheduled a jury trial that took place from July 24-26, 2000. After hearing testimony from several individuals at the trial, including former counsel for Mr. Arthur, Ms. Arthur, and her mother, the court resolved all of the issues as a matter of law, and dismissed the jury. An order summarizing its oral rulings was signed on July 27, 2000, and docketed on August 10, 2000. The trial court concluded that Mr. Zaiderman "is entitled to nothing" "as a matter of law," and that Mr. Arthur and Ms. Arthur "are entitled to $14,500.00 as tenants by the entireties." The trial court also vacated the entry of default against Ms. Arthur "on [Mr.] Arthur's cross[-]claim against her ... because it is contrary to established D.C. statutes and case law," and hence the court denied Mr. Arthur's cross[-]claim "as [a] matter of law." Subsequently, on October 17, 2000, the court docketed an order denying prejudgment interest on both the $350.00 sum paid into the court registry by Mr. Arthur, and the $14,500.00, because "there is no legal basis for interest to accrue in [Mr. Arthur's] favor on [these sums]." Mr. Arthur filed timely notices of appeal.
ANALYSIS
This appeal requires us to focus on three matters: (1) the trial court's decision to vacate the default judgment against Ms. Arthur; (2) the ownership of the $14,500.00 in proceeds from the marital property of Mr. and Ms. Arthur; and (3) interest on the sums deposited in the court registry and later transferred to the District's general fund. We turn first to the entry of default issue.
Entry of Default
We begin by providing a factual context for our analysis. On April 17, 1997, some seventeen years after his complaint initiating this case was filed, Mr. Arthur lodged a motion for leave to file a cross-claim against Ms. Arthur, who had been added as a co-plaintiff, and whose time for entering an appearance in the case had been extended to April 27, 1997. Mr. Arthur's cross-claim sought a judgment declaring that Ms. Arthur's actions in arranging for someone else to sign his name on the $14,500.00 loan note and deed of trust "w[ere] fraudulent and inequitable and did not entitle her to any portion of the $14,500 paid into the court registry." Simultaneously, Mr. Arthur requested "entry of default judgment" against Ms. Arthur on his cross-claim. He based his request upon Ms. Arthur's failure to enter an appearance and to file an answer after she was added as a co-plaintiff. As he put it: "The Order of Publication in this case *479 plainly placed Ms. Arthur on notice that any claim she has to the $14,500 in the court registry will be extinguished if she does not cause her appearance to be entered." Citing Super. Ct. Civ. R. 55(b)(2), he further asserted that: "An application for judgment by default need not be served on Ms. Arthur, because she did not respond to the Order of Publication."
During a November 14, 1997, hearing before Judge Bowers, Mr. Arthur's motion for leave to file the cross-claim and for entry of default judgment was discussed. Judge Bowers reported that his chambers received a telephone call from Ms. Arthur advising that she was in South Carolina and would not be in court. Mr. Arthur's counsel reported that he had spoken with Ms. Arthur who "indicated in communications to [him] that she does not plan to become involved because she faces criminal liability for forgery if she does and that she has elected all along not to get involved for that reason." The trial court granted Mr. Arthur's motion for leave to file the amended cross-claim reflecting this information.
At a hearing on May 29, 1998, Judge Bowers declared that he had entered a "default judgment" against Ms. Arthur on April 27, 1998. Those present claimed that they did not receive the order. Subsequently, during a hearing on July 31, 1998, the parties informed Judge Bowers that they did not receive the order entering judgment of default against Ms. Arthur on Mr. Arthur's amended cross-claim. Judge Bowers responded that the order had been entered because there was a reference to it in another order granting Mr. Arthur's motion to strike Mr. Zaiderman's amended counterclaim against Ms. Arthur. That order stated in relevant part:
In view of the default judgment rendered against her on this date, Christine Arthur no longer has any interest in the registry funds which could be subject to any counterclaim. This default judgment was based not upon any alleged ruling from the bench on December 19, 1997, but from the fact that, as of April 27, 1998, she'd filed no responsive pleading to the amended cross[-]claim of [plaintiff], Morris Arthur, which was served on her on November 31, 1997[sic].
After the court finished reading the docket entry, counsel for the District asserted: "Ms. Arthur has testified under oath that she can't come forward because she's been threatened by Mr. Arthur...." When the trial court reiterated its view that Ms. Arthur had filed no pleading since being served in November 1997, counsel for the District referenced filings then recently made, and mentioned Ms. Arthur's "fear for her life," Mr. Arthur's alleged attacks on Ms. Arthur, and his incarceration "for 11 years for assault with intent to kill."[9] Upon further discussion at the July 31, 1998 hearing, relative to the reasons why Ms. Arthur had not filed a responsive *480 pleading once she was added as a co-plaintiff, the trial court commented that it would sign the order entering "default judgment" and "indicating [Ms. Arthur] has no interest, but ... [would] put a footnote on [the order]" to show that "[t]his is all subject to reconsideration ... once [the court] hear [s] ... [further] evidence...." The trial court then signed an order, dated July 31, 1998, "nunc pro tunc to April 27, 1998." In the final paragraph of its order, the trial court declared:
FURTHER ORDERED, that a default judgment is entered on this Cross-Complaint against [Ms.] Arthur, and in favor of [Mr.] Arthur, DECLARING:
[Ms.] Arthur has no equity in the $14,500 paid into the court registry as against plaintiff [Mr.] Arthur. First American Insurance Company (successor in interest to Columbia Real Estate Title Insurance Company, which succeeded to the interest of Washington Title & Abstract Corporation) is so instructed, in accordance with the "Stipulation" filed with this court on or about February 9, 1981.[10]
The trial court added a footnote to its order which reads: "This default judgment against [Ms.] Arthur on [Mr.] Arthur's Amended Cross-Complaint will be revisited and reconsidered following the hearing and resolution of [Mr.] Zaiderman's recently filed Motion to Vacate Summary Judgment Order of September 27, 1997 and to Restore Case to Trial Docket."[11]
Judge Bowers held a hearing on October 29, 1998, on Mr. Zaiderman's motion to vacate the summary judgment that had been entered in favor of Mr. Arthur on Mr. Zaiderman's forgery claim. Ms. Arthur testified at the hearing. The trial court denied Mr. Zaiderman's motion to vacate summary judgment.
With respect to the previously entered default judgment against Ms. Arthur, the trial court noted that "not one question was ever put to [Ms. Arthur at the October 29, 1998 hearing,] about why she didn't file an opposition after being served" on November 21, 1997, or "why she didn't look for a lawyer after being served with [Mr. Arthur's] amended complaint" against her. Mr. Zaiderman's counsel pointed out that the cross-claim was not before the court and that Ms. Arthur was not represented by counsel. Eventually, the trial court gave Ms. Arthur until November 30, 1998, to seek leave for a late response to "the papers on the amended cross[-]claim ... of [Mr.] Arthur."
The next hearing took place on December 10, 1998, in the presence of counsel for Mr. Arthur, Mr. Zaiderman, and the District. Ms. Arthur was present, without counsel. Judge Bowers inquired as to whether Ms. Arthur had obtained counsel. She responded, "no" and requested that the trial court provide counsel. The trial *481 court explained, "in civil cases we don't appoint lawyers to represent civil litigants." Ms. Arthur then requested additional time to file an answer, saying that she planned to meet with a lawyer that afternoon. The court admonished Ms. Arthur that she had already been given extended time to respond to the amended cross-claim, and added: "You have not met the deadline, the November 30th deadline, so you may file whatever you wish to file and the court will deal with it accordingly."[12]
As the trial court listened further to the arguments of counsel and Ms. Arthur, particularly about allegations of "fraud" or "forgery" by Mr. Arthur concerning the signing of the deed that led to the sale of the marital property pursuant to the stipulation with Mr. Kamins, the trial judge expressed concern. He revealed that he had given some thought to "setting aside" the "default judgment" against Ms. Arthur and letting the case proceed to trial. But toward the end of the hearing the trial court stated:
Now, Ms. Christine Arthur may file whatever she wishes. The deadline for filing was November 30th[, 1998] for her[, i]f she wanted to file anything, such as ... a motion to vacate the default against her for failing to respond to the cross[-]claim.
But whatever she wishes to file, she may still file it but it's now out of time. And the Court, whoever rules on it, will have to deal with that if it's brought up as an issue. The deadline was November 30, but that doesn't mean she can't file. She may still file with or without a lawyer.
Judge Bowers also observed that the next trial judge assigned to the case, Judge Mize, "may vacate out ... my rulings, it's up to him."
Because he had given additional thought to the case, Judge Bowers called the parties together on December 18, 1998. Without making findings, the trial court reported its understanding that "[t]here are two separate issues of fraud being raised...." One related to the allegation that Mr. Arthur "forged the deed [for the sale of the Arthurs' marital home] which led to the funds which are now ... in the custody of the District...." The other fraud issue pertained to the allegation that Mr. Arthur "knew where his wife was all of this time and for all of these years .... and was purposely keeping her away from the case." Judge Bowers confirmed his decision to grant the motion for "default judgment" against Ms. Arthur:
When [Ms. Arthur] came in here and sort of resurfaced and I gave her some more time, the default had not been set aside. What I was giving her more time to do was to file a motion to set aside the default. And she didn't do that. So, that default is still out there against her.[13]
On May 18, 1999, and pursuant to Super. Ct. Civ. R. 55 and R. 60, counsel for Ms. *482 Arthur filed a "motion to vacate the prior order of default entered against her" in 1998, "and to dismiss [Mr.] Arthur's cross[-]claim against her...." Ms. Arthur declared that under Super. Ct. Civ. R. 55(c), the trial court "is authorized ... to set aside the default previously entered without filing a verified answer to [Mr.] Arthur's cross[-]claim upon taking judicial notice of the Stipulation of February 9, 1981." She argued, "that stipulation operates as a settlement to govern the adjudication of the rights of [Mr.] Arthur and [Ms.] Arthur in respect of their interests, one to the other, in the funds held in the Court registry." She also claimed that Mr. Arthur had kept knowledge of the pending litigation from her during the period 1980 to 1998.[14] And, she cited her difficulty obtaining counsel, her request for counsel and her prior testimony in the case as evidence of her intent to put up a defense.
The case proceeded to trial and during his explanation to the jury about the issues to be considered at the July 2000 trial, Judge Mize remarked: "[Ms.] Arthur, who was called into the case in 1982, was found by the court at a prior time to have no equity in the $14,500." As the case unfolded, Ms. Arthur and her mother were called as witnesses in behalf of Mr. Zaiderman. While Ms. Arthur's mother, Nellie M. Gibson, who resides in Philadelphia, was giving testimony, an objection arose which led Judge Mize to review Judge Bowers' July 31, 1998 order indicating that Ms. Arthur has no equity in the $14,500.00 at issue in the case. After reviewing the order, Judge Mize allowed Ms. Gibson to testify that while her daughter and her children were staying with her in Philadelphia, Mr. Arthur found out in December 1980 that she was there, and journeyed to Philadelphia.
Ms. Arthur followed her mother on the witness stand. At the time of her testimony, she resided in Latta, South Carolina. As she began to respond to certain questions and objections were raised, the trial judge inquired: "[H]asn't [Ms.] Arthur failed to do some significant things, and thereby placed herself in a defaulting or disqualifying mode as to the money? I mean, the order of July '98 would not have been issued, perhaps, if Ms. Arthur had asserted something, but she didn't." When Ms. Arthur resumed her testimony on July 26, 2000, she revealed that she did not ask Mr. Arthur to co-sign the $14,500.00 loan note because of her "fear of physical violence ...[and because she] was afraid of him." She detailed her fear by citing examples:
Well, I was afraid because once I had to go to Providence Hospital where he had kicked me in my back and I had a nervous condition with my arm, and there had been different several times, once I was pregnant and he had choked me, and I fainted. I went out.
She left the marital home in May 1980, stayed with a friend for a week and then went to Philadelphia to stay with her parents. After she moved in with her parents, she communicated with Mr. Arthur "[b]ecause [their] kids wanted to see him." Mr. Arthur visited them in December 1980, but she was unable to contact him "[f]rom 1989 until 1996" since he was in prison.
Ms. Arthur said she first heard about the litigation before the court in 1996 or 1997 "when [she] moved to South Carolina." She was not aware that her marital home had been sold until then; she *483 thought the mortgage company had foreclosed on the property. After Ms. Arthur became aware that the home had been sold, her husband instructed her to "stay out of [the matter]," that he "was going to handle it." Ms. Arthur acknowledged that counsel for Mr. Arthur had sent her a letter in November 1997, explaining the $14,500.00 sum and advising her to retain counsel. She also confirmed that she had sent a letter to Mr. Arthur's counsel indicating that she "did not have any interest in seeking the money." The trial court gave Ms. Arthur the opportunity to provide testimony as a party. In the course of that testimony, she stated that when Mr. Arthur's counsel called her, he told her that the $14,500.00 was not hers, "that it was [her] husband's money...."
On the afternoon of July 26, the trial court resolved the outstanding issues in the case as a matter of law, and dismissed the jury. Counsel for Mr. Arthur twice protested the trial court's decision to reverse Judge Bowers' order of July 31, 1998, as it related to Ms. Arthur. He said: "She failed to file an answer, we got a default on that issue, and there has been adjudication that she has no equity in those funds, and it all goes to Mr. Arthur." The trial judge did not address the default issue at this point. A little later in the discussion with the trial judge, counsel for Mr. Arthur argued that Ms. Arthur "raised absolutely no defense, a year passed, default was entered against her." The trial court concluded that because the $14,500.00 in the court registry "must be released to [Mr. and Ms. Arthur] as tenants by the entirety," "plainly there is nothing left to decide," and did not respond to counsel's arguments concerning the entry of the default judgment. And, in its written order summarizing its oral rulings, the trial court stated only: "The order of July 31, 1998 entering a default judgment against [Ms.] Arthur on [Mr.] Arthur's cross[-]claim against her was vacated because it is contrary to established D.C. statutes and case law."
We turn now to the provisions governing our resolution of the "default judgment" issue. Preliminarily, the trial court correctly concluded that it had authority to revisit Judge Bowers' order declaring that Ms. Arthur had no equity in the $14,500.00. "`Judges are constantly reexamining their prior rulings in a case on the basis of new information or argument or just fresh thoughts....'" Blyther v. Chesapeake & Potomac Tel. Co., 661 A.2d 658, 662 (D.C.1995) (quoting Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir.1991)) (Ruiz, J., concurring). Since the order entering "default judgment" against Ms. Arthur did not adjudicate all the claims or rights and liabilities of the parties, it was proper for Judge Mize to revisit and to revise that order. The central problem, here, however, is that Judge Mize did not indicate his reasons for vacating the April/July 1998 order against Ms. Arthur.
In her motion to vacate the default and dismiss Mr. Arthur's cross-claim, Ms. Arthur cited Super. Ct. Civ. R. 55 and 60 as the authority for her motion. Super. Ct. Civ. R. 55(a) concerns entry of default whereas Rule 55(b) pertains to entry of default judgment. We have distinguished previously between the entry of default and a default judgment. "In general, the entry of default does not constitute a judgment, but simply precludes the defaulting party from offering any further defense on the issue of liability." Lockhart v. Cade, 728 A.2d 65, 68 (D.C.1999) (citing Clark v. Moler, 418 A.2d 1039, 1042 (D.C.1980) (other citation omitted)); Miranda v. Contreras, 754 A.2d 277, 280 n. 4 (D.C.2000). "An entry of default is simply an interlocutory order, whereas a default judgment `is a final judgment that terminates *484 the litigation and decides the dispute.'" Lockhart, supra at 68 (quoting Clark, supra at 1042); see also Restaurant Equip. & Supply Depot, Inc. v. Gutierrez, 852 A.2d 951, 956 (D.C.2004); Digital Broad. Corp. v. Rosenman & Colin, L.L.P., 847 A.2d 384, 387 n. 5 (D.C.2004). Whereas Rule 55(c) provides for setting aside a default, see generally 10 JAMES WM. ET. AL., MOORE'S FEDERAL PRACTICE, § 55 (3d ed.2004); 10A CHARLES ALAN WRIGHT, ET. AL., FEDERAL PRACTICE AND PROCEDURE, § 2681 et seq., (1998), Super. Ct. Civ. R. 60(b) governs setting aside a default judgment.
Here, Judge Bowers styled his July 31, 1998 order as a "default judgment" against Ms. Arthur, but it is clear that it is not a "final judgment that terminates the litigation [against Ms. Arthur] and decides the dispute." Lockhart, supra at 68 (quoting Clark, supra at 1042). This is so because, despite the finding that the allegations of Mr. Arthur's amended cross-complaint that allege forgery by Ms. Arthur are taken as true, footnote 1 of that order precludes finality. As Judge Bowers noted: "This default judgment against [Ms.] Arthur on [Mr.] Arthur's Amended Cross-Complaint will be revisited and reconsidered following the hearing and resolution of [Mr.] Zaiderman's recently-filed Motion to Vacate Summary Judgment Order of September 27, 1997 and to Restore the Case to Trial Docket." Thus, the order of July 31, 1998 is appropriately considered as an order entering default under Super. Ct. Civ. R. 55(a), and one to be revisited.[15]
Since the July 31, 1998 order reflects the entry of default against Ms. Arthur, the standard for setting it aside is found in Super. Ct. Civ. R. 55(c) which states:
(c) Setting aside default. For good cause shown, and upon the filing of a verified answer setting up a defense sufficient if proved to bar the claim in whole or in part, the Court may set aside an entry of default. No answer need be filed if the movant accompanies the motion with a settlement agreement or a proposed consent judgment signed by both parties. In addition, an answer shall not be required when the movant asserts a lack of subject-matter or personal jurisdiction or when the default was entered after the movant had filed an answer.
Rule 55(c) requires a showing of good cause before a default may be set aside. A second requirement is the filing of a verified answer, unless (1) the motion to vacate the default is accompanied by "a settlement agreement or a proposed consent judgment signed by both parties"; or (2) there is an assertion that the court lacks subject-matter or personal jurisdiction; or (3) "the default was entered after the movant had filed an answer." See Clark, supra, 418 A.2d at 1041 n. 4. Moreover, the *485 decision whether to vacate the entry of default is committed to the sound discretion of the trial court. See Rubin v. Lee, 577 A.2d 1158, 1160 (D.C.1990) (citing Firemen's Ins. Co. of Washington, D.C. v. Belts, 455 A.2d 908, 909 (D.C.1983)); see also Restaurant Equip. & Supply Depot, Inc., supra, 852 A.2d at 956. "In exercising its discretion, the trial court must choose what is right and equitable under the circumstances and the law and state the reasons which support its conclusion." Rubin, supra, 577 A.2d at 1160 (citing Johnson v. United States, 398 A.2d 354, 361-64 (D.C.1979)) (internal quotation marks omitted).
Here, on this record, the trial court's reasons for vacating the default against Ms. Arthur are not articulated clearly. More is needed than a statement that the entry of default "is contrary to established D.C. statutes and case law," especially in light of the requirements set forth in Super. Ct. Civ. R. 55(c). Therefore, we are constrained to remand this matter to the trial court for a statement of reasons supporting its decision to vacate the default against Ms. Arthur. First, the trial court must address whether "good cause [has been] shown" to justify vacating the default. In that regard, the trial court may consider whether the entry of default was inappropriate in the first instance. If there is evidence that Ms. Arthur satisfied the "or otherwise defend" clause of Super. Ct. Civ. R. 55(a), see Restaurant Equip. & Supply Depot, Inc., supra, 852 A.2d at 956, the entry of default may have been inappropriate, or the order should have been vacated at an earlier point in time, as Judge Bowers contemplated. In discussing the "or otherwise defend" clause, Charles Alan Wright, et al., explain:
The mere appearance by a defending party, without more, will not prevent the entry of a default for failure to plead or otherwise defend, however. But if defendant appears and indicates a desire to contest the action, the court can exercise its discretion and refuse to enter a default. This approach is in line with the general policy that whenever there is doubt whether a default should be entered, the court ought to allow the case to be tried on the merits.
Id. § 2682 at 18 (footnotes omitted). Despite the fact that Mr. Arthur filed his complaint in 1980 and took steps to sell the marital property in 1981, Ms. Arthur, who testified as to her fear of Mr. Arthur and her belief that the lender had foreclosed on the home, did not receive notice until 1997 or 1998 that the marital home actually had been sold, despite the fact that Mr. Arthur knew she lived with her parents in Philadelphia after she left the marital home in 1980. In addition, Ms. Arthur telephoned the judge's chambers to explain her absence due to her residence in South Carolina; appeared at a hearing in November 1997; requested counsel to defend her; gave a deposition in June 1998; testified at a hearing in October 1998, as well as at trial, in 2000; and earlier had appeared at a hearing held in December 1998. The trial court should consider in the first instance whether these actions on her part satisfied the "or otherwise defend" clause of Rule 55(a), and whether her sworn testimony represented the equivalent of a verified answer to Mr. Arthur's amended cross-claim.
In addition to the "good cause" requirement of Rule 55(c), the trial court on remand must address the exceptions to the mandate in Rule 55(c) that a verified answer be filed. Only one of the exceptions may fit this case, as appellees argue, that is, the filing of "a settlement agreement or a proposed consent judgment signed by both parties" with the motion to vacate default. Whether the February 9, 1981 stipulation between Mr. Arthur and Mr. *486 Kamins agreeing that the Arthurs were entitled to receive the remaining funds on the sale of the marital property as tenants by the entireties would satisfy this exception even though Ms. Arthur did not sign it is a matter for initial consideration by the trial court.
The $14,500.00 principal
Mr. Arthur maintains that even if Ms. Arthur's claim is before the court, the entire principal sum of $14,500.00 paid into the court registry should be distributed solely to him. Consequently, once the trial court resolves the default issue on remand, the question as to the distribution of the $14,500.00 also should be addressed on remand. The trial court ruled that because the note and deed on the property were void as a matter of law, Mr. and Ms. Arthur are "entitled to the entire $14,500.00 as tenants by the entirety," and ordered the D.C. Treasurer "to forthwith issue a check to them."[16] However, prior to any distribution of this sum, the trial court must determine whether Mr. and Ms. Arthur have consented to a partition of the property which they acquired as tenants by the entireties. In the event Mr. and Ms. Arthur have consented to a partition, then the court must determine the relative equities of each in the marital property.
We turn first to the factual underpinning of our discussion of these issues. Counsel for Mr. Arthur and Mr. Kamins executed and filed a stipulation on February 9, 1981, paragraph 4 of which provided:
Upon entry of final judgment in this case, and disposition of any appeal therefrom, the Court shall disburse to Washington Title and Abstract Corporation any portion of the $14,500.00 that is not ordered paid over to defendants in satisfaction of the note. Washington Title and Abstract Corp. shall then disburse such amount to [Mr.] Arthur and [Ms.] Arthur in accordance with their equities in said property [that is, the marital home].
At the July 2000 trial, Ms. Arthur's mother, Nellie Gibson, testified that she and her husband gave Ms. Arthur $1,500.00 in the 1970s as a gift to assist with the purchase of a home. Subsequently, at Ms. Arthur's request, Ms. Gibson and her husband let Ms. Arthur have an additional sum of $1,300.00. During her testimony, Ms. Arthur stated that at the time of purchase, she "was working" and was "the only one that ever paid the house note, and [her] parents had given [her] money and [she] had borrowed money occasionally [to] keep[ ] the notes going...." Ms. Arthur was employed at a fish market owned by her brothers-in-law. Mr. Arthur made improvements to the marital property: "added on a sun deck"; "extended the carport"; and "made a subbasement." Ms. Arthur "paid for the materials." Mr. Arthur used his veteran's benefits to obtain a loan to purchase the marital home, but other than a period of three months during which he worked and gave Ms. Arthur $50 per week, he did not assist with family expenses. Ms. Arthur voiced her belief that she was entitled to the money in the court registry, even though counsel for Mr. Arthur "told [her] that the money was not [hers], that it was [her] husband's money, and that he was going to win the money for my husband."[17] Mr. *487 Arthur did not testify, but Judge Mize summarized the respective efforts of both Mr. and Ms. Arthur as follows:
I think it's very reasonable to infer from [Ms.] Arthur's testimony that the property was acquired during their marital years, and she put up money, and he put up his energy and attention and helped close the deal. And then [he] put sweat labor into improving the property thereafter.
It is undisputed that Mr. and Ms. Arthur held their home as tenants by the entireties. We have said previously that:
A tenancy by the entirety is a form of concurrent ownership which resembles a joint tenancy, but exists only between a husband and wife. This form of concurrent ownership is a product of the common-law doctrine that a husband and wife are one person and are each seized of the entire estate. The most significant incidents of this concurrent estate are the unilaterally indestructible right of survivorship; the inability of either spouse, acting alone, to alienate his [or her] interest in the property; and the broad immunity from the claims of separate creditors.... As long as the parties are united in marriage, neither spouse can effectively convey an interest in the estate nor compel a partition of the property without the other's consent.
Travis v. Benson, 360 A.2d 506, 509 (D.C.1976) (citations omitted); see also Finley v. Thomas, 691 A.2d 1163, 1165 & n. 1 (D.C.1997); Ridgely v. Ridgely, 188 A.2d 296, 297 (D.C.1963) (citation omitted). But this jurisdiction permits a judicially ordered partition[18] of lands under D.C.Code § 16-2901 (2001). And, a cotenant enjoys a unilateral right of partition. See Carter v. Carter, 516 A.2d 917, 919 (D.C.1986). This unilateral right of partition "makes it possible for any dissatisfied cotenant to, in effect, withdraw from and dissolve the quasi-partnership that cotenancy entails." Id. Nevertheless, as we said in Carter, "the right to partition, while normally an integral part of the cotenancy form of ownership, is like most property rights subject to possible limitation by voluntary act of the parties or in its initial creation." Id. at 921. In addition, "[a]s long as the parties are united in marriage [as apparently are Mr. and Ms. Arthur], neither spouse can effectively convey an interest in the estate nor compel a partition of the property without the other's consent." Travis, supra, 360 A.2d at 509 (citing Ridgely, supra, 188 A.2d at 297) (other citations omitted); see also Roberts & Lloyd, Inc. v. Zyblut, 691 A.2d 635, 638 (D.C.1997) ("[I]n the absence of an agreement to the contrary, each spouse retains a tenancy by the entireties in the proceeds from the sale of property held as a tenancy by the entireties.") (citation omitted); Verges v. Verges, 193 A.2d 208, 209 (D.C.1963) ("[W]here there is no consent, and no divorce, the court is powerless to partition or award to one party property held by the entireties") (citing Hogan v. Hogan, 102 U.S.App. D.C. 87, 250 F.2d 412 (1957)).
Here, to support his argument that he is entitled to the entire $14,500.00 sum, Mr. Arthur maintains that "[he] consented to *488 the partition of the funds held in the court registry when he filed his ... [a]mended [c]ross-[c]laim against [Ms.] Arthur." And, "in her November 1997 letter, [Ms.] Arthur consented to the partition by stating she withdrew `any claim or rights to refund or monies in question.'" But, the District argues that "Ms. Arthur is entitled to all of the proceeds pursuant to the 1981 Stipulation signed by Mr. Arthur's counsel in his behalf" where he "expressly agreed that if the original defendants were not entitled to all of the $14,500 in satisfaction of the note in that amount, the remaining portion should be disbursed ... to [Mr.] Arthur and [Ms.] Arthur in accordance with their equities in said property," (emphasis in original); and furthermore, as to the respective equities in the marital property, "the uncontradicted evidence is that Ms. Arthur, by working, through her family, and by her desperate loans, furnished the down payment and made all of the mortgage payments on the house from 1976 to 1980 (to the extent that payments were made)."[19]
Relying on Roberts & Lloyd and Finley, supra, the trial court correctly applied some of the fundamental principles relating to property held by a husband and wife. The trial court ruled, however, that: "There has been no unequivocal effort by Mr. and M[s]. Arthur to have the property conveyed in a form other than as tenants by the entiret[ies]," and therefore, "[s]uch property remains a tenancy by the entireties even if it moves from realty to chattle or cash, which is what happened here." In reaching this conclusion, the trial court did not specifically consider evidence regarding the respective equities of Mr. and Ms. Arthur; nor did it consider specifically, evidence (such as Ms. Arthur's written communication of November 1997, and her subsequent July 2000 testimony or Mr. Arthur's amended cross-claim against Ms. Arthur) relating to whether either Ms. Arthur or Mr. Arthur actually sought and consented to a partition; or whether they jointly agreed to a partition of property held as tenants by the entireties. In the absence of such findings, we are constrained to direct that on remand the trial court make findings as to whether Mr. and Ms. Arthur have consented to a partition and, if they have consented, as to their relative equities.
Interest on Funds Deposited in the Court Registry
We begin with background information relating to the claims for interest. During his oral resolution of issues on July 26, 2000, Judge Mize did not address Mr. Arthur's claim for interest on sums deposited in the court registry (the $14,500.00 in proceeds remaining from the sale of the marital home; and the court-ordered $350.00 paid by Mr. Arthur). Instead, Judge Mize informed the parties that they *489 should file post-trial motions. Neither the District nor Mr. Arthur followed the trial court's suggestion. Rather, the District submitted a brief on the interest issue. And, Mr. Arthur lodged a motion for leave to file a supplemental complaint; this motion was denied.[20] In its September 13, 2000 "brief on the issue of interest" the District made several arguments.[21] The trial court did not address the District's specific arguments, but in a short order filed on October 4, 2000, "agree[d] with the District's [ ] arguments that there is no legal basis for interest to accrue in plaintiffs' favor on the Stipulated Proceeds (or on $350 ordered to be returned to [Mr.] Arthur on August 31, 1999)." Because the February 1981 stipulation did not specify interest, Judge Mize concluded "the parties waived their right [to interest] by virtue of their signing the stipulation." The order did not mention specifically the constitutional arguments under the Fifth Amendment "takings" clause, nor the discussion of that issue in a hearing before Judge Bowers on December 19, 1997.
In post-appellate oral argument filings, the District maintains that Mr. Arthur did not properly challenge the trial court's order denying prejudgment interest, and Mr. Arthur argues that he did and his main brief on appeal discusses the issue. We are satisfied that Mr. Arthur properly raised and addressed the interest issue in the trial court and on appeal both in his main and reply briefs. Mr. Arthur squarely raised the interest issue in his August 6, 1997, motion for summary judgment against the District, even asserting that the interest earned on the $14,850.00 sum from February 17, 1988 to August 6, 1997, amounted to $8,000.00. And, in his proposed conclusions of law, Mr. Arthur specifically cited Webb's Fabulous Pharms., supra, note 8. He also had asserted the constitutional claim in his earlier March 12, 1999 motion for leave to file supplemental complaint. Count VI of that complaint was styled, "Constitutional Violation: 5th Amendment." He claimed a "property right in the interest that was earned, or should have been earned, on the registry funds," and alleged that his "property has been taken by the defendants ... [without] just[ ] compensation." A virtually identical claim was contained in the supplemental complaint attached to his August 18, 2000 motion for leave to file supplemental complaint. The trial court denied these motions.
In considering the arguments by Mr. Arthur, the District, and amici curiae; in reviewing the trial court's short order denying prejudgment interest which does not specifically reflect consideration of all arguments *490 presented to the court regarding interest; and in examining the record as a whole, we conclude that the purely legal question can be resolved in this appeal, but that part of the interest issue must be remanded to the trial court for resolution of such factual questions as:
(1) How much interest, if any, has been earned on each of the sums deposited with the Superior Court? What was the amount of administrative costs or bank fees incurred in administering each of the sums deposited?
(2) If no interest was earned on the deposited sums, or if interest on these sums was earned only in some but not all of the years since deposit, or if it is impossible to determine how much interest may have been earned on these sums, did the District have a fiduciary duty to see that interest was earned, and that it could be computed? Did Mr. Arthur's delay in or failure to serve Ms. Arthur in 1982, as ordered by Judge Hannon, occasion the difficulty in tracking the funds deposited in the court registry and any interest earned on those funds?
To facilitate final resolution of the interest question through the application of pertinent legal principles to the trial court's factual findings, which we review under a clearly erroneous standard, we now address the constitutional Fifth Amendment takings issue since our review of purely legal questions is de novo. See D.C.Code § 17-305 (2001); M. Pierre Equip. Co., Inc. v. Griffith Consumers Co., 831 A.2d 1036, 1038 (D.C.2003) ("We review the legal issues de novo.").
Applying the principle of "interest follows principal," the Supreme Court of the United States held in Phillips v. Washington Legal Found., 524 U.S. 156, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998) "that the interest income generated by funds held in IOLTA [Interest on Lawyers Trust Account] accounts is the `private property' of the owner of the principal." Id. at 172, 118 S. Ct. 1925. However, the court did not address whether there was an unconstitutional taking within the meaning of the Fifth Amendment takings clause.[22] Earlier, in Webb's Fabulous Pharms., Inc. v. Beckwith, 449 U.S. 155, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980), however, a case concerning interest on an interpleader fund deposited in a court registry, the Supreme Court reached the question whether a "taking" had occurred under the Fifth Amendment. In a narrowly crafted holding, based in part upon the existence of a state statute, the court declared:
We hold that under the narrow circumstances of this case where there is a separate and distinct state statute authorizing a clerk's fee "for services rendered" based upon the amount of principal deposited; where the deposited fund itself is concededly private; and where the deposit in the court's registry is required by state statute in order for the depositor to avail itself of statutory protection from claims of creditors and others Seminole County's taking unto itself, under [Florida law], the interest earned on the interpleader fund while it was in the registry of the court was a taking violative of the Fifth and Fourteenth Amendments. We express no view as to the constitutionality of a statute that prescribes a county's retention of interest earned, where the interest would be the only return to the country for services it renders.
Id. at 164-65, 101 S. Ct. 446. Not only did Webb's Fabulous Pharms., reinforce "[t]he *491 usual and general rule ... that any interest on an interpleaded and deposited fund follows the principal and is to be allocated to those who are ultimately to be the owners of that principal,...," id. at 162, 101 S. Ct. 446 (citation omitted), but it also emphasized that:
[A] State, by ipse dixit, may not transform private property into public property without compensation, even for the limited duration of the deposit in court. This is the very kind of thing that the Taking Clause of the Fifth Amendment was meant to prevent. That Clause stands as a shield against the arbitrary use of governmental power.
Id. at 164, 101 S. Ct. 446.
As its takings jurisprudence has evolved, the Supreme Court has distinguished between two types of takings, a "physical taking" and a "regulatory taking." See Brown v. Legal Found. of Washington, 538 U.S. 216, 233, 123 S. Ct. 1406, 155 L. Ed. 2d 376 (2003) ("The text of the Fifth Amendment provides a basis for drawing a distinction between physical takings and regulatory takings."). Where there has been a physical taking, or what is sometimes called a categorical taking or a per se taking, just compensation is required in accordance with "a clear rule." Id. ("When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner ...") (citing United States v. Pewee Coal Co., 341 U.S. 114, 115, 71 S. Ct. 670, 95 L. Ed. 809 (1951)). In contrast, a regulatory taking, involving "regulations that prohibit a property owner from making certain uses of [his or] her private property," id.,"entails complex factual assessments of the purposes and economic effects of governmental actions," id. at 234, 123 S. Ct. 1406, before ascertaining whether a regulation amounts to an unconstitutional taking requiring just compensation has occurred. See also Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321-24, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002).
Where there "is a forced contribution to general governmental revenues, and it is not reasonably related to the costs of using the courts," Webb's Fabulous Pharms., 449 U.S. at 163, 101 S. Ct. 446, an unconstitutional taking, which may require just compensation, has occurred.[23] Whether such a taking requires payment of just compensation depends upon "the property owner's loss rather than the government's gain." Brown v. Legal Found. of Washington, 538 U.S. 216, 235-36, 123 S. Ct. 1406, 155 L. Ed. 2d 376 (2003). Here, as the Supreme Court did in Brown, we "assume that [Mr. and/or Ms. Arthur] retain[ ] the beneficial ownership of at least a portion of the [ ] escrow deposits until all the funds [are] disbursed at the [end of this litigation], that those funds [have] generated some interest ...,[24] and that their *492 interest was taken for a public use when it was ultimately turned over to the [D.C. Treasurer]." [25]Id. at 235, 123 S. Ct. 1406. If the sums deposited in the court registry were placed in interest bearing accounts initially, or if the practice of Superior Court prior to 1994 or the court's fiduciary obligations required placing voluntary or court-ordered deposits in interest bearing accounts, Webb's Fabulous Pharms., Inc., supra, note 8, dictates that the interest belonged to the owners of the principal. We are loathe to interpret the silence of February 9, 1981 stipulation between Mr. Arthur and Mr. Kamins concerning interest as a waiver of that constitutional right where its inclusion would have benefitted both parties.
Thus, on remand, the trial court must determine factually whether one or the other or both of the Arthurs sustained "net losses" since "any pecuniary compensation must be measured by ... [their] net losses rather than the value of the public's gain." Id. at 237, 123 S. Ct. 1406; see also Schneider v. California Dep't of Corrs., 345 F.3d 716 (9th Cir.2003) (Because "the Fifth Amendment does not proscribe the taking of property [but] it proscribes taking without just compensation," on remand the trial court must determine "whether the interest earned by [the owner's] principal is exceeded by his [or her] share of the costs of administering the [$14,850.00]"). Id. at 720, 721 (citation omitted). In other words, the trial court must find whether there would be any net return on any interest generated by the $14,850.00. Without any factual findings as to the administrative cost required to administer the $14,850.00 sum, or the bank charges imposed, we cannot at this stage of the litigation, determine whether the Arthurs suffered "net losses" on the sums deposited in the court registry and transferred to the D.C. Treasurer.
Accordingly, for the foregoing reasons, we vacate the judgment in this matter and remand the case to the trial court with instructions to address three matters consistent with this opinion: (1) the appropriate standard governing its decision to vacate the entry of default against Ms. Arthur; (2) the question of ownership of the $14,500.00 principal paid into the court registry, and whether Mr. and Ms. Arthur have consented to a partition of their marital property which they acquired as tenants by the entireties and if they have *493 consented, their relative equities in the property; and (3) the determination of how much, if any, interest was earned on the $14,500.00 principal sum and the court-ordered $350.00 security deposited in the court registry and later transferred to the District's general fund, and whether the District had a fiduciary duty to see that interest was earned and computed.
So ordered.
NOTES
[1] On the day of oral argument in this case, the Mayor of the District of Columbia issued an order changing the name of the Office of Corporation Counsel to the Office of the Attorney General for the District of Columbia. See Mayor's Order 2004-92, (May 26, 2004). The following day the Office of the Attorney General for the District of Columbia promulgated an office order changing the titles of attorneys and deputies. See Office of the Attorney General, Office Order No.2004-28, (May 27, 2004).
[2] Later, it was revealed that Mr. Arthur's brother had signed Mr. Arthur's name to the loan documents, with Ms. Arthur's knowledge, because the Arthurs were experiencing severe marital problems, including domestic violence by Mr. Arthur.
[3] The order granting the preliminary injunction was filed on September 10, 1980, after an evidentiary hearing during which Mr. Arthur testified that he did not sign the loan documents, and that "when he awoke on May 1, 1980 `the house was empty'; his family had gone."
[4] Mr. Arthur was unable to pay the amount ordered, but earlier, on August 12, 1980, had paid $350 into the court registry as security.
[5] The trial court considered her an indispensable party.
[6] In his November 5, 1982 motion to extend time to serve Ms. Arthur, Mr. Arthur's counsel averred that he had "only learned [Ms. Arthur's] address [in Philadelphia] on October 29, 1982," and that a summons and complaint had been sent to her on November 1, 1982 by certified mail.
[7] The $14,850.00 included the $14,500.00 deposited after the sale of the property, and the $350.00 which the trial court ordered Mr. Arthur to pay into the court registry on August 12, 1980.
[8] The proposed order attached to the motion contained proposed conclusions of law. Paragraph 4 of those conclusions quoted from a Supreme Court decision pertaining to the Fifth Amendment's guarantee against "a forced contribution to general government revenues." Webb's Fabulous Pharms. v. Beckwith, 449 U.S. 155, 163, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980).
[9] On June 8, 1998, counsel for Mr. Zaiderman took the sworn deposition of Ms. Arthur. She stated that she took her children and left Mr. Arthur in 1980. She "feared for [her] life because [Mr. Arthur] told [her] if [she] ever left and took the kids... he would kill [her]." Although she was reluctant to discuss her relationship with Mr. Arthur, she related that on one occasion Mr. Arthur "kicked [her] in [her] back, and [she] had to go to the hospital ... and ... [her] arm was put in a sling." Because of their children, at least four of whom resided with Ms. Arthur during the early period of this litigation, Mr. Arthur remained in contact with them after Ms. Arthur left their home. Although Mr. Arthur was in prison from about 1985 to 1996, when he was released, Ms. Arthur was present when he "stop[ped] by to see [his] son and his granddaughter" approximately three times around 1980, but did not discuss the litigation.
[10] In the first part of its July 31, 1998 order, the trial court found that "[t]he Amended Cross-Complaint was personally served on [Ms. Arthur] on November 21, 1997," and "[m]ore than twenty days have passed and Ms. Arthur has filed no response to the Amended Cross-Complaint." The court further ordered that "the allegations in paragraph 1-8 of the Amended Cross-Complaint [detailing Ms. Arthur's alleged fraud with respect to the promissory loan note] are taken as true."
[11] The record contains a motion by Mr. Zaiderman, dated July 21, 1998, and styled: "Motion to Vacate Summary Judgment Order of October 27, 1997 and Restore Case to Trial Docket for Determination of Merits." The motion "urg[ed] the court to vacate the summary judgment entered October 27, 1997 in favor of [Mr.] Arthur on his claim of forgery of the Note of March 10, 1980 [the note concerning the $14,500 loan obtained by Ms. Arthur]."
[12] The December 10, 1998 hearing was a contentious one during which the trial court repeatedly instructed counsel for Mr. Zaiderman and the District that they could not represent Ms. Arthur. Mr. Zaiderman's attorney pressed the court to appoint counsel for Ms. Arthur, and the District's counsel had assisted her by adding a certificate of service page and filing a motion for Ms. Arthur requesting additional time to obtain counsel. Ms. Arthur remarked that because she lived in South Carolina and had no job, it was difficult to find counsel in the District.
[13] The trial court appeared to take the position that although a "default judgment" had been entered against Ms. Arthur, she might remain in the case with respect to the alleged fraud of Mr. Arthur pertaining to the sale of the marital home, and the distribution of the $14,500 resulting from the sale.
[14] Although Ms. Arthur "was served with [Mr. Arthur's cross-claim]... in November 1997, it ... was woefully deficient to demonstrate to her that she had any stake in any funds which had been paid into the Court registry nearly 17 years earlier."
[15] Super. Ct. Civ. R. 55(a) provides in pertinent part:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these Rules, the Clerk or the Court shall enter the party's default. Any order of default entered sua sponte, including a default for failure to respond to the complaint within the time prescribed in Rule 12(a), shall not take effect until fourteen (14) days after the date on which it is docketed and shall be vacated upon the granting of a motion filed by defendant within such 14 day period showing good cause why the default should not be entered....
Super. Ct. Civ. R. 12(a) does not apply here since Judge Bowers extended the time for Ms. Arthur to respond to Mr. Arthur's amended cross-claim on more than one occasion. See Restaurant Equip. & Supply Depot, Inc., supra, at 955 nn. 2, 3
[16] The noteholder did not appeal the trial court's ruling.
[17] Ms. Arthur stated:
I feel that if anyone should have this money, as hard as I struggled all those years trying to keep that house, and my husband did not work but three months the whole time there, I feel as though I should get the money, my parents be reimbursed the money that they have given to me.... [M]y husband has not contributed one penny and not one house note at all, ever, not ever. And everything that was bought in that house from materials to furniture, everything, I did. And that sums it up.
[18] "Partition means the division of the land held in cotenancy into the cotenants' respective fractional shares. If the land cannot be fairly divided, then the entire estate may be sold and the proceeds appropriately divided." 7 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 50.07 at 50.37 (Michael Allan Wolf ed., 2004).
[19] The District does not represent Ms. Arthur, and Ms. Arthur did not notice an appeal in this case. Nor did the District file a cross-appeal. Nevertheless, the District has made arguments on appeal which support Ms. Arthur. Mr. Arthur contended that the District lacked standing to raise claims on behalf of Ms. Arthur, and prior to oral argument moved to strike portions of the District's brief. We denied his motion to strike. The District has standing because it confronts "an actual or imminently threatened injury" that is, the potential liability to pay interest to Mr. Arthur. See Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201, 1206-07 (D.C.2002); Hazel v. Barry, 580 A.2d 110, 111 (D.C.1990); Hooker v. Edes Home, 579 A.2d 608, 612 n. 9 (D.C.1990). Because Ms. Arthur is not pressing a claim of interest against the District, if it is decided that she not Mr. Arthur owns the underlying property (and, with it, any claim to the interest) the District will have no obligation to pay interest. Thus, the District has a direct financial stake in supporting the position that Ms. Arthur is the owner of the underlying funds.
[20] The supplemental complaint tendered showed as defendants Ms. Arthur, Mr. Kamins and the District. It contained allegations and five counts relating to: (1) a final accounting; (2) restitution; (3) conversion; (4) fraud; and (5) a violation of the Takings Clause of the Fifth Amendment. On March 12, 1999, Mr. Arthur had sought leave to file a virtually identical supplemental complaint containing a Takings Clause claim.
[21] The District's arguments included the following: (1) No request for interest was made in the February 1981 Stipulation; (2) under Superior Court Administrative Order No. 94-26 relating to interest income from funds held in the court registry (not further identified except for the text), Mr. Arthur was not entitled to interest; (3) no statute nor court order required the District to place the sums deposited with the court in an interest-bearing account (this argument challenged "[p]laintiffs' reliance on Phillips v. Washington Legal Found., 524 U.S. 156, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998) and Webb's Fabulous Pharms., [supra, note 8]," both involving interest issues on deposited funds); (4) the doctrines of laches and clean hands bar Mr. Arthur from seeking interest; and (5) the District government had no fiduciary duty toward Mr. Arthur.
[22] The Fifth Amendment to the Constitution of the United States provides in pertinent part: "[N]or shall private property be taken for public use without just compensation."
[23] In light of this legal principle, the District's argument that Mr. Arthur voluntarily deposited $14,450.00 in the court registry, and hence the takings clause does not apply, is unavailing. While Mr. Arthur voluntarily deposited the $14,450.00, but not the $350.00, he did not by that action signal that the government had a right to take and use private funds resulting from the sale of private property, including interest thereon, in any way it deemed necessary or appropriate.
[24] Mr. Arthur believes that at least $8,000.00 in interest has been (or should have been) generated by the court registry deposits between February 1988 and August 1997, and amici estimate in their brief that "[m]ore than $35,000.00 in interest has accrued on these funds, as of June 30, 1998, though the actual amount is not determined." Apparently the Superior Court is not required to, but may, place court registry funds in interest bearing accounts at its discretion. See Super. Ct. Civ. R. 67. Unlike Fed.R.Civ.P. 67, which was amended in 1983, Super. Ct. Civ. R. 67 does not contain the language, "shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court." In addition, Superior Court Administrative Order No. 94-26, adopted on November 2, 1994, provides:
Amounts ordered to be held in escrow in the Court registry generally do not provide any interest income payable to a party in a case. Interest income from amounts held in the registry is used to offset various bank service charges and to provide revenue for the District of Columbia's General Fund.
In extraordinary circumstances where a large sum is to be held by the Court for a reasonably long period of time, a unique interest bearing account can be established to pay interest to designated parties upon disposition. Before any order establishing such an account is entered, the approval of the Chief Judge must be obtained.
Administrative Order No. 94-26 of course did not exist when Mr. Arthur deposited the $14,500.00 sum and the mandated sum of $350.00 into the court registry.
[25] During consideration of the interest issue in 1997, the Fiscal Officer for the District's courts, submitted an affidavit stating in part: "It is the practice of the District of Columbia Courts for all interest earned on funds held in its general civil escrow account, be used to first pay bank service charges, with the balance deposited as revenue to the District's General Fund." (Schulthesis Aff. September 9, 1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2690372/ | [Cite as Columbus Bar Assn. v. Adusei, 136 Ohio St. 3d 155, 2013-Ohio-3125.]
COLUMBUS BAR ASSOCIATION v. ADUSEI.
[Cite as Columbus Bar Assn. v. Adusei, 136 Ohio St. 3d 155, 2013-Ohio-3125.]
Attorneys—Misconduct—Charging a clearly excessive fee and failing to set forth
a contingent-fee agreement in writing—Public reprimand.
(No. 2012-2075—Submitted February 6, 2013—Decided July 23, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 12-039.
____________________
Per Curiam.
{¶ 1} Respondent, Alexander Yaw Adusei Jr. of Columbus, Ohio,
Attorney Registration No. 0082023, was admitted to the practice of law in Ohio in
2007.
{¶ 2} In an April 23, 2012 complaint, relator, Columbus Bar
Association, charged Adusei with professional misconduct based on his
representation of family members of decedent Joseph Addai in matters involving
Addai’s death and estate. Specifically, Adusei was charged with misconduct for
(1) collecting an illegal or clearly excessive legal fee, (2) failing to reduce a
contingent-fee agreement to writing, and (3) creating a conflict of interest by
representing multiple members of Addai’s family.
{¶ 3} The parties stipulated, and the panel found, that Adusei’s conduct
with regard to Addai’s death violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer
from making an agreement for, charging, or collecting an illegal or clearly
excessive fee) and 1.5(c)(1) (requiring an attorney to have set forth a contingent-
fee agreement in a writing signed by the client).1 Relator withdrew the alleged
1. The stipulations, the hearing panel, and the board all cite Prof.Cond.R 1.5(c) generally, but only
the first paragraph of the rule is at issue here. See Prof.Cond.R. 1.5(c)(1). Adusei has not been
SUPREME COURT OF OHIO
conflict-of-interest violations, under Prof.Cond.R. 1.7(a) through (c) (generally
regulating a lawyer’s representation when a client’s interests will conflict, or
when there is a substantial risk that they will conflict, with the lawyer’s own
interests or those of another client or former client). The parties stipulated that
Adusei should be publicly reprimanded for his misconduct.
{¶ 4} The Board of Commissioners on Grievances and Discipline
adopted the parties’ stipulations, but found an aggravating factor, and
recommended that we publicly reprimand Adusei for his misconduct. For the
reasons that follow, we adopt the board’s findings of fact, and we agree that a
public reprimand is the appropriate sanction in this case.
Misconduct
{¶ 5} The parties stipulated that in June 2009, Joseph Addai was killed in
an automobile accident in Columbus. Adusei had met Addai through interactions
with members of the Ghanaian community in Columbus, and he had represented
Addai on occasional traffic matters in the past.
{¶ 6} Soon after Addai’s death, Addai’s niece and nephew, along with
two residents of Addai’s village in Ghana (collectively, the “extended family”),
approached Adusei to discuss issues involving Addai’s death and estate. Adusei
met with the extended family to discuss the possibility of returning Addai’s body
to Ghana, cultural issues regarding the distribution of Addai’s assets, and legal
issues related to Addai’s estate. At the end of the meeting, the extended family
expressed a desire to retain Adusei to assist with funeral arrangements and the
possible transportation of Addai’s body to Ghana.
{¶ 7} Adusei did not enter into a written agreement with the extended
family, but he did raise the issue of compensation. The extended family did not
charged with violating Prof.Cond.R. 1.5(c)(2) (requiring a lawyer entitled to a contingent fee to
prepare a closing statement to be signed by the lawyer and the client, detailing the lawyer’s
compensation, any costs and expenses to be deducted, and any division of fees with a lawyer not
in the same firm).
2
January Term, 2013
have funds to compensate Adusei, but they verbally agreed that he would receive
one-third of any amounts recovered on behalf of Addai’s estate from any source.
The remaining two-thirds would be divided among Addai’s legal heirs. Adusei
did not discuss this arrangement with Addai’s children or his widow, Mrs.
Comfort Addai, all of whom resided in Ghana.
{¶ 8} Subsequently, Adusei learned that Addai had a life insurance
policy at the time of his death. The policy named Mrs. Addai as the sole
beneficiary, entitling her to receive a payout of $23,816. Adusei attempted to
arrange for Mrs. Addai and her children to travel to the United States to receive
the money. Those efforts proved unsuccessful, so Adusei traveled to Ghana
himself.
{¶ 9} Adusei met with Mrs. Addai on November 12, 2009. At the
meeting, Mrs. Addai executed a power of attorney in favor of Adusei. Adusei and
Mrs. Addai discussed fees, but they did not enter into any written agreement.
Mrs. Addai did not agree to pay Adusei’s expenses for traveling to Ghana.
However, at the end of the meeting, Adusei believed that Mrs. Addai had agreed
to pay a contingent fee.
{¶ 10} On March 29, 2009, Adusei received the proceeds of Addai’s
insurance policy (and interest)—$24,005.10. Of that amount, Adusei retained
$7,956.77 as his fee and gave $1,300 to Addai’s extended family. Mrs. Addai
received the balance: $14,748.33.
{¶ 11} The parties stipulated, and the panel and board found, that Adusei
violated Prof.Cond.R. 1.5(a) by entering into a contingent-fee agreement to
collect life-insurance proceeds. In addition, the parties stipulated and the panel
and board found that Adusei violated Prof.Cond.R. 1.5(c)(1) by failing to reduce
his contingent-fee agreement to writing.
{¶ 12} On the recommendation of the panel and board, we adopt the
stipulated findings of fact and misconduct.
3
SUPREME COURT OF OHIO
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 14} As discussed above, Adusei failed to reduce a contingent-fee
agreement to writing. Under that agreement, he collected nearly $8,000 in fees
simply for collecting and distributing insurance proceeds. This is clearly
excessive for the work Adusei performed.
{¶ 15} As to aggravating factors, the panel and board rejected the
stipulation that no aggravating factors are present in this case. Instead, the panel
and the board found clear and convincing evidence of a single aggravating
factor—Adusei’s actions harmed a vulnerable client. See BCGD Proc.Reg.
10(B)(1)(h).
{¶ 16} The parties stipulated to three mitigating factors, and the panel and
board found clear and convincing evidence of each one. Adusei had no prior
disciplinary record, he cooperated with relator’s investigation, and he expressed
remorse and made restitution to Mrs. Addai. See BCGD Proc.Reg. 10(B)(2)(a),
(c), and (d).
{¶ 17} The parties have stipulated, and the panel and board recommend,
that the appropriate sanction for Adusei’s misconduct is a public reprimand.
{¶ 18} Our decisions in cases involving similar violations of Prof.Cond.R.
1.5 indicate that a public reprimand is the appropriate sanction here. “[W]e have
consistently issued public reprimands to attorneys for charging an excessive fee
when the record also includes significant mitigating evidence.” Geauga Cty. Bar
4
January Term, 2013
Assn. v. Martorana, 137 Ohio St. 3d 19, 2013-Ohio-1686, 997 N.E.2d 486, ¶ 12.
See, e.g., Disciplinary Counsel v. Smith, 124 Ohio St. 3d 49, 2009-Ohio-5960, 918
N.E.2d 992, ¶ 23-29 (attorney publicly reprimanded for charging excessive fees
when mitigating factors included lack of prior disciplinary record, cooperation in
the disciplinary investigation, and the attorney’s inexperience); and Cincinnati
Bar Assn. v. Randolph, 85 Ohio St. 3d 325, 326-327, 708 N.E.2d 192 (1999)
(attorney publicly reprimanded for charging excessive fees when mitigating
factors included restitution and acceptance of responsibility).
{¶ 19} By contrast, we have imposed harsher sanctions for charging an
excessive fee when significant aggravating factors—such as not returning a
client’s money—exist. Martorana at ¶ 13. For example, we imposed a six-month
stayed suspension for charging an excessive fee in Akron Bar Assn. v. Carr, 131
Ohio St. 3d 210, 2012-Ohio-610, 963 N.E.2d 802, ¶ 19. Like Adusei, the attorney
in Carr caused harm to a vulnerable client by charging an excessive fee, had no
prior disciplinary record, and fully cooperated in the disciplinary proceeding. Id.
at ¶ 16. Unlike Adusei, however, the attorney in Carr did not make restitution,
failed to acknowledge the wrongful nature of his conduct, and was driven by a
selfish motive. Id.
{¶ 20} As discussed above, Adusei made full restitution to his client,
repaying the entire fee he collected and the amount he distributed to Addai’s
extended family. He acknowledged the wrongful nature of his conduct and
cooperated with relator’s investigation. Under these circumstances, a public
reprimand is an appropriate sanction for Adusei’s violation of Prof.Cond.R.
1.5(a).
{¶ 21} Adusei’s additional violation of Prof.Cond.R. 1.5(c)(1) does not
demand a harsher sanction. In Disciplinary Counsel v. Hackett, 129 Ohio St. 3d
186, 2011-Ohio-3096, 950 N.E.2d 969, we imposed a public reprimand upon an
attorney who not only charged an excessive fee, but also violated Prof.Cond.R.
5
SUPREME COURT OF OHIO
5.6 (prohibiting a lawyer from offering or participating in an employment
agreement that restricts the right of a lawyer to practice after termination of the
relationship).
{¶ 22} Accordingly, we publicly reprimand Alexander Yaw Adusei Jr. for
collecting an illegal or clearly excessive legal fee and for failing to reduce a
contingent-fee agreement to writing. Costs are taxed to Adusei.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Barno Law, L.L.C., and Melissa A. Black; Benesch Friedlander Coplan &
Aronoff, L.L.P., and James L. Ervin; and Bruce A. Campbell, Bar Counsel, and
A. Alysha Clous, Assistant Bar Counsel, for relator.
James E. Arnold & Associates, L.P.A., and Alvin E. Mathews, for
respondent.
_________________________
6 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1552021/ | 186 B.R. 168 (1995)
In re Thomas J. SILVIERA, Debtor.
Bankruptcy No. 95-13208-JNF.
United States Bankruptcy Court, E.D. Massachusetts.
September 8, 1995.
Gary W. Cruickshank, Boston, MA, for Chapter 7 Trustee.
Richard Hackel, Boston, MA, for debtor.
MEMORANDUM
JOAN N. FEENEY, Bankruptcy Judge.
I. INTRODUCTION
The matter before the Court is an objection filed by the Chapter 7 Trustee to the Debtor's claimed exemption. The Debtor filed a response to the Trustee's objection, and the Court, after hearing, took the matter under advisement. The pleadings filed by the parties raise two issues: 1) whether the Debtor's interest in a pension plan is excluded from property of the estate pursuant to 11 U.S.C. § 541(c)(2)[1]; and (2) if not, whether it *169 is exempt from property of the estate pursuant to 11 U.S.C. § 522(d)(10)(E)[2].
II. FACTS
The material facts with respect to the issue under section 541(c)(2) do not appear to be in dispute. Accordingly, the Court shall treat the Trustee's objection in so far as it addresses the exclusion of the Debtor's pension benefits from property of the estate as a motion for summary judgment. See Fed. R.Civ.P. 56(c), made applicable to this proceeding by Fed.R.Bankr.P. 7056.
The Debtor is 46 years old and single. He has no dependents. He has been employed by the City of Somerville as a policeman for 21 years. He is a member of the contributory retirement system for public employees, see Mass.Gen.Laws Ann. Ch. 32, §§ 1-28 (West 1989 & Supp.1995), a statutorily governed system that is funded from mandatory payroll deductions. The Debtor's Schedules I and J reveal that his total monthly income is $4,247.00 and that his total monthly expenses are $3,864.00, of which $893.00 is attributable to tax and mortgage payments for a cottage in New Hampshire.
On an addendum to Schedule B the Debtor stated that his retirement plan "is an ERISA `sheltered' plan and as such, whatever funds the debtor may have credited to his retirement account are not assets of this estate under 11 USC 541(c)." On Schedule C, the Debtor claimed his pension benefits as exempt "to the extent that same are an asset of this estate" and "to the extent necessary for the support of the debtor and his dependents."
III. DISCUSSION
A. The Positions of the Parties
The Trustee, in his objection, argues that the Debtor's retirement plan is not an ERISA[3] qualified plan subject to the Supreme Court's decision in Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), and, therefore, is not excluded from the Debtor's bankruptcy estate. Additionally, the Trustee argues that under this Court's decision in In re Link, 172 B.R. 707 (Bankr.D.Mass.1994), no part of the Debtor's retirement plan is reasonably necessary for his support.
In his response to the Trustee's objection, the Debtor asks the Court to infer that an anti-alienation provision contained in G.L. c. 32 makes his pension plan analogous to the ERISA qualified plan described in Patterson and supports his contention that his pension benefits are excluded from property of the estate. Alternatively, he maintains that an evidentiary hearing is required to determine both the value of the benefits to which he would be entitled as of the commencement of the case and the extent to which the benefits are reasonably necessary for his support.
The first issue raised by the pleadings is one of first impression in this district. The Court has been unable to discover any bankruptcy cases in which debtors have either claimed that their compulsory retirement system benefits are excluded from property of the estate or are exempt under the federal or state exemption schemes.
B. The Massachusetts Contributory Retirement System
The statutory provisions governing the compulsory retirement system are extensive and complex. The Supreme Judicial Court has described the system in broad terms as follows:
The system is a contributory defined benefit system. Members of the system make periodic contributions into an annuity account during the course of their employment with the State. See G.L. 32, § 22(1). The individual account of each contributing member is a record of the amount of the *170 individual member's contributions to the system. See G.L. c. 32, § 22(6)(b). In the event a member terminates employment with the State prior to becoming eligible to receive retirement benefits, he can seek a refund on the amount of contributions plus interest. [See G.L. c. 32, § 10-11]. However, if an employee maintains employment until becoming eligible to collect retirement benefits, the amount of benefits is not tied to the dollar value of his account, but rather is dependent on a number of variables not determinable until the date of eligibility, see G.L. c. 32, §§ 5-7 (1994 ed.), as well as the option he elects on retirement, see G.L. c. 32, § 12.
Early v. State Board of Retirement, 420 Mass. 836, 841, 652 N.E.2d 598 (1995). In addition to the provisions just described, G.L. c. 32 contains an anti-alienation section that provides, in relevant part, the following:
The funds of each system established under the provisions of sections one to twenty-eight, inclusive, so far as they are invested in personal property, shall be exempt from taxation. The rights of a member to an annuity, pension or retirement allowance, such annuity, pension or retirement allowance itself, and all his rights in the funds of any system established under the provisions of such sections, shall be exempt from taxation, including income taxes levied under the provisions of chapter sixty-two, and from the operation of any law relating to bankruptcy or insolvency and shall not be attached or taken upon execution or other process. That portion of the estate of any deceased member consisting of any sum or sums received from any system under the provisions of sections one to twenty-eight, inclusive, shall not be included in computing any legacy or succession tax under the provisions of chapter sixty-five. No assignment of any right in or to any funds, annuities, pensions or retirement allowances under any system shall be valid except such assignment as may be made for the purpose of making restitution in the case of dereliction of duty by any member as set forth in section fifteen, and except such assignment made in writing by a retired member, authorizing the board to withhold each month such amount as he may designate for the payment of subscriber premiums applicable to a hospitalization, medical and surgical insurance, or to a life insurance in effect with a nonprofit hospital and medical service corporation or insurance company at the time of his retirement, and except such assignment made in writing by a retired member authorizing the board to withhold each month such amount as he may designate for the payment of income taxes levied under the Internal Revenue Code of the United States or the General Laws of the commonwealth. . . .
Nothing in this section shall prevent a member's annuity pension or retirement allowance from being attached, taken on execution, assigned, or subject to other process to satisfy a support order under chapter two hundred and eight, two hundred and nine, two hundred and nine A, two hundred and nine C, two hundred and seventy-three or an assignment of marital property under chapter two hundred and eight.
Mass.Gen.Laws.Ann. Ch. 32, § 19 (emphasis supplied).
C. Analysis
There have been relatively few decisions dealing with public employee retirement plans, which are exempt from ERISA coverage under 29 U.S.C.A. § 1003(b)(1) (West 1994). In In re Swanson, 873 F.2d 1121 (8th Cir.1989), the Court of Appeals for the Eighth Circuit held that a debtor/employee's interest in a state created teachers' retirement fund under which teachers made mandatory contributions, refundable on termination or retirement, was property of the estate. Noting that the Teachers' Retirement Association relied upon a Minnesota statute, which provided numerous restrictions on the transfer of interests in the Teachers' Retirement Fund, as the "applicable nonbankruptcy law," the court determined that the Fund lacked the necessary characteristics of a traditional spendthrift trust to exclude the debtors' interests in it from the bankruptcy estate. The court, having determined that "`Congress only intended *171 . . . § 541(c)(2) to preserve the status of traditional spendthrift trusts, as recognized by state law . . .,'" found that the Fund 1) violated the rule that prohibits the beneficiary of a spendthrift trust from also being its settlor; 2) enabled beneficiaries to make contributions to Fund; and 3) enabled the debtors to exercise dominion and control over monies in the Fund since members were entitled to a refund of their contributions upon termination of employment. 873 F.2d at 1124 (citation omitted). The court added the following:
While this is a very limited right of control over the Funds, the ability of the beneficiary to control trust assets in any way is inimical to the policies underlying the spendthrift trust.
* * * * * *
We recognize that the Fund does have some characteristics of a spendthrift trust, i.e., it is not assignable and creditors are barred from levying upon monies held in the Fund. On balance, however, we believe that the Fund lacks the necessary characteristics of a traditional spendthrift trust. Nevertheless, we do not intend to state a broad rule that monies in any statutory trust are not excluded from the bankruptcy estate under § 541(c)(2).
Id. Accord In re Lyons, 118 B.R. 634, 640 (C.D.Ill.1990), aff'd, 957 F.2d 444 (7th Cir. 1992) (state employees' retirement system does not qualify as a spendthrift trust since employees may obtain a refund upon termination of employment); In re Groves, 120 B.R. 956 (Bankr.N.D.Ill.1990) (same).
In In re Childs, 129 B.R. 14 (Bankr. D.Conn.1991), the bankruptcy court refused to follow Swanson. In that case, the debtor was 52 years old, single, in good health and a member of the state employees' retirement system similar to the system existing in Massachusetts. The court stated the following:
The debtor's interest in the Connecticut retirement system is hardly self-settled in the traditional sense. It is a nonwaivable condition of employment that a portion of the employee's salary be taken to fund a pension system for reasons seemingly congruent to those underlying the federal social security system. The debtor has no right to increase the amount of the payroll deduction and thereby unilaterally increase the value of the property interest in the fund.
129 B.R. at 17. The court also noted that the state pension plan was not "unlike a spendthrift trust, except that it is stronger in purpose by virtue of statute and constitution," and that Connecticut courts had not disqualified privately created pension plans as spendthrift trusts because an employee may obtain a refund of contributions upon termination of employment. Id. (citations omitted). See also In re Morter v. Farm Credit Services (In re Morter), 937 F.2d 354, 357 (7th Cir.1991) ("The proper inquiry under section 541(c)(2), then, is not whether the accumulated funds are in a `traditional' spendthrift trust, but whether the retirement plan bars the beneficiary and his creditors from reaching the funds. If it does, the plan is tantamount to a spendthrift trust under state law.").
The decisions discussed above preceded the decision in Patterson v. Shumate. In Patterson, the United States Supreme Court unequivocally rejected the underpinnings of Swanson and its progeny, namely that Congress intended to limit section 541(c)(2) to pension plans that qualify under state law as spendthrift trusts. See 504 U.S. at 762, 112 S.Ct. at 2248-49. See also Whetzal v. Alderson, 32 F.3d 1302, 1304 (8th Cir.1994). Accordingly, the Court must examine the issue of whether the Debtor's pension plan is excluded from property of the estate using the analysis delineated in Patterson.
In Patterson, the Supreme Court held that, "plainly read," section 541(c)(2) does not limit the phrase "applicable nonbankruptcy law" to state law and in particular state spendthrift trust law, 504 U.S. at 758, 112 S.Ct. at 2246-47, and that the debtor's ERISA-qualified pension plan, which did not satisfy the requirements of a spendthrift trust but which had the anti-alienation provision required for qualification under section 206(d) of ERISA, 29 U.S.C. § 1056(d)(1), satisfied the literal terms of section 541's transfer restriction because the restriction was enforceable under ERISA. Id. at 549. Referring *172 to pension plans established by governmental entities and churches, the Court noted in dicta that a debtor's interest in certain plans may not be excluded from the bankruptcy estate because of the absence of anti-alienation provisions enforceable under applicable nonbankruptcy law. 504 U.S. at 762-63, 112 S.Ct. at 2248-49. Consequently, the Supreme Court's decision limits the focus under section 541(c)(2) to finding three elements: 1) a beneficial interest belonging to the Debtor in a trust; 2) a restriction on the transfer of the Debtor's beneficial interest in the trust; and 3) the enforceability of the restriction under applicable nonbankruptcy law. Matter of Fink, 153 B.R. 883, 885 (Bankr.D.Neb.1993). Thus, the element of control and access to the retirement funds which featured prominently in the analyses of the courts in Swanson and Morter is no longer determinative in situations where the applicable nonbankruptcy law is law other than state spendthrift trust law.
This was emphasized by the court in In re Conner, 165 B.R. 901 (9th Cir. BAP 1994). In that case, the Bankruptcy Appellate Panel of the Ninth Circuit noted that in Patterson the debtor controlled ninety-six percent of the voting stock of the corporation that had established the ERISA qualified plan and, therefore, technically could terminate the plan at will. According to the court, control over the funds in the debtor's pension plan was not an issue in the case, as the Supreme Court did not distinguish between ERISA qualified plans where the debtor did or did not have control, 165 B.R. at 902. See also In re Rueter, 11 F.3d 850 (9th Cir.1993) (voluntary contributions by an employee/debtor to an ERISA qualified plan, which could be withdrawn at any time by the debtor, qualified for exclusion under section 541(c)(2)).
Although the Court has been unable to locate any post-Patterson decisions involving state created public employee retirement plans containing anti-alienation provisions on point, the Court notes that in Whetzal v. Alderson, the Eighth Circuit determined that a former federal employee's right to receive a lump-sum retirement benefit was excluded from the bankruptcy estate. The debtor had participated in the Civil Service Retirement System and contributed over $30,000 toward retirement benefits. Upon retirement, he had the option of withdrawing his benefits as a lump sum. However, he did not exercise that right. Nevertheless, several creditors filed a complaint seeking the transfer of the benefits to the bankruptcy estate. The bankruptcy judge determined that, because the debtor had the right to request a lump-sum benefit at the time he filed for bankruptcy, the trustee likewise had the right to exercise the option. The district court affirmed. On appeal, the Eighth Circuit found that a restriction on transfer of the debtor's beneficial interest applied to both the lump sum and annuity provisions of the plan and, thus, the lump sum provision was within the scope of section 541(c)(2). The court stated that "[a]lthough Shumate was an ERISA case, the same basic concern for pension benefits applies to federal employees as well as those in the private sector." 32 F.3d at 1304.
A similar rationale applies to the instant case, which is more straightforward than Whetzal. Here, the Debtor has no present right to receive pension benefits, and his ability to access his contributions would require him to leave his employment as a police officer.
This Court finds the Debtor has a beneficial interest in a statutory trust that is subject to a restriction that is enforceable under applicable nonbankruptcy law G.L. c. 32.[4] Therefore, the Debtor's pension plan is excluded from property of the estate. The Debtor's potential access to funds deducted from his wages is not determinative, as this Court need not find that the retirement system is, or is tantamount to, a spendthrift trust under Massachusetts law.[5]
*173 Parenthetically, the Court notes that even if it were to find that the Debtor's interest in the contributory retirement system is property of the estate under 11 U.S.C. § 541(a) the Trustee would be unable to compel turnover of the funds where the Debtor has no present right to them. See Matter of Sanders, 969 F.2d 591 (7th Cir.1992) (trustee could not compel turnover of debtor's contributions to state employee retirement system because, until termination of employment, retirement or disability, the debtor had no present right to withdraw contribution); Matter of Lyons, 957 F.2d 444 (7th Cir.1992).
IV. CONCLUSION
In view of the foregoing, the Court need not address the Trustee's alternative position that the Debtor's pension benefits are not exempt from property of the estate under section 522(d)(10)(E) because they are not reasonably necessary for the Debtor's support. Thus, the Court overrules the Trustee's objection in its entirety. An appropriate order shall issue.
ORDER
In accordance with the Memorandum dated September 8, 1995, the Court hereby overrules the "Trustee's Objection to the Debtor's Claimed Exemption," as the Debtor's interest in a pension plan under the Massachusetts contributory retirement system is not property of the estate.
NOTES
[1] The Bankruptcy Code excludes from property of the estate property of the debtor that is subject to "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law. . . ." 11 U.S.C. § 541(c)(2).
[2] Section 522(d)(10)(E) provides in relevant part the following:
(d) The following property may be exempted under section (b)(1) of this section:
(10) The debtor's right to receive
(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. . . .
11 U.S.C. § 522(d)(10)(E).
[3] Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.
[4] While G.L. c. 32 lacks the express enforcement procedures available in ERISA, 29 U.S.C. § 1132, Massachusetts courts have entertained motions to discharge attachments that violate G.L. c. 32, § 19. See Utley v. Utley, 355 Mass. 469, 245 N.E.2d 435 (1969).
[5] This case is distinguishable from In re Kellogg, 179 B.R. 379 (Bankr.D.Mass.1995), and In re Orkin, 170 B.R. 751 (Bankr.D.Mass.1994). In Kellogg, the court determined that the debtor's simplified retirement plan (SEP) was not subject to ERISA's anti-alienation provision, 29 U.S.C. § 1056(d)(1), and, therefore, its gratuitous restriction provision was not enforceable under ERISA or state spendthrift trust law. 179 B.R. at 387-89. In Orkin, the court determined that the debtor's plan was not ERISA qualified, and, therefore, the anti-alienation provision was unenforceable under both federal and state law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739731/ | 111 F.3d 653
65 USLW 2666, 1997-1 Trade Cases P 71,769,97 Cal. Daily Op. Serv. 2636,97 Daily Journal D.A.R. 4630
CHROMA LIGHTING, a California corporation; and Charles T.Von Der Ahe, an individual, Plaintiffs-Appellees,v.GTE PRODUCTS CORPORATION, a Delaware corporation, et al., Defendants,andSylvania Lighting Services Corporation, a Delawarecorporation, Defendant-Appellant.
No. 94-55581.
United States Court of Appeals,Ninth Circuit.
Submitted Aug. 8, 1995.Decided April 10, 1997.
M. Laurence Popofsky, Heller, Ehrman, White & McAuliffe, San Francisco, CA, for defendant-appellant.
Barry R. Laubscher, Grant & Laubscher, Irvine, CA, for plaintiffs-appellees.
Appeal from the United States District Court for the Central District of California, William D. Keller, District Judge, Presiding. D.C. No. CV-91-6424-WDK.
Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges.
WILLIAM A. NORRIS, Circuit Judge.
1
Plaintiff Charles Von Der Ahe, d/b/a Chroma Lighting, was a distributor of Osram Sylvania lighting products. After going out of business, Von Der Ahe sued Sylvania for price discrimination in violation of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Antidiscrimination Act of 1936, 15 U.S.C. § 13(a), and for recovery under California tort law. On the Robinson-Patman claim, Von Der Ahe alleged that Sylvania had given discounts to Von Der Ahe's larger competitors, without offering the same discounts to Von Der Ahe, and that Von Der Ahe had been injured by Sylvania's discriminatory practices. The jury found for Von Der Ahe on all counts and awarded treble damages of $3,525,000. ER at 719-20. After trial, Sylvania moved for judgment as a matter of law, alleging, inter alia, that there was insufficient evidence to support a finding of injury to competition on the Robinson-Patman claim. ER at 438-40. The district court denied the motion. Sylvania appeals from the denial of its post-trial motion and from the judgment. On appeal, Sylvania claims that the evidence at trial was insufficient as a matter of law to support the jury's finding of injury to competition.1
2
In FTC v. Morton Salt, 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196 (1948), the Court held that competitive injury in a secondary-line2 Robinson-Patman case may be inferred from evidence of injury to an individual competitor. More specifically, Morton Salt permits a factfinder to infer injury to competition from evidence of a substantial price difference over time, because such a price difference may harm the competitive opportunities of individual merchants, and thus create a "reasonable possibility" that competition itself may be harmed. Id. at 46-47, 68 S.Ct. at 828-29. The question presented by Sylvania's appeal is whether the inference of competitive injury that arises from a showing of harm to an individual competitor in a secondary-line price discrimination case may be overcome by a showing that competition in the relevant market remains healthy. This question was left open by Morton Salt, and the circuits are divided on the issue. The D.C. Circuit, for example, has held that the inference of competitive injury may be rebutted by a showing of no actual harm to competition because the Robinson-Patman Act must be construed in light of the pro-competitive purpose of all other antitrust legislation. Boise Cascade Corp. v. FTC, 837 F.2d 1127, 1144 (D.C.Cir.1988). The Third Circuit, on the other hand, has held that the inference of competitive injury may not be overcome by evidence of no harm to competition because the Robinson-Patman Act was designed specifically to protect individual competitors rather than competition in general. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1532-33 (3d Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991).
3
Appellant Sylvania argues that we should follow Boise. Like Boise, Sylvania reasons that the Robinson-Patman Act condemns price discrimination only to the extent that the discrimination threatens to injure competition, and that the Act should be construed consistently with the broader policies of the antitrust laws to protect competition, not individual competitors. Appellee Von Der Ahe argues that injury to competition in a secondary-line Robinson-Patman case is conclusively established by proof of injury to a competitor, and that the inference of competitive injury that arises from proof of injury to a competitor may not be rebutted by evidence that competition was not adversely affected. We agree with Von Der Ahe and the Third Circuit, and affirm the jury verdict for Von Der Ahe on the Robinson-Patman claim.
4
* The Robinson-Patman Act reads in relevant part:
5
It shall be unlawful for any person engaged in commerce ... to discriminate in price between different purchasers of commodities of like grade and quality, ... 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 benefits of such discrimination, or with customers of either of them ...
6
15 U.S.C. § 13(a). In Boise, the D.C. Circuit held that the language of the Robinson-Patman Act, which prohibits price discriminations that tend "to injure, destroy, or prevent competition," indicates that Congress was concerned about the preservation of competition, and not the protection of individual competitors. Boise, 837 F.2d at 1143. In making this argument, the D.C. Circuit attempted to reconcile Robinson-Patman with other antitrust laws, whose purpose is to promote "pro-competitive efficiency and maximization of consumer welfare." Id. at 1138. Asserting that harm to competition is "the name of the Robinson-Patman game," id. at 1143, the D.C. Circuit reasoned that it would "def[y] both logic and the import of Morton Salt" to hold that an inference of competitive injury derived from evidence of harm to individual competitors may not be overcome when there is no actual harm to competition. Id. at 1144.
7
In dissent, Judge Mikva criticized the majority in Boise for following its own economic philosophy rather than interpreting the specific language and legislative history of the Robinson-Patman Act. Id. at 1152-53 (Mikva, J., dissenting). First, Judge Mikva accused the majority of overlooking the statutory language, which expressly proscribes price differentials that tend "to injure, destroy, or prevent competition with any person " who enjoys the benefits of the differential. Id. at 1157. This language, in Judge Mikva's view, shifts the focus of the statute from protecting competition to protecting individual disfavored buyers from the loss of business to favored buyers.
8
Judge Mikva cited Morton Salt 's language that "Congress intended to protect a merchant from competitive injury attributable to discriminatory prices." Id. (quoting Morton Salt, 334 U.S. at 49, 68 S.Ct. at 829-30). In his view, this intent to protect individual merchants explains why Morton Salt permits a finding of injury to competition based on a showing of injury to an individual competitor victimized by the discrimination. Id. (citing Morton Salt, 334 U.S. at 49, 68 S.Ct. at 829-30). Judge Mikva argued that this language in Morton Salt shows that the Court interpreted Robinson-Patman as dispensing with the need to show injury to competition. Id. at 1154. Finally, Judge Mikva noted that the Supreme Court had once addressed the issue of how to rebut the Morton Salt inference by creating a "specific type of rebuttal evidence"--"evidence breaking the causal connection between a price differential and [an individual competitor's] lost sales or profits"--and thus implicitly rejecting other methods for overcoming the inference. Id. (quoting Falls City Indus., Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 435, 103 S.Ct. 1282, 1288-89, 75 L.Ed.2d 174 (1983)).
9
Judge Mikva found support for his position in the legislative history:
10
The existing law has in practice been too restrictive in requiring a showing of general injury to competitive conditions ... whereas the more immediately important concern is in injury to the competitor victimized by the discrimination. Only through such injury in fact can the larger, general injury result. Through this broadening of the jurisdiction of the act, a more effective suppression of such injuries is possible and the more effective protection of the public interest at the same time is achieved.
11
Id. at 1158 (quoting H.R.Rep. No. 2287, 74th Cong., 2d Sess. 8 (1936)). Judge Mikva chastised the majority for interpreting Robinson-Patman according to its own version of antitrust policy, when the statutory language and the legislative history both show that Congress has already adopted its own policy of protecting individual merchants as a means of protecting competition. Id. at 1153.
12
In Feeser, the Third Circuit agreed with Judge Mikva that the Robinson-Patman Act proscribes secondary-line price discrimination that injures individual competitors. Feeser, 909 F.2d at 1533. The Third Circuit pointed out that the language "may be substantially to lessen competition or tend to create a monopoly," which had been part of the 1914 version of the Clayton Act, refers generally to broad impacts on competition, while the Robinson-Patman Act added the language "to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefits of such discrimination" specifically to protect the ability of individual companies to compete. Id. at 1532.
13
The Third Circuit also found support in the legislative history. First, the Third Circuit cited the Senate Report to show that Congress had intended to target injury to individual competitors as an appropriate means to protect competition in the long run, i.e. "to catch the weed in the seed." Id. at 1533 (quoting S.Rep. No. 1502, 74th Cong., 2d Sess. 4 (1936)). Second, the floor statement of a congressman in charge of the Conference Report for the Robinson-Patman Act shows that the language "to injure, destroy, or prevent competition with any person" was added to prohibit injury to the "immediate competition with the grantor or grantee" of a price discrimination. Id. (quoting 80 Cong.Rec. H9417 (1936) (statement by Rep. Utterback)). Thus, the Third Circuit's reading of the legislative history is in accord with Judge Mikva's reading that Congress amended the Clayton Act to expand its protection to individual competitors.
14
The Third Circuit also relied on Morton Salt in stating that it is "self-evident" that when sellers sell their goods to some customers substantially cheaper than they sell like goods to the competitors of these customers, there is a reasonable possibility that competition may be harmed. Id. (citing Morton Salt, 334 U.S. at 50-51, 68 S.Ct. at 830-31). It also cited dictum from Monahan's Marine, Inc. v. Boston Whaler, Inc., 866 F.2d 525, 529 (1st Cir.1989) (Breyer, J.), that a Robinson-Patman claim differs in nature from a Sherman Act claim because the Sherman Act protects competition, while the Robinson-Patman Act protects "those who compete with a favored seller, not just the overall competitive practice." Id. at 1535 (quoting Monahan's Marine, 866 F.2d at 529).3II
15
We agree with Judge Mikva and the Third Circuit. We are persuaded that the language that the Robinson-Patman Act added to § 2(a) of the Clayton Act--"to injure, destroy, or prevent competition"--expresses Congressional intent to protect individual competitors, not just market competition, from the effects of price discrimination. As we said in Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1446 n. 18 (9th Cir.1995) (dicta), "[t]he purpose of this passage was to relieve secondary-line plaintiffs--small retailers who are disfavored by discriminating suppliers--from having to prove harm to competition marketwide, allowing them instead to impose liability simply by proving effects to individual competitors." See also 3 Earl W. Kintner & Joseph P. Bauer, Federal Antitrust Law §§ 19.2, 22.4 (1983) (addition of phrase "to injure, destroy, or prevent competition with any person" was to expand protection of original Clayton Act to individual competitors).
16
We also agree with the Third Circuit and Judge Mikva that the legislative history confirms that Congress amended the Clayton Act specifically to extend its protection to individual competitors. Congress passed the Robinson-Patman Act primarily out of concern for small retailers who could not compete with large chain-store purchasers because they could not buy in quantity. See Falls City, 460 U.S. at 436, 103 S.Ct. at 1289-90; FTC v. Morton Salt Co., 334 U.S. at 49, 68 S.Ct. at 829-30. The House Report shows that the Act was animated by concern for "the survival of independent merchants, manufacturers, and other businessmen." H.R.Rep. No. 2287, 74th Cong., 2d Sess. 3 (1936); see also Lawrence Anthony Sullivan, Handbook of the Law of Antitrust § 225(a) (finding support in legislative history for construing Robinson-Patman Act to protect individual small competitors irrespective of efficiency concerns).
III
17
Sylvania also relies upon Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 548 (9th Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984), a secondary-line case which stated that the Robinson-Patman Act, like other antitrust laws, must be construed to protect competition, not individual competitors.4 Foremost Pro held that to survive a Rule 12(b)(6) motion, a plaintiff must allege injury to competition generally, not just injury to a specific competitor, because "[i]njury to a specific competitor is not enough from which a court may infer that an alleged price discrimination may 'substantially' injure competition." Id. Although Foremost Pro had no occasion to address the issue presented in this appeal--whether an inference of competitive injury may be overcome by a showing of no actual harm to competition--its sweeping statement that the Robinson-Patman Act must be construed to protect competition, not competitors, lends support to Sylvania's position that a defendant in a secondary-line price discrimination case must be permitted to make a showing of no harm to competition.
18
We believe, however, that Foremost Pro is no longer the law of this circuit because it was overruled, sub silentio, by Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1041 (9th Cir.1987), aff'd, 496 U.S. 543, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990). Without discussing Foremost Pro, Hasbrouck held that harm to competition in a secondary-line Robinson-Patman case may be inferred from evidence of harm to an individual competitor. Id. In so holding, Hasbrouck relied on Falls City, 460 U.S. at 435-36, 103 S.Ct. at 1288-90, a case decided after Foremost Pro. Falls City held that injury to competition may be inferred from proof of a substantial price discrimination between competing purchasers over time. Id. at 435, 103 S.Ct. at 1288-89. By relying on Falls City rather than on Foremost Pro, Hasbrouck appears to have interpreted Falls City as undermining the holding of Foremost Pro. See Landreth v. Internal Revenue Service, 859 F.2d 643, 648 (9th Cir.1988) (three judge panel may reconsider Ninth Circuit precedent if intervening Supreme Court decision undermines that precedent). We note in addition that Hasbrouck's holding is consistent with Morton Salt's reasoning that the Robinson-Patman Act "was intended to justify a finding of injury to competition by a showing of 'injury to the competitor victimized by the discrimination.' " Morton Salt, 334 U.S. at 49, 68 S.Ct. at 830 (quoting S. Rep. No. 1502, 74th Cong., 2d Sess. 4 (1936)). Because we are no longer bound by the reasoning of Foremost Pro, we are free to decide the question left open by Morton Salt, Falls City, and Hasbrouck, i.e. whether proof of harm to an individual competitor gives rise to an irrebuttable presumption of competitive injury in a secondary-line price discrimination case.
IV
19
Finally, Sylvania relies on Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). Brooke Group, a primary-line price discrimination case, reasons that "[b]y its terms, the Robinson-Patman Act condemns price discrimination only to the extent it threatens to injure competition," and therefore holds that the Act must be construed consistently with the broader policies of the antitrust laws to protect competition, not competitors. Id. at 219-21, 113 S.Ct. at 2586. Sylvania claims that the Brooke Group reasoning applies with equal force to secondary-line price discrimination claims.
20
We decline to extend the reasoning of Brooke Group to secondary-line cases because of the significant differences between primary- and secondary-line claims. First and foremost, Congress' concern for the fate of individual competitors, as expressed in the legislative history of the Robinson-Patman Act, focussed on secondary-line, not primary-line competition. Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 191-92 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 294, 136 L.Ed.2d 214 (1996); Henry v. Chloride, 809 F.2d 1334, 1339 (8th Cir.1987); 3 Phillip Areeda & Donald F. Turner, Antitrust Law p 720c (1978). Since the original Clayton Act addressed only primary-line injury, Congress passed the Robinson-Patman Act to add protection against secondary-line injury, more specifically against injury to small retailers. Coastal Fuels, 79 F.3d at 192. Thus, the language added to the Clayton Act by the Robinson-Patman Act, and the legislative history that expresses Congress' solicitude for individual buyers, are still applicable in secondary-line cases, even though they are not applicable in primary-line cases after Brooke Group. See id. at 191-93 (Morton Salt's inference of competitive injury still good law after Brooke Group because Brooke Group applies only to primary-line injury cases). Second, Brooke Group said that Robinson-Patman protects competition, not competitors, in the context of analogizing primary-line price discrimination claims to Sherman Act predatory pricing claims. The same analogy may not be made to secondary-line price discrimination claims. Id. at 193.
Conclusion
21
We hold that in a secondary-line Robinson-Patman case, the Morton Salt inference that competitive injury to individual buyers harms competition generally may not be overcome by proof of no harm to competition.
22
We AFFIRM the judgment on the Robinson-Patman claim.
1
All other issues raised by Sylvania's appeal are disposed of in a memorandum disposition filed herewith
2
Secondary-line price discrimination affects competition between buyers of a discriminating seller's goods, while primary-line discrimination affects competition between a discriminating seller and others who sell the same goods
3
Several other circuits have addressed this issue, though without the same depth of analysis found in Boise and Feeser. Compare Alan's of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1418 n. 6, 1426 (11th Cir.1990) (Robinson-Patman Act focuses on injury to competitors, not to competition), with Richard Short Oil Co. v. Texaco, Inc., 799 F.2d 415, 420 (8th Cir.1986) (alternative holding) (Robinson-Patman Act focuses on injury to competition, not to competitors), and Motive Parts Warehouse v. Facet Enterprises, 774 F.2d 380, 395 (10th Cir.1985) (same)
4
Foremost Pro was later cited with approval by the D.C. Circuit in Boise, 837 F.2d at 1143 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1552022/ | 186 B.R. 530 (1995)
In re Jerry B. HEMBREE, Debtor.
Terrell P. YOUNGBLOOD, Plaintiff,
v.
Jerry B. HEMBREE, Defendant.
Bankruptcy No. 94-0498-3P7. Adv. No. 95-63.
United States Bankruptcy Court, M.D. Florida, Jacksonville Division.
September 18, 1995.
*531 T. Patton Youngblood, Jr., Tampa, FL, for plaintiff.
Jerry B. Hembree, Jacksonville, FL, pro se.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GEORGE L. PROCTOR, Bankruptcy Judge.
This proceeding came before the Court upon a complaint objecting to discharge pursuant to 11 U.S.C. § 727(a)(4)(A). The complaint alleges that the defendant knowingly and fraudulently made false oaths when completing his schedules and his statement of financial affairs. Upon the evidence presented at trial on July 11, 1995, the Court enters the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Defendant incorporated Food Service Merchandising, Inc. on August 9, 1977. From that time until its dissolution on August 13, 1993, defendant served as president of the corporation. (Plaintiff Ex. 3).
2. On January 3, 1994, the County Court of Hillsborough County, Florida awarded plaintiff a judgment against the defendant in the amount of $6,784.19. That judgment was *532 properly recorded in Duval County, Florida on February 3, 1994. (Plaintiff Ex. 1).
3. On June 8, 1994, the Hillsborough County Court also awarded plaintiff an amended final judgment for attorney fees and costs against the defendant in the amount of $5,748.05. That judgment was recorded in Duval County, Florida on July 19, 1994. (Plaintiff Ex. 2).
4. Defendant filed for relief under Chapter 7 of the Bankruptcy Code on November 15, 1994.
5. On February 13, 1995, plaintiff filed a complaint objecting to discharge of debtor pursuant to 11 U.S.C. § 727(a)(4)(A). The complaint alleges that defendant knowingly and fraudulently made the following false oaths when completing his statement of financial affairs and his petition schedules:
A. Defendant failed to disclose ownership of real property;
B. Defendant failed to disclose income from rental property;
C. Defendant failed to disclose officership in a corporation;
D. Defendant failed to disclose the release of a certificate of deposit in the amount of $12,700;
E. Defendant failed to disclose income received from employment within two years preceding his bankruptcy filing;
F. Defendant failed to disclose plaintiff as a secured creditor.
CONCLUSIONS OF LAW
This Court has held that the most important issue in determining the denial of a discharge is "whether or not the debtor has accurately and truthfully presented himself before the Court." In re Collins, 19 B.R. 874, 878 (Bankr.M.D.Fla.1982). This Court has further held that "[i]t is of fundamental importance to the administration of the bankruptcy system that a debtor present himself or herself accurately and truthfully before their creditors and the Court. Failing to do so necessitates the forfeiture of the discharge." In re Klein, 114 B.R. 778, 780 (Bankr.M.D.Fla.1990).
Section 727(a)(4)(A) of the Bankruptcy Code provides as follows:
(a) The Court shall grant the debtor a discharge, unless . . .
(4) the debtor knowingly and fraudulently, in or in connection with the case
(A) made a false oath or account;. . . .
11 U.S.C. § 727(a)(4)(A). The plaintiff must prove by a preponderance of the evidence that the debtor's discharge should be denied. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The plaintiff can meet this burden by showing that the debtor "knowingly and fraudulently made [a] false oath and that the oath pertained to a material fact." In re Sausser, 159 B.R. 352, 356 (Bankr.M.D.Fla.1993). See In re Sowell, 92 B.R. 944, 947 (Bankr.M.D.Fla.1988).
Other courts have held that "a false oath is `material' if it bears a relationship to the debtor's business transactions or assets." In re Urban, 130 B.R. 340, 344 (Bankr. M.D.Fla.1991). A false oath bars a debtor's discharge "if it impairs the debtor's estate, concerns discovery of assets, or the existence and/or disposition of the debtor's property." In re Watkins, 84 B.R. 246, 250 (Bankr. S.D.Fla.1988). The plaintiff may prove that defendant knowingly and fraudulently made a false oath by showing that the defendant acted in reckless disregard for the truth by omitting information from his statement of financial affairs and schedules.
Although a single omission would normally be insufficient to deny the debtor's discharge, a series of omissions, when examined together, "constitute a pattern that demonstrates the [d]ebtor made a false oath with a reckless disregard for the truth. . . ." In re Clawson, 119 B.R. 851, 853 (Bankr. M.D.Fla.1990). See In re Urban, 130 B.R. 340, 345 (Bankr.M.D.Fla.1991). "This reckless disregard for the truth is generally recognized as the equivalent to fraudulent intent." In re Sausser, 159 B.R. 352, 356 (Bankr.M.D.Fla.1993). See In re Walters, 176 B.R. 835, 876 (Bankr.N.D.Ind.1994); In re Clawson, 119 B.R. 851 (Bankr.M.D.Fla. 1990).
If the plaintiff successfully establishes the basis for the objection, the burden of *533 proof shifts to the debtor. In re Chalik, 748 F.2d 616 (11th Cir.1984). See In re Goblick, 93 B.R. 771 (Bankr.M.D.Fla.1988); In re Sausser, 159 B.R. 352 (Bankr.M.D.Fla.1993).
A. Defendant's Failure to Disclose Real Property
On Schedule A, defendant stated that he did not own any real property. At trial, plaintiff presented evidence of a mortgage and a deed which named the defendant and his wife as owners of real property located at 4611 St. Johns Avenue, Jacksonville, Florida. (Plaintiff Ex. 5, 6, and 10). In his answer to the complaint, debtor denied that his statement regarding the property was false and that he knew it was false when he made it. At trial, however, the defendant testified that the Trustee questioned him about he property and advised him to amend his schedules to include the property. Defendant also testified that he never attempted to "hide" or "conceal" his ownership of the property, and he informed the individual who prepared the petition papers to amend the schedule to reflect defendant's ownership of the property. Defendant testified that he did not inquire further as to whether the schedules were amended.
Based on the debtor's admission and the documentary evidence, the Court finds that the defendant knowingly made a false statement in regards to the property. It is the defendant's responsibility to make sure his petition papers are complete and accurate. The plaintiff has met his burden of proving that the defendant knowingly failed to disclose his ownership of real property.
B. Defendant's Failure to Disclose Income From Rental Property
In his statement of financial affairs, defendant indicated that he did not receive income other than from employment or operation of a business in the two years preceding his petition date. Plaintiff alleged that defendant received rental income from the non-residential property discussed above. Defendant testified that Food Service Merchandising, Inc. (FSM), the debtor's employer, operates its business on the property and pays the mortgage directly to the mortgagee, First Union National Bank of Florida. The defendant, however, stated that he did not consider FSM's payments to be rental income because they were not paid directly to him.
Defendant's promissory note relating to the property lists the property as "rental property." (Plaintiff Ex. 11). Thus, the defendant expected some income to be produced from the property. By omitting information pertaining to that income, the defendant knowingly made a false statement in denying the receipt of supplemental income.
The Court finds that FSM's payments to First Union constitute rental income for the debtor and that information regarding that income should have been disclosed in the defendant's statement of financial affairs.
C. Defendant's Failure to Disclose His Officership in a Corporation
In his statement of financial affairs, defendant also indicated that he was neither an officer nor a director of a corporation within the two years immediately preceding the filing of his petition. At trial, plaintiff offered the 1992 annual report of Food Services Merchandising, Inc., which states that the defendant was president of the corporation. (Plaintiff Ex. 3). The plaintiff also offered a deposition of defendant taken in connection with the state court proceedings involving these parties. In that deposition, dated April 8, 1993, defendant testified that he was president of FSM. (Plaintiff Ex. 22 at 4). This evidence indicates that the defendant was an officer of a corporation within two years of his petition date, and defendant should have disclosed that information in his statement of financial affairs.
D. Defendant's Failure to Disclose the Release of a Certificate of Deposit Owned by Defendant and His Wife
In paragraph 11 of his statement of financial affairs, defendant indicated that he had not closed any financial accounts, including certificates of deposit, within one year prior to the filing of his bankruptcy case. Bank documents in evidence, however, indicate that a certificate of deposit in the name *534 of the defendant and his wife was released to them on January 26, 1994. Although the defendant claims that the certificate of deposit was released to his wife without his knowledge, the Collateral Change document was signed by both the defendant and his wife. (Plaintiff Ex. 17 and 18). The Court finds that the defendant knowingly omitted the release of the certificate of deposit from his statement of financial affairs.
E. Debtor's Failure to Disclose Income Received From Employer
In paragraph 1 of his statement of financial affairs, defendant stated that he had not received any income from employment or operation of a business during the two years immediately preceding the date of his petition. Plaintiff alleged that a consumer loan application recorded by First Union Nation Bank shows defendant's annual salary to be $55,000. (Plaintiff Ex. 19, Plaintiff Ex. 22 at 4). This document was produced on April 2, 1995, and the information it contained was current through March 31, 1995. (Plaintiff Ex. 19). Debtor alleges that he did not receive income from FMS in the two years prior to this petition date, and he maintains that the information contained in his statement of financial affairs and Schedule I is accurate.
The Court finds that the plaintiff's evidence meets the preponderance of the evidence standard, and that the defendant has failed to offer any evidence to counter plaintiff's allegation that debtor received an annual salary in the two years prior to his bankruptcy filing.
F. Defendant's Failure to List Plaintiff as a Secured Creditor
Defendant's Schedule D states that defendant has no secured creditors. In Schedule F, defendant listed plaintiff as an unsecured creditor with a claim in the amount of $6,000. Plaintiff has two recorded judgments against the defendant which total $12,532.24. (Plaintiff Ex. 1 and 2). Plaintiff is a secured creditor and should have been listed as such on defendant's schedules. The Court finds that the defendant made a false oath by failing to list plaintiff as a secured creditor.
CONCLUSION
Combined, debtor's omissions create a pattern of false statements which are indicative of a reckless disregard for the truth. Defendant reviewed his statement of financial affairs and his schedules and signed each under penalty of perjury. In his answer to the complaint, defendant denied having made any false statements in either his petition or his schedules. At trial, however, defendant admitted that he was aware of certain omissions. Upon the evidence presented, the Court finds that the defendant knowingly and fraudulently made a false oath in connection with his bankruptcy case.
The Court will enter a judgment in favor of the plaintiff and will deny the defendant's discharge pursuant to 11 U.S.C. § 727(a)(4)(A).
JUDGMENT
This proceeding came before the Court upon Terrell P. Youngblood's complaint objecting to the defendant's discharge pursuant to 11 U.S.C. § 727(a)(4)(A). Upon findings of fact and conclusions of law separately entered, it is
ORDERED:
1. Judgment is entered in favor of the plaintiff, Terrell P. Youngblood, and against the defendant, Jerry B. Hembree.
2. The defendant's discharge is denied.
3. The Office of the Clerk shall notify creditors of the denial of the defendant's discharge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552024/ | 186 B.R. 713 (1995)
In re Robert D. SCHNEEKLOTH, and Gwendolyn K. Schneekloth, Debtors.
Bankruptcy No. 95-10286-12.
United States Bankruptcy Court, D. Montana.
October 2, 1995.
Morris J. Braden, Billings, MT, for debtors.
ORDER
JOHN L. PETERSON, Chief Judge.
Robert D. and Gwendolyn K. Schneekloth ("Debtors") filed this voluntary Chapter 12 bankruptcy petition February 16, 1995. Schedules and Statement of Affairs were filed April 17, 1995. On June 26, 1995, Debtors filed a First Amended Chapter 12 Plan of Reorganization ("the Plan"), to which the Chapter 12 Trustee ("Trustee") objected on July 3, 1995. The Plan provides for, inter alia, a "surrender of collateral" of $50,000.00 in funds on deposit with the Clerk of Court for Montana's Fifteenth Judicial District to Citizens State Bank of Scobey ("the Bank"). The Trustee alleges that the Plan does not comply with LBR 20(a) and LBF 14 and that the Plan improperly provides for a direct payment to an impaired secured creditor rather than payment through the Trustee. Debtors oppose the objection, averring the Plan substantially complies with Court rules, and does not provide for payment of $50,000.00 to the Bank, as the transfer is a mere turnover of the Bank's collateral. The Bank filed a memorandum with the Court supporting the Plan, arguing that the transfer to the Bank is not a payment but a "surrender of collateral" and that only the future earnings of Debtors need be paid through the Chapter 12 Trustee.
After due notice, hearing was held on the matter at Billings on July 11, 1995. The parties were represented by counsel, arguments were heard and exhibits admitted into evidence. Ten days were given in which to file supplementary briefs and the Court took the matter under advisement. The parties timely submitted briefs, which the Court has reviewed. The issues are now ripe for decision. The Court finds the Plan provides for a surrender of collateral upon which the Chapter 12 Trustee may not impose a fee. Therefore, Trustee's Objection to the Plan is overruled.
I.
The Bank is a secured creditor of the Debtors pursuant to a Judgment and Decree of Foreclosure entered by the Montana Fifteenth Judicial District Court, Daniels County, Montana, on November 28, 1994. In conjunction with the entry of the Judgment and Decree of Foreclosure, the Daniels County district court entered its order in favor of the Bank for a Writ of Assistance on February 9, 1995. The decree entitled the Bank to the proceeds of certain collateral securing money *714 it loaned to the Debtors, who were found to be in default. As noted above, Debtors filed this voluntary Chapter 12 bankruptcy petition February 16, 1995.
During the pendency of the foreclosure litigation leading to the Daniels County decree, the Daniels County district court, on the Bank's motion, ordered Debtors to deposit with the clerk of court proceeds from the sale of the Bank's collateral in the approximate amount of $55,000.00. By this order, the clerk took possession and custody of the collateral proceeds pending the outcome of the foreclosure proceeding prior to Debtors bankruptcy filing. The Court finds no evidence in the record of any collusion on the part of the Bank and the Debtors in this case. In addition, Debtors, at the time of their bankruptcy filing, had in their possession checks related to the sale of the Bank's collateral in the approximate amount of $15,876.00. The Bank also holds a secured interest, pursuant to the underlying security agreements, in machinery and equipment, livestock, grain, and other personal property of the Debtors.
Debtors' First Amended Chapter 12 Plan of Reorganization provides that the Bank will receive $50,000.00 from the funds currently held by the Daniels County Clerk of Court to be released upon confirmation. The Plan characterizes this arrangement as a "surrender of collateral." Debtors liken the transfer of cash to a turnover of, say, a farm implement to a secured creditor, as does the Bank, and argue that the arrangement does not give rise to the statutory trustee fee. The Trustee, on the other hand, argues that the transfer of funds to the Bank is a direct payment under Debtors' Plan subject to the Trustee's fee. Under either interpretation, the Plan contemplates the Bank's receipt of $50,000.00.
II.
The Ninth Circuit Court of Appeals has held:
"Chapter 12 of the bankruptcy code does not authorize a debtor to make payments directly to creditors with claims modified by a plan of reorganization in order to avoid paying the bankruptcy trustee the statutory fee under 28 U.S.C. § 586. Although the BAP hinted that Chapter 12 might permit a debtor to make direct payments to impaired creditors without trustee compensation in certain limited circumstances, see In re Fulkrod, 126 B.R. [584 (9th Cir. BAP 1991)] at 588, that statement is neither necessary to its decision nor supported by statute."
In re Fulkrod, 973 F.2d 801, 803 (9th Cir. 1992) (emphasis added); see contra, In re Erickson Partnership, 77 B.R. 738 (Bankr. D.S.D.1987). Clearly then, the Court may not allow confirmation of a Plan that allows for Debtors' "direct payment" to the Bank without paying the Trustee's statutory fee.
On the other hand, 11 U.S.C. § 1225(a)(5)(C) requires this Court to confirm an otherwise acceptable Plan in which, "with respect to [an] allowed secured claim provided for by the Plan, the Debtor surrenders the property securing such claim to such holder." Thus, the Court shall confirm an otherwise acceptable Plan that provides for surrender of the collateral from the Debtors to the Bank. The determinative question then becomes, whether the transfer of funds from the Debtors to the Bank is a direct payment for purposes of determining 28 U.S.C. § 586 Trustee's fees, or a § 1225(a)(5)(C) surrender of property securing an allowed claim.
Neither the parties' briefs, nor the Court's own research reveals any case law from Ninth Circuit courts controlling this point. Fulkrod may make it clear that a Chapter 12 Plan cannot provide for direct payments by a debtor to an impaired creditor, however, the facts stated in the court's ruling on that matter do not unambiguously reveal the underlying nature of the "payments" proposed in the Fulkrod Plan. Fulkrod, 973 F.2d 801. The language of the BAP's Fulkrod opinion does suggest that the debtor proposed using monies from future income to pay the impaired creditors directly, 126 B.R. at 585, however, such facts, if in fact extant, would make Fulkrod distinguishable from the case at bar. Further, the two Fulkrod opinions insinuate nothing whatsoever by which to infer that the monies in question were derived in whole or in part from the sale of *715 creditors' collateral. Id., 973 F.2d 801. Thus, the Fulkrod holding does not resolve the factual matter now before the Court.
Notwithstanding a dearth of Ninth Circuit authority, courts elsewhere have confirmed analogous Chapter 12 and Chapter 13[1] plans providing for the surrender by debtors of the cash proceeds of collateral to holders of perfected claims on the collateral. See, In re Wells, Bankruptcy No. BK94-40339, 1994 WL 822534 (Bankr.D.Neb. June 9, 1994); In re Grear, 163 B.R. 524 (Bkrtcy.S.D.Ill.1994). For instance, in In re Grear the court reasoned that the cash nature of the proceeds did not control whether they could be surrendered to an impaired creditor without assessment of a trustee's fee. Rather the court focused on the source of the cash to be turned over to determine whether it should be characterized as a payment giving rise to a trustee's fee or as a surrender of collateral:
[The collateral] represent[s] an identifiable res that may be seized by creditors. Cf. United States v. Nordic Village, Inc., 503 U.S. 30, 38, 112 S.Ct. 1011, 1017, 117 L.Ed.2d 181 (1992) (federal jurisdiction did not exist where respondent sought to recover sum of money rather than "particular dollars" in a segregated or identifiable fund) (citing Pennsylvania Turnpike Comm'n v. McGinnes, 268 F.2d 65, 66-67 (3d Cir.), cert. denied, 361 U.S. 829, 80 S.Ct. 78, 4 L.Ed.2d 71 (1959). Thus, the debtor's proposed "payment" of [the proceeds from the collateral] to the IRS is actually a transfer or turnover of collateral rather than a payment from the debtor's income or other property.
Id. at 527.
The court also emphasized that 11 U.S.C. § 1322(a)(1)[2] only requires that an otherwise confirmable plan shall provide that a debtor's future earnings be submitted to the supervision and control of the trustee. Id. at 525. Thus, cash proceeds directly traceable to the sale of secured collateral, as opposed to future earnings, need not come under the trustee's custody if surrendered to the secured creditor. This, the court noted, is done routinely in many Chapter 13 Plans where collateral is surrendered and never reduced to cash under 11 U.S.C. § 1325(a)(5)(C) (allowing for surrender of property securing the claims of a secured creditor). Id. at 526. Chapter 12 analysis should proceed along similar lines.
To begin with, Chapter 12 requires that confirmable plans must submit "future earnings" to the trustee's supervision. 11 U.S.C. § 1222(a)(1). Moreover, in Chapter 12 cases, future earnings include only property of the estate acquired post-petition. 11 U.S.C. § 1207. Further, confirmable plans may also provide for the satisfaction of claims by a debtor's surrender of attached property either in whole or in part to secured lenders. 11 U.S.C. § 1225(a)(5)(C); In re Indreland, 77 B.R. 268, 272-273 (Bankr.D.Mont. 1987) (holding that a transfer of property, either in part or in whole to satisfy a secured claim is permitted in Chapter 12, under § 1222(b)(7) or (8) and § 1225(a)(5)(B) or (C)); see also, In re Fobian, 951 F.2d 1149 (9th Cir.1991) (referencing Indreland with approval).
Congress established Chapter 12 of the Bankruptcy Code "to give family farmers facing bankruptcy a fighting chance to reorganize their debts and keep their land." "Joint Explanatory Statement of the Committee of the Conference," Conference Report, HR Rep. No. 958, 99th Cong., 2d Sess. 48 (Oct. 2, 1986). This policy calls for courts to provide flexibility for debtors when interpreting the Code, and absent direct statutory authority to the contrary, allow for innovative Chapter 12 provisions designed to give debtors a "fighting chance" to reorganize a family farm. Thus, to promote Congressional policy, courts should confirm any innovative Chapter 12 plan conforming with the express dictates statute. Consequently, the Court agrees with the approach taken in In re Grear, and finds confirmation should be *716 granted for Chapter 12 plans with comparable provisions.
III.
Turning now to the instant case, the Court finds that the state court decree issued November 28, 1994, established the Bank's right to the proceeds in the custody of the state Clerk of Court prior to the filing of the instant bankruptcy petition. By all accounts those proceeds arose from the prepetition sale of collateral securing loans the Bank made to Debtors. As such, the proceeds are not § 1222(a)(1) "future earnings" of the Debtors, and are not property of the estate for purposes of § 1207. Furthermore, as other than future earnings, the proceeds need not be submitted to the supervision of the Trustee. 11 U.S.C. § 1222(a)(1). Since the proceeds in fact arise from the sale of, and are directly traceable to, an identifiable res securing the Bank's interest, an otherwise acceptable Plan allowing for the surrender by Debtors of such collateral to the Bank comports with 11 U.S.C. 1225(a)(5)(C), and the Court should confirm it. See, Grear, 163 B.R. at 527; Indreland, 77 B.R. at 272-273.
IV.
The Trustee also alleges that the Debtors' Plan fails to comply with LBR 20(a) and LBF 14. Upon review of Debtors' Plan, the Court finds it to be in substantial compliance with Local Bankruptcy Rules. The Court also finds that Debtor's Final Amended Chapter 12 Plan has reasonable income and expense projections and it complies with all of the provisions of 11 U.S.C. § 1225. Accordingly,
IT IS ORDERED:
1. The Debtors' First Amended Chapter 12 Plan of Reorganization, filed June 23, 1995, is hereby confirmed;
2. The Debtor shall pay over to the Trustee all amounts set forth in the Plan, at the times set forth in the Plan;
3. The value of the collateral securing debts due holders of secured claims is fixed at the value stated in the Plan;
4. Upon completion of the Plan, according to its final terms, all judgments and U.S.C. filings shall be satisfied.
NOTES
[1] The Court has earlier held that Chapter 13 statutory construction and practice "provide a valuable tool for interpretation of Chapter 12." In re Janssen Charolais Ranch, Inc., 73 B.R. 125, 126 (Bankr.D.Mont.1987).
[2] The Chapter 13 analog to 11 U.S.C. § 1222(a)(1) at issue here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030533/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4342
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY PARHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:07-cr-00121-RBS-JEB-1)
Submitted: September 29, 2009 Decided: October 28, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cristin Traylor, MCGUIRE WOODS LLP, Richmond, Virginia, for
Appellant. D. Monique Broadnax, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Parham pleaded guilty to possession with intent
to distribute cocaine base, in violation of 21 U.S.C. § 841(a)
(2006). Parham was sentenced to ninety-six months of
imprisonment and now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
three issues but stating that there are no meritorious issues
for appeal. Parham filed a pro se supplemental brief raising an
additional issue. * We affirm.
In the Anders brief, counsel questions whether the
district court erred in accepting Parham’s guilty plea as
knowing and voluntary. Because Parham did not move in the
district court to withdraw his guilty plea, any error in the
Fed. R. Crim. P. 11 hearing is reviewed for plain error. See
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Furthermore, there is a strong presumption that a defendant’s
guilty plea is binding and voluntary if he has received an
adequate Fed. R. Crim. P. 11 hearing. United States v. Puckett,
61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison,
431 U.S. 63, 74 (1977) (finding that statements made during a
plea hearing “carry a strong presumption of verity”). Our
*
We have considered the claim raised in Parham’s pro se
brief and conclude the claim lacks merit.
2
review of the record discloses that the district court fully
complied with Rule 11. We conclude, therefore, that the
district court did not err in accepting Parham’s guilty plea as
knowing and voluntary.
Counsel next questions whether Parham’s trial counsel
was ineffective. To prove a claim of ineffective assistance of
counsel, a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). With respect to the first prong, “the
defendant must show that counsel’s performance fell below an
objective standard of reasonableness.” Id. at 688. In
addition, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. Under the second prong of the
test in the context of a conviction following a guilty plea, a
defendant can show prejudice only by demonstrating “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
This court may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We have
thoroughly reviewed the record and conclude that Parham has
3
failed to demonstrate that ineffective assistance conclusively
appears on the record and, therefore, we decline to address this
claim on direct appeal.
Finally, counsel questions whether the district court
erred in sentencing Parham. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597
(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009), petition for cert. filed (U.S. July 24, 2009) (No.
09-5584). In so doing, we first examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence . . . .” Gall, 128 S. Ct. at 597. This court
then “‘consider[s] the substantive reasonableness of the
sentence imposed.’” United States v. Evans, 526 F.3d 155, 161
(4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129
S. Ct. 476 (2008). “Substantive reasonableness review entails
taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 128 S. Ct. at 597). If the sentence is
4
within the guidelines range, we apply a presumption of
reasonableness. United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56
(2007) (upholding presumption of reasonableness for
within-guidelines sentence).
We have thoroughly reviewed the record and find that
the sentence is both procedurally and substantively reasonable.
The district court properly calculated the advisory guidelines
range, considered the 18 U.S.C. § 3553(a) factors, and provided
a comprehensive explanation of its chosen sentence. See United
States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). In
addition, Parham has failed to rebut the presumption of
substantive reasonableness we accord to his within-guidelines
sentence.
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 and deny counsel’s
motion to withdraw. This court requires that counsel inform
Parham, in writing, of the right to petition the Supreme Court
of the United States for further review. If Parham 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 Parham. We
5
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
6 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030534/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4966
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIZABETH MOORE FRANKLIN,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:08-cr-00143-NCT-1)
Submitted: May 4, 2009 Decided: October 28, 2009
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, David P. Folmar, Jr., Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elizabeth Franklin pled guilty to conspiracy to
violate the drug laws of the United States, in violation of 21
U.S.C. § 846 (2006). Franklin, who was part of a
methamphetamine manufacturing conspiracy, admitted to unlawfully
possessing pseudoephedrine knowing that it would be used to
manufacture methamphetamine. The district court sentenced
Franklin to forty-six months’ imprisonment. Franklin appeals,
arguing that the district court erred in failing to reduce her
base offense level pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.2 (2007) for being a minimal or minor participant.
Finding no error, we affirm.
This court reviews the denial of a downward adjustment
pursuant to USSG § 3B1.2 for clear error. United States v.
Pratt, 239 F.3d 640, 646 (4th Cir. 2001). Accordingly, we will
reverse only if “left with the definite and firm conviction that
a mistake has been committed.” United States v. Stevenson,
396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985)).
According to USSG § 3B1.2, a defendant’s base offense
level may be decreased four levels if the defendant was a
minimal participant in any criminal activity or two levels if
the defendant was a minor participant. A minimal participant is
one who plays a minimal role in concerted criminal activity.
2
USSG § 3B1.2(a) comment. (n.4). A defendant is a minimal
participant if the defendant is “plainly among the least
culpable of those involved in the conduct of a group.” Id. A
minor participant is one “who is less culpable than most other
participants but whose role could not be described as minimal.”
USSG § 3B1.2(a) comment. (n.5). Further, a § 3B1.2 reduction is
appropriate only if the defendant “plays a part in committing
the offense that makes him substantially less culpable than the
average participant.” USSG § 3B1.2(a) comment. (n.3(A)).
Whether a USSG § 3B1.2 adjustment is appropriate “is
to be determined not only by comparing the acts of each
participant in relation to the relevant conduct for which the
participant is held accountable, but also by measuring each
participant’s individual acts and relative culpability against
the elements of the offense of conviction.” Pratt, 239 F.3d at
646 (quoting United States v. Palinkas, 938 F.2d 456, 460 (4th
Cir. 1991), cert. granted sub nom., judgment vacated, remanded
on other grounds, Kochekian v. United States, 503 U.S. 931,
reinstated, 977 F.2d 905 (4th Cir. 1992)). “The critical
inquiry is thus not just whether the defendant has done fewer
‘bad acts’ than his codefendants, but whether the defendant’s
conduct is material or essential to committing the offense.”
Palinkas, 938 F.2d at 460.
3
Franklin contends that the district court denied her
request for a § 3B1.2 reduction in violation of application note
3A, which permits a § 3B1.2 reduction even if a defendant is
only held accountable for his or her own relevant conduct.
Franklin’s argument is without merit. First, the application
note clarifies that § 3B1.2 permits, but does not require, a
reduction if the defendant is only held responsible for his or
her own relevant conduct. Second, Franklin’s conduct was
essential to the commission of the offense to which she pled
guilty, and she was only held accountable for the quantity of
pseudoephedrine which she personally purchased and provided.
Pratt, 239 F.3d at 646. Moreover, because Franklin was not
“substantially less culpable than the average participant” in
the criminal activity who purchased pseudoephedrine, a
distinction at sentencing between Franklin and other members of
the conspiracy was not warranted. See USSG § 3B1.2 comment
(n.3(A)); United States v. Gordon, 895 F.2d 932, 935 (4th Cir.
1990). Therefore, the district court did not commit clear error
in declining to grant Franklin a § 3B1.2 reduction.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as 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/1552025/ | 186 B.R. 197 (1995)
In re Curtis R. CATRON, Debtor.
Curtis R. CATRON, Plaintiff,
v.
Nancy L. MORRISON, Defendant.
Bankruptcy No. 91-25827-T. Adv. No. 93-2096-T.
United States Bankruptcy Court, E.D. Virginia, Norfolk Division.
June 27, 1995.
*198 *199 W. Ware Morrison, Virginia Beach, VA, for Nancy L. Morrison.
Joseph T. Liberatore, Portsmouth, VA, for Curtis R. Catron.
MEMORANDUM OPINION
DOUGLAS O. TICE, Jr., Bankruptcy Judge.
The court heard legal argument April 13, 1995, on Debtor Curtis Catron's complaint to determine whether a debt is dischargeable or whether it is excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). The court took the matter under advisement. After hearing the respective arguments of counsel and after reviewing the material submitted by counsel, the court finds that the debt at issue is in the nature of support. Accordingly, the court will enter an order excepting the debt from discharge.
Findings of Fact
Debtor and Defendant Nancy L. Morrison were married for twenty-six years. Morrison did not work outside the home for a majority of their marriage because debtor had significant real estate investments and because debtor ran a successful insurance agency. The evidence conclusively establishes that he had access to significant resources which allowed the couple to live a lavish life-style during the course of their marriage.
In May 1989 debtor and Morrison separated whereafter they executed a Final and Permanent Separation, Support, and Property Settlement Agreement dated July 30, 1990. This settlement agreement was incorporated into the Final Decree of Divorce entered by the Circuit Court of Virginia Beach, Virginia, on August 21, 1990, and is the critical document in the resolution of this case.
On October 17, 1991, debtor filed a chapter 11 petition. At the time of filing, the obligations owing from debtor to Morrison were all derived from the settlement agreement. These obligations included:
Under paragraph 2, lump sum payments of $300,000.00 each on the following dates: (1) July 1, 1985; (2) July 1, 2000; (3) and July 1, 2005.
Under paragraph 4, "the court from time to time, after considering the financial resource of both parties, may order a party to pay a reasonable amount for the costs to the other party of maintaining or defending any proceeding involving arrearages or to enforce compliance herewith and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment or decree, and that the Court may order that the amount be paid directly to the attorney who may enforce the order in his own name."
Under paragraph 7, debtor "assumes and covenants and agrees to pay as the same mature and indemnify and hold wife harmless from and against all loss on account of all joint obligations of the parties to banks and other institutional lenders incurred therefore relative to his business or investments, including closely held corporations and partnerships, except for obligation to be paid from the sales proceeds of the marital residence at closing but in event the sales proceeds are insufficient to pay such obligations Husband shall be responsible *200 for such obligations and shall hold wife harmless for same."
Under paragraph 10, debtor agreed to maintain life insurance on his life for the benefit of Morrison in an amount sufficient to fund the commuted value of the lump sum and periodic payments noted in paragraphs a and b above.
Under paragraph 11, debtor owes Morrison $29,290.00 plus interest for the date of a confession of judgment note which represented the balance due to Morrison from debtor's obligation under the settlement agreement to pay Morrison $300,000.00 at the time of the sale, foreclosure sale, or any other transfer or disposition of title to the marital residence. Debtor purchased the home from Morrison on November 30, 1990, and upon closing paid $150,000.00 to Morrison. In addition, debtor executed a note to pay Morrison $150,000.00 in March of 1991 and secured the note with a deed of trust on property owned by debtor. Debtor defaulted on the payment and Morrison foreclosed upon the property purchasing it at foreclosure for $100,000.00. The deficiency balance was eventually reduced to $29,290.00 as represented in the confession of judgment note.
On December 3, 1991, debtor filed a complaint (APN No. 91-2317-T) to determine dischargeability of debt owed to Morrison under paragraph 2 of the settlement agreement which provides that debtor shall make lump sum payments of $300,000.00 each to Morrison on three separate dates.
On September 23, 1992, this court held that the debt was nondischargeable. This holding was affirmed by the United States District Court for the Eastern District of Virginia and the Fourth Circuit Court of Appeals.
After Morrison attempted to collect in state court debts that were not explicitly held nondischargeable by this court's order, debtor filed a second complaint seeking an order determining that his obligations under other paragraphs of the settlement agreement were not in the nature of support and were therefore dischargeable.
The parties have stipulated that the pleadings, order, opinions, and entire record of Adversary Proceeding Number 91-2317-T is admissible evidence in this pending adversary proceeding.
The parties have also stipulated that the following debts are nondischargeable: (1) debtor's obligation to reimburse Morrison for attorneys' fees and costs of divorce counsel; (2) debtor's obligation arising from the confessed judgment note dated July 12, 1991, in the principal amount of $29,290.00, and (3) debtor's obligation to provide life insurance for the benefit of Morrison.
Accordingly, the provision that contains the language addressing the crux of this adversary proceeding is paragraph 7 which provides in pertinent part:
Neither party, after the date of their last separation, has pledged or shall pledge the credit of the other, and each party shall pay his or her own separate debts incurred thereafter. Husband hereby assumes and covenants and agrees to pay as the same mature and indemnify and hold Wife harmless from and against all loss on account of all joint obligations of the parties to banks and other institutional lenders incurred theretofore relative to his business or investments, including closely held corporations and partnerships, except for the obligations to be paid from the sales proceeds of the marital residence at closing but in event the sales proceeds are insufficient to pay such obligations Husband shall be responsible for such obligations and shall hold wife harmless for same.
The debt at issue under the hold harmless clause is a debt to Signet Bank incurred by debtor for business reasons and personally guaranteed by Morrison.
The agreement also contains the following specific language:
The parties mutually covenant, represent, warrant, and agree that it is their mutual intent and bargain, which goes to the very essence of this entire agreement, that the monetary payments, obligations, and liabilities assumed and set forth herein for the benefit of the parties, respectively, including *201 spousal support, . . . shall be considered, for the purposes of federal bankruptcy law, exempt from discharge and nondischargeable in bankruptcy as debts to a spouse or former spouse of the obligor, for alimony to, maintenance for, or support of a spouse or former spouse as being in the nature of alimony, maintenance or support as the debts, liabilities and obligations created by this agreement are intended for economic security, after considering many facts, circumstances and factors. . . .
(emphasis added).[1]
Position of Parties
Debtor alleges that Morrison is precluded from litigating the issue of whether the hold harmless provision is in the nature of support because a judge in the Juvenile and Domestic Court of the City of Virginia Beach, Virginia, determined that the court did not have jurisdiction to hear a matter relating to the hold harmless clause because it was not support.
Debtor also claims that the hold harmless clause was a property settlement in spite of the clear language of the agreement. Debtor argues that the court, as a threshold matter, must determine whether the parties intended that the obligation was in the nature of alimony and support. If the issue is resolved in the affirmative, debtor argues that the court must then find that the provision was actually in the nature of alimony and support. Debtor asserts that the "spousal support" language in the agreement is merely a label for what is actually a property settlement.
Debtor testified that he never intended to pay spousal support. Debtor cites his belief that he had a solid adultery case against Morrison in state court as evidence of his lack of intent to pay spousal support. However, the testimony of the debtor's divorce lawyer, Mr. Grover C. Wright, Jr., raised serious doubt as to the strength of the debtor's adultery case. In fact, Mr. Wright expressed concern that Morrison may have been able to establish a credible counter-charge of adultery.
Morrison alleges that debtor is barred by the doctrine of res judicata from arguing that the debt is discharged. Morrison argues that in Adversary Proceeding Number 91-2317-T, she filed a counterclaim asserting that the debt in issue in this adversary proceeding was nondischargeable. Furthermore, Morrison asserts that debtor never defended this allegation and merely defended one provision of the settlement agreement. In addressing the merits of debtor's claim, Morrison relies on the strong language in the agreement to resist the discharge of the debt owed her. She asserts the agreement establishes a prima facie case that the debt is nondischargeable, which has not been rebutted by debtor.
Discussion and Conclusions of Law
Debtor claims that Morrison is collaterally estopped from arguing that the hold harmless provision is in the nature of alimony and support. This contention is based upon the decision of the Juvenile and Domestic Relation Court of Virginia Beach that the hold harmless provision was not the type of obligation which was within its limited jurisdiction.[2] The state court determined that the hold harmless clause was not under the category of spousal support within its jurisdiction.
Collateral estoppel, or issue preclusion, applies when a second action between the same parties is based upon the same facts but a different cause of action. See 50 C.J.S. Judgments § 706, pp. 163-64 n. 92 (1947). Under collateral estoppel, the prior *202 judgment "precludes relitigation of issues actually litigated and necessary to the outcome of the first action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979); see also Combs v. Richardson, 838 F.2d 112, 112 (4th Cir.1988).
The requirements for collateral estoppel are:
(1) the parties to the prior and subsequent proceedings, or their privies, must be the same,
(2) the factual issue sought to be litigated actually must have been litigated in the prior action,
(3) the factual issue must have been essential to the judgment in the prior proceeding, and
(4) the prior action must have resulted in a judgment that is valid, final, and against the party against whom the doctrine is sought to be applied.
See Angstadt v. Atlantic Mut. Ins. Co., 249 Va. 444, 457 S.E.2d 86, 87 (1995).[3] The court must "make a careful and considered determination" before concluding that an issue was actually litigated and necessary to the judgment. Combs, 838 F.2d at 116. Furthermore, a litigant's right to a full and fair opportunity to litigate his claims overrides the interest of judicial economy. Ritter v. Mt. St. Mary's College, 814 F.2d 986, 994 (4th Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 260, 98 L.Ed.2d 217 (1987).
A full evidentiary hearing is not necessarily a prerequisite for an issue to be "actually litigated." See In re Grimm, 168 B.R. 102, 112 (Bankr.E.D.Va.1994). However, the court finds that the issue of whether the hold harmless clause was in the nature of alimony and support was not actually litigated. The state court's decision was made at the end of counsels' opening arguments and before any evidence had been presented to the court. There was no evidence presented on the actual function of the hold harmless provision, on the intent of the parties, or on whether the hold harmless provision was actually in the nature of alimony. In fact, neither party presented any evidence on the factors a bankruptcy court examines to determine whether a debt is excepted from discharge pursuant to § 523(a)(5). The state court decision was merely a determination that the hold harmless provision did not fall within the limited definition of support used by the court to establish its jurisdiction.
Although "a tribunal always possesses jurisdiction to determine its jurisdiction, and any fact upon which that decision is grounded may serve as the basis for an estoppel by judgment in any later action[,]" see Roth v. McAllister, Bros., Inc., 316 F.2d 143, 145 (2nd Cir.1963) (emphasis added), the facts of this case do not warrant applying the equitable doctrine of collateral estoppel.[4]
Unlike the Roth case, Morrison is not attempting to change the position she asserted in state court, nor is she trying to establish jurisdiction where jurisdiction was previously denied. See Cutler v. Hayes, 818 F.2d 879, 888 n. 72 (D.C.Cir.1987) (applying estoppel on standing issue based on previous judgment holding movant lacked standing); Shaw v. Merritt-Chapman & Scott, Corp., 554 F.2d 786, 789 (6th Cir.) (applying estoppel on jurisdiction issue based on previous judgment holding lack of jurisdiction), cert. denied, 434 U.S. 852, 98 S.Ct. 167, 54 L.Ed.2d 122 (1977). Even under such circumstances, ". . . the great sensitivity that surrounds matters of subject matter jurisdiction is likely to limit the application of preclusion on such issues." 18 Charles A. Wright et al., Federal Practice and Procedure § 4436, p. 273 (Supp.1995).
Morrison merely desires an opportunity to litigate whether the hold harmless clause is in the nature of alimony, an issue which has not been previously litigated. Accordingly, the court finds that Morrison is not precluded *203 by collateral estoppel, and the court may address the merits of her claim.[5]
Under § 523(a)(5) of the Bankruptcy Code which was in effect at the time this bankruptcy case was filed, debts for alimony, maintenance, or support are not dischargeable to the extent that they are "actually in the nature of alimony, support or maintenance."[6] The burden of proof is on Morrison to prove by a preponderance of the evidence that the debt should be declared nondischargeable. See Bulman v. Bulman (In re Bulman), 123 B.R. 24, 26 (Bankr.E.D.Va. 1990); Fed.R.Bankr.P. 4005.
In the first dischargeability action between these same parties, this court examined the voluntarily executed marital settlement agreement, which is also at issue in the present case, to determine whether it was the parties' intention that payments were for support rather than for property settlement. See Catron v. Catron (In re Catron), 164 B.R. 908, 910-12 (Bankr.E.D.Va.1992), aff'd, 164 B.R. 912 (E.D.Va.), aff'd without op., 43 F.3d 1465 (4th Cir.1994).
The court determined that "[a]lthough the Fourth Circuit has held that the intent of the parties controls rather than labels within an agreement, the written agreement is still `persuasive evidence of intent.'" In re Catron, 164 B.R. at 911 (quoting Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir.1986)). In the case of In re Catron, this court relied heavily on the Fourth Circuit's holding in Tilley, 789 F.2d at 1077-78, which held that a written agreement that was clearly and unambiguously a property settlement "erected a substantial obstacle which . . . [the non-debtor spouse] was required to overcome."
Furthermore, in the first Catron action, this court held that:
the agreement in this case clearly and unambiguously states that the intention of the parties was to provide for "alimony, maintenance, and support." Adherence to Tilley in this case compels the court to conclude that the clear and unambiguous language of intent in the agreement establishes a prima facie case that the debt owed Mrs. Catron is non-dischargeable. Furthermore, the strength and clarity of the agreement "erects a substantial obstacle" to the debtor's ability to rebut this prima facie case. Tilley, 789 F.2d at 1078. Notwithstanding this conclusion the court has afforded the debtor an ample opportunity to rebut or explain the language in the agreement.
In determining the parties' mutual intent, the court must look to all the relevant evidence on the intent of the parties. The court has listened to all the evidence the parties have offered on intent and has developed a full record in this case. In sum, the court sees nothing in the evidence which supports a finding that the "parties mutually intended an obligation of any nature other than that expressed in their written agreement." Tilley, 789 F.2d at 1078. The agreement in this case clearly demonstrates the parties anticipated the possibility of bankruptcy and specifically contracted in light of the possibility of bankruptcy. This pre-bankruptcy planning *204 should be given effect notwithstanding the debtor's seemingly disingenuous assertions after the fact that his intention was contrary to the plain language in the agreement.
In re Catron, 164 B.R. at 912.
The parties have stipulated that the pleadings, order, opinions, and entire record of Adversary Proceeding Number 91-2317-T is admissible evidence in this pending adversary proceeding. In fact, except for the transcript of the hearing before the Juvenile and Domestic Relation Court of Virginia Beach, the court has received no additional evidence in this adversary proceeding. Although there is some evidence from which the court could infer that the hold harmless clause was a property settlement, I find that it is clear from the unequivocal language of the settlement agreement that the parties intended that the hold harmless clause was in the nature of support.
Debtor argues that intent is merely a threshold issue; debtor claims that the court must not only find that the parties intended that the hold harmless clause was in the nature of support but the court must also determine that the hold harmless clause was actually in the nature of support. In support of this proposition, debtor cites the unpublished opinion[7] in Catron v. Catron (In re Catron), No. 94-1279, 1994 WL 707966 (4th Cir. December 21, 1994) and Tilley, 789 F.2d at 1077 n. 2. Contrary to the implication of debtor's assertion, the Fourth Circuit has not held that a court must find more than that the parties intended the debt to be in the nature of support.
In Tilley, the Fourth Circuit listed nonintent factors that could be considered. See Tilley 789 F.2d at 1077 n. 2 (emphasis added). The Fourth Circuit's holding in In re Catron mirrors its prior determination in Tilley, that is, the court may also consider other nonintent factors to determine whether the debt is in the nature of support.
These factors include: (1) the actual language of the agreement, (2) the financial situation of the parties at the time of the agreement, including their prospects for future income, (3) the function served by the obligation at the time of the agreement, and (4) whether there is any evidence of overbearing at the time of the agreement that might make a court question the intent of the spouse. See In re Catron, 164 B.R. 912, 919 (E.D.Va.1994).
This court has already concluded that the actual language of the agreement unequivocally demonstrates that the debt is in the nature of support. The nonintent factors in this case further support the court's conclusion.
In considering the financial situation of the parties at the time of the agreement, it is evident that Morrison had no income or savings, and that her career prospects were bleak. She had not worked outside the home for over twenty-seven years, and had only a high school diploma.
Furthermore, the function served by the hold harmless clause at the time of the settlement agreement demonstrates that the debt is support. Debtor argues that because debtor was to pay his business debts from the proceeds of the sale of the marital home, as provided for in the settlement agreement, the hold harmless clause was a property settlement. The court, in the previous adversary proceeding, determined that the $2,500.00 monthly payments and the amortized $300,000.00 lump sum payments resulted in a monthly support amount of $7,500.00, which represented the amount Morrison needed to provide the daily necessities she was accustomed to having in her life.[8] It is, *205 therefore, logical that the parties executed the hold harmless clause to insure that Morrison could use this money for her daily necessities rather than having to pay debtor's financial obligations arising from his business.[9]
Although there is a substantial amount of evidence of the animosity between debtor and Morrison, there is no evidence that debtor was overborne when he signed the settlement agreement.
The court recognizes that the alimony obligation is different from the typical support provision. However, the court could not find, nor did debtor cite, any authority holding that an atypical support provision is conclusive evidence of a property settlement. In the court's view, support is a personal matter which will be tailored to the needs of the parties. Thus, it is important to consider the parties' intent. Based on the unequivocal language of the settlement agreement, the financial situation of the parties, the function served by the obligation, and no evidence of excessive coercion, the court determines that the hold harmless clause is in the nature of support which is excepted from discharge pursuant to § 523.
Morrison alleges that debtor is barred by the doctrine of res judicata from arguing that the debt under the hold harmless clause is discharged. The court does not need to address this issue because the debt at issue has been determined to be excepted from discharge pursuant to § 523(a)(5). See Rosenblatt v. Wittlin (In re Rosenblatt), 176 B.R. 76, 80 (Bankr.S.D.Fla.1994).
A separate order will be entered.
NOTES
[1] The agreement also recites the factors taken into consideration for awarding spousal support pursuant to Va.Code Ann. § 20-107.1 (Michie Supp.1994). In addition, the agreement contains an integration clause, and the document clearly reflects the parties considered the possibility of bankruptcy.
[2] Pursuant to Va.Code Ann. 16.1-241(L), the judges of the Juvenile and Domestic Relations District Court have jurisdiction over:
Any person who seeks spousal support after having separated from his or her spouse. A decision under this subdivision shall not be res judicata in any subsequent action for spousal support in a circuit court. A circuit court shall have concurrent original jurisdiction in all causes of action under this subdivision.
Va.Code Ann. § 16.1-241(L) (Michie Supp.1994).
[3] Pursuant to 28 U.S.C. § 1738 the court must apply the forum state's law of collateral estoppel. See also Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 1897-98, 72 L.Ed.2d 262 (1982).
[4] "Ordinarily, issue preclusion takes the form of a direct estoppel against a second effort to assert the same basis of jurisdiction for the same claim." 18 Charles A. Wright et al., Federal Practice and Procedure § 4436, pp. 340-41 (1981).
[5] Debtor's contention that this action is barred by res judicata is meritless. See Gregory v. Mitchell, 634 F.2d 205 (5th Cir.1981) (holding res judicata does not apply where judgment in prior case covered standing issue and not decision on merits).
[6] The code, at 11 U.S.C. § 523(a)(5), provides in pertinent part:
(a) A discharge under . . . this title does not discharge an individual debtor from any debt
. . . .
(5) to a spouse, [or] former spouse . . . for alimony to, maintenance for, or support of such spouse . . ., in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with state or territorial law by a governmental unit, or property settlement agreement, but not to the extent that
. . . .
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. . . .
11 U.S.C. § 523(a)(5).
The Bankruptcy Reform Act of 1994 has amended § 523. However, for issues under § 523 and most other matters, the act applies prospectively to cases filed after the effective date of October 22, 1994. See Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, § 702(a) (codified as amended in 11 U.S.C.).
[7] Because of the similarities of parties and issues with the current case and the previous Catron matter, the court will consider debtor's argument even though Fourth Circuit I.O.P. 36.6 states that "the citation of unpublished dispositions is disfavored. . . ."
[8] The court recognizes that this amount appears excessive. However, as I have previously stated,
[a]lthough bankruptcy courts consider extrinsic evidence in addition to the parties' written agreement, it has not been entrusted to bankruptcy courts to actually determine the amount of alimony or support appropriate to the circumstances. It is for the state court to make that determination; bankruptcy courts determine only the nature of the obligation assessed by the state court. If the original state court award is excessive, or if the circumstances of the parties change, warranting adjustment of the obligation, it is for a state court to make these determinations. A more expansive role exceeds congressional intent, differs from the longstanding approach under the former Act, undermines comity considerations and threatens to convert the bankruptcy forum into a federal domestic relations court.
In re Catron, 164 B.R. at 911 n. 5; see also Jenkins v. Jenkins (In re Jenkins), 94 B.R. 355, 360-61 (Bankr.E.D.Pa.1988); Sheryl L. Scheible, Bankruptcy and the Modification of Support: Fresh Start, Head Start, or False Start?, 69 N.C.L.Rev. 577, 632-37 (1991).
[9] This case differs from the case involving a joint debt incurred to purchase marital property. Arguably, under those facts the function served by the obligation would appear to be in the nature of a property settlement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2231690/ | 336 N.E.2d 699 (1975)
James William DOWDELL, Appellant, (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 3-774A115.
Court of Appeals of Indiana, Third District.
November 5, 1975.
Rehearing Denied December 3, 1975.
Harriette Bailey Conn, Public Defender, Peter W. Bullard, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.
*700 STATON, Presiding Judge.
James William Dowdell pleaded guilty to a robbery which occurred May 22, 1969. On August 21, 1969, Dowdell was sentenced to the Indiana State Reformatory for an indeterminate term of not less than ten (10) years nor more than twenty-five (25) years. Later on March 2, 1973, Dowdell filed a petition for post-conviction relief, asserting that his sentence was incorrect. The trial court corrected Dowdell's sentence to a term of not less than ten (10) years nor more than twenty (20) years and denied the remainder of the petition. Dowdell's motion to correct errors presents this sole issue: whether the trial court should have reduced his minimum sentence to five years as provided by a statute which became effective three days before his sentencing. We conclude that the trial court's sentence was correct, and we affirm.
On May 22, 1969, the date of the crime, the following statutes were in effect:
Robbery: "Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten [10] years nor more than twenty-five [25] years... ." IC 1971, XX-XX-X-X, Ind. Ann. Stat. § 10-4101 (Burns 1956).
Commission of or attempt to commit crime while armed with a deadly weapon: "Any person who being over sixteen [16] years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, or theft while armed with ... any dangerous or deadly weapon ... shall be guilty of a separate felony in addition to the crimes above named and upon conviction shall be imprisoned for a determinate period of not less than ten [10] years nor more than twenty [20] years... ." Ch. 55, § 1, [1929] Ind. Acts 139, as amended by ch. 298, § 1, [1965] Ind. Acts 819 (now codified at IC 1971, XX-XX-X-X, Ind. Ann. Stat. § 10-4709 (Burns Supp. 1974)).
Effective August 19, 1969, three days prior to Dowdell's sentencing, the sentencing provision of the Armed Felony statute was amended. The pertinent part of the amended statute provided that a person who commits any felony while armed "shall be imprisoned for a determinate period of not less than five [5] years nor more than thirty [30] years, if the penalty imposed upon the said felony is more than ten [10] years... ." Ch. 206, § 1, [1969], Ind. Acts 771[1] (now codified at IC 1971, XX-XX-X-X, Ind. Ann. Stat. § 10-4709 (Burns Supp. 1974)).
Robbery is a lesser included offense of the commission of a felony while armed. Taylor v. State (1968), 251 Ind. 236, 236 N.E.2d 825; Cross v. State (1956), 235 Ind. 611, 137 N.E.2d 32. An individual convicted of the lesser included offense of robbery cannot constitutionally receive a greater sentence than he would receive for the greater offense of armed robbery. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815. At the time Dowdell entered a plea of guilty to the offense of armed robbery, the statutory penalty was a term of not less than ten (10) nor more than twenty (20) years. Thus, Dowdell had the constitutional right to a reduction of the maximum term of his sentence from twenty-five (25) years to twenty (20) years.[2] The trial court properly reduced his maximum sentence.
*701 On August 18, 1969, the penalty for the greater offense of armed robbery was amended to a determinate term of not less than five (5) years nor more than thirty (30) years. The proper sentence for the crime of robbery then became an indeterminate term of not less than five (5) years nor more than twenty-five (25) years.[3]DeWeese v. State (1972), 258 Ind. 520, 282 N.E.2d 828; LeFlore v. State (1973), Ind. App., 299 N.E.2d 871. Dowdell now contends that his minimum sentence should have been reduced to a term of five (5) years because the minimum sentence for the greater offense of armed felony was so reduced three days before Dowdell's sentencing.[4]
The general rule is that the law in effect at the time the crime was committed is controlling. Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Dembowski, supra. This rule is constitutionally required in the case that a penalty is increased ex post facto by amendment after the commission of the crime. Dembowski, supra. An exception to the general rule is recognized, in other jurisdictions[5] and at least in dicta in previous Indiana cases,[6] when punishment is lessened by amendment after the commission of the crime.
If a statutory amendment mitigates the punishment, there is no constitutional obstacle in the way of applying an amendment effective after the commission of the crime. However, it is a legislative function and not a judicial function to set the amount of the punishment for a crime, within the constitutional limitations. Dembowski, supra. While the penalty must not be excessive and must be proportioned to the nature of the offense, this does not mean that this Court can alter a penalty merely because it seems harsh or merely because we feel a different penalty would be more appropriate. We are bound by the legislature's determination of the appropriate penalty, so long as that penalty is constitutional.
We must determine whether the legislature intended that the statute as amended in 1969 should be applied to an offense committed before its enactment. The legislature failed to specify in the 1969 amendment when the punishment imposed should be applied. Legislative intent must therefore be discovered from sources other than the express language of the amended statute.
One source of legislative intent is the general savings statute,[7] which by law is *702 imported into all subsequent repealing or amending acts and obviates the necessity for individual savings clauses. State v. Hardman (1896), 16 Ind. App. 357, 45 N.E. 345. This section was enacted to indicate the legislative intent when no intent is expressed or necessarily implied. State ex rel. Milligan v. Ritter's Estate (1943), 221 Ind. 456, 48 N.E.2d 993. However, when the intent of the legislature is clear, we need not rely on the intent expressed in the savings statute.
We find a clear statement of the legislature's intent in the provisions of the amending statute. The 1969 amendment increased the maximum penalty for the crime of armed felony at the same time it decreased the minimum time. The 1969 amendment was not an ameliorative amendment. See Holguin v. State (1971), 256 Ind. 371, 269 N.E.2d 159. In determining whether one sentence is greater than another, the maximum severity of the penalty and not the possible duration of imprisonment is the measure to be used. Dotson v. State (1972), 258 Ind. 581, 282 N.E.2d 812; McVea v. State (1973), Ind. App., 293 N.E.2d 786; Barbee v. State (1973), Ind. App., 296 N.E.2d 884. The 1969 amendment increased the maximum punishment for the crime of armed felony from twenty (20) years to thirty (30) years.
Since the 1969 amendment was not an ameliorative amendment, but in fact imposed a more severe penalty than was previously imposed for the crime of armed felony, we find expressed in it the intent of the legislature that the amendment not be applied to crimes committed prior to its effective date.[8] We must presume that the legislature intends to follow the Constitution. To apply the increased penalty under the 1969 amendment to one who committed the crime prior to the effective date of the 1969 amendment would be an unconstitutional imposition of an ex post facto penalty. Thus, the legislature must have intended that the amended penalty not be applicable to crimes committed prior to its enactment.
*703 This intent is supported by the provisions of the general savings statute and, further, by the rule of statutory construction that, when there is nothing to indicate a contrary intent in a statute, it will be presumed that the legislature intended the statute to operate prospectively and not retroactively. See Malone v. Conner (1963), 135 Ind. App. 167, 189 N.E.2d 590.
We conclude that the modification of Dowdell's sentence to an indeterminate term of not less than ten (10) years nor more than twenty (20) years is proper.[9] This was the punishment which was proper at the time the crime was committed. This is the punishment which the legislature must have intended be applied until such time as the amended sentence could constitutionally be imposed.
Affirmed.
HOFFMAN and GARRARD, JJ., concur.
NOTES
[1] In Boyd v. State (1971), 257 Ind. 443, 275 N.E.2d 797, the Supreme Court held that the penalty imposed upon the felony of robbery is more than ten (10) years within the meaning of this statute.
[2] It should be noted that, effective September, 1971, the legislature remedied the unconstitutional penalty for robbery by amending the armed felony statute to provide a penalty of imprisonment for a determinate period of not less than ten (10) years nor more than thirty (30) years in all cases. IC 1971, XX-XX-X-X, Ind. Stat. Ann. § 10-4709 (Burns Supp. 1974).
[3] In DeWeese v. State (1972), 258 Ind. 520, 282 N.E.2d 828, the defendant committed the crime, was tried, and was sentenced all while the 1969 amendment was in effect. Constitutionally, the penalty for robbery could not be greater than the penalty for the greater offense of armed felony. Dembowski, supra.
[4] Final judgment is entered at the time of sentencing. McMinoway v. State (1973), Ind., 294 N.E.2d 803. Indiana courts have consistently held that amendments effective after final judgment have no effect on the sentence imposed. See Puckett v. State (1975), Ind. App., 325 N.E.2d 505.
[5] See, e.g., In re Estrada (1965), 63 Cal. 2d 740, 48 Cal. Rptr. 172, 408 P.2d 948; People v. Oliver (1956), 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197.
[6] See, e.g., Hicks v. State (1898), 150 Ind. 293, 294, 50 N.E. 27, quoted in Jackson v. State (1971), 257 Ind. 477, 484, 275 N.E.2d 538, 542, wherein the Court stated: "Punishment may be lessened, but it cannot be increased constitutionally, by statute enacted after the commission of the offense." In both Jackson and Hicks, the Courts were concerned with increased penalties, so the statement about lessening punishment was only dicta.
[7] IC 1971, 1-1-5-1, (Burns Code Ed.) provides:
"And the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purposes of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability."
As appellant points out, most of the cases that have dealt with the savings statute have been concerned with the preservation of the State's right to prosecute under the repealed or amended act, not with the precise question of the preservation of the penalty imposed under the repealed or amended act. See, e.g., State v. Hardman (1896), 16 Ind. App. 357, 45 N.E. 345; State v. Lewis (1924), 195 Ind. 344, 145 N.E. 496. However, in Burk v. State (1916), 185 Ind. 47, 113 N.E. 294, the Supreme Court seems to have reached the precise issue of preservation of the penalty under the former statute in spite of a subsequent amendment to the statute decreasing the penalty. In Burk, the defendant committed the crime of burglary while the statutory penalty of ten (10) to twenty (20) years was in effect. While the defendant was awaiting trial, the legislature amended the burglary statute to lessen the penalty to two (2) to fourteen (14) years. The Court held that the trial court did not err in "fixing the penalty" under the statute in effect when the crime was committed. As the concurring justice pointed out, the amended statute established degrees of burglary theretofore unknown in the law. Thus, in spite of the Court's language referring to penalties, it may be that the Court was truly affirming the State's right to prosecute under the former statute, which right was preserved by the savings clause. Because we do not find Burk a strong precedent, we choose not to base our holding on that case.
[8] If the legislature had enacted an ameliorative amendment, the application of which would be constitutionally permissible to persons who had committed the crime prior to its effective date, we would be willing to find a statement of legislative intent to apply the sentencing provisions of that ameliorative statute to all persons to whom such application would be possible and constitutional. Article I, section 18, of the Indiana Constitution provides: "The penal code shall be founded on the principles of reformation, and not of vindictive justice." If there is an express statement by the legislature that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the proscribed act, then to hold that the more severe penalty should apply would serve no purpose other than to satisfy a constitutionally impermissible desire for vindictive justice. We could not ascribe to the legislature an intent to punish for vindictive purposes.
[9] This decision is consistent with the decision of the Indiana Supreme Court in Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538, in which the Court, on substantially similar facts, modified Jackson's sentence to an indeterminate term of not less than ten (10) nor more than twenty (20) years. Jackson committed the crime of robbery prior to the effective date of the 1969 amendment, but was tried and convicted after the effective date of the amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2305511/ | 222 F.Supp.2d 1135 (2002)
Kenneth R. TERPENING II, Plaintiff,
v.
Michael Brett IRVING, et al., Defendants.
No. 02-3109.
United States District Court, C.D. Illinois, Springfield Division.
September 25, 2002.
*1136 Kenneth R. Terpening, General Delivery, Pleasant Hill, IL, Pro Se.
Karen L. McNaught, Office of Attorney General, Springfield, IL, Benjamin R. Schmickle, Burroughs, Hepler, Broom, MacDonald, Hebrank & True, Edwardsville, IL, for Defendants.
OPINION
RICHARD MILLS, District Judge.
A serial litigant in the making.
Plaintiff is forewarned.
This Court will not tolerate meritless, repetitive, or vexatious suits.
Motion to dismiss allowed.
I. BACKGROUND
Plaintiff Kenneth R. Terpening II has filed the above-captioned case, pursuant to 42 U.S.C. § 1983, alleging that certain current and former government officials, along with certain employees of a shelter for abused women, have engaged in "mischief, mayhem, domestic terror, [and] attempted murder." In his Complaint, Terpening alleges that his claim arises out of the former Pike County State's Attorney's handling of a criminal case (and the events which subsequently transpired) in which a "political lackey" allegedly molested his [Terpening's] children. Terpening's Complaint also includes allegations that Defendants have fabricated criminal charges against him, have sought and received bogus orders of protection against him, have robbed him, have planted evidence in order to incriminate him, and have engaged in conduct aimed at driving him to commit suicide as they have with others.
In support of this Complaint, Terpening has attached documents from seven separate state court cases which he has filed against various Defendants and documents concerning a complaint which he has made to the Illinois Judicial Inquiry Board. All of the attached documents arise out of the same sequence of events of which Terpening now complains in support of his § 1983 action.
In response, Defendants Marla Ferguson, Brandi Sheppard, and Pat Waters have filed a motion asking the Court to dismiss Terpening's Complaint, pursuant *1137 to Federal Rule of Civil Procedure 12(b)(6), for failure to state a cause of action upon which relief can be granted against them. Ferguson, Sheppard, and Waters each note that Terpening's Complaint fails to make a single reference to any act of omission or commission committed by them which allegedly deprived him of a Constitutional right. In fact, Ferguson, Sheppard, and Waters point out that the Complaint does not mention them at all except for including them in the caption of the case. Accordingly, Ferguson, Sheppard, and Waters ask the Court to dismiss this case against them.
Likewise, Defendants Judge Richard D. Greenlief and Judge Michael R. Roseberry have filed a motion asking the Court to dismiss Terpening's Complaint against them for failure to state a cause of action upon which relief can be granted. In addition, Judges Greenlief and Roseberry argue that Terpening's claim against them is barred by the doctrine of judicial immunity, by the doctrine of res judicata, and by the Eleventh Amendment. Accordingly, Judges Greenlief and Roseberry ask the Court to dismiss this case against them for one or all of these reasons.
Finally, the other Defendants named as parties in this case by Terpening have not responded, in any way, to his Complaint. However, the Court finds no evidence in the record to establish that Terpening has effected proper service of process upon them.[1] In any event, the Court's holding in this Order applies equally to all Defendants.
II. LEGAL STANDARD FOR MOTIONS TO DISMISS
In ruling on a motion to dismiss, the Court "must accept well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the plaintiff." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless "must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984). Mere conclusions, without supporting factual allegations, are insufficient to support a claim for relief. Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir.1978). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
III. ANALYSIS
The grounds upon which to dismiss Terpening's Complaint are legion. Although the Federal Rules of Civil Procedure employ a notice pleading standard, Fed. R. Civ. Pro. 8(a)(2), and although pro se pleadings must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), even pro se complaints must contain factual allegations sufficient to show a violation or deprivation of a civil right. See Palda v. General Dynamics Corp., 47 F.3d 872, 875 (7th Cir.1995)(holding that "a complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)."). Terpening's incoherent rambling *1138 fails to satisfy the Federal Rule's requirements.
First, Terpening mentions only one Defendant by name (i.e., Michael Brett Irving) in his Complaint. Thus, it is unclear how, if at all, any of the other Defendants have wronged him.
Second, Terpening has failed to identify the Constitutional right of which Defendants allegedly deprived him.[2] In order to maintain a suit under 42 U.S.C. § 1983, a would-be plaintiff must show "that the conduct complained of (1) `was committed by a person acting under color of state law' and (2) `deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.'" Yang v. Hardin, 37 F.3d 282, 284 (7th Cir.1994), quoting Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 331-32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Here, Plaintiff has failed to allege sufficient coherent facts to establish either element.
Accordingly, the Court finds that Defendants cannot reasonably file an Answer to Terpening's Complaint and also finds that Terpening's Complaint fails to state a cause of action upon which relief can be granted. Therefore, Terpening's Complaint is dismissed pursuant to Rule 12(b)(6).
Furthermore, and perhaps more importantly, Terpening's Complaint is barred by the doctrine of res judicata (claim preclusion). As is evident from the documents attached to his Complaint, Terpening has previously litigated (and lost according to Defendants) in state court the claims arising from the sequence of events which form the basis for the instant Complaint. See Perry v. Globe Auto Recycling, Inc., 227 F.3d 950, 952 (7th Cir.2000)(listing the three elements necessary to establish federal claim preclusion). As such, claim preclusion "bars not only those issues which were actually decided in a prior suit, but also all issues which could have been raised in that action." Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir.1995).
In addition, to the extent that Terpening is alleging that his injury was inflicted by a state court's decision or, more specifically, by a decision of Judge Greenlief and/or Judge Roseberry, his claim is barred by the Rooker-Feldman doctrine. "This doctrine stands for the principle that decisions of state courts may not be challenged in litigation under § 1983; instead the aggrieved party must pursue all remedies through the state system and then seek certiorari under 28 U.S.C. § 1257." Durgins v. City of East St. Louis, Illinois, 272 F.3d 841, 844 (7th Cir.2001). If this is Terpening's claim, then this Court lacks subject matter jurisdiction over this case, and the case must be dismissed. See Jensen v. Foley, 295 F.3d 745, 747-48 (7th Cir.2002)(discussing the similarities and differences between the Rooker-Feldman doctrine and claim preclusion and noting that a district court lacks subject matter jurisdiction if Rooker-Feldman applies).
Finally, to the extent that Terpening is suing Judge Greenlief and Judge Roseberry in their official capacities, his *1139 suit is barred by the Eleventh Amendment. See Nowicki v. Ullsvik, 69 F.3d 1320, 1324 (7th Cir.1995)(holding that "Judicial immunity and the Eleventh Amendment bar such claims against Judge Ullsvik in his personal and official capacities respectively."). Moreover, the doctrine of judicial immunity bars this suit against Judges Greenlief and Roseberry in their individual capacities. Id. Thus, Defendants' motion to dismiss is welltaken.
One final caveat is necessary. As the Court noted supra, Terpening has filed at least seven separate state court cases arising from the same set of facts and circumstances which form the basis for his Complaint in this case. Terpening's conduct prompted two Defendants to move for sanctions pursuant to Federal Rule of Civil Procedure 11. Although it denied the motion, the Court emphasized to Terpening that he should not interpret the denial of the motion for sanctions as an indication that the Court approves of or condones his litigiousness.
The Court underscores this point again. If Terpening continues to file meritless, harassing, oppressive, redundant, vexatious, and repetitive law suits against these or other Defendants, he may rest assured that this Court, other federal courts, and state courts possess the power to sanction him monetarily (see Fed. R. Civ. Pro. 11 and Ill. S.Ct. R. 137), to impose an injunction against him (see Sassower v. American Bar Ass'n, 33 F.3d 733 (7th Cir.1994)), to hold him in civil contempt (see Sassower v. Sheriff of Westchester County, 824 F.2d 184, 186 (2d Cir.1987)), and/or to hold him in criminal contempt. See id. Terpening should considered himself forewarned.
Ergo, Defendant Marla Ferguson's Motion to Dismiss, Defendant Brandi Sheppard's Motion to Dismiss, Defendant Pat Waters' Motion to Dismiss, and Defendants Judge Richard D. Greenlief and Judge Michael R. Roseberry's Motion to Dismiss are ALLOWED. Accordingly, Plaintiff's Complaint is, hereby, DISMISSED WITH PREJUDICE.
NOTES
[1] Terpening has not filed a response(s) to any of the pending motions to dismiss although both United States District Judge Jeanne E. Scott and United States Magistrate Judge Byron G. Cudmore each instructed him to do so and also informed him of the consequences of his failure to file a response(s).
[2] While it is true that an argument could be made that Terpening has identified a deprivation of his liberty interest under the Fourteenth Amendment as the Constitutional right of which Irving deprived him, Terpening has not tendered this argument, and the Court is not required to make his arguments for him. See Friedel v. City of Madison, 832 F.2d 965, 969 (7th Cir.1987)(holding that a court is not required to make arguments the parties fail to make). In any event, Terpening has not sufficiently supported such a claim with any relevant factual allegations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030926/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4940
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOE LEWIS JEFFERSON, a/k/a Stink, a/k/a Louis Jefferson,
a/k/a Joe Little, a/k/a Jo Jo, a/k/a Joseph Wayne Jefferson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (4:07-cr-00023-D-1; 5:07-cr-00197-D)
Submitted: November 23, 2009 Decided: December 10, 2009
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty plea to identity fraud, in
violation of 18 U.S.C. § 1028(a)(7) (2006), and possession of a
firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006), Joe Lewis Jefferson was
sentenced to 156 months’ imprisonment on the identity fraud
conviction and a concurrent 120 months’ imprisonment on the
firearm and ammunition count. Jefferson appeals his sentence,
arguing that the district court erred when it imposed a
departure sentence that was too extensive. Finding no error, we
affirm.
Although Jefferson does not dispute the legal or
factual correctness of the district court’s findings at
sentencing and does not claim that the district court was
unjustified in departing under the relevant guidelines
provisions, Jefferson does assert that his sentence is “only 24
months less than the maximum” and that it is excessive in light
of his guilty plea, acceptance of responsibility, and efforts to
cooperate with authorities. The district court provided ample
analysis of the reasons it believed Jefferson’s departure
sentence was warranted, not only during Jefferson’s sentencing
hearing, but also in a detailed sentencing memorandum. Given
the extent of Jefferson’s criminal history, the negligible
deterrent effect of his prior more lenient sentences, the
2
increasingly serious and extensive nature of Jefferson’s
offenses, and the district court’s meaningful articulation of
the reasons for its departure and the extent of the departure,
we find that the extent of Jefferson’s departure sentence was
reasonable. See Gall v. United States, 552 U.S. 38, 50-51
(2007); United States v. Hernandez-Villanueva, 473 F.3d 118, 123
(4th Cir. 2007).
Based on the foregoing, 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
3 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645309/ | 40 So.3d 83 (2010)
Calvin NEAL, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-742.
District Court of Appeal of Florida, Fifth District.
July 9, 2010.
Calvin Neal, Raiford, pro se.
Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
PALMER, J.
Calvin Neal appeals the final order entered by the trial court denying his motion for post-conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Based upon the State's concession that an evidentiary hearing is required to address Neal's claim that his trial counsel was ineffective for failing to inform the trial court during the court's *84 Richardson[1] inquiry of relevant case law concerning the State's non-disclosure of Neal's statement, we reverse and remand for an evidentiary hearing on this issue. As to all other issues raised by Neal, we affirm.
AFFIRMED in part, REVERSED in part, and REMANDED.
MONACO, C.J. and SAWAYA, J., concur.
NOTES
[1] See Richardson v. State, 246 So.2d 771 (Fla. 1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552016/ | 186 B.R. 629 (1995)
In re REMCOR, INC., a/k/a Remedial Corporation, Debtor.
PREMIUM FINANCING SPECIALISTS, INC., Movant,
v.
REMCOR, INC., a/k/a Remedial Corporation, Respondent.
Bankruptcy No. 95-22204-BM. Motion No. 95-1250M. Related To Motion No. 95-1125M.
United States Bankruptcy Court, W.D. Pennsylvania.
September 14, 1995.
*630 Robert S. Bernstein, John B. Joyce, Bernstein and Bernstein, P.C., Pittsburgh, PA, for Remcor, Inc.
George M. Cheever, Kirkpatrick & Lockhart, L.L.P., Pittsburgh, PA, for Premium Financing Specialists, Inc.; Rodney J. Hoffman, Slagle, Bernard & Gorman, P.C., Kansas City, MO of counsel.
Neil F. Siegel, Nancy L. Heilman, Cohen & Grigsby, P.C., Pittsburgh, PA, for Sunbeam Corp.
Many Emamzadeh, Klett, Lieber, Rooney & Schorling, Pittsburgh, PA, for Dollar Bank, FSB.
Frederick R. Reed, Drew T. Parobek, Vorys, Sater, Seymour & Pease, Cincinnati, OH, for ATC Environmental, Inc.
MEMORANDUM OPINION
BERNARD MARKOVITZ, Bankruptcy Judge.
Premium Financing Specialists, Inc. (hereinafter "PFS") has brought a motion for modification of an order issued on July 5, 1995, wherein PFS was granted relief from the automatic stay to cancel certain insurance policies issued in debtor's name for *631 which PFS had advanced funds to pay the premiums. PFS asserts that it has a valid and enforceable first-priority security interest in the unearned insurance premiums and seeks permission to apply the refunded premiums to debtor's obligations to PFS.
Debtor, Sunbeam Corporation, which holds a perfected prepetition blanket lien against all of debtor's assets, and ATC Environmental, Inc. (hereinafter "ATC"), which holds a perfected postpetition superpriority lien against all of debtor's assets, have objected to the motion.
In accordance with the analysis set forth below, PFS' motion will be granted.
FINDINGS OF FACT
On August 10, 1994, debtor entered into a premium finance agreement with PFS whereby PFS agreed to advance a portion of the premium due on debtor's automobile insurance policies issued by a third party. Debtor in return agreed to repay the amount advanced by PFS ($23,306.25) plus a finance charge of 7.265 percent. Payments were due in ten equal monthly installments of $2,408.93 beginning on September 12, 1994.
On March 28, 1995, debtor entered into another premium finance agreement with PFS whereby PFS agreed to advance a portion of the premiums due on various types of liability insurance issued by a third party. Debtor in return agreed to repay the amount advanced by PFS ($345,194.00) plus a finance charge of 8.65 percent.
Both agreements, which were prepared by PFS, contained identical terms and provisions. Paragraph 1, for instance, provided as follows:
The named Insured:
1. Assigns to PFS as security for the total amount payable hereunder all unearned premiums and loss payments which may become payable under the policies listed above, as to all of which insured gives PFS a security interest.
In paragraph 4 of the agreements, debtor irrevocably appointed PFS as its attorney-in-fact with full authority to cancel the policy and to receive all sums resulting therefrom.
At no time did PFS attempt to perfect its security interest in the unearned premiums in accordance with the requirements of Article 9 of the Uniform Commercial Code (hereinafter "UCC") of Pennsylvania..
On June 13, 1995, debtor filed a voluntary chapter 11 petition. In its schedules, debtor listed Dollar Bank and Sunbeam Corporation as secured creditors having blanket liens on all of debtor's assets. Their claims were scheduled at $253,000.00 and $365,000.00, respectively, with Dollar's interest taking precedence over Sunbeam's.
Along with its bankruptcy petition, debtor submitted an emergency petition to approve a management agreement and to authorize the extension of credit. Debtor sought permission to borrow up to $250,000 from ATC and to grant ATC a first position lien on all of debtor's pre- and post-petition assets. The lien was to prime the existing liens of Dollar and Sunbeam.
An order granting debtor's motion on an interim basis was issued after a hearing on June 19, 1995. Paragraph One of the decretal portion of the order provided as follows:
1. ATC shall be and hereby is authorized to extend post-petition financing to the Debtor by providing a working capital loan in one or more installments, on an as-needed basis. . . . This loan shall be treated as a superpriority loan with a first and best lien automatically perfected hereby on all assets of the Debtor and Debtor-in-Possession under the provisions of 11 U.S.C. Section 364(d) in favor of ATC.
A final order authorizing the extension of credit was issued on June 22, 1995, after another hearing. Paragraph Three of the decretal portion of the order provided as follows:
3. ATC shall be and hereby is authorized to extend post-petition financing to the Debtor by providing a working capital loan in one or more installments, on an as-needed basis, in the maximum aggregate amount of up to $250,000. The loan shall be repaid either from the Debtor's post-petition revenues or taken as a credit against the purchase price of the Debtor's assets by ATC. In the event that this loan *632 has not been repaid in full in such manner, the unpaid portion thereof shall be treated as a superpriority loan with a first and best lien automatically perfected hereby on all assets of the Debtor under the provisions of 11 U.S.C. Section 364(d) in favor of ATC.
Sunbeam appealed the above orders to the district court. They have not yet been decided.
On June 30, 1995, PFS brought a motion for relief from the automatic stay or for adequate protection. PFS alleged that it had a perfected, first priority security interest in the unearned insurance premiums and that debtor had defaulted on its obligations. It requested authorization to cancel the above insurance policies and to receive and apply the unearned premiums to the debt owed to it by debtor under the two above insurance premium finance agreements.
An order was issued after a hearing held on July 5, 1995, permitting PFS to cancel the above insurance policies and to collect the unearned insurance premiums. Because the matter was heard and decided on an emergency basis and all of the facts were not known, PFS was not permitted to apply the collected premiums towards the debt owed to it by debtor. It was directed instead to provide an accounting of the exact amount of unearned premiums for each policy of insurance and to place the amounts collected into an interest-bearing escrow account until entitlement to the funds was determined.
On July 10, 1995, PFS reported that as of July 1, 1995, it was owed approximately $316,900, excluding interest and late charges; that as of July 6, 1995, the unearned premiums under the policies totaled $285,794.60; and that application of the latter to the former would leave a deficiency claim in the amount of $31,123.30.
On July 26, 1995, PFS brought a motion to modify the order of July 5, 1995, so as to permit it to apply any and all collected unearned insurance premiums to debtor's obligation to it under the above premium finance agreements. PFS asserted that it has a valid first-priority security interest in the unearned premiums, notwithstanding its failure to file financing statements or copies of the premium finance agreements in accordance with the requirements of Article 9 of the UCC. PFS maintained in its motion that Article 9 of the UCC did not apply.
Debtor, Sunbeam, and ATC have objected to the motion.
A hearing was held on August 22, 1995, on PFS' motion and the objections thereto.
DISCUSSION
-1-
Does PFS Have A Perfected Security Interest In The Above Unearned Premiums?
As we have indicated, PFS insists that its interest in the unearned insurance premiums was perfected and enforceable against debtor's other creditors. It maintains that the filing of appropriate UCC-1 statements is not a prerequisite to perfection of its interest. According to PFS, all policies of insurance are excluded from the scope of Article 9 of the UCC by virtue of 13 Pa.C.S.A. § 9140(7), which provides as follows:
This provision shall not apply: . . .
(7) to transfer of an interest or claim in any policy of insurance, except as provided with respect to proceeds (section 9306) and priorities in proceeds (section 9312).
13 Pa.C.S.A. § 9140(7) (Purdon's 1984).
The controlling law, PFS continues, is set forth at § 3312 of Pennsylvania's Insurance Premium Finance Company Act (hereinafter "Insurance Act"), which provides as follows:
No filing of the insurance premium finance agreement shall be necessary to perfect the validity of such agreement as a secured transaction as against creditors, subsequent purchasers, pledgees, encumbrancers, successors or assigns.
40 P.S. § 3312 (Purdon's 1992).
Debtor and Sunbeam deny that PFS' security interest was duly perfected and insist that its interest is subordinate to the interest of all other prepetition secured creditors who filed appropriate UCC-1 financing statements. They argue that the exclusion set forth at 13 Pa.C.S.A. § 9104(7) applies only *633 to life insurance policies. All other policies of insurance, especially commercial policies insuring against liability, fall within the scope of Article 9 of the UCC.
Debtor further objects to PFS' reliance upon 40 P.S. § 3312. It denies that PFS "falls under the Insurance Premium Financing Act".
We shall address these objections by debtor and Sunbeam to determine whether they have merit.
(A) Does Article 9 Of The UCC Apply?
PFS relies primarily upon what it characterizes as the "crystal clear" language of § 9-104(7). With certain exceptions not relevant here, it argues, § 9104(7) unambiguously states that Article 9 of the UCC does not apply to the transfer of an interest in "any policy of insurance".
Debtor and Sunbeam respond that no reported decision construing § 9-104(7) as enacted in Pennsylvania has read it as excluding all policies of insurance from the scope of Article 9. To the contrary, they contend, the leading cases Ettinger v. Central Penn National Bank, 2 B.R. 385 (E.D.Pa.1979), reversed on other grounds, 634 F.2d 120 (3d Cir.1980) and In re Bell Fuel Corporation, 99 B.R. 602 (E.D.Pa.), aff'd, 891 F.2d 281 (3d Cir.1989), hold that only noncommercial life insurance policies are excluded from the scope of Article 9 of the UCC.
Reliance upon Ettinger is misplaced.
To begin with, the issue decided there is altogether different from the issue before us in this case. The issue in Ettinger was:
. . . whether monies received by the beneficiary of a fire insurance policy for damage to personal property, which was pledged as collateral under a security agreement and recorded in a financing statement, constitute "proceeds" within the meaning of § 9-306 of the Uniform Commercial Code (1964 version) ("UCC") as adopted by the Pennsylvania legislature.
Ettinger, 2 B.R. at 387. The court ultimately determined that the monies in question were "proceeds" within the meaning of § 9-306. Ettinger, 2 B.R. at 392.
In response to an assertion by a litigant that § 9-104(7) prohibits all insurance proceeds from being the proper subject of a security interest, 2 B.R. at 392, the Ettinger court commented that § 9-104(7) prohibited creation of a perfected security interest only in life insurance policies:
It is quite clear . . . that § 9104(g) was not intended to be a general prohibition against security interests in all types of insurance but only life insurance policies.
Ettinger, 2 B.R. at 393.
Even if the reasoning in Ettinger in support of this conclusion were irrefragable, it provides no guidance for determining whether the above assertion by debtor and Sunbeam is defensible. Debtor and Sunbeam do not contend that § 9-104(7) prohibits creation of a security interest in a life insurance policy. They instead merely maintain that § 9-104(7) excludes only life insurance policies from the scope of Article 9 of the UCC. It is their position that every other type of insurance policy, including the types at issue here, is subject to the requirements of Article 9 of the UCC.
The primary issue in Bell Fuel was whether funds a debtor had received from an insurer in settlement of a lawsuit based on a business interruption insurance policy constituted "proceeds" for purposes of the exception set forth at § 9-104(7).
The bankruptcy court had determined that the funds were not "proceeds"; that the proceeds exception to § 9-104(7) therefore did not apply to the funds; and that Article 9 of the UCC did not apply when determining whether a creditor had a duly perfected security interest in the funds. See In re Bell Fuel, 97 B.R. 193, 197-98 (Bankr.E.D.Pa. 1989).
The district court reversed the decision of the bankruptcy court. It held that the funds were "proceeds"; that the exception for proceeds set forth in § 9-104(7) therefore applied; and that Article 9 of the UCC therefore applied:
In sum, section 9104(7)'s exclusion does not apply because the sum of $130,000 received *634 in settlement was "proceeds" and therefore outside of section 9104(7)'s exclusion.
Bell Fuel, 99 B.R. at 607.
Immediately after arriving at the above conclusion, the district court continued as follows:
The analysis can stop here because section 9104(7) tells us the insurance settlement is proceeds. However, it should be noted that even without the "proceeds" language in section 9104(7), the insurance received on the collateral would still be within Article 9 because section 9104(7) itself does not apply to all forms of insurance policies. Rather, it only applies to "noncommercial" or "special" policies outside the mainstream of commercial financing. See Section 9104 Official Comment 7. . . . The business interruption insurance which is at issue here is a distinctly commercial type of insurance and one which the Code drafters undoubtedly intended to include in Article 9.
Bell Fuel, 99 B.R. at 607-08.
Reliance upon Bell Fuel also is misplaced for a variety of reasons.
In the first place, the issue in Bell Fuel was significantly different from the issue now before us. There the court had to decide whether certain funds fell within the "proceeds" exception to the exclusion set forth at § 9-104(7). Here we must determine whether Article 9 of the UCC applies to unearned premiums for commercial liability insurance policies. The "proceeds" exception to the exclusion set forth at § 9-104(7) is not at issue in this case.
Also, the above remark in Bell Fuel that § 9-104(7) does not exclude all types of insurance policies from the scope of Article 9 of the UCC but excludes only "noncommercial" or "special" policies of insurance is dictum. The court already had determined that the funds in question were "proceeds" for purposes of § 9-104(7). The statement played no part in deciding the case.
Finally, even if the assertion is not dictum, we are convinced that it is incorrect. The statement that § 9-104(7) excludes from Article 9 only "commercial" or "special" policies of insurance does not square with the unambiguous language of § 9-104(7), which speaks of "any policy of insurance". The language is universal in its scope and does not speak of only a limited subset of insurance policies.
Official Comment 7 to § 9-104(7), upon which the above statement in Bell Fuel relies, reads as follows:
7. Rights under life insurance and other policies and deposit accounts are often put up as collateral. Such transactions are often quite special, do not fit easily under a general statute, and are adequately covered by existing law. Paragraphs (g) and (l) [i.e., (7) and (13)] make appropriate exclusions, but provision is made for coverage of deposit accounts and certain insurance money as proceeds.
In our estimation, this comment does not support the inference that Article 9 of the UCC does not apply only to "noncommercial" or "special" policies of insurance but does apply to all other types of policies. As we understand this comment, it speaks of life insurance "and other policies" and states only that they often are "quite special", do not "fit easily" under a general commercial statute such as the UCC., and are "adequately covered" by existing law. The proposition that § 9-104(7) excludes only certain types of insurance policies from Article 9 rather than all types in not supported by Official Comment 7 to § 9-104.
As far as we have been able to determine, there are no binding reported decisions either by the Pennsylvania Supreme Court or by the United States Court of Appeals for the Third Circuit on the precise issue now before us.[1] Considering the unambiguous language of § 9-104(7), the only reasonable interpretation of it is that, except for proceeds and priorities to proceeds, Article 9 of *635 the UCC does not apply to the transfer of an interest in any policy of insurance.
It is highly significant that most (if not all) reported decisions from other jurisdictions that have construed § 9-104(7), as enacted in other states, in deciding the issue now before us have held that perfection of a security interest in unearned insurance premiums is determined without reference to Article 9 of the UCC. See In re Watts, 132 B.R. 31 (Bankr.W.D.Mo.1991) (applying Missouri law); A-1 Credit Corporation v. Big Squaw Mountain Corp. (In re Big Squaw Mountain Corp.), 122 B.R. 831 (Bankr.D.Me.1990) (applying Maine law); In re Cooper, 104 B.R. 774 (Bankr.S.D.W.Va.1989) (applying West Virginia law); Uly-Pak, Inc. v. Consolidated Insurance Agency, Inc., (In re Uly-Pak, Inc.), 101 B.R. 551 (Bankr.S.D.Ill.1989) (applying Illinois law); In re Expressco, Inc., 99 B.R. 395 (Bankr.M.D.Tenn.1989) (applying North Carolina law); In re Universal Motor Express, Inc., 72 B.R. 208 (Bankr.W.D.N.C. 1987) (applying North Carolina law); TIFCO v. U.S. Repeating Arms Co. (In re U.S. Repeating Arms Co.), 67 B.R. 990 (Bankr. D.Conn.1986); Borg-Warner Credit Corp. v. RBS Industries, Inc, (In re RBS Industries, Inc.), 67 B.R. 946 (Bankr.D.Conn.1986) (applying New York law); Comerica Bank-Ann Arbor, N.A. v. Sutherland (In re Duke Roofing Co.), 47 B.R. 990 (E.D.Mich.1985) (applying Michigan law); In re Air Vermont, Inc., 40 B.R. 335 (Bankr.D.VT.1984) (applying Massachusetts and Vermont law); Premium Financing Specialists, Inc. v. Lindsey, 11 B.R. 135 (E.D.Ark.1981) (applying Arkansas law); Drabkin v. A.I. Credit Corp. (In re Auto-Train Corp.), 9 B.R. 159 (Bankr.D.D.C. 1981) (applying District of Columbia law); Feinstein v. AFCO Credit Corp. (In re Krimbel Trucking Co.), 3 B.R. 4 (Bankr. W.D.Wash.1979) (applying Washington law); Thico Plan, Inc. v. Maplewood Poultry Co. (In re Maplewood Poultry Co.), 2 B.R. 550 (Bankr.D.Me.1980) (applying New Jersey law); Nicola v. Northfield Insurance Co. (Matter of Redfeather Fast Freight, Inc.), 1 B.R. 446 (Bankr.D.Neb.1979).
Debtor and Sunbeam have cited to no reported authority from any jurisdiction that holds to the contrary with respect to unearned insurance premiums. This, we are convinced, indicates that there is no authority from any jurisdiction for the position they assert in this proceeding. Were we to side with debtor and Sunbeam and limit § 9-104(7) in a way that makes unearned insurance premiums subject to Article 9 of the UCC, our decision would be hapax legomenon. So holding would contravene the express policy of making the law pertaining to the UCC uniform among the jurisdictions that have adopted it. See 13 Pa.C.S.A. § 1102(b)(3) (Purdon's 1984). Such uniformity must be accorded great weight when ascertaining whether or not a transaction should be excluded from the scope of Article 9. See In re Bristol Associates, Inc., 505 F.2d 1056, 1064 (3d Cir.1974).
(B) Must PFS File Something To Perfect Its Interest?
The determination that the provisions and requirements of Article 9 of the UCC do not apply here does not end our inquiry. We still must determine whether PFS' failure to file anything at all is fatal to assertion of PFS' interest against debtor's other creditors.
It is beyond gainsay that Pennsylvania law provides the answer to this question. As we have noted, Pennsylvania's Insurance Premium Finance Company Act (40 P.S. § 3312) provides that PFS did not have to do anything further to perfect its security interest.
Debtor has objected, probably half-heartedly, to the applicability of the Insurance Act in deciding this issue. As we previously indicated, debtor denies that PFS "falls under the Insurance Premium Financing Act". Debtor baldly avers that PFS has failed to establish that it met the licensing requirements set forth at 40 P.S. § 3303; has failed to establish that the premium finance agreements at issue here were approved by the Insurance Commissioner of Pennsylvania, as required by 40 P.S. § 3307; and has failed to establish that the interest rates charged in the agreements comply with the requirements set forth at 40 P.S., § 3308.
Although debtor does not come out and say so, it obviously wants us to declare that *636 PFS' secured interest is not perfected because it has failed to establish compliance with the above requirements. We need not consider the specific provisions cited by debtor to know that its objection is without merit.
Even if we assume for the sake of argument that PFS has willfully and knowingly violated the above Insurance Act, it does not follow that its secured interest in the unearned premiums therefore is unperfected. The Insurance Act specifically provides the following penalties for violations thereof:
(a) Violation of act. Any insurance premium finance company or insurer, agent or broker who willfully and knowingly violates this act commits a misdemeanor of the third degree.
(b) Unlicensed business. Any person who engages in the business of entering into insurance premium finance agreements without having a valid license under this act commits a misdemeanor of the third degree.
40 P.S. § 3313 (Purdon's 1992).
Debtor in effect is asking us to penalize PFS for allegedly violating the above requirements of the Insurance Act by declaring that its security interest in the unearned premiums is not perfected as against debtor's creditors.
Section 3313 of the Act does not provide for such a penalty. In our estimation, such a penalty is not necessary for effectuating the Act. Accordingly, we could not so penalize PFS even if it has violated the Insurance Act. See 1 Pa.C.S.A. § 1504 (Purdon's Supp. 1995).[2]
-II-
Is PFS' Interest Subordinate To The Interest Of ATC?
Sunbeam and ATC also object that even if PFS has a perfected security interest in the above unpaid insurance premiums, its interest nonetheless is subordinate to ATC's perfected superpriority postpetition lien in all of debtor's assets. Accordingly, they argue, PFS should not be permitted to apply the unearned premiums to the debt owed to it by debtor.
This contention is without merit. PFS' prepetition lien is not subordinate to ATC's superpriority postpetition lien because the latter does not attach to the unearned insurance premiums.
The orders of June 19, 1995, and June 22, 1995, granted ATC a perfected superpriority postpetition lien "on all assets of the Debtor under the provisions of 11 U.S.C. Section 364(d)", which provides as follows:
(d)(1) The court, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt secured by a senior or equal lien on property of the estate that is subject to a lien only if
(A) the trustee is unable to obtain such credit otherwise; and
(B) there is adequate protection of the interest of the holder of the lien on the property of the estate on which such senior or equal lien is proposed to be granted. . . .
By its express terms, the lien so granted must be "on property of the estate that is subject to a lien". The reason why ATC's postpetition superpriority lien did not attach to the unearned insurance premiums is that they were not "property of the estate".
As was indicated previously, debtor assigned all unearned insurance premiums to PFS as security for the debt owed to PFS by debtor.
The United States Court of Appeals for the Third Circuit has held that a life insurance policy that a debtor had absolutely assigned to a creditor prior to filing for bankruptcy as security for a loan was not "property of the estate". See Estate of Lellock v. Prudential Insurance Company of America, 811 F.2d 186, 190 (3d Cir.1987). It also has held that rents collected by a mortgagee *637 pursuant to an assignment-of-rents clause in a mortgage were not "property of the estate". See Commerce Bank v. Mountain View Village, 5 F.3d 34, 38 (3d Cir.1993). The circumstances of this case compel a similar conclusion with respect to the unearned insurance premiums debtor assigned to PFS as security for the debt owed to PFS.
Under Pennsylvania law, an assignment is:
. . . a transfer or setting over of property, or of some right therein, from one person to another, and unless in some way qualified, it is properly the transfer of the whole interest in an estate, chattel, or other thing.
In re Purman's Estate, 358 Pa. 187, 56 A.2d 86, 88 (1948).
The assignee of rights arising under an insurance policy that are assigned as collateral to secure payment of a debt has a qualified interest in the assigned chose that is commensurate with the debt so secured. See Seip v. Laubach, 333 Pa. 225, 4 A.2d 149, 151 (1939); also General Life Insurance Company v. Sutch, 31 F.Supp. 192 (W.D.Pa. 1939). The assignee occupies the position of the assignor and becomes the owner of those rights. See Snyder, To Use of Cochran v. Home Life Insurance Company of America, 328 Pa. 424, 195 A. 895, 896 (1938). The assignee's interest in the rights is enforceable against the assignor and creditors or anyone else claiming under them. See Musselman v. Sharswood Building & Loan Association, 323 Pa. 550, 187 A. 419, 421 (1936).
Because the debt owed to PFS by debtor had not been paid when debtor filed it petition, PFS was the owner of the unearned insurance premiums at that time by virtue of the above assignments. Debtor had no interest in the unearned premiums at that time. It follows that the unearned premiums were not part of the bankruptcy estate and that ATC's postpetition superpriority lien therefore did not attach to the unearned premiums. Accordingly, PFS' lien against the unearned premiums is not subordinate to ATC's superpriority lien.
An appropriate order shall be issued.
ORDER OF COURT
AND NOW at Pittsburgh this 14th day of September, 1995, in accordance with the accompanying Memorandum Opinion, it hereby is ORDERED, ADJUDGED and DECREED that the motion of Premium Financing Specialists, Inc. at Motion No. 95-1250M is GRANTED.
IT FURTHER IS ORDERED, ADJUDGED and DECREED that the order entered on July 5, 1995 at Motion No. 95-1125M is modified so as to permit Premium Financing Specialists, Inc. to apply to the obligations of debtor under the premium finance agreements dated August 10, 1994, and March 28, 1995, all unearned premiums payable pursuant to the underlying insurance policies.
IT IS SO ORDERED.
NOTES
[1] Affirmance of Bell Fuel by the Third Circuit does not determine the answer to the question now before use. As we noted, the issue in Bell Fuel was decidedly different from the present issue. Because the decision by the Third Circuit was not published, we have no way of knowing what issues were appealed or what principles were relied upon by the Third Circuit in deciding the appeal.
[2] 1 Pa.S.C.A. § 1504 (Purdon's Supp.1995) provides as follows:
In all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552017/ | 186 B.R. 912 (1995)
IN RE ALTERNATIVE PUBLICATIONS, INC., Debtor.
Bankruptcy No. 2-92-05083.
United States Bankruptcy Court, S.D. Ohio, Eastern Division.
August 29, 1995.
*913 Thomas I. Blackburn, Christiane Schmenk, Buckley, King & Bluso, Columbus, Ohio, for debtor.
Deborah Sanders, Assistant U.S. Attorney, Columbus, Ohio, for U.S.
ORDER ON DEBTOR'S MOTION FOR ORDER AUTHORIZING DISTRIBUTION OF PROCEEDS OF SALE OF ASSETS AND DEBTOR'S OBJECTION TO THE CLAIM OF THE INTERNAL REVENUE SERVICE
DONALD E. CALHOUN, Jr., Bankruptcy Judge.
The matters before the Court are Debtor's Motion for Order Authorizing Distribution of Proceeds of Sale of Assets, and the Opposition thereto filed by the United States of America on behalf of the Internal Revenue Service; and Debtor's Objection to the Claim of the Internal Revenue Service. These matters were previously set for hearing on several occasions, but the parties waived oral argument, and agreed to submit briefs and supplemental briefs on the relevant matters.
This Court is vested with jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this district. These matters are core proceedings under 28 U.S.C. § 157(b)(2)(A) and (B).
I. Findings of Fact
The parties submitted an "Agreed Stipulations of Fact" on December 28, 1994, which facts are hereby incorporated by this reference. Unfortunately, the Agreed Stipulations of Fact did little more than note the dates that certain pleadings were filed, and cite "relevant statutes". The Stipulations of Fact is therefore of limited significance for the Court for determination of these matters. From reviewing the pleadings on file herein, the Court has, however, determined that only a few relevant facts are contested.
Debtor filed for relief under Chapter 11 of the Bankruptcy Code on July 8, 1992. The Internal Revenue Service ("IRS") filed a timely proof of claim on or about September 17, 1992, and an amendment thereto on or about March 18, 1994. Debtor determined that it would be unable to propose a viable plan of reorganization, and indicated that upon court authority for distribution of the proceeds from the sale of its assets, Debtor would proceed to dismiss this Chapter 11 case.
On May 2, 1994, the IRS filed its Objection to the Debtor's Motion for Order Authorizing Distribution of Proceeds of the Sale of Debtor's Assets, asserting that the IRS has a secured interest in all property of the Debtor by virtue of Notices of Federal Tax Lien filed prior to the commencement of this case. *914 The IRS argued that the Motion to Distribute Proceeds to administrative claimants rather than to the IRS on its secured obligation was improper under the Bankruptcy Code, as well as under the Bankruptcy Court's order entered July 2, 1993, granting Debtor's Motion to Sell Assets, but stating that any liens or interests would attach to the proceeds of the sale.
In response to the objection filed by the IRS to the distribution of proceeds of sale of Debtor's assets, Debtor filed its objection to the secured claim of the IRS, arguing that the IRS did not follow the procedural steps necessary to perfect its lien against the Debtor's assets.
Debtor asserts that the IRS has the burden of proving that it followed the proper procedures to secure the lien against the Debtor's property, and that the IRS failed to provide evidence of compliance with such procedures. In addition, Debtor contends that the IRS failed to give proper notice of the relevant assessments to the principal shareholders of the Debtor, Philip Miller and Patricia Schmucki, the individuals purportedly responsible for any willful nonpayment of Debtor's withholding and social security taxes pursuant to 26 U.S.C. § 6672. Debtor asserts that the failure to give notice of the assessment to the corporate principals violated 26 U.S.C. § 6303, and rendered the IRS' security interest unperfected.
II. Conclusions of Law
A. Whether The IRS Properly Assessed Debtor And Made Notice And Demand Upon Debtor As Required By 26 U.S.C. § 6303.
For the IRS to maintain a duly perfected security interest for its tax lien, it must have made a valid assessment of the tax obligation. The IRS makes an assessment of taxes by recording the tax liability in the office of the Internal Revenue Service. 26 U.S.C. § 6203. Assessment is accomplished by entering the following information on a Summary Record of Assessments: the identification of the taxpayer; the character of the liability assessed; the tax period; and the amount of the assessment. The date of the assessment is the date the Summary Record is signed by an assessment officer. See Treasury Regulation § 301.6203-1. Within sixty (60) days after making an assessment of a tax, the IRS must give written notice to the taxpayer stating the amount of the tax, and demanding payment. 26 U.S.C. § 6303(a). If a taxpayer fails to pay a tax after demand, the tax and associated penalties and interest become a lien on all property of the Debtor. 26 U.S.C. § 6321. The lien under 26 U.S.C. § 6321 is a "secret lien" because it is unknown by anyone except the IRS and the taxpayer. The lien remains unperfected and unsecured, and is not valid under 26 U.S.C. § 6323 against any purchaser, holder of security interest, judgment lien holder, etc. until the lien is filed in accordance with 26 U.S.C. § 6323(f).
With respect to the procedures for properly assessing the tax, the Debtor essentially argues that the IRS did not prove that it followed the steps set forth in 26 U.S.C. § 6203 and the accompanying Treasury Regulation, and cannot satisfy its burden with respect to proving the validity of its secured claim. Under Bankruptcy Rule 3001(f), a proof of claim executed and filed in accordance with the Bankruptcy Rules constitutes prima facie evidence of the validity and amount of the claim. No argument has been presented that the IRS filed a defective proof of claim, and as such that filing and the amendment constitute prima facie evidence of the validity and amount of the claim. When filing an objection to a proof of claim, the objecting party has the burden of going forward with sufficient evidence to negate the prima facie validity of the filed claim, and to demonstrate facts sufficient to meet its initial burden of proof. Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991); In re Allegheny International, Inc., 954 F.2d 167, 173 (3rd Cir.1992); Spencer v. Pugh (In re Pugh), 157 B.R. 898, 901 (9th Cir. BAP 1993). If sufficient evidence is produced to negate the validity of the claim, the ultimate burden of persuasion will be on the claimant to prove the validity of the claim. Pugh, 157 B.R. at 901; Allegheny, 954 F.2d at 174.
*915 "Certificates of assessments and payments are generally regarded as being sufficient proof, in the absence of evidence to the contrary, of the adequacy and propriety of notices and assessments that have been made." Gentry v. United States, 962 F.2d 555, 557 (6th Cir.1992). Here, Debtor argues that the relevant Certificates of Assessments and Payments (Exhibit B to the brief of the IRS filed January 13, 1995) are procedurally defective inasmuch as the IRS has not provided adequate proof that they bear the signature of an assessment officer, or other employee authorized to make such certifications. Debtor also argues that the assessment was defective due to the failure of the IRS to provide notice and demand to the principals of the Debtor in light of their potential individual liability under 26 U.S.C. § 6672.
26 C.F.R. § 301.6203-1, entitled "Method of Assessment" provides as follows:
The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The date of the assessment is the date the summary record is signed by an assessment officer.
The IRS asserts that the Certificates of Assessment and Payments (Exhibit B to its brief) properly supplement the Summary Record of Assessments (Exhibit C to its brief), and provide the information required by 26 C.F.R. § 301.6203-1. While the information set forth in the Summary Record of Assessments is not self-explanatory, the IRS has asserted that those records were used in preparation of the Certificates of Assessments and Payments which clearly establish the IRS' secured claim, and provides the information necessary to support the IRS' lien. Debtor argues that the signature on the Certificates of Assessments and Payments is defective, and the IRS has not submitted proof that the signature is that of an assessment officer as called for in the regulations. The Court would initially note that C.F.R. § 301.6203-1 requires that an assessment officer sign the summary record of assessment, and that the summary record, through supporting records, provide certain types of information. There is no statutory requirement that the relevant supporting records also be signed by an assessment officer.
Certificates of Assessments and Payments are considered sufficient documentation to prove that the IRS followed necessary procedures in making assessments as required by statute. Brewer v. United States, 764 F.Supp. 309, 315 (S.D.N.Y.1991). Here, there is no dispute that an assessment officer signed the underlying Summary Record of Assessments. The actions of the IRS are therefore consistent with the procedures necessary to place a lien against Debtor's property. Certificates of Assessments and Payments are routinely used to prove that a tax assessment has been made. Rocovich v. United States, 933 F.2d 991, 994 (D.C.Cir. 1991); United States v. Chila, 871 F.2d 1015, 1018 (11th Cir.), cert. den'd. 493 U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501 (1989).
In the absence of evidence to the contrary, Certificates of Assessments and Payments will generally be regarded as sufficient proof of the adequacy and propriety of notices and assessments that have been made. Gentry, 962 F.2d at 557. Here, as in Gentry, "both the certificate and the summary record were signed by IRS officers; as required by § 6203, the summary record was signed by an assessments officer." Gentry, 962 F.2d at 557. See also Long v. United States, 972 F.2d 1174, 1181 (10th Cir.1992) ("for purposes of granting summary judgment, Certificates of Assessments and Payments are sufficient evidence that an assessment was made as required by § 6203 and Treasury Reg. 301.6203-1"); United States v. Dixon, 672 F.Supp. 503, 505-06 (M.D.Ala. 1987) (Certificates of Assessments and Payments are presumptive proof of valid assessment absent evidence to the contrary), aff'd. 849 F.2d 1478 (11th Cir.1988). Debtor has failed to provide any evidence whatsoever to rebut the presumption as to the validity of the assessments made in light of the Certificates of Assessments and Payments filed by the IRS.
*916 In reviewing Exhibit C to the IRS brief, the Court notes that each Summary Record of Assessments is signed by an assessment officer, and Debtor has not challenged this signature. While the Summary Records of Assessments are difficult to interpret, "the Regulations do not require the summary record to be of exacting specificity, as long as that record is backed by supporting documents providing adequate notice to the taxpayer." Gentry, 962 F.2d at 557. Here, as in Gentry, the IRS generated Certificates of Assessments and Payments that clearly identify the taxpayer by name and employer identification number, the character of the liability assessed, the taxable period, and the relevant amounts. As such, the Court finds that the Summary Records of Assessments (Exhibit C to the IRS brief), as supplemented by the Certificates of Assessments and Payments (Exhibit B to the IRS brief) satisfy the requirements of 26 C.F.R. § 301.6203-1.
The Certificates of Assessments and Payments were certified on behalf of John Ressler, Director of the IRS Cincinnati Service Center by B.S. Nadermann, identified by the IRS as the Section Chief of the Accounting Branch Section 3 Entity Control. The IRS asserted that Ms. Nadermann signed the Certificates of Assessments and Payments pursuant to delegation orders attached as Exhibits D and E to the IRS brief. From a review of the record as a whole, the Court concludes that the IRS has satisfied 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1 through the combination of the Summary Records of Assessments and Certificates of Assessments and Payments. "What is important in any case is that assessment is not automatic upon recordation; it requires the action of an assessment officer. That action, as defined explicitly in the Treasury Regulations, is the signing of the certificate." Brafman v. United States, 384 F.2d 863, 867 (5th Cir.1967). In Brafman, the Court held that a certificate of assessments was not signed as prescribed by the applicable treasury regulation, and resulted in the assessment of deficiency being declared invalid. The Brafman court noted the difference between authenticity of an assessment certificate, which is established by the seal of the Internal Revenue Service, and validity of an assessment, which is established by the Treasury Regulations. Brafman, 384 F.2d at 866. However, as set forth above, through the signatures of the relevant assessment officer on the summary record of assessments, and the signature of the section chief of the accounting branch, the IRS has established both the authenticity of the certificates and validity of the relevant assessments.
Debtor has provided absolutely no evidence to rebut the validity of the Certificates of Assessments and Payments. Debtor cites the cases of Brewer, infra and Pursifull v. United States, 849 F.Supp. 597, 599 (S.D.Ohio 1993) in challenging the Summary Records of Assessments and Certificates of Assessments and Payments. However, the Summary Record of Assessments in Brewer was unsigned. Accord Brafman, 384 F.2d at 865 (Assessment Certificate was not signed by an assessment officer or by any other official).[1] The court in Pursifull noted that the signature of an assessment officer "is critical to making a valid assessment of tax liability." Pursifull, 849 F.Supp. at 600.
An assessment officer in this case signed the Summary Records of Assessments, and an authorized officer of the IRS signed the Certificates of Assessments and Payments. As such, the assessment here is valid. Debtor accurately notes that the court in Pursifull was concerned with whether the taxpayer had been presented with sufficient information to determine the validity of IRS records. From a review of all records presented by the IRS, the Court finds that the Debtor here was provided sufficient information by the IRS. The Court is therefore not persuaded by Debtor's argument concerning the authority of Ms. Nadermann to sign the *917 Certificates of Assessments and Payments, especially when there has been no challenge to the assessment officer that signed the Summary Records of Assessments. While the Court believes that the individuals signing the Certificates of Assessments and Payments should be authorized officers of the IRS, with a position of no less authority than an assessment officer, the Court has no reason to doubt that Ms. Nadermann meets that standard, and Debtor has provided no evidence to the contrary. All necessary information has been set forth in the Summary Records as supplemented by the Certificates of Assessments and Payments, and the Court therefore finds that the IRS has complied with 26 U.S.C. § 6303, and that the assessment made against Debtor is valid.
B. Whether 26 U.S.C. § 6303 Requires The IRS To Provide Notice Of Corporate Assessment To Corporate Principals.
Debtor argues that the IRS did not serve notice and demand for payment of Debtor's taxes on Philip Miller and Patricia Schmucki, Debtor's principals, and such a failure violated 26 U.S.C. § 6303. Based thereon, Debtor argues that the IRS tax liens against Debtor are not valid.
26 U.S.C. § 6672 states, in part, as follows:
(a) General rule. Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. (Emphasis added).
26 U.S.C. § 6303 provides, in relevant part, as follows:
(a) General rule. Where it is not otherwise provided by this title, the Secretary shall, as soon as practicable, and within 60 days, after the making of an assessment of a tax pursuant to section 6203, give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof. (Emphasis added).
Debtor argues that the phrase "each person liable for the unpaid tax" requires that notice of the assessment be sent to the Debtor, against whom the assessment has been made, and also to the Debtor's principals due to their potential liability under 26 U.S.C. § 6672.
Liability under 26 U.S.C. § 6672 requires that the liable party was a person responsible for the collection, truthful accounting, and paying over of employment taxes; and that the liable party willfully failed to pay over the trust funds. Reph v. United States, 615 F.Supp. 1236, 1241 (N.D.Ohio 1985). The Court agrees with the IRS that responsible persons are liable under § 6672 for a penalty equal to the amount of tax which should have been collected and paid. However, responsible persons are not liable under 26 U.S.C. § 6303 for unpaid corporate taxes. While the penalty under § 6672 is "equal to the total amount of the tax evaded or not collected or not accounted for and paid over", the Court believes that "the liability of the employer is separate and distinct from that of the responsible person . . ." Reph, 615 F.Supp. at 1241, 1242.
The IRS notes that the assessment of payroll taxes against an employer is an immediate obligation, however, liability under § 6672 is not established until an individual is determined to be a responsible person who has willfully failed to collect and/or pay the tax obligation. Under Rev.Pro. 84-78, § 4, 1984-2 C.B. 754, an individual determined to be a "responsible person" under § 6672 has an opportunity to challenge such allegations. Only upon a showing that the individual was responsible for collecting and paying over the employment taxes, but has willfully failed to do so, will liability attach under § 6672. Reph, 615 F.Supp. at 1241.
The IRS argues that Miller and Schmucki's liability under § 6672 was not created until Debtor failed to pay the taxes for which it received notice and demand for payment under § 6303. Further, the IRS states that it did not conclude its investigation as to whether Miller and Schmucki were responsible parties under § 6672 until July 1992, well after the date the notices and demands for payment were sent to Debtor. *918 The Court finds nothing in the statutes requiring the IRS to make a determination of "responsible person" status under 26 U.S.C. § 6672 prior to sending notice and demand for payment to the corporate debtor under 26 U.S.C. § 6303. See Ronsberg v. U.S., 798 F.Supp. 582, 583-84 (D.N.D.1992) (Responsible person liability is not created until the employer has failed to pay the tax in question, even though the liability of both the responsible person and the employer arose out of the same tax obligation). The immediate nature of an employer's liability for payroll taxes distinguishes that obligation from liability for a penalty under 26 U.S.C. § 6672.
The ruling in United States v. Jersey Shore State Bank, 781 F.2d 974 (3rd Cir. 1986), aff'd. 479 U.S. 442, 107 S.Ct. 782, 93 L.Ed.2d 800 (1987) further supports the position of the IRS. In Jersey Shore, the United States brought an action against Jersey Shore State Bank pursuant to 26 U.S.C. § 3505 which imposes liability on lenders, sureties, and other third parties who either (1) pay wages directly to employees of another employer; or (2) supply funds to an employer for the specific purpose of paying wages of the employees, with actual knowledge that the employer will not make timely payment or deposit of taxes required to be deducted and withheld by the employer. Jersey Shore, 781 F.2d at 976. Jersey Shore State Bank was found to have paid wages directly to employees of Pennmount Industries, Inc., and supplied funds to Pennmount for the specific purpose of paying wages with actual notice and knowledge that Pennmount did not intend to, or would not be able to make timely payments or deposits of federal taxes required to be deducted and withheld. Jersey Shore, 781 F.2d at 975.
Jersey Shore argued that the phrase "each person liable for the unpaid tax" set forth in 26 U.S.C. § 6303 required that notice of the assessment against Pennmount be sent not only to the corporate taxpayer, against whom the assessment was made, but to every third party who might be liable for the tax, including Jersey Shore pursuant to its liability under § 3505. Jersey Shore, 781 F.2d at 977. The Third Circuit rejected Jersey Shore's argument, noting that "a section 6303(a) notice consists of two discrete elements: (i) notice of the amount that has been assessed and (ii) a demand that the individual receiving the notice presently satisfy that assessment." Jersey Shore, 781 F.2d at 978. In contrast, providing the § 6303 notice to potentially liable third parties would serve a different purpose than demanding payment from the third party receiving the notice. Such a notice would not even indicate the likelihood that the government would look to that third party for payment, but would only "fortuitously reflect the third party's potential liability, given both the differences between the taxes for which the employer and third party are liable and the limitations on liability contained within section 3505 itself." Jersey Shore, 781 F.2d at 978.
This Court concurs with the reasoning of the Third Circuit that "section 6303(a) requires notice only to those individuals against whom the taxes have been assessed." Jersey Shore, 781 F.2d at 978. Any other ruling would place an unreasonable burden on the government. "First, given the number of returns involved, the government cannot be expected to initiate an investigation each time a taxpayer files a return but fails to pay his full tax liability . . . Second, even assuming that the resources were available, an immediate full-scale investigation in all cases involving delinquent tax payments would constitute a significant waste of government resources." Jersey Shore, 781 F.2d at 983.
Debtor attempts to distinguish Jersey Shore on the basis that the case did not involve a small closely held corporation, as exists here.[2] While that fact may be true, and while Jersey Shore involved liability under 26 U.S.C. § 3505 as opposed to under 26 U.S.C. § 6672, the reasoning set forth therein is directly on point. It would be unreasonable to require the IRS to create new notice standards based on whether a taxpayer is a closely-held corporation, or a publicly-traded corporation. Debtor attempts to impose a new procedural requirement on the IRS, and *919 require the IRS to determine, with no statutory guidance, whether a corporation is "small enough" to require notice to the potentially liable responsible persons at the time a demand is made against the corporation. Debtor cites no authority for this requirement, and the Court finds no basis for its imposition. As stated by the court in Jersey Shore, a § 6303 notice includes a demand for payment on the taxpayer receiving the notice. To require such notice to be sent to persons potentially subject to liability under § 6672 would not appropriately constitute a demand of the type envisioned by § 6303. Debtor has not, and cannot distinguish the analysis set forth in Jersey Shore, and the Court finds that analysis to be persuasive.
Having found that the IRS complied with the requirements of 26 U.S.C. § 6303, it is hereby
ORDERED THAT Debtor's Motion to Distribute Proceeds of Sale of Assets is DENIED; and it is further
ORDERED THAT Debtor's Objection to the Claim of the Internal Revenue Service is OVERRULED.
IT IS SO ORDERED.
NOTES
[1] The reference made by the Brafman court to "any other official" signing the Assessment Certificate implies that an assessment certificate signed by an IRS officer other than an assessment officer may still be valid. In fact, the Court would find it hard to accept an argument that only an IRS officer with the title of assessment officer would have authority to sign Summary Records of Assessments, or Certificates of Assessments and Payments. Officers with different titles could still have the authority to act in the capacity of an assessment officer.
[2] The Court would be inclined to find that Miller and Schmucki knew of their potential § 6672 liability based on their positions with this small, closely held corporation. Debtor's argument is clearly one of form over substance. The Court need not reach the question of the effect of the actual knowledge of potential § 6672 liability under these circumstances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2695943/ | [Cite as Lindsey v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-546.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
GERALD ALLEN LINDSEY
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al.
Defendants
Case No. 2007-05725
Judge Alan C. Travis
JUDGMENT ENTRY
{¶ 1} Plaintiff brought this action alleging false imprisonment, intentional
infliction of emotional distress, and negligent infliction of emotional distress. By
agreement of the parties and with the consent of the court, the issue of liability was
submitted pursuant to stipulations of fact and trial briefs.1 At all times relevant to this
action, plaintiff was an inmate in the custody and control of defendant, Ohio Department
of Rehabilitation and Correction (DRC), at the London Correctional Institution (LCI),
pursuant to R.C. 5120.16.
{¶ 2} The parties have stipulated that on October 12, 2006, the Franklin County
Court of Common Pleas sentenced plaintiff in Case Nos. 04CR1286 and 05CR972 to
concurrent prison terms of ten months and 11 months, respectively. At plaintiff’s
sentencing hearing, Judge John Bessey informed plaintiff that he would have 330 days
to serve minus 241 days of jail-time credit, based upon the court’s determination that
plaintiff was entitled to 70 days of jail-time credit on Case No. 04CR1286 and 241 days
of jail-time credit on Case No. 05CR972. However, the judgment entry filed on October
Case No. 2007-05725 -2- JUDGMENT ENTRY
17, 2006, stated that plaintiff was entitled to 70 days of jail-time credit rather than 241
days. Plaintiff entered DRC’s custody on October 23, 2006, and was sent to LCI.
{¶ 3} Some time after arriving at LCI, plaintiff notified his case manager that a
mistake had been made concerning his release date. Plaintiff was informed that he
should direct all inquiries, in writing, to the Bureau of Sentence Computation (BOSC).
Although plaintiff contacted BOSC and received letters in response, BOSC neither
contacted the sentencing court nor did it instruct plaintiff to do so.
{¶ 4} Plaintiff subsequently filed a motion with the sentencing court and on
March 8, 2007, the court issued an amended entry in Case No. 04CR1286 adjusting the
jail-time credit from 70 days to 241 days. On March 15, 2007, BOSC received the
amended entry. The subsequent adjustment resulted in the expiration of plaintiff’s
sentence and he was released the same day.
{¶ 5} Plaintiff alleges that, based upon the jail-time credit he ultimately received
in each of his criminal cases, he was confined for 60 days beyond the expiration of his
sentence. DRC asserts that it confined plaintiff pursuant to a valid court order.
{¶ 6} “False imprisonment occurs when a person confines another intentionally
‘without lawful privilege and against his consent within a limited area for any appreciable
time * * *.’” Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109,
quoting Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71. The elements of a false
imprisonment claim are: 1) expiration of the lawful term of confinement; 2) intentional
confinement after the expiration; and 3) knowledge that the privilege initially justifying
the confinement no longer exists. Corder v. Ohio Dept. of Rehab. & Corr. (1994), 94
Ohio App.3d 315, 318. However, “‘an action for false imprisonment cannot be
maintained where the wrong complained of is imprisonment in accordance with the
judgment or order of a court, unless it appear that such judgment or order is void.’”
Bennett, supra, at 111, quoting Diehl v. Friester (1882), 37 Ohio St. 474, 475.
1
The parties’ September 19, 2008 joint stipulation of facts is hereby APPROVED.
Case No. 2007-05725 -3- JUDGMENT ENTRY
{¶ 7} Concerning the allocation of jail-time credit toward concurrent sentences,
the Supreme Court of Ohio has held that a sentencing court must award the jail-time
credit associated with any one sentence to all other concurrent sentences. State v.
Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, syllabus. It is well-settled that the
responsibility for determining the amount of jail-time credit to which a criminal defendant
is entitled rests exclusively with the sentencing court. State ex rel. Rankin v. Ohio Adult
Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, ¶7; State v. Mills, Franklin App. No.
09AP-198, 2009-Ohio-6273, ¶7. Although defendant has a duty under R.C. 2967.191 to
apply jail-time credit to an inmate’s sentence, it may only apply the amount of credit that
the sentencing court determines the inmate is entitled to receive. Id. Defendant has no
duty “to determine whether the sentencing court accurately specified the amount of jail-
time credit in its sentencing entry.” Trice v. Ohio Dept. of Rehab. & Corr., Franklin App.
No. 07AP-828, 2008-Ohio-1371, ¶22.
{¶ 8} Based upon the stipulated facts, the court concludes that DRC confined
plaintiff pursuant to valid orders of the sentencing court. Therefore, DRC was both
lawfully privileged and legally required to confine plaintiff until it learned that such
privilege no longer existed. Williams v. Ohio Dept. of Rehab. & Corr., Franklin App. No.
09AP-77, 2009-Ohio-3958, ¶16. After DRC learned that plaintiff was entitled to
additional credit in Case No. 04CR1286 and that his sentence had expired, plaintiff was
immediately released. Because DRC did not continue to confine plaintiff after learning
that it was no longer privileged to do so, plaintiff cannot prevail on his claim of false
imprisonment.
{¶ 9} Inasmuch as plaintiff has produced no evidence in support of his claim for
intentional infliction of emotional distress and because a claim of negligent infliction of
emotional distress is not recognized by Ohio law under the circumstances presented
herein, both of those claims are DISMISSED.
Case No. 2007-05725 -4- JUDGMENT ENTRY
{¶ 10} For the foregoing reasons, judgment is rendered in favor of defendants.
Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.
_____________________________________
ALAN C. TRAVIS
Judge
cc:
Jeffrey Donnellon Stephanie D. Pestello-Sharf
Peter Ezanidis Assistant Attorney General
5 East Long Street, Suite 1005 150 East Gay Street, 18th Floor
Columbus, Ohio 43215 Columbus, Ohio 43215-3130
KAH/cmd
Filed January 22, 2010
To S.C. reporter February 16, 2010 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2480753/ | 938 N.E.2d 530 (2010)
237 Ill.2d 590
ROBINSON
v.
ALTON POLICE PENSION BD.
No. 110430.
Supreme Court of Illinois.
September 1, 2010.
Disposition of petition for leave to appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030837/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7620
KENNETH MICHAEL BOEKENOOGEN,
Petitioner - Appellant,
v.
R. DAVID MITCHELL, Supt.; THEODIS BECK,
Respondents - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:09-CV-00099-JAB-DPD)
Submitted: November 19, 2009 Decided: December 4, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth Michael Boekenoogen, Appellant Pro Se. Clarence Joe
DelForge, III, Mary Carla Hollis, Assistant Attorneys General,
Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Michael Boekenoogen seeks to appeal the
district court’s order accepting the recommendation of the
magistrate judge and denying relief on his 28 U.S.C. § 2254
(2006) petition. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2006). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Boekenoogen
has not made the requisite showing. Accordingly, we deny
Boekenoogen’s motion for a certificate of appealability and
dismiss the appeal. 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.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/778204/ | 295 F.3d 431
UNITED STATES of America, Plaintiff-Appellee,v.Dana DUNNOCK, Defendant-Appellant.
No. 01-4549.
United States Court of Appeals, Fourth Circuit.
Argued May 9, 2002.
Decided July 8, 2002.
ARGUED: Daniel William Stiller, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Jane Meadowcroft Erisman, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Greenbelt, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Andrea L. Smith, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined.
OPINION
WIDENER, Circuit Judge.
1
Defendant Dana Dunnock appeals his conviction and sentence for being a felon in possession of a firearm. Dunnock asserts the district court erred when it denied his motion to suppress evidence based on a flawed application of the exigent circumstances exception to the knock and announce requirement. We affirm the district court's denial of the motion to suppress, although we do so on somewhat different reasoning.
I.
2
Baltimore City Police Officers, the same day as the search in question, secured a search warrant for Dunnock's residence based in part on information provided by Derrick Stokes on the occasion of an earlier arrest of Stokes some days before for possession of heroin. Stokes had then described for police how he obtained heroin from Dunnock on a daily basis at Dunnock's residence. Having obtained the search warrant and while conducting surveillance prior to the execution of the search warrant, the police observed Stokes, whom they recognized, arrive by taxicab and enter the Dunnock residence. When Stokes emerged from the residence a short time later and reentered the waiting taxi, the police stopped the cab several blocks from the house and arrested Stokes, who was in possession of 497 capsules of heroin.
3
When questioned upon this last arrest, Stokes indicated to police that Dunnock was in the home and had a firearm in his basement bedroom, but Stokes was uncertain if there was anyone else in the house. Police were aware, however, that an older woman may have also resided in the home.
4
After taking Stokes into custody, the police resumed their surveillance of the home and moments later Dunnock and an unidentified woman exited the residence, entered a vehicle and began to drive away. They were immediately stopped by police and Dunnock was arrested in full view of the home.
5
After Dunnock was in custody, the police executed the search warrant. Although asked twice, Dunnock was unresponsive to police questions about whether there was anyone else in the home or if Dunnock possessed a key to the locked door. There was conflicting testimony at the suppression hearings on whether police knocked before using a battering ram to forcibly open the door. One officer testified that he knocked on the door and announced "police," while another officer testified that "we did not [knock]" prior to entry.
6
Prior to his trial on the firearms charge, Dunnock filed a motion to suppress statements he made at the time of his arrest. At the evidentiary hearing on that motion, which is not the subject of this appeal,1 the issue arose whether officers had violated Dunnock's Fourth Amendment rights in executing the search warrant for Dunnock's home by failing to knock and announce their presence before breaking down the door. The district court rejected Dunnock's Fifth and Sixth Amendment challenges, refusing to suppress the statements, but scheduled a second hearing to further consider the possible Fourth Amendment violation in the execution of the search warrant.
7
At the second hearing, the district court credited the testimony of one of the police officers and found that the officers did knock and announce before breaking into the home. Based on the finding that the execution of the warrant was proper, the court denied the remainder of Dunnock's motion to suppress the physical evidence. At that hearing the court stated it did not know whether there was enough exigent circumstance present to dispense with the knock-and-announce requirement.
8
Just prior to trial, Dunnock filed a motion for reconsideration of his motion to suppress the gun seized under the search warrant arguing that one police officer's testimony at the first suppression hearing was inconsistent with his testimony at the second hearing. The district court expressed "serious question" about the issue of credibility, but declined to reach the question, instead denying the motion for reconsideration based upon a finding that a no-knock entry was justified under exigent circumstances. Citing United States v. Grogins, 163 F.3d 795 (4th Cir.1998), the court concluded that the police had a reasonable suspicion that exigent circumstances existed which would excuse them from the knock and announce requirement. Specifically, the exigent circumstances arose from the information that there was a gun in the house and that, having observed people come and go in a multifamily dwelling, it was objectively reasonable to suspect that there could be other people in the house who might have access to the firearm or destroy the drug evidence.
9
Dunnock was convicted by a jury of violating 18 U.S.C. § 922(g)(1), as a felon in possession of a firearm, sentenced to 262 months in prison by the district court, and timely filed this appeal.
II.
10
The knock and announce requirement incorporated in the Fourth Amendment and codified in 18 U.S.C. § 3109 generally requires police officers entering a dwelling to knock on the door and announce their identity and purpose before attempting forcible entry. United States v. Grogins, 163 F.3d 795, 797 (4th Cir.1998). The requirement serves three purposes: "(1) protecting the safety of occupants of a dwelling and the police by reducing violence; (2) preventing the destruction of property; and (3) protecting the privacy of occupants." Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir.1996).2
11
The knock and announce requirement may be excused, however, by exigent circumstances, but officers "must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Grogins, 163 F.3d at 797 (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997)). Whether sufficient exigent circumstances existed at the time of the entry requires a court to analyze the facts of each case to determine that the officers had some particularized basis for their suspicion. See Grogins, 163 F.3d at 797. Our review of the district court's determination of reasonable suspicion is de novo, although we review findings of historical fact for clear error only and give due weight to inferences drawn from those facts by the resident judges. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996).
12
We need not reach the issue of whether the particular circumstances surrounding the execution of the warrant at Dunnock's residence justified a no-knock entry, however, because we conclude that the requirements of the knock and announce rule were met here.
18 U.S.C. § 3109 provides:
13
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
14
The standard embodied in 18 U.S.C. § 3109 is a constitutional standard that encompasses the requirements of the Fourth Amendment. See United States v. Kennedy, 32 F.3d 876, 882 (4th Cir.1994). Therefore, if the police met the requirements of the statute, there was no defect in the execution of the search warrant and the district court's decision not to suppress the evidence from the search must be affirmed, even if we do so on different grounds. See S.E.C. v. Chenery, 318 U.S. 80, 88, 63 S. Ct. 454, 87 L. Ed. 626 (1943).
15
In this case, Dunnock, having been arrested and questioned by the police outside his home, clearly had notice of the authority and purpose of the officers executing the search warrant. Although Dunnock's knowledge of the presence of the police did not come from a knock and announce at his door, he nevertheless had the functional equivalent of notice of authority and purpose as required by the statute. Once Dunnock was in custody, it not only would have been futile for the police to knock on Dunnock's front door and announce their presence while Dunnock stood outside the door with them, it would have been superfluous. The officers twice asked Dunnock for a key to the door or if anyone was inside and received no response. In addition to having received the notice to which he was entitled under the statute, Dunnock effectively refused entry to the police by declining, through his silence, to provide a key to the front door when asked.
16
We hasten to add that we do not view Dunnock's asserted privacy and property rights as inconsequential, but knowing of the police actions, Dunnock "had an opportunity to ... comply with the law and to avoid the destruction of property occasioned by a forcible entry." Richards v. Wisconsin, 520 U.S. 385, 393, n. 5, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997) (citing Wilson v. Arkansas, 514 U.S. 927, 930-932, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), for the common law right from which knock and announce arose). When the police were executing a valid search warrant, as here, Dunnock was entitled to no more than the constitutional standard embodied in § 3109.
17
The touchstone of Fourth Amendment analysis is always reasonableness. See United States v. Squillacote, 221 F.3d 542, 558 (4th Cir.2000). We are of opinion that it is entirely reasonable to conclude that Dunnock, by virtue of the fact he was standing outside his home in the presence of police as they were about to execute a valid search warrant, had all the benefits of the protections afforded by the knock and announce rule of § 3109.
18
The judgment of the district court is accordingly
19
AFFIRMED.
Notes:
1
Any defect in the execution of the search warrant is not claimed to have any effect on any statements made at the time of arrest
2
Counsel for Dunnock conceded at oral argument that Dunnock's safety interest was not implicated because he was in the custody of the police outside the home. Dunnock contends, however, that he retained both his privacy and property interests even though he was not occupying the dwelling when the police executed the search warrant | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1892561/ | 224 B.R. 804 (1998)
In re RICHARDSON, Mary and Richardson, Bradley, Debtors.
Bankruptcy No. 98-01571-R.
United States Bankruptcy Court, N.D. Oklahoma.
September 1, 1998.
*805 Kathryn Ross, Miami, OK, for Debtors.
Daniel Webb, Work & Lentz, Tulsa, OK, for Creditor.
ORDER GRANTING MOTION TO AVOID JUDICIAL LIEN ON EXEMPT PROPERTY UNDER SECTION 522(f)
DANA L. RASURE, Chief Judge.
On April 30, 1998, the Debtors, Mary Richardson and Bradley Richardson (the "Richardsons"), filed their Motion to Avoid Judicial Lien in [sic] Exempt Property Under Section 522(f) by Healthcare Collections, Inc. (the "Motion to Avoid Lien"). On May 5, 1998, judicial lien creditor Healthcare Collections, Inc. ("Healthcare") filed its Objection to Motion to Avoid Judgment Lien (the "Objection") containing a brief in support of its objection. On May 7, 1998, the Richardsons filed an amended motion, and on May 15, 1998, the Richardsons filed Debtor's [sic] Responsive Brief to Objection to Motion to Avoid Judgment Lien. A hearing on the Motion to Avoid Lien and the Objection was held on July 1, 1998. The parties stipulated to the operative facts, and oral argument was presented by Kathryn Ross, counsel for the Richardsons, and Daniel Webb, counsel for Healthcare, whereupon the Court took the matter under advisement. The Court, being fully advised, makes the following findings of fact and conclusions of law as required by Bankruptcy Rule 7052.
Jurisdiction
The Court has jurisdiction of this "core" proceeding by virtue of 28 U.S.C. §§ 1334 and 157(b)(2)(B).
Findings of Fact
In May 1993, Healthcare obtained a judgment in the amount of $3,878.65 against Bradley Richardson. Healthcare recorded an Affidavit of Judgment with the County Clerk of Ottawa County, Oklahoma, for the purpose of obtaining a judgment lien on all real estate owned by Mr. Richardson located in Ottawa County. In April 1998, Healthcare recorded a Notice of Renewal of Judgment, pursuant to 12 O.S. Supp.1997, § 735, in order to continue its lien. The Richardsons' residence is located in Ottawa County. The Richardsons have claimed the residence as exempt property on their bankruptcy schedules, and there is no dispute as to the homestead character of the property.
The Richardsons contend that the lien of Healthcare impairs their homestead exemption and should be avoided pursuant to 11 U.S.C. § 522(f). Healthcare contends that its lien does not impair the Richardsons' homestead exemption because Healthcare cannot execute on its lien and force the sale of the homestead so long as the property remains the homestead of the Richardsons; Healthcare contends that since it cannot realize on its lien until the property ceases to be homestead, the homestead exemption is not impaired. The Richardsons counter that the lien impairs the full enjoyment of the homestead because the lien impairs their ability to use the equity in the home and to pass the home on to their dependents upon death.
Conclusions of Law
Section 706 of Title 12 of the Oklahoma Statutes
This case presents the Court with its first opportunity to consider the effect of the recent amendment to Oklahoma law that permits judgment liens to attach to homestead. Prior to November 1, 1997, Section 706 of Title 12 of the Oklahoma Statutes provided that filing a statement of judgment in the records of the county clerk impressed all real *806 estate of the judgment debtors located in such county with a lien in the amount of the unpaid judgment. See 12 O.S.1991, § 706. However, Oklahoma courts have consistently held that a judgment lien created under Section 706 did not attach to homestead of the judgment debtor, in light of the exemption from forced sale granted to homestead property under Article XII, Sections 1 and 2 of the Oklahoma Constitution, and Sections 1, 2 and 5 of Title 31 of the Oklahoma Statutes. See Sooner Federal Sav. & Loan Ass'n v. Mobley, 645 P.2d 1000 (Okla.1981); Kelough v. Neff, 382 P.2d 135 (Okla.1963).
The Oklahoma legislature amended Section 706 so that as of November 1, 1997, Section 706 provides as follows:
A lien created pursuant to this section shall affect and attach to all real property, including the homestead, of the judgment debtors whose names appear in the statement of judgment; however, judgment liens on a homestead are exempt from forced sale pursuant to Section 1 of Title 31 of the Oklahoma Statutes and Section 2 of Article XII of the Oklahoma Constitution.
12 O.S. Supp.1997, § 706(B)(2)(emphasis added).
Prior to the amendment, it was not necessary for a debtor to file a motion under Section 522(f) of the Bankruptcy Code ("Section 522(f)") to avoid a judgment lien on exempt homestead property because under applicable Oklahoma case law, judicial liens simply did not attach to a homestead there was no lien to avoid. See, e.g., David Dorsey Distributing, Inc. v. Sanders (In re Sanders), 39 F.3d 258, 262 (10th Cir.1994) ("[W]hen state law does not allow a lien to attach to exempt property, § 522(f) is superfluous and without application").
Since November 1, 1997, however, a properly filed judgment lien encumbers homestead property. The protection against claims by judgment creditors afforded by the Oklahoma legislature and the Oklahoma Constitution now consists solely of the prohibition of a forced sale of the property. Judgment liens now attach to homestead property so that in the event that the property no longer qualifies as a debtor's homestead, the judgment lien creditor may immediately execute and satisfy its judgment. Another possible effect of the amendment is that a judgment lien creditor may now establish priority over later consensual creditors. As a result, an Oklahoma debtor in bankruptcy now has an incentive to avoid a judgment lien against homestead property under Section 522(f), and bankruptcy courts in Oklahoma are compelled to wrestle with the interplay among Section 522(f), the Oklahoma homestead exemption, and amended Section 706.
Section 522(f) permits a debtor to
avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is . . . a judicial lien [unless such judicial lien is associated with certain domestic relations support orders].
11 U.S.C. § 522(f)(1)(A) (emphasis added).
Subsection (b) of Section 522 allows a debtor to exempt from the bankruptcy estate certain property. An individual debtor may choose (1) the exemptions set forth in Section 522(d) of the Bankruptcy Code (the "Federal Exemptions") or (2) the exemptions under the law of the state in which the debtor resides and exemptions under federal non-bankruptcy law (the "State Exemptions") unless state law does not authorize a debtor to take advantage of the Federal Exemptions, in which case, the debtor is limited to the State Exemptions. 11 U.S.C. § 522(b)(1). Oklahoma law specifically prohibits an Oklahoma resident from selecting the Federal Exemptions. See 31 O.S.1991, § 1(B).
The Richardsons have claimed their homestead exempt under Oklahoma law and desire to avoid Healthcare's judgment lien on the homestead.[1] Healthcare urges this Court to adopt the holding of Bankruptcy *807 Judge Richard L. Bohanan, sitting in the Western District of Oklahoma, who has examined this precise issue in the case of In re McKinney-Jones, 219 B.R. 619 (Bankr. W.D.Okla.1998). In McKinney-Jones, the Court concluded that because the amended Section 706 provides that a judgment lien cannot be foreclosed by a sale of homestead property, a debtor's homestead is not impaired by the judgment lien. Id. at 622. The Court focuses upon the purpose the homestead exemption is designed to serve that is, to "shelter [a debtor] from the elements" and determines that such purpose is not undermined by the continued existence of a non-executable judgment lien. Id. at 621. Because the debtor could not be involuntarily or forcibly dispossessed of her home by the judgment lien creditor, her exemption was not impaired. Id. The homestead exemption, as bestowed by Oklahoma law, is therefore not absolute, but is narrowed and qualified by amended Section 706, as well as other statutes that permit certain liens on homestead.
This Court finds Judge Bohanan's analysis instinctive and compelling. It would seem that the homestead exemption granted by state law should be only as broad in bankruptcy proceedings as state law permits. However, the United States Supreme Court and various Circuit Courts of Appeal have restricted the effect of state law limitations on State Exemptions for the purpose of lien avoidance in bankruptcy.[2]
Pre-emption
"Impairment of an exemption" is a concept embodied in Section 522(f) of the Bankruptcy Code, and therefore its meaning is determined by analyzing the policies underlying bankruptcy law rather than state exemption law. The United States Supreme Court addressed the role of state law in defining exemptions for the purpose of Section 522(f)'s avoidance scheme in the case of Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991).
In Owen, the Supreme Court held that a judicial lien on property claimed exempt under a state law exemption scheme may be avoided under Section 522(f), even if state law limits the circumstances under which the property may be exempt. In Owen, a Florida debtor sought to avoid his ex-wife's judicial lien on a condominium that became exempt property after the lien had already attached to the property. Florida law was clear that a judicial lien that attaches to property before it qualifies as exempt property continues in the property, notwithstanding the later claim of exemption. "Pre-existing liens, then, are in effect an exception to the Florida homestead exemption." Id. at 307, 111 S.Ct. at ___.
Instinctively, it would seem that a debtor's State Exemptions should be only as protective as the state's laws provide that the scope of a State Exemption, and exceptions or limitations to such an exemption, should be defined by the state. For instance, it would seem that a debtor choosing (or forced to choose) a State Exemption would obtain the exemption burdened by all its exceptions and limitations, such as the exception that pre-existing judgment liens are not affected by the homestead exemption. In Owen, the Supreme Court acknowledged that the lienholder's view- that the Florida homestead *808 exemption simply was not assertable against pre-existing judicial liens was "entirely reasonable." Id. at 309-10, 111 S.Ct. at ____. However, the Court held that the proper inquiry was "not whether the lien impairs an exemption to which the debtor is in fact entitled, but whether it impairs an exemption to which he would have been entitled but for the lien itself." Id. at 310-11, 111 S.Ct. at ____ (emphasis added).[3] The Supreme Court concluded that "Florida's exclusion of certain liens from the scope of its homestead protection does not achieve a similar exclusion from the Bankruptcy Code's lien avoidance provision." Id. at 313-14, 111 S.Ct. at ____.
The result in Owen is consistent with the underlying purpose of lien avoidance and illustrates the supremacy of federal law over state law in the field of bankruptcy. By virtue of Section 522(f), federal law clearly describes the types of liens that may be stripped from property necessary for the debtor's fresh start. See 11 U.S.C. § 522(f)(1). Federal law authorizes states to determine the type of property its residents should be able to retain for their minimal needs and authorizes states to prohibit its residents from taking advantage of the Federal Exemptions. See 11 U.S.C. § 522(b). While federal law permits states to select the property that is exemptible, federal law exclusively governs the field of lien avoidance, thereby pre-empting any state law that limits the scope of its exemptions in a way that would interfere with the "fresh start" policy served by the avoidance of certain types of liens liens which Congress has determined should not appropriately survive bankruptcy. See e.g., Bruin Portfolio, LLC v. Leicht (In re Leicht), 222 B.R. 670 (1st Cir. BAP 1998); Davis v. Davis (In re Davis), 105 F.3d 1017, 1022 (5th Cir.1997), rehearing en banc granted and pending ("The power of Congress to establish uniform laws on the subject of bankruptcies throughout the United States is unrestricted and paramount. . . . Consequently, states may not pass or enforce laws to interfere with or complement the Bankruptcy Code or to provide additional or auxiliary regulations" (internal citations omitted)); Tower Loan of Mississippi, Inc. v. Maddox (In re Maddox), 15 F.3d 1347 (5th Cir. 1994);[4]Aetna Finance Co. v. Leonard (In re Leonard), 866 F.2d 335, 336 (10th Cir.1989).
Congress, therefore, has determined that judicial liens that have attached to any property that a debtor claims as exempt may be avoided. Congress was capable of making exceptions to its judicial lien avoidance policy, as the lien avoidance statute provides that judicial liens that secure the performance of certain domestic relations orders are not avoidable, see 11 U.S.C. § 522(f)(1), but Congress did not create an exception that would allow states the right to legislate around Section 522's lien avoidance mechanism.[5]*809 Congress has also made the policy decision to permit a debtor to strip nonpossessory, non-purchase-money security interests from property that satisfies two criteria: (1) the property is exempt under the exemption scheme elected by the debtor (i.e., under Section 522(d) if the debtor elected Federal Exemptions, or under state law if the debtor elected State Exemptions); and (2) the property falls within one of the categories of set forth in Section 522(f)(B)that is, household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry held for personal, family or household use; implements, books or tools of the trade; and prescribed health care aids. 11 U.S.C. § 522(f)(1)(B). Those two types of liens, judicial liens and nonpossessory, nonpurchase-money security interests, would be an obstacle to a debtor's financial rehabilitation if they were not removed from a debtor's exempt property. Congress has determined that a debtor should be able to emerge from bankruptcy free of such encumbrances on his or her exempt property, notwithstanding that the law of the debtor's state condones the attachment of such liens to exempt property. See Tower Loan of Mississippi, Inc. v. Maddox (In re Maddox), 15 F.3d 1347, 1354 n. 50 (5th Cir.1994) ("Of particular note to Congress was the technique of acquiring an overly broad security interest in all of a consumer's household and personal goods, a technique that often prevented the debtor from gaining the `fresh start' from bankruptcy desired by Congress. See H.R.Rep. No. 95-595 at 117, reprinted in 5 U.S.C.C.A.N. 5787, 6077 (1978)."); In re Leonard, 866 F.2d 335, 337 (10th Cir.1989); In re Kelly, 133 B.R. 811, 813 (Bankr. N.D.Tex.1991).
While Section 522(f) holds certain liens in disfavor, bankruptcy law and policy also favors certain liens, permitting them to survive bankruptcy, even as against exempt property. Section 522(c) provides that "property exempted under [Section 522] is not liable during or after the case for any debt of the debtor that arose . . . before the commencement of the case" except for certain tax liens, child support liens, liens that are not avoided by virtue of the many sections of the Bankruptcy Code permitting the avoidance of liens, and liens securing debts owed to the federal regulatory agencies arising from defalcation by financial institution officers, directors and affiliates. 11 U.S.C. § 522(c). Through the Bankruptcy Code, Congress has created a unified scheme of prioritizing a debtor's liabilities, including liens securing those liabilities, according to a consensus as to the societal and commercial value attached to the repayment of such liabilities, with the ultimate goal of reintegrating a debtor back into financial society with his or her essential property intact and debts under control. The purpose of lien avoidance would not be served if states were able to craft legislation that resulted in the survival of the offending liens.
Stated simply, the general rule has been that state law defines the type of property that may be claimed exempt in bankruptcy proceedings, and bankruptcy law defines the types of liens on the exempt property that may be avoided, notwithstanding state law that purports to except those liens from the exemption.
To test the validity of this rule in this jurisdiction, the Court has examined its effect on three other circumstances in which Oklahoma law makes exceptions from its laws exempting property from forced sale: (1) the exception for mortgages, tax liens and materialmens' liens on homestead property; (2) the exception for pre-existing judgment liens on homestead property; and (3) the exception for Article 9 security interests on exempt personal property.
For instance, Oklahoma law provides that the homestead exemption "shall not apply where the debt is due [f]or purchase money of such homestead or a part of such purchase money[;][f]or taxes or other legal assessments due thereon[; or for] work and material used in constructing improvements thereon." 31 O.S.1991, § 5 (hereinafter "Section 5 Liens"). If "built-in limitations" on state exemptions are inapplicable in a bankruptcy context, why are mortgages, tax liens and materialmens' liens not avoidable? Section 5 Liens, like the judicial liens that attach to homestead under Section 706, are exemptions to, or limitations on the protection *810 of the homestead exemption. Section 5 Liens clearly impair the exemption-they can be foreclosed and the debtor can be dispossessed of his or her homestead. The effectiveness of Section 5 Liens is not pre-empted by the Bankruptcy Code, however, because the liens do not fall within the categories of liens on exempt property that Congress has declared are not worthy of surviving the bankruptcy, that is, judicial liens and nonpossessory, nonpurchase-money security interests. Therefore, Section 5 Liens are not avoidable under Section 522(f).[6] Again, although the type of property that may be claimed exempt in bankruptcy proceedings is defined by state law, the type of liens that are avoidable is strictly a matter of bankruptcy policy.
Further, similar to the limitation to homestead under Florida law cited in Owen, Oklahoma common law subscribes to the doctrine that judicial liens that have attached to non-homestead property are not divested by the subsequent occupation of the property as homestead. See, e.g., Harris v. Cherokee State Bank, 82 Okla. 151, 198 P. 878 (1921); Northwest Thresher Co. v. McCarroll, 30 Okla. 25, 118 P. 352 (1911). Because it is a judicial lien, one of the liens disfavored under federal law, its merit and significance enjoyed under state law is pre-empted by bankruptcy policy. Therefore, under the rule applied in this case, such a pre-existing judgment lien on homestead would be avoidable.
Finally, Oklahoma law allows holders of nonpossessory, nonpurchase-money security interests to attach exempt property and subject such property to execution and forced sale for the payment of the underlying debt. Section 9-501, et seq., of Title 12A of the Oklahoma Statutes (Oklahoma's adoption of the Uniform Commercial Code (the "UCC")) governs the foreclosure of security interests in personal property. Nothing in the UCC or in the exemption statutes prevents a debtor from voluntarily encumbering exempt property. Notwithstanding that Oklahoma law tacitly excepts from the protection of the exemption statute a forced sale under the UCC,[7] the Bankruptcy Code clearly permits the avoidance of such a non-purchase money lien on certain exempt property. See 11 U.S.C. § 522(f)(1)(B). Again, the supremacy of federal law and bankruptcy policy over substantive state law is illustrated, with the Bankruptcy Code sanctioning the cancellation of the disfavored lien-this time a voluntary lien.
The 1994 Amendments
In light of the confusion that the concept "impairment of exemption" has generated in connection with lien avoidance, caused in part by the wide diversity of state exemption laws, Congress attempted to clarify its intended meaning by amending Section 522(f) in the Bankruptcy Reform Act of 1994 ("1994 Amendments"). The legislative history of the 1994 Amendments indicates that Congress intended to overrule decisions that misinterpreted its intent as to the meaning of Section 522(f) by imposing a formula to determine whether liens are avoidable, which is codified at 11 U.S.C. § 522(f)(2) as follows:
(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of-
(i) the lien;
(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could claim if there were no liens on the property;
exceeds the value that the debtor's interest in the property would have in the absence of any liens.
(B) In the case of a property subject to more than 1 lien, a lien that has been avoided shall not be considered in making the calculation under subparagraph (A) with respect to other liens.
(C) This paragraph shall not apply with respect to a judgment arising out of a mortgage foreclosure.
11 U.S.C. § 522(f)(2).
The amendment appears to apply to situations where the amount or extent of the *811 impairment is at issue for example, where the exemption for tools of the trade is limited to $5,000, or the exemption for vehicles is limited to $3,000. The legislative history, however, indicates that the decisions this amendment was intended to overrule involved several scenarios, including (1) where the debtor's property is fully encumbered by consensual mortgages (if the debtor has no equity, is the exemption impaired by a subsequent judicial lien?); (2) where the judicial lien the debtor seeks to avoid is only partially secured (how much of the lien may be avoided?); (3) where state law provides that the homestead exemption only applies if there is a pending execution (if there is no pending execution at the time of the bankruptcy, does the debtor have an exemption to claim?); and (4) where a judicial lien is senior to a consensual mortgage, and the lien plus mortgage exceeds the value of the property. See Legislative History Pub. L. No. 103-394, H.R. 5611, Floor Statements, 140 Cong. Rec. H. 10,764 (daily ed. Oct. 4, 1994), reprinted in LAWRENCE P. KING, COLLIER ON BANKRUPTCY, App. E, App. Pt. 9(b), p. 9-939-94 (15th ed.1998).
The issue as to whether "built-in" exceptions to state law exemptions should be given effect is embodied in the third situation articulated by Congress. The Floor Statement indicates that the formula set forth in Section 522(f)(2) is to be employed in such circumstances, resulting in the extinction of the built-in exceptions. The Floor Statement explains:
[T]he Court of Appeals, in In re Dixon, 885 F.2d 327 (6th Cir.1989), has ruled that the Ohio homestead exemption only applies in execution sale situations. Thus, the court ruled that the debtor's exemption was never impaired in a bankruptcy and could never be avoided, totally eliminating the right to avoid liens. This leaves the debtor in the situation where, if he or she wishes to sell the house after bankruptcy, that can be done only by paying the lienholder out of equity that should have been protected as exempt property. By focusing on the dollar amount of the exemption and defining "impaired," the amendment also clarifies that a judicial lien on a property can impair an exemption even if the lien cannot be enforced through an execution sale, thereby supporting the result in In re Henderson, 18 F.3d 1305 (5th Cir. 1994), which permitted a debtor to avoid a lien that impaired the homestead exemption even though the lien could not be enforced through a judicial sale.
Id. See also Holland v. Star Bank, N.A. (In re Holland), 151 F.3d 547 (6th Cir.1998). It appears, then, that whether a lien "impairs" an exemption may be determined in every case by simply applying the formula set forth in Section 522(f)(2), regardless of the limitations on the exemption contemplated by state law.
Impairment of the Richardsons' homestead exemption
Applying these principles to this case, the Court concludes that Section 706 of Title 12 of the Oklahoma Statutes, which permits judicial liens to attach to homestead property, is one of those exceptions or restrictions on an exemption that is overridden by Section 522(f)'s policy that judicial liens on exempt property should be avoided to give the debtor a fresh start, notwithstanding the fact that such liens cannot be foreclosed while the property is occupied as homestead. Applying the formula of Section 522(f)(2), the sum of the lien ($3,878.65), other liens on the homestead ($0),[8] and the amount of the exemption that the Richardsons could claim if there were no liens on the property ($12,500.00) is $16,378.65, which exceeds the value that the Richardsons would have in the property in absence of any liens.
The Court concludes, therefore, that the judicial lien of Healthcare which attached to the Richardsons' homestead impairs the Richardsons' homestead exemption and is therefore avoidable pursuant to Section 522(f)(1). Any other result would leave the Richardsons with a judicial lien on their homestead following their discharge, which could prevent them from borrowing against the homestead, selling the homestead and reinvesting the proceeds in a new homestead, *812 obtaining insurance to protect their interest in the homestead or obtaining title insurance on a new homestead, and could expose them to complex litigation in any of the above circumstances.
IT IS THEREFORE ORDERED that the Motion to Avoid Lien is granted and the judicial lien on the homestead of the Richardsons is hereby avoided.
NOTES
[1] The parties stipulate that Healthcare properly perfected and continued its lien according to Oklahoma law.
[2] Further, some other bankruptcy courts that have had an opportunity to ponder the "impairment" issue in the context of homestead exemption laws in other states have arrived at conclusions contrary to McKinney-Jones. In In re Watson, 116 B.R. 837 (Bankr.M.D.Fla.1990), the Court held that a judgment lien impaired a debtor's state law homestead exemption, even though under state law, the lien was unenforceable so long as the property remained homestead. The Court found that the mere existence of the lien impaired the homestead because it constituted a cloud on the title to the homestead and "any potential enforcement of a judgment lien in the future is a present impairment of the exemption." Id. at 838-39. See also Henderson v. Belknap (In re Henderson), 168 B.R. 151 (W.D.Tex.1993), aff'd, 18 F.3d 1305, cert. denied, 513 U.S. 1014, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994) (even where state law provides that a judicial lien does not attach to homestead, it creates a cloud on the title, may lead to litigation, prevent a closing, preclude title insurance, "or otherwise impair or impede a debtor's right to deal with his real property in a free and unfettered manner," and therefore may be avoided as "impairing" the homestead exemption (internal citations omitted)); In re Kellar, 204 B.R. 22 (Bankr.E.D.Ark.1996)(judicial lien impaired homestead exemption because debtors were unable to obtain a second mortgage due to the existence of the lien).
[3] The Court emphasized that the phrase contained in Section 522(f)-"to the extent that such lien impairs an exemption to which the debtor would have been entitled" can only be given meaning by interpreting it in this way. Owen, 500 U.S. 305, 111 S.Ct. at 1837; see also Aetna Finance Co. v. Leonard (In re Leonard), 866 F.2d 335, 336-37 (10th Cir.1989) ("The debtor's right to claim avoidance of a lien on property under § 522(f) is determined by considering whether the property, if unencumbered, is exempted under the state statutory exemptions.")
[4] In the Tower Loan case, the Fifth Circuit Court of Appeals overruled its decision in In re McManus, 681 F.2d 353 (5th Cir.1982) in light of Owen. In McManus, the Court had concluded that a debtor's state exemptions were burdened with all its exceptions, that the debtor "`took the bitter with the sweet' when he used the Louisiana exemption statute as the basis of avoiding liens under § 522(f)," and "thus, a debtor could not use § 522(f) to avoid a lien on exempt property when that lien fell within an exception to that exemption under state law." Tower Loan, 15 F.3d at 1350. The McManus analysis, which the Fifth Circuit renounced in light of the United States Supreme Court precedent set forth in Owen, is the analysis that Healthcare urges this Court to adopt in this case.
[5] See, e.g., Tex. Prop.Code Ann. §§ 42.001-002 (Vernon Supp.1998) (validly encumbered property is excluded from the definition of exempt property). This statute would nullify lien avoidance in every case, since a valid lien on property renders the property not exempt under Texas law; therefore its limitation is not applicable in bankruptcy proceedings. See In re Kelly, 133 B.R. 811 (Bankr.N.D.Tex.1991). See also Leonard, 866 F.2d at 337 (Colorado exemption statute and Section 522(f) could not be interpreted to mean that only the debtor's equity in property is exempt; that would lead to an absurd result and nullify the lien avoidance provision because by definition, equity is the unencumbered portion of the property-there can be no lien on equity to avoid).
[6] Such liens might be avoidable under some other section of the Bankruptcy Code, however. See 11 U.S.C. §§ 506(d), 544, 545, 547, 548, 549, and 724(a).
[7] Oklahoma law defines exempt property to be "exempt from attachment or execution and every other species of forced sale for the payment of debts." 31 O.S.1991, § 1(A).
[8] No other liens on the homestead, consensual or otherwise, appear in the Richardsons' schedules. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/519777/ | 869 F.2d 1491
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Ronald KIMMEL, Plaintiff-Appellant,v.RUCKMAN, Mr.; Lowe, Mr.; Thomson, Dr., Defendants-Appellees.
No. 88-5617.
United States Court of Appeals, Sixth Circuit.
Feb. 13, 1989.
Before MERRITT and DAVID A. NELSON, Circuit Judges and CELEBREZZE, Senior Circuit Judge.
ORDER
1
This pro se Tennessee state prisoner appeals the district court's sua sponte dismissal of his civil rights complaint filed pursuant to 42 U.S.C. Sec. 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
While an inmate at DeBerry Correctional Institute, plaintiff filed this suit, seeking monetary and injunctive relief, alleging that the defendants violated his eighth amendment rights when they were deliberately indifferent to a serious medical need (his swollen big toe). Specifically, plaintiff alleged that defendant Ruckman, on several occasions, would not bring his medication to his bedside despite doctor's orders that he stay off his feet; that defendants took fifteen days to diagnose the problem with plaintiff's big toe; and that he was left in pain for five days before a physician examined his big toe. The magistrate conducted an evidentiary hearing and recommended the complaint be dismissed as frivolous pursuant to 28 U.S.C. Sec. 1915(d) finding that the defendants had rendered adequate medical care. The district court ultimately conducted a de novo review of plaintiff's objections and dismissed the complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d).
3
Upon review, we affirm the district court's dismissal as plaintiff has not shown deliberate indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir.1983) (per curiam). In fact, the record indicates that plaintiff received much medical attention for his big toe. Although plaintiff was dissatisfied with the treatment rendered, we are unable to say that defendants were deliberately indifferent. At best, plaintiff may have stated a tort claim for negligence under state law. This however is insufficient to state a claim under Sec. 1983. See Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir.1976).
4
Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2305371/ | 170 Cal.App.4th 1600 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
PARIS LAMONT JACKSON, Defendant and Appellant.
No. C056828.
Court of Appeals of California, Third District.
February 10, 2009.
*1603 Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
NICHOLSON, Acting P. J.
Defendant Paris Lamont Jackson was convicted after a bench trial of second degree robbery (Pen. Code, § 211).[1] The trial court also found five prior serious felony conviction allegations to be true within the meaning of section 667, subdivision (a)(1), and sentenced him to 30 years to life in state prison (25 years to life for the robbery (as a "three-strike" offender) plus one consecutive five-year enhancement for one prior serious felony conviction). The court imposed and then stayed execution on the four remaining five-year enhancements.
Defendant's sole contention on appeal is that because his five prior serious felony convictions were not "brought and tried separately" within the meaning of section 667, subdivision (a)(1), the trial court improperly found four of the five prior serious felony conviction allegations to be true. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We dispense with a detailed recitation of the underlying facts as they are unnecessary to the resolution of this appeal. Suffice it to say that defendant and another individual robbed the Citibank in Manteca, fled in a Ford Excursion with over $1,000, some in marked "bait money," and were stopped and arrested minutes later, along with two others in the vehicle, as the SUV attempted to merge onto Highway 99. Officers of the Manteca Police Department pulled the vehicle over after witnessing handfuls of the marked bills being thrown out of the windows of the SUV.
Defendant was charged in an amended information with one count of second degree robbery. The information also alleged that defendant had suffered five prior "strike" convictions within the meaning of California's "Three Strikes" law and five prior serious felony convictions within the *1604 meaning of section 667, subdivision (a)(1). Defendant pled not guilty and denied the special allegations. Following a bench trial, the court found defendant guilty of robbery. The court also found the five prior serious felony conviction allegations to be true, and sentenced him to 30 years to life in state prison (25 years to life for the robbery (as a "three-strike" offender) plus one consecutive five-year enhancement for one prior serious felony conviction). The court imposed and then stayed execution on the four remaining five-year enhancements.
DISCUSSION
On appeal, defendant claims that because his five prior serious felony convictions were not "brought and tried separately" within the meaning of section 667, subdivision (a)(1), the trial court improperly found four of the five prior serious felony conviction allegations to be true. We disagree.
A. Additional Background
All five of the prior serious felony convictions alleged in the information and found true by the trial court arose from a single criminal prosecution in Alameda County in 1997. In that case, defendant and another individual (Tommy Johnson) were jointly charged in an information filed February 11, 1997, in connection with two robberies at two separate U-Haul locations. Defendant was charged with one count of robbery and three counts of assault with a deadly weapon occurring at a U-Haul location in Oakland; defendant and Johnson were jointly charged with two counts of robbery, three counts of assault with a firearm, one count of reckless driving while evading a peace officer, and two counts of assault with a deadly weapon occurring the following day at a U-Haul location in Berkeley.
Defendant entered into an unusual negotiated plea agreement with the prosecution whereby defendant pled no contest to the robbery count arising from the robbery of the Oakland U-Haul location in exchange for dismissal of the three counts of assault with a deadly weapon also arising from that incident and the striking of an allegation of personal use of a firearm attached to the robbery charge. Defendant also agreed not to present a defense to the charges arising from the robbery of the Berkeley U-Haul location in exchange for a maximum term of imprisonment of seven years on all counts.
On April 8, 1997, the court was informed of the negotiated plea arrangement and accepted defendant's plea of no contest to the first robbery count.[2]*1605 On April 21, 1997, the court was informed that defendant would be withdrawing his previous plea of not guilty to the charges arising from the robbery of the Berkeley U-Haul location and entering a plea of no contest to two counts of robbery and three counts of assault with a firearm in exchange for dismissal of the remaining counts. On June 27, 1997, defendant was sentenced to the agreed-upon seven years in state prison.
B. Analysis
(1) Section 667, subdivision (a)(1), provides in relevant part: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." (Italics added.) Case law has interpreted this provision to require that a "5-year consecutive enhancement must be imposed for each prior conviction on charges brought and tried separately. [Citations.]" (3 Witkin, Cal. Criminal Law (3d ed. 2000) Punishment, § 340, p. 439, italics omitted & added; see People v. Turner (1998) 67 Cal.App.4th 1258, 1269 [79 Cal.Rptr.2d 740] (Turner) ["When the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed." (italics added)]; People v. Jordan (2006) 141 Cal.App.4th 309, 319 [45 Cal.Rptr.3d 719] (Jordan); see also § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667."].)
*1606 1. Section 667, Subdivision (a)(1), Prohibited Defendant from Receiving More Than One Five-year Enhancement Because His Prior Convictions Were Not on "Charges Brought and Tried Separately."
(2) Our Supreme Court held in In re Harris (1989) 49 Cal.3d 131, 136 [260 Cal.Rptr. 288, 775 P.2d 1057] (Harris), that "the requirement in section 667 that the predicate charges must have been `brought and tried separately' demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." There, Harris was given two five-year enhancements under section 667, subdivision (a)(1), for two prior robbery convictions despite the fact that both robbery charges were leveled against him in a single complaint. (Harris, supra, at p. 134.) Holding that Harris was subject to only one such enhancement, as these charges were not brought separately, the court vacated Harris's sentence and remanded for resentencing. (Id. at p. 137.)
As we explained in People v. Deay (1987) 194 Cal.App.3d 280, 286 [239 Cal.Rptr. 406] (Deay): "The phrase `charges brought and tried' leaves no room for constructionit means to have formally brought an accused to account by means of complaint, information or indictment, and to then have adjudicated the accused's guilt or not. Charges brought and tried `separately' for purposes of section 667 means simply that prior formal proceedings leading to multiple adjudications of guilt must have been totally separate. [Citation.]" There, Deay was given two five-year enhancements under section 667, subdivision (a)(1), for two prior burglary convictions despite the fact that both burglary convictions arose from a single proceeding. (Deay, supra, at p. 286.) We concluded: "[A]s both prior convictions . . . were adjudicated in the same criminal proceeding, they were not `on charges brought and tried separately' within the meaning of section 667, subdivision (a), and imposing a separate enhancement for each was error." (Deay, supra, at p. 290.)
In this case, there is no dispute that the five prior serious felony convictions arising from the U-Haul robberies were leveled against defendant in a single complaint and adjudicated in the same proceeding. The parties agree that because these charges were not "brought and tried separately" defendant may only receive one enhancement under section 667, subdivision (a)(1). The parties also agree that defendant will only be required to serve one such enhancement, as the trial court stayed sentence on the four remaining enhancement allegations found to be true. The fight on appeal concerns what *1607 it means for a defendant to be subject to one prior serious felony enhancement under section 667, subdivision (a)(1), where several serious felony convictions were charged and tried together.
2. The Trial Court Appropriately Imposed and Then Stayed the Four Remaining Five-year Enhancements Under Section 667, Subdivision (a)(1).
(3) Defendant contends the requirement that the prior serious felony charges were brought and tried separately is an element of the enhancement, and that where, as here, the charges were not brought and tried separately, the trial court is required to find only one such allegation to be true and impose and execute the five-year enhancement for that single allegation. The Attorney General disagrees, arguing the requirement that the charges were brought and tried separately merely restricts the number of five-year terms to be served rather than the number of allegations the trial court may find to be true. We agree with the Attorney General.
"By definition, a sentence enhancement is `an additional term of imprisonment added to the base term.'" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898 [135 Cal.Rptr.2d 30, 69 P.3d 951].) Section 667, subdivision (a)(1), provides for a "5-year consecutive enhancement [that] must be imposed for each prior conviction on charges brought and tried separately. [Citations.]" (3 Witkin, Cal. Criminal Law, supra, § 340, p. 439, italics omitted & added; see Turner, supra, 67 Cal.App.4th at p. 1269; Jordan, supra, 141 Cal.App.4th at p. 319.)
In People v. Gonzalez (2008) 43 Cal.4th 1118 [77 Cal.Rptr.3d 569, 184 P.3d 702] (Gonzalez), our Supreme Court explained the meaning of the word "impose" as it applies to sentence enhancements: "[I]t is important to understand that the word `impose' applies to enhancements that are `imposed and then executed' as well as ones that are `imposed and then stayed. However, as a practical matter, the word "impose" is often employed as shorthand to refer to the first situation, while the word "stay" often refers to the latter.' [Citation.]" (Id. at p. 1125, original italics.) Gonzalez involved multiple firearm enhancements. The issue was "whether, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment [as required by the statute], the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be stayed or stricken." (Gonzalez, supra, at pp. 1122-1123.)
The court held that the appropriate procedure is to impose the remaining enhancements and then stay their execution. (Gonzalez, supra, 43 Cal.4th at *1608 p. 1123.) In so holding, the court reversed a decision of this court in which we concluded that the remaining firearm enhancements, as well as their findings, must be stricken, rather than imposed and then stayed. (Id. at p. 1124.) Section 12022.53 provides for "escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies . . . ." (Gonzalez, supra, at p. 1124.) Subdivision (f) of section 12022.53 requires the court to "impose" the enhancement that provides for the longest term of imprisonment, but further provides that only "`one additional term of imprisonment under this section shall be imposed per person for each crime.'" (Gonzalez, supra, at p. 1125, italics omitted.) Subdivision (f) further provides that a firearm enhancement specified in section 12022.5 "`shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.'" (Gonzalez, supra, at p. 1125, italics omitted.) We concluded that because only the enhancement with the longest term of imprisonment may be "imposed" under section 12022.53, it was error to impose and then stay the remaining enhancements; such enhancements should have been stricken.
By doing so, we erroneously "interpreted the word `imposed' in that portion of subdivision (f) as encompassing both meanings of `impose,' namely, impose and then execute, as well as impose and then stay." (Gonzalez, supra, 43 Cal.4th at p. 1126, original italics.) As our Supreme Court explained, section 12022.53, subdivision (f) "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (43 Cal.4th at p. 1127, original italics.)
This interpretation harmonizes the meaning of the word "impose" as used throughout the statute, as well as with rule 4.447 of the California Rules of Court, which provides: "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. . . ." (Cal. Rules of Court, rule 4.447.) The court further explained that a contrary interpretation would disserve the public policy behind firearm enhancement statutes "by making it more difficult, if not impossible, to impose and execute the term of imprisonment for an initially prohibited firearm enhancement in the event the section 12022.53 enhancement with the longest term of imprisonment is invalidated on appeal." (Gonzalez, supra, 43 Cal.4th at p. 1128.)
*1609 (4) While there are no published decisions setting forth the proper procedure for dealing with prohibited enhancements under section 667, subdivision (a)(1), the reasoning of Gonzalez is persuasive. Under section 667, subdivision (a)(1), a five-year enhancement must be imposed for each prior serious felony conviction on charges brought and tried separately. The reverse is also true: a five-year enhancement may not be imposed for prior serious felony convictions that were either brought or tried together. (Harris, supra, 49 Cal.3d at p. 136; Deay, supra, 194 Cal.App.3d at p. 286.) As the Supreme Court did in Gonzalez, we interpret "impose" to mean impose and then execute, as opposed to impose and then stay. Consequently, where a defendant has suffered several prior serious felony convictions on charges brought and tried separately, the trial court must impose and then execute a five-year enhancement for each such conviction. (See People v. Askey (1996) 49 Cal.App.4th 381, 389 [56 Cal.Rptr.2d 782] [trial court erroneously stayed five-year enhancement under § 667, subd. (a)(1)].) Conversely, where, as here, a defendant has suffered five prior serious felony convictions, only one of which was brought and tried separately, the trial court must impose and then execute a five-year enhancement for one of the convictions, and may not impose and then execute five-year enhancements for the remaining four convictions. However, as the trial court lacks discretion to strike the remaining allegations of prior serious felony convictions under section 1385 (see § 1385, subd. (b)), the appropriate course of action is to impose and then stay the remaining four enhancements. This is precisely what the trial court did in this case.
(5) As was true in Gonzalez, this interpretation harmonizes section 667, subdivision (a)(1), with rule 4.447 of the California Rules of Court, which specifically directs the trial courts to impose and stay execution (as opposed to striking or dismissing) on enhancements where "imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements." (Cal. Rules of Court, rule 4.447.) This interpretation also serves the public policy behind section 667, which is to provide longer prison sentences for those repeat offenders who commit serious felonies. In the event that the serious felony conviction which served as the basis for an executed five-year enhancement is invalidated on appeal, one of the remaining enhancements that have been imposed and stayed can be executed in its place. (See Gonzalez, supra, 43 Cal.4th at p. 1128.)
*1610 DISPOSITION
The judgment is affirmed.
Raye, J., and Butz, J., concurred.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Defendant's counsel: "In effect, the trial with respect to my client will be a slow plea. My client was made an offer in municipal court at the preliminary hearing stage, which he was willing to take at that time and remains willing to take now. [¶] He does not wish to proceed to trial in this matter. [¶] However, it is a codefendant case, and he has no option but to participate in the trial, because the codefendant does not wish to resolve the case. [¶] In light of that, the following arrangement has been made with the district attorney after discussion. [¶] My client today will be entering a plea of no contest to count one. He will not be sentenced until after the completion of the trial. Count one is with respect to October 28[.] . . . [¶] . . . The remaining counts with respect to that event will be dismissed. [¶] . . . [¶] My client will be going to trial on the remaining counts along with [codefendant]. [¶] For [defendant], that trial will, in effect, be a slow plea. [¶] We will not be offering a defense. We will not be participating in the trial in any traditional sense. [¶] The agreement is so long as . . . [defendant] abides by that agreement, as long as we do not proffer a defense or participate in the trial or in any way violate the agreement, at the conclusion of the trial where it is anticipated he will be convicted, and the slow plea will have been completed when the sentencing phase is reached, the district attorney will abide by the seven year offer and be asking the court to sentence him to the seven years to which he had been previously offered and unable to take." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2811814/ | #27148-rev & rem-LSW
2015 S.D. 53
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MICHELLE ELIZABETH REPP, Petitioner and Appellee,
v.
BENJAMIN JACOB VAN SOMEREN, Respondent and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE JOHN L. BROWN
Judge
****
BEVERLY J. KATZ of
Katz Law Office, Prof., LLC
Huron, South Dakota Attorneys for petitioner
and appellee.
CHRISTINA L. KLINGER of
May, Adam, Gerdes & Thompson, LLP
Pierre, South Dakota Attorneys for respondent
and appellant.
****
CONSIDERED ON BRIEFS
ON MARCH 23, 2015
OPINION FILED 06/24/15
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WILBUR, Justice
[¶1.] Michelle Repp filed for a protection order against her former boyfriend
Benjamin Van Someren. The circuit court granted Repp the protection order for a
period of five years on the basis of stalking. Van Someren appeals and argues that
the findings of fact do not support the court order. We reverse and remand for
findings of fact and conclusions of law.
Background
[¶2.] On May 5, 2014, Repp filed a petition and affidavit for a stalking
protection order. Repp checked boxes on the petition alleging Van Someren: (1)
“Willfully, maliciously, and repeatedly followed me;” or (2) “Harassed me by
pursuing a knowing and willful course of conduct which seriously alarms, annoys or
harasses me with no legitimate purpose. The pattern of conduct is a series of acts
over a period of time, however short, showing a continuing pattern of harassment.”
On the petition, Repp described her dysfunctional relationship with Van Someren
and the alleged reasons that necessitated a protection order. The circuit court
issued a temporary protection order against Van Someren and set a hearing for a
permanent protection order on July 2, 2014. Around this time, Van Someren found
employment in Saint Peters—a suburb of St. Louis, Missouri—and planned to move
on July 5, 2014.
[¶3.] Repp and Van Someren offered conflicting testimony at the permanent
protection order hearing on July 2, 2014. Therefore, we restate the facts in this case
“in a light most favorable to the circuit court’s” decision. Donat v. Johnson, 2015
S.D. 16, ¶ 2, 862 N.W.2d 122, 125. Repp testified that she and Van Someren began
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dating on August 24, 2012, and that the two of them had eight to ten breakups over
the following two years. The final breakup occurred on May 1, 2014. Repp testified
that she had increasing concerns for her safety during their unstable relationship.
She testified that she continued to date him despite the many breakups because she
“was constantly trusting him” and that she “was scared half to death of him, but he
made [her] believe that it was all [her] fault and so [she] was constantly trying to
change [her]self.”
[¶4.] At the hearing, Repp testified about specific incidents during her
unstable relationship with Van Someren that compelled her to file for a protection
order against Van Someren. The first instance of stalking, Repp testified, occurred
in May of 2013, when Van Someren entered her apartment unannounced while she
was sleeping. He admitted this to her a week later. On two separate occasions, Van
Someren stood outside of her open apartment window and listened to her. At some
point she learned that he had retrieved passwords to several of her Internet
accounts without her consent. A few months later, in July of 2013, Van Someren
entered into her apartment through a locked door by unhinging the door. After this
incident, Repp moved to a more secure apartment. She did not tell Van Someren
about her new apartment. Eventually, she returned to her former apartment
complex to return the key. As she walked down a set of stairs to get to that
apartment, Van Someren jumped out from behind the stairwell and demanded that
she give him a key. She told him she no longer lived at that apartment and
attempted to close the front door. He put “his foot in the door” to prevent it from
closing. She testified that “fight or flight kick[ed] in” and she ran out the back door
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of the apartment. Later, Van Someren discovered the address to Repp’s new
apartment by sending a letter to her former address with “return requested”
marked on the envelope. Repp and Van Someren eventually resumed their
relationship after she moved to her new apartment. At the new apartment, Van
Someren dragged her off a couch causing her to hit her head on the coffee table. On
a separate, but similar occasion, he dragged her off the couch causing her to hit her
leg on the coffee table. After both incidents, he made her sit in the corner of her
closet and count to an unspecified number. Van Someren disputed Repp’s recitation
of the incidents described above.
[¶5.] On May 1, 2014, Repp ended her relationship with Van Someren for
the final time. Repp drove to Van Someren’s apartment and told him that she no
longer wanted a relationship with him. She instructed him to never contact her
again. That same night, Van Someren sent her two text messages and one email.
The first text message said, “I’m sorry. I love you.” The second text message said,
“I just want you to be happy. Please let me know when you are happy.”
Approximately one hour after sending the second text message, Van Someren sent
an email asking Repp to let him know when she finds happiness again.
[¶6.] Four days later, Repp sought a protection order against Van Someren.
She testified that her relationship with him was “not normal behavior” and that she
“shouldn’t have to live in fear[.]” Repp was afraid that without a protection order
Van Someren would keep “contacting” and “harassing” her. She further testified
that she wanted the protection order to show up on any background check of Van
Someren. In a statement against interest on May 15, 2014, Repp stated,
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I need [the protection order] to appear on his background
checks. For jobs, apartment, life, everything, other girls. He
made bad decisions and he must live with them. Final. It must
show up on his background check. If it doesn’t, then we are
going to court. I need it so that if some random person out there
investigates into [Van Someren], they will know that [he] had
this order placed against him. I do not want him to hurt anyone
else.
Counsel for Van Someren argued that this statement is evidence of the fact that
Repp wanted the protection order to “punish [Van Someren],” to “cause problems in
his life,” and to “protect others.”
[¶7.] At the close of the hearing, the circuit court granted the protection
order. That same day, the court entered a written permanent protection order
prohibiting Van Someren from coming within a distance of 100 yards of Repp for a
period of five years. Van Someren appeals the court order and raises the following
issues for our review:
1. Whether the circuit court’s findings of fact were clearly
erroneous.
2. Whether the circuit court abused its discretion in entering
a protection order.
3. Whether the circuit court abused its discretion in
rejecting offered evidence.
Standard of Review
[¶8.] The standard of review for the grant of a protection order is well
established:
First, we determine whether the trial court’s findings of fact
were clearly erroneous. We will not set aside the trial court’s
findings of fact unless, after reviewing all of the evidence, we are
left with a definite and firm conviction that a mistake has been
made. Furthermore, the credibility of the witnesses, the import
to be accorded their testimony, and the weight of the evidence
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must be determined by the trial court, and we give due regard to
the trial court’s opportunity to observe the witnesses and
examine the evidence. If the trial court’s findings of fact are not
clearly erroneous, we must then determine whether the trial
court abused its discretion in granting or denying the protection
order.
Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780 N.W.2d 467, 469 (quoting White v. Bain,
2008 S.D. 52, ¶ 8, 752 N.W.2d 203, 206) (internal quotation marks omitted).
Analysis
Findings of Fact
[¶9.] The circuit court concluded that Van Someren committed stalking
under SDCL 22-19A-1. 1 At the close of evidence, the circuit court rendered oral
findings of fact and conclusions of law:
The court: Well, it’s clear that these folks had a dysfunctional
relationship over the course of two years. It’s hard for me to
understand why either of them continued to stay in the
relationship as long as they did. And while it may be that [Van
Someren] is leaving the area and removing himself from a
situation where he might be involved with perhaps an
inadvertent contact, I think the escalating nature of the
relationship itself and the controlling nature -- and I understand
and certainly agree that there’s some fault on both sides as
relates to the relationship. But I think that [Repp] has met her
burden by a preponderance of the evidence that stalking has
occurred here. There was an accelerating level of control being
exhibited by [Van Someren] here. The fact that he’s moving on,
moving away from here, although it should provide some
1. This case involves stalking under subsections (1) or (3) of SDCL 22-19A-1:
No person may:
(1) Willfully, maliciously, and repeatedly follow or harass
another person;
...
(3) Willfully, maliciously, and repeatedly harass another
person by means of any verbal, electronic, digital media,
mechanical, telegraphic, or written communication.
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comfort as far as a likelihood of future contact, doesn’t negate
the need for a protection order and I’m going to grant it.
The court directed Repp to prepare written findings of fact: “I think in this case, Ms.
Katz [(Repp’s counsel)], findings of fact would be appropriate if you would prepare
such.” Repp prepared findings of fact and conclusions of law, but submitted them to
the court eight days late and after Van Someren had filed his notice of appeal.
Consequently, the court’s oral findings of fact and conclusions of law control. See
SDCL 15-6-52(a) (“It will be sufficient if the findings of fact and conclusions of law
are stated orally and recorded in open court following the close of evidence . . . .”).
[¶10.] “It is well-settled law that it is the trial court’s duty to make required
findings of fact, and the failure to do so constitutes reversible error.” March v.
Thursby, 2011 S.D. 73, ¶ 20, 806 N.W.2d 239, 244 (quoting Shroyer, 2010 S.D. 22,
¶ 7, 780 N.W.2d at 470). “Findings must be entered ‘with sufficient specificity to
permit meaningful review.’” Id. (quoting Goeden v. Daum, 2003 S.D. 91, ¶ 9, 668
N.W.2d 108, 111). “We cannot meaningfully review the trial court decision without
the trial court’s reasons for ruling the way it did.” Goeden, 2003 S.D. 91, ¶ 7, 668
N.W.2d at 110. Therefore, “[c]ircuit courts ‘must ensure that findings of fact and
conclusions of law are clearly entered.’” Donat, 2015 S.D. 16, ¶ 14 n.4, 862 N.W.2d
at 128 n.4 (quoting Goeden, 2003 S.D. 91, ¶ 9, 668 N.W.2d at 111).
[¶11.] Because Repp failed to timely submit written findings of fact, we are
left with the circuit court’s oral findings of fact and conclusions of law from the July
2, 2014 hearing. The court’s oral findings of fact are insufficient to permit a
meaningful review of the court decision. See March, 2011 S.D. 73, ¶ 20, 806 N.W.2d
at 244. The findings of fact do not indicate which version of the evidence the court
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believed. See Goeden, 2003 S.D. 91, ¶ 6, 668 N.W.2d at 110 (“The parties presented
conflicting versions of the events, and the trial court as the fact finder had to judge
whose version was credible.”). Nor do the oral findings indicate how the evidence
met the statutory elements of stalking under SDCL 22-19A-1. There is conflicting
evidence in the record as to whether stalking occurred under SDCL 22-19A-1. Repp
needed to show that Van Someren either “[w]illfully, maliciously, and repeatedly
follow[ed] or harass[ed]” her or “[w]illfully, maliciously, and repeatedly harass[ed]
[her] by means of any verbal, electronic, digital media, mechanical, telegraphic, or
written communication.” SDCL 22-19A-1(1); SDCL 22-19A-1(3). “[I]t is the
function of the trier of fact to ‘resolve the factual conflicts, weigh credibility, and
sort out the truth.’” LeGrand v. Weber, 2014 S.D. 71, ¶ 36, 855 N.W.2d 121, 131.
Without resolving the numerous factual conflicts in this case or weighing the
credibility of Repp and Van Someren’s testimony, it is not apparent how the
evidence meets either definition of stalking. The court’s oral finding that Van
Someren exhibited “an accelerating level of control” is not enough to demonstrate
that stalking occurred. See SDCL 22-19A-1.
[¶12.] We have, on some occasions, remanded protection order cases to allow
the trial court to enter the missing findings of fact and conclusions of law. See
Shroyer, 2010 S.D. 22, ¶ 11, 780 N.W.2d at 472 (reversing and remanding for failure
to enter findings of fact to support protection order); Judstra v. Donelan, 2006 S.D.
32, ¶ 9, 712 N.W.2d 866, 869 (reversing and remanding for failure to enter findings
of fact to support protection order); Goeden, 2003 S.D. 91, ¶ 10, 668 N.W.2d at 112
(reversing and remanding “to allow the trial court to enter findings of fact and
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conclusions of law”). Although we have not remanded in two cases, see March, 2011
S.D. 73, ¶ 23, 806 N.W.2d at 244; Castano v. Ishol, 2012 S.D. 85, ¶ 18, 824 N.W.2d
116, 121, we did so without explanation. Here, remand is warranted because Van
Someren specifically requested that this Court remand the case, and, further,
because the circuit court acknowledged that written findings of fact and conclusions
of law were required. The court should be permitted to complete the task it was
trying to accomplish. Because this is a close case, we should facilitate, rather than
avoid sorting out the truth. In order to facilitate a meaningful review of the circuit
court’s decision, the court should be permitted to enter findings of fact and
conclusions of law as it originally intended.
[¶13.] Because of our decision to remand this case for findings of fact and
conclusions of law, we need not reach Van Someren’s arguments that the circuit
court’s oral findings of fact were clearly erroneous and that the circuit court abused
its discretion in granting the protection order. Given the absence of adequate
findings and conclusions, “much guess-work would be involved in any attempt to
review” those two arguments. See Judstra, 2006 S.D. 32, ¶ 8, 712 N.W.2d at 868.
Relevance
[¶14.] Van Someren argues that the circuit court erred when it determined
that certain evidence was not relevant. Van Someren sought to admit all of the text
message communications that occurred between himself and Repp over a period of
approximately one and a half years. The text messages were printed and placed in
a binder. The court took “notice that the binder itself is approximately two inches
or maybe even up to three inches thick.” Van Someren argued that the evidence
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was relevant because “the parties did communicate extensively over text message
and this text message [binder] does document their relationship and the
communications they had between each other. And I just proffer to the [c]ourt that
it does provide a good diagram of the relationship as a whole.” Repp objected to the
exhibit as being voluminous and not relevant. The court determined that the
exhibit was not relevant: “I don’t know that it’s been shown that the entire exhibit
has relevance here other than as to a volume of communication so I’m going to
refuse the exhibit.”
[¶15.] “The [circuit] court has broad discretion in admitting evidence.” Grode
v. Grode, 1996 S.D. 15, ¶ 16, 543 N.W.2d 795, 801. “[A] circuit court’s evidentiary
rulings are presumed correct and will not be reversed unless there is a clear abuse
of discretion.” State v. Berget, 2014 S.D. 61, ¶ 13, 853 N.W.2d 45, 51-52 (quoting
Wilcox v. Vermeulen, 2010 S.D. 29, ¶ 7, 781 N.W.2d 464, 467). “An abuse of
discretion refers to a discretion exercised to an end or purpose not justified by, and
clearly against reason and evidence.” AgFirst Farmers Coop. v. Diamond C Dairy,
LLC, 2013 S.D. 19, ¶ 23, 827 N.W.2d 843, 849 (quoting Johnson v. Miller, 2012 S.D.
61, ¶ 7, 818 N.W.2d 804, 806). The abuse of discretion standard is a “two-step
process[.]” Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764
N.W.2d 474, 491. “Evidentiary rulings are only reversible ‘when error is
demonstrated and shown to be prejudicial error.’” Ruschenberg v. Eliason, 2014
S.D. 42, ¶ 23, 850 N.W.2d 810, 817 (quoting Supreme Pork, 2009 S.D. 20, ¶ 59, 764
N.W.2d at 491).
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[¶16.] Relevant evidence is defined as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” SDCL 19-
12-1 (Rule 401). “All relevant evidence is admissible. . . . Evidence which is not
relevant is not admissible.” SDCL 19-12-2 (Rule 402). “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.”
SDCL 19-12-3 (Rule 403).
[¶17.] Van Someren argues that the text message communications were
relevant because they highlight “a pattern, a course of conduct, over the last two
years wherein they would break up, continue to communicate and then get back
together.” We need not determine whether this evidence was relevant, however,
because Van Someren advances no argument nor cites any authority supporting the
notion that he was prejudiced by the exclusion of the evidence. See Supreme Pork,
2009 S.D. 20, ¶ 59, 764 N.W.2d at 491 (requiring prejudicial error in addition to an
abuse of discretion). The failure to assert prejudicial error is fatal to Van Someren’s
argument that the circuit court abused its discretion. See People ex rel. M.S., 2014
S.D. 17, ¶ 17 n.4, 845 N.W.2d 365, 371 n.4 (stating “that failure to argue a point
waives it on appeal” unless the issue is a “pure question of law”) (quoting In re
Estate of Smid, 2008 S.D. 82, ¶ 43 n.15, 756 N.W.2d 1, 15 n.15). Consequently, the
circuit court did not err in excluding the evidence.
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[¶18.] Reversed and remanded for findings of fact and conclusions of law.
[¶19.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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https://www.courtlistener.com/api/rest/v3/opinions/1552056/ | 186 B.R. 991 (1995)
In re Lawrence E. HAMILTON, Jr., SS# XXX-XX-XXXX, Debtor.
Jeffrey A. WEINMAN, Chapter 7 Trustee for Lawrence Edward Hamilton, Jr., Plaintiff
v.
HAMILTON PROPERTIES CORPORATION, Defendant.
Bankruptcy No. 93-12927 SBB. Adv. No. 95-1269 CEM.
United States Bankruptcy Court, D. Colorado.
September 20, 1995.
*992 Krista A. Landerholm, Douglas W. Jessop, Holden & Jessop, P.C., Denver, CO, for plaintiff Jeffrey A. Weinman, as Chapter 7 Trustee for the Estate of Lawrence Edward Hamilton, Jr.
F. Brittin Clayton, III, Clayton and Stone, L.L.C., Boulder, for defendant Hamilton Properties Corporation.
ORDER ON DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
CHARLES E. MATHESON, Chief Judge.
The Hamilton Defendants' Motion to Dismiss and for Summary Judgment, with Memorandum *993 Brief ("Motion") is before the Court. The Motion was filed as a responsive pleading to the complaint filed in this case by Jeffrey A. Weinman, Trustee of the Chapter 7 estate of Lawrence E. Hamilton, Jr. ("Trustee").
The caption of the complaint signals the scope of the relief requested. It is titled: "Complaint to 1) Recover Fraudulent and Preferential Transfers, 2) Allow Reverse Equitable Piercing of Hamilton Properties Corporation and Find Such Entity to be an Alter Ego of the Debtor and 3) Require Turnover of Property and an Accounting ("Complaint"). In the Complaint as it now stands,[1] the Trustee requests a determination that Hamilton Properties Corporation ("HPC" or "Defendant") is the alter ego of Lawrence E. Hamilton, Jr. ("Debtor" or "Hamilton") and he seeks to pierce HPC's corporate veil and appropriate its assets as assets of the estate of the Debtor. In addition, predicated on the allegation that HPC is the alter ego of the Debtor, he demands turnover and an accounting from HPC for the use of assets of the estate. Finally, he asks that an assignment of rent from the Debtor to HPC be set aside as a fraudulent transfer under state law.
The Court issued a procedural order on the Motion setting response and reply times.[2] Defendant's Reply in Support of Motion to Dismiss and for Summary Judgment ("Defendant's Reply") was filed with the Court on August 15, 1995 and, thus, the matter is ripe for determination.
The claims for relief in the Complaint which seek redress as to HPC are the Sixth [Reverse Equitable Piercing of HPC and Finding of Alter Ego Status of HPC Pursuant to 11 U.S.C. §§ 105(a), 541 and 704(1)]; Seventh [Turnover and Accounting of all Property of the Debtor's Estate Held by HPC Pursuant to 11 U.S.C. § 542(a)]; Eighth [Fraudulent Transfer of Rent Payments Pursuant to 11 U.S.C. § 544 and Colo, Rev.Stat. §§ 38-8-105(1)(a) and XX-XX-XXX]; and Ninth [Fraudulent Transfer of Rent Payments Pursuant to 11 U.S.C. § 544 and Colo. Rev.Stat. § 38-8-105(1)(b)].
The Motion seeks to resolve the Sixth and Seventh Claims for Relief, (the "Alter Ego/Reverse Piercing Claims"), in part, via a motion to dismiss that they fail to state a claim upon which relief can be granted, and in part, via a motion for summary judgment. Specifically, HPC argues, resting exclusively on the facts in the Complaint, that the Trustee does not have standing to bring an alter ego claim and that the "reverse piercing" theory is simply not legally sustainable. To the extent HPC relies on facts outside the pleadings as to these claims for relief, HPC has presented supporting affidavits. HPC also argues that the Trustee is collaterally estopped from asserting that the Debtor and HPC are alter egos because the Trustee unsuccessfully litigated that issue in the bankruptcy case of Fidelity Escrow Limited Company (93-13255 DEC), a company formed by the Debtor in 1991. Finally, HPC contends that these claims are time barred by the state law statute of limitations.
As to the Eighth and Ninth Claims for Relief (the "Rent Assignment Claims") HPC raises the section 546 statute of limitations as a defense. In addition, HPC maintains that the claim is without merit because the transfers were "reversed" by repayment.
When reviewing a motion to dismiss, the Court must "assume as true the facts asserted in the complaint and construe the well-pleaded allegations in favor of the plaintiff." Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir.1993). Dismissal is inappropriate unless the plaintiff can prove *994 no set of facts in support of his claims to entitle him to relief. Dababneh v. F.D.I.C., 971 F.2d 428, 432 (10th Cir.1992), citing Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1473 (10th Cir.1990). In fact, recently, the Tenth Circuit Court of Appeals again acknowledged that "the Federal Rules of Civil Procedure erect a powerful presumption against rejecting pleadings for failure to state a claim." Maez v. Mountain States Tel. and Tel. Inc., 54 F.3d 1488 (10th Cir. 1995) citing Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986).
The standard for the granting of summary judgment has been enunciated by the Tenth Circuit as follows:
Summary judgment is appropriate when the materials submitted to the court "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." What facts are material depends on the substantive law being applied. Although we view the evidence in the light most favorable to the party opposing summary judgment, disputes about immaterial facts will not preclude summary judgment. Should a non-moving party make some showing on a material issue, we must consider the standard of proof in the case (here, a preponderance of evidence) and decide whether the showing is sufficient for a reasonable trier of fact to find for the non-moving party on that issue. A scintilla of evidence in favor of the non-moving party is not enough to preclude summary judgment. Moreover, should a non-moving party not make a sufficient showing on any essential element of his case, all other facts are rendered immaterial, and summary judgment is appropriate. Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.1989) (citations omitted.)
See also, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Windon Third Oil & Gas v. Federal Deposit Insurance Corp., 805 F.2d 342 (10th Cir. 1986).
Since the Kaiser-Francis Oil case, the Tenth Circuit elaborated upon the nature and purpose of summary judgment and the showing the non-moving party must make. In Brown Mackie College v. Graham, 981 F.2d 1149 (10th Cir.1992), the court emphasized that "the dispute about a material fact must be genuine, `that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' . . . This inquiry . . . `necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits'." Id. at 1151, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986). Most recently, the Tenth Circuit has spoken to the nature of the evidence which must be presented. See Thomas v. International Business Machines, 48 F.3d 478 (10th Cir. 1995). In that opinion, the court underscored the requirements of Fed.R.Civ.P. 56(e) that the "affidavits presented must be made on personal knowledge, shall set forth facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein." Generalized unsubstantiated, non-personal affidavits are insufficient to oppose a motion for summary judgment and hearsay may not be used. Id.
Consequently, in reviewing a motion for summary judgment, the inquiry must commence with a review of both the supporting and opposing affidavits. Thereafter, the Court must analyze whether a dispute exists as to a material fact and whether that dispute is genuine. Prior to delving into the issues raised by the motion for summary judgment portion of the Motion and because HPC has moved to dismiss the Alter Ego/Reverse Piercing Claims for failing to state a claim upon which relief can be granted, the Court must look to the Complaint and what allegations of fact are contained therein.
Viewing the Complaint in a light most favorable to the Plaintiff, the well pleaded allegations of the Complaint establish the following:
1. HPC is a Colorado corporation formed in 1976. The registered agent to receive process for HPC is the Debtor, Lawrence E. Hamilton.
*995 2. Jane M. Hamilton ("Jane"), who resides in Denver, is the Debtor's daughter and Lawrence E. Hamilton, III ("Ted"), who resides in Texas, is the Debtor's son.
3. The Debtor filed his petition under Chapter 7 of the Code on March 19, 1993.
4. The Debtor formed HPC in 1976 for the purpose of operating a real estate development business. Debtor was appointed a director and was elected as the President of HPC at the time of formation.
5. Upon information and belief, at all times since the creation of HPC, the Debtor has been an authorized signatory on the corporate bank account.
6. The Debtor initially owned 100% of the stock of HPC. Shortly after it was formed, the Debtor purportedly gifted 49% of his HPC stock to his children, Jane and Ted, but the Debtor retained control over the stock as the children's trustee.
7. HPC, through the Debtor, applied for a corporate real estate broker's license in 1979. Subsequently, through HPC, the Debtor began to develop his real estate development business.
8. By 1986, the Debtor had developed a successful real estate business through HPC. At that time, the Debtor valued his stock interest in HPC at $135,000.
9. During the mid-1980's, the Debtor began experiencing financial difficulties. The Debtor began to default on a number of bank loans for real estate developments that he had personally guaranteed and began to fall behind in payments to a variety of creditors.
10. The Debtor's bankruptcy schedules reveal that by 1987, a number of creditors had obtained judgments and settlements against the Debtor including, inter alia, the following:
(a) 1986 litigation settlement for $25,000.00 to National Advertising Co.;
(b) 1986 judgment for $34,757.56 to Rice & Company;
(c) 1986 judgment for $13,965.75 to Dale W. Claus;
(d) 1987 judgment for $104,000.00 to Ames Construction, Inc.;
(e) 1987 judgment for $104,000.00 to Centric-Nucon Corporation;
(f) 1987 judgment for $36,734.50 to Kaye Construction, Inc.;
(g) 1987 judgment for $328,338.61 to Colorado National Bank;
(h) 1987 judgment for $20,698.72 to Sherman & Howard;
(i) 1987 judgment for $30,688.00 to Merrick & Co.; and
(j) 1987 judgment for $79,887.30 to Chancery National Bank.
11. In January 1987, in an attempt to stymie the demands of his personal creditors, the Debtor transferred the remaining 51% of his HPC stock ("HPC Stock") to his children.
12. Twenty-five and one-half percent (25.5%) of the HPC Stock, worth at least $67,500.00, purportedly was transferred to Jane in January 1987, concurrently with a transfer to Ted of the remaining 25.5% of the HPC Stock (the "Stock Transfers"). The Debtor received no consideration in exchange for these Stock Transfers.
13. Ted and Jane each currently own 50% of the stock of HPC. The Debtor, however, exercises complete dominion and control over all aspects of HPC's operations. Both before and after these transfers of stock, the Debtor controlled all long-term and day-to-day operations of HPC.
14. Jane, a 50% shareholder, director and officer of HPC, had minimal input into the business and operations of HPC.
15. Upon information and belief, Ted also had minimal input in or connection with the business operations of HPC.
16. All business decisions concerning HPC were, and are, made by the Debtor and virtually all proceeds from HPC's operations have inured to the Debtor's benefit, rather than to the benefit of its shareholders.
17. The Debtor so completely dominates the finances, policies and business practices of all aspects of HPC's operations, that HPC does not have existence separate from the Debtor.
18. The Debtor has used his pervasive control of HPC to fraudulently transfer his *996 personal assets to related people and companies, including the Baby Doe's Transfer and the Brittany Hill Transfer, with the intent of protecting his assets from personal creditors.
19. Over the life of HPC, Jane and Ted, first as the 49% shareholders and after 1987 as 100% shareholders, each received only $1,500.00 as dividends from HPC.
20. The Debtor received no dividends from HPC but, from 1983-1993, was paid a salary by HPC as follows:
1983 $ 94,856 1988 $ 3,200
1984 $ 31,500 1989 $ 0
1985 $ 24,000 1990 $ 0
1986 $156,000 1991 $69,000
1987 $ 12,000 1992 $12,500
21. There is a substantial identity of interest between the Debtor and HPC and the Debtor always has been in direct, daily domination and control of HPC's operations.
22. The Debtor's personal finances and the finances of HPC were not separated and HPC's assets were utilized on a number of occasions to pay the Debtor's personal and living expenses.
23. The Debtor acted as if, and stated publicly that, he was the 100% owner of HPC.
24. The Debtor also used HPC to design collusive foreclosures of valuable properties owned by the Debtor personally. The properties were foreclosed by a company created by the Debtor, which company ultimately was acquired by HPC for virtually no consideration.
25. In 1978, the Debtor personally acquired a 100% ownership interest in the real estate under the Denver Baby Doe's Restaurant ("Baby Doe's Property") from Index Companies, Inc. ("Index"). In this transaction, Index also assigned its interest as lessor of the Baby Doe's Property ("Baby Doe's Lease") to the Debtor.
26. The Baby Doe's Lease provided for rent payments to the Debtor of the greater of $2,000.00 per month or 2% of the Restaurant's gross sales, subject to escalation factors in the lease.
27. From 1987 to 1992, the Debtor's personal financial situation continued to deteriorate and the following additional creditors obtained judgments against the Debtor:
(a) 1989 judgment for $75,000.00 to Specialty Restaurants Corp.;
(b) 8/15/91 judgments for $475,681.44 and $100,935.48 to Bank Western; and
(c) 1992 judgment for $83,314.00 to Colorado National Bank.
28. These judgments, in addition to those delineated above, put the Debtor's ownership interests in both the Baby Doe's Property and the Brittany Hill Property at risk.
29. Unbeknownst to the Debtor's creditors, however, the Debtor had caused HPC to enter into an option agreement with the foreclosing company. This option agreement allowed the Debtor, through HPC, to retain control of the Baby Doe's Property and the Brittany Hill Property at any time.
30. The Baby Doe's Property was subject to three encumbrances: a) National Traveler's Life Insurance Company ("National Traveler's") held a first lien on the property secured by a deed of trust on the Baby Doe's Property; b) Lorraine Hamilton, the Debtor's ex-wife, held a second lien on the property secured by a deed of trust on the Baby Doe's Property and a deed of trust on the Brittany Hill Property; and c) the FDIC held a third lien, which also was secured by a deed of trust on the Baby Doe's Property.
31. In June 1991, the Debtor created Security Asset Management ("Security"), a Colorado limited liability company, for the purpose of purchasing the note and deed of trust comprising National Traveler's first lien on the Baby Doe's Property.
32. The Debtor, through HPC, advanced funds to Security for the purchase of National Traveler's lien and Security purchased the lien for $89,000.00.
33. After this purchase, Security, as a friendly creditor controlled by the Debtor through HPC, commenced foreclosure proceedings on the Baby Doe's Property ("Baby Doe's Transfer").
*997 34. In November 1991, the Debtor formed Fidelity, another Colorado limited liability company.
35. At the time Fidelity was formed, an option agreement was entered into between HPC and Fidelity whereby, for a thirty-year period, HPC had the option to purchase the outstanding membership shares of Fidelity for $100.00, upon written demand and notice.
36. The nominal consideration required under the option agreement gave HPC the right to obtain a 97% stake in Fidelity at any time convenient for a transfer of ownership.
37. On December 31, 1991, Security merged with Fidelity. Fidelity, through HPC, paid the Debtor's ex-wife $22,500.00 for her second lien and deed of trust on the Baby Doe's Property and her first lien and deed of trust on the Brittany Hill Property.
38. In December 1991, the FDIC, the third lienholder on the Baby Doe's Property, redeemed its note for $175,000.00. During the foreclosure, Fidelity purchased the FDIC's note.
39. Consequently, as of January 1992, the Debtor, through two companies controlled and funded by HPC, had redeemed the first, second and third liens on the Baby Doe's Property and had purchased the first lien on the Brittany Hill Property.
40. After Fidelity's foreclosure on the Baby Doe's Property was completed in 1992, Fidelity renegotiated the Baby Doe's Lease with 2520 Restaurant Limited Liability Company, the operator of the Denver Baby Doe's Restaurant. Pursuant to the new lease terms, Fidelity was to be paid monthly rent of seven percent (7%) of the restaurant's gross sales, or approximately $14,000.00-15,000.00 per month.
41. The Baby Doe's Property, including the Baby Doe's Lease, currently is believed to be worth approximately $725,000.00.
42. Fidelity foreclosed on the Debtor's interest in the Brittany Hill Property in 1992 ("Brittany Hill Transfer"). Fidelity currently is the joint beneficiary of the lease payments made by the lessee of this property.
43. In November 1992, HPC, through the Debtor, exercised its option to purchase a 97% interest in Fidelity for $100.00.
44. On February 6, 1991, the Debtor assigned to HPC his right to receive $2,500.00 monthly net rent ("Rent Transfer") from the Baby Doe's Lease. This rent was to be paid to the Debtor pursuant to an Agreement of Settlement with Specialty Restaurants Corporation ("Specialty"), relating to Specialty's garnishment of the Debtor's right to rent payments under the Baby Doe's Lease.
45. The Debtor's assignment of rent to HPC recited that the transfer was made in consideration of $10.00 and other good and valuable consideration.
46. An Addendum also was executed by the Debtor, allegedly on February 6, 1991, which states that the consideration for the Rent Transfer was HPC's assumption and agreement to pay the Debtor's liability to Columbia Savings & Loan Association ("Columbia") for foreclosure deficiencies totalling $103,392.23.
47. HPC ultimately collected $25,000.00 from the Debtor pursuant to the Rent Transfer.
48. Shortly after the February 6, 1991 Rent Transfer, HPC settled the deficiency claims with Columbia for $5,000.00. Consequently, HPC reaped a $20,000.00 benefit from the Rent Transfer at the expense of the Debtor's creditors.
49. At the time of the Debtor's Rent Transfer to HPC, various creditors had claims against the Debtor.
50. The Debtor made the Rent Transfer to HPC with actual intent to hinder, delay, or defraud creditors of the Debtor.
51. At the time of the Rent Transfer, the Debtor was insolvent.
52. At all times relevant hereto, HPC was an insider of the Debtor within the meaning of section 101(31) of the Bankruptcy Code.
53. The Debtor continued to control HPC after he made the Rent Transfer.
*998 54. HPC knew of the Debtor's intent to hinder, delay, or defraud creditors by making the Rent Transfer.
55. The Debtor made the Rent Transfer to HPC without receiving reasonably equivalent value in exchange for the transfer.
56. At the time of the Rent Transfer, the Debtor was engaged or was about to engage in a business or a transaction for which the remaining assets of the Debtor were unreasonably small in relation to the business or transaction; or intended to incur, or believed or reasonably should have believed that he would incur debts beyond his ability to pay as they became due.
ALTER EGO/REVERSE PIERCING CLAIMS
In the context of a motion to dismiss, the Court's charge in reviewing the allegations recited above is to assume them as true and construe them in favor of the Plaintiff and, upon so doing, determine whether Plaintiff can prove any set of facts which would entitle him to relief. The Court has done so and must conclude that the Sixth and Seventh Claims for Relief must be dismissed.
The first issue raised by HPC may be quickly disposed of. HPC first asserts that the Trustee does not, as a matter of law, have standing to bring this "alter ego" cause of action. HPC relies for authority on the decision of the district court in In re M & L Business Machine Co., Inc., 136 B.R. 271, 275-278 (Bankr.D.Colo.1992), aff'd, 160 B.R. 850, 851 (D.Colo.1993). In the context of a motion to dismiss, this argument is without merit. Regardless of the precise legal theory proffered in support of a set of facts, if the facts state some claim for relief, even if other than that framed by the Plaintiff, the court may not dismiss the complaint. See e.g. Evans v. McDonald's Corp., 936 F.2d 1087 (10th Cir.1991). Thus, if the Trustee pleads some set of facts which form a basis for relief, he has standing to pursue it.
Moreover, as the Plaintiff points out, M & L is distinguishable. There, the classic alter ego theory was being pursued. The plaintiffs in a state court proceeding, which the trustee sought to stay, were suing the principals of the corporation in which they had invested alleging that the corporate principals were the alter egos of the corporation and that they should be held accountable for the injuries suffered by the plaintiffs. The court's analysis turned on the question of who at state law could bring the claim. "In Colorado, an action to pierce the corporate veil belongs to the creditors of the corporation not to the corporation itself." Id. at 278. Thus, the bankruptcy trustee for the corporation could not bring the claim.
HPC attempts to reduce the holding of M & L to a rule of law that the trustee in bankruptcy has no standing to bring alter ego claims. But that effort overstates the holding and ignores the facts out of which M & L arose. This Court simply cannot and will not accept such a sweeping over-statement of the law and dismiss the Complaint. Standing to bring the claim is not the issue.
Here, the Trustee is the trustee of the principal's estate, not the corporation's estate, and he endeavors to "pierce the veil of the corporation" to reach the assets of the corporation. His premise is that the corporation is the alter ego of the individual and, as an adjunct to that theory, the Trustee seeks to "reverse pierce" the veil of the corporation for the benefit of the principal's creditors. A review of Colorado law on the traditional "alter ego" and "piercing the corporate veil" theory is instructive. "The alter ego doctrine is a means by which creditors may hold stockholders liable for corporate obligations." Lowell Staats Min. Co., Inc. v. Pioneer Uravan, Inc., 878 F.2d 1259, 1262 (10th Cir.1989) citing Rosebud Corp. v. Boggio, 39 Colo. App. 84, 561 P.2d 367, 371 (1977). The Tenth Circuit in Lowell also quoted the Colorado Supreme Court which expounded on that doctrine.
Generally, a corporation is treated as a legal entity separate from its shareholders, thereby permitting shareholders to commit limited capital to the corporation with the assurance that they will have no personal liability for the corporation's debts. Krendl & Krendl, Piercing the Corporate Veil: Focusing The Inquiry, 55 Den.L.J. 1 *999 (1978). When, however, the corporate structure is used so improperly that the continued recognition of the corporation as a separate legal entity would be unfair, the corporate entity may be disregarded and corporate principals held liable for the corporation's actions. Id. at 2. Thus, if it is shown that shareholders used the corporate entity as a mere instrumentality for the transaction of their own affairs without regard to separate and independent corporate existence, or for the purpose of defeating or evading important legislative policy, or in order to perpetrate a fraud or wrong on another, equity will permit the corporate form to be disregarded and will hold the shareholders personally responsible for the corporation's improper actions. (Citations omitted). Id. citing Micciche v. Billings, 727 P.2d 367 at 372-373 (Colo. 1986).
The Trustee's claims for relief and the facts upon which they are predicated certainly do not fall within the framework described above. The Trustee recognizes that and that recognition is apparent in his caption where he requests "reverse piercing." The Tenth Circuit, in Cascade Energy and Metals Corp. v. Banks, 896 F.2d 1557 (10th Cir.1990), was confronted with this anomaly of the alter ego theory. Cascade Energy involved a dispute between the mine's principal promoters and a group of investors over a gold mine. The investors prevailed in the district court which held that the promoter and his affiliated corporation, the managing agent for the joint venture, breached fiduciary duties owed to the venture. In addition the district court, on separate grounds, "reverse pierced" the veils of related entities of the promoter. The Tenth Circuit reversed on the alter ego and reverse piercing theory. The Tenth Circuit elaborated:
We believe that a Utah court would not reverse pierce the entity veils of (the four entities) for a variety of reasons. First, corporate veils exist for a reason and should be pierced only reluctantly and cautiously. The law permits the incorporation of businesses for the very purpose of isolating liabilities among separate entities. (Citations omitted) . . . Second, this case largely involves "reverse" piercing, and it is far from clear that Utah has adopted the doctrine of "reverse" piercing, much less this particular variant of "reverse piercing." . . . The reverse-pierce theory presents many problems. It bypasses normal judgment-collection procedures, whereby judgment creditors attach the judgment debtor's shares in the corporation and not the corporation's assets. Moreover, to the extent that the corporation has other nonculpable shareholders, they obviously will be prejudiced if the corporation's assets can be attached directly. In contrast, in ordinary piercing cases, only the assets of the particular shareholder who is determined to be the corporation's alter ego are subject to attachment. See 1 Fletcher Cyc. Corp. § 41.20 at 413 (1988 Supp.) ("A necessary element of the alter ego theory is that the fraud or inequity sought to be eliminated must be that of the party against whom the doctrine is invoked, and such party must have been an actor in the course of conduct constituting the abuse of corporate privilege the doctrine cannot be applied to prejudice the rights of an innocent third party.") Absent a clear statement by the Supreme Court of Utah that it has adopted the variant reverse piercing theory urged here upon us, we are inclined to conclude that more traditional theories of conversion, fraudulent conveyance of assets, respondeat superior and agency law are adequate to deal with situations where one seeks to recover from a corporation for the wrongful conduct committed by a controlling stockholder without the necessity to invent a new theory of liability. Id. at 1576-1577 (emphasis added).
As HPC urges, the Tenth Circuit casts doubts on the viability of the reverse piercing theory but, more importantly, recognizes that federal courts may apply it only if the law of the state which obtains has accepted the theory. HPC found no authority in Colorado in support of such a theory and neither did the Trustee. At best, the Trustee cited two cases in which the Tenth Circuit, in fact, "reversed pierced" a corporate veil to reach the assets of a corporation. Neither is *1000 dispositive nor persuasive. The cases predate Cascade by a substantial number of years and Colorado law applies to only one, Fitzgerald v. Central Bank & Trust Co., 257 F.2d 118 (10th Cir.1958). In that case, the court rather blindly applied traditional alter ego theory analysis without confronting the fact that it was reaching the assets of the corporation because of the fraud or injustice on the part of the president. It never explicitly addressed the concept of reverse piercing or whether Colorado had adopted such a theory. Thus, the better view is that articulated more recently by the Tenth Circuit in Cascade and that is the law by which the Court is bound.
The reverse piercing theory is an aberration which, if invoked, would prejudice not only the nonculpable shareholders, as the Tenth Circuit intimates in Cascade, but also the rightful creditors of the corporation whose assets are subsumed for the benefit of the creditors of the individual. What of the creditors of HPC who relied on its separate corporate existence in doing business with it? They would be left without any assets to satisfy their rightful and superior claims. The Trustee in effect urges a "dissolution" of HPC without the protections, either procedural or substantive, afforded to its creditors by the Colorado Business Corporation Act. See C.R.S. §§ 7-114-106, 107 and 108. Pursuant to those sections, claimants, known and unknown, would be entitled to notice of the dissolution and an opportunity to pursue their claims. In the event assets were distributed to shareholders, the statute permits a claimant, when there are insufficient corporate assets to satisfy his claim, to pursue the shareholders for his pro rata share of the value of assets distributed. C.R.S. § 7-114-108. The remedy sought by the Trustee also raises significant "due process" concerns as regards the interests of any creditors of HPC who may have dealt separately with that entity. See In re Auto-Train Corp., Inc., 810 F.2d 270 (D.C.Cir.1987). In addition, and without conceding the viability of the reverse piercing theory, which is dubious, it and the alter ego theory are equitable remedies which must be sparingly invoked and, as is true of all equitable remedies, only when there is no adequate remedy at law.
Against this backdrop, this Court views the Complaint and the allegations therein. Assuming that the Trustee can prove every allegation of the Complaint, neither the Sixth nor Seventh Claims for Relief states a claim upon which relief could be granted. The Trustee has not alleged a transfer of property of the Debtor to HPC. Instead, he merely alleges that the Debtor fraudulently transferred his shares to his children, continued to maintain possession and control of the shares and the corporation and that it was a mere instrumentality for the Debtor. If all that is true, the claims, if any, must be against the shareholders to recover the shares and to recover the assets of the corporation through more conventional collection channels, such as dissolution of the corporation. C.R.S. §§ 7-114-106, 107 and 108. This remedy would afford the corporation's creditors the traditional protections. The Trustee cannot bypass these conventional legal mechanisms of reaching the corporation and its assets by simply asserting alleged misconduct on the part of the Debtor, the president of the corporation.
In addition, the facts outside the pleadings regarding the corporate formalities observed by HPC, which are established by the Affidavit of Lawrence E. Hamilton ("Hamilton Affidavit"), do not compel a different result. In fact, they corroborate the Court's conclusion. The Hamilton Affidavit supplements the Complaint regarding Hamilton's relationship with HPC. Specifically, Hamilton attests that he is the President of HPC and has served in that capacity since 1976 to the present, that he served as a member of HPC's Board of Directors and that he is familiar with the history and operations of HPC. HPC was established under Articles of Incorporation dated July 15, 1976, a copy of which is attached to the Hamilton Affidavit. In addition, Hamilton appended a copy of the Certificate of Incorporation signed by the Secretary of State of the State of Colorado dated July 16, 1976. A list of all the meetings and what the Debtor attests are representative samples of the minutes of those meetings are attached. HPC operates under Bylaws, a current copy of which is also attached to the Hamilton Affidavit.
*1001 In addition, the Debtor attests regarding the following corporate formalities:
1. HPC maintains records of all stock issued and transferred, and retains copies of the canceled stock certificates as well as copies of share certificates presently outstanding. The current holder of 1,490 shares, comprising 100% of the outstanding shares in HPC, is Edward M. Heppenstall who holds such shares pursuant to a Voting Trust Agreement dated April 11, 1992, a copy of which is Attachment 9 to the Affidavit. Attachments 10 and 11 to the Affidavit are copies of Voting Certificate for Capital Stock No. 1 and Voting Certificate for Capital Stock No. 2, respectively.
2. HPC operates on a fiscal year commencing on July 1 and ending on June 30. Federal and State Income Tax Returns have been filed by HPC for the fiscal year ended June 30, 1977 and each year thereafter to and including June 30, 1994.
3. HPC currently maintains, and has maintained since shortly after its inception a complete set of financial records kept on a monthly basis.
4. HPC has in the past maintained and currently possesses a business license issued by the City of Aurora's Revenue Division.
5. HPC is, and has been continuously since the late 1970's, a licensed real estate broker in the State of Colorado.
6. HPC has in the past and continues to file biennial reports with the Colorado Secretary of State so as to remain in good standing as a Colorado corporation.
7. HPC has been the maker of several promissory notes evidencing funds borrowed from banks including First Interstate Bank, Century Bank and Union Bank & Trust.
8. HPC has had four or more employees since 1991 and payroll records are maintained on a monthly basis for such employees. As of March 30, 1993, HPC had five employees: Janelle M. Griest, Joyce Kay Hoppal, Tammy Perea, Gary A. Freeman and the Debtor.
9. HPC currently withholds and, since its inception, has withheld FICA and State and Federal Income Tax from employee wages and prepared on a monthly basis reports of same.
10. HPC pays Unemployment Insurance taxes for its employees and files reports of same.
11. HPC provides Worker's Compensation Insurance for its employees.
12. HPC maintains a bank escrow bank account as required by the rules and regulations of the Colorado Real Estate Commission and receives monthly bank statements of same.
13. HPC maintains a bank account for its business operations and receives monthly bank statements for same.
14. A significant portion of HPC's business includes the leasing and fee management of commercial office buildings and, accordingly, HPC from time to time has entered into leasing and management agreements with owners of commercial office buildings.
15. HPC engages in real estate brokerage earning sales commissions for the sale of commercial and residential properties.
16. HPC is a member of the National Association of Realtors, the Colorado Association of Realtors and the Aurora Association of Realtors. It is a past member of the Denver Board of Realtors. HPC has maintained such affiliations from approximately 1979 to the present. HPC is also an approved broker for the U.S. Department of Housing and Urban Development (HUD).
17. HPC has its own stationery, business cards and facsimile transmittal forms.
Regarding his personal affairs, the Hamilton Affidavit establishes that:
1. Hamilton individually maintained his own personal records, finances, and had his own personal real estate and business investments apart from those of HPC. He held his personal funds in bank accounts other than those of HPC and filed his own personal income tax returns.
2. Hamilton was an officer and employee of HPC from its inception and there was in *1002 effect at all times an employment agreement governing his relationship to HPC.
3. Hamilton maintained his own personal residence and paid his own mortgage or rent payment at all times. For the past twelve years he resided in an apartment subject to a lease agreement with the apartment owners. He held in his own name certain investments, for the most part real estate equity interests. He attests that the ownership of these interests, and the others listed in his Petition, were distinct and separate from the assets of HPC and were not commingled with HPC's funds or assets.
Lastly, Hamilton attests in his Affidavit as to the allegations of collusive foreclosure:
1. Hamilton owned land at 2520 W. 23rd Avenue, Denver, Colorado, commonly known as Baby Doe's Matchless Mine Restaurant until January, 1992. The land was subject to a long term land lease with a subsidiary of Specialty Restaurants Corporation. He valued the land at about $700,000 as of January 1992. There were liens against the property at that time in excess of $1 million and the foreclosure of the property satisfied certain debts of his personal estate, specifically: National Traveler's Life Insurance Note having a balance of about $251,000; Cherry Creek National Bank Note having a balance of about $232,000; and Lorraine J. Hamilton Notes credited in the amount of $100,000. There were in excess of $400,000 in junior liens that were extinguished by the foreclosure of the Baby Doe's property because of the failure of such lienholders to exercise rights of redemption.
2. Hamilton owned an undivided one-half interest in land at 9350 Grant Street, Thornton, Colorado, commonly known as Brittany Hill Restaurant until foreclosure occurred in May 1992. The land was subject to a long term land lease with a subsidiary of Specialty Restaurants Corporation. He values the land at about $250,000 as of that date. There were liens against such interest at that time in excess of $1 million. The foreclosure of the property satisfied his personal debts on account of the Lorraine J. Hamilton Notes in the amount of about $872,000. There were in excess of $200,000 in junior liens that were extinguished by the foreclosure of the Brittany Hill interest because of the failure of such lienholders to exercise rights of redemption.
Trustee's Memorandum of Law in Opposition to Hamilton Defendants' Motion to Dismiss and for Summary Judgment with Respect to Claims Six through Nine Asserted Against Hamilton Properties Corporation ("Trustee's Opposition") appends the affidavit of an attorney, one of the Trustee's counsel. That attorney attests that she has received certain documents in response to discovery requests both formal and informal. Those documents allegedly obtained are attached but they are not supported by the testimony of anyone in any form which can establish any type of foundation for the documents submitted. In fact, the Trustee's Opposition, with rare exception, is merely a reiteration of the Complaint without support meeting the requirements of Rule 56. It is replete with the conclusions about the Trustee's theory of the case but there are simply no, or grossly insufficient, facts offered in support of his theory. He certainly has not refuted the facts established by the Hamilton Affidavit nor has he demonstrated by Trustee's Opposition that there are genuine issues for trial. Yet, it is his burden as the plaintiff who will have the burden on the dispositive issues at trial, to go beyond the pleadings and, by affidavits, or by the "depositions, answers to interrogatories, and admissions on file, `designate' specific facts showing there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).
What the Hamilton Affidavit establishes is that HPC observed the corporate formalities, had employees, paid taxes and maintained a real estate broker's license. HPC has also demonstrated that the Debtor kept separate books and records, maintained his own bank account, held separate investments and filed his own tax returns. Even presuming and accepting as true that the Debtor was the controlling influence and decision maker for HPC, that he, through HPC, orchestrated the transfer of assets among entities and that *1003 there may have been commingling of assets, these allegations are not at all dissimilar to those which the Tenth Circuit expressly rejected as forming a basis for disregarding the corporate entities in Cascade. In Cascade, the Tenth Circuit noted that the district court decision was based on
three key factual findings: (1) Weston (the promoter) dominated the boards of directors and the management of the four entities; (2) Weston was "single-handedly" able to transfer assets among the various entities and did so; and (3) Weston commingled the funds of the various entities in the sense that when he transferred funds from one entity to another, the funds were deposited in the receiving entity's general bank account and were mixed with other funds there. Id. at 1576.
The Circuit agreed that the record in the case supported the findings made by the district court. "But the issue is whether those facts constitute sufficient grounds for disregarding the entity status of the entities in this case." The court found they were not. The factors it considered in so concluding are instructive:
Although the promoter used his entities to further his personal objectives, just as corporate parents often use their subsidiaries to achieve corporate goals, (the promoter) held the entities out to the world as separate organizations. No one disputes that (the promoter's) entities were validly organized and that de jure formation requirements were met. Indeed, (one entity) was publicly held. . . . The entities filed separate tax returns. The entities held separate shareholder and director meetings. In sum, the district court made no finding that the entities did not maintain the external incidents of separateness.
. . . [E]ven if (the promoter's) entities failed to comply with all the formalities that they should have and even if (he) did freely transfer funds among the entities, claimants have not shown how their injury was connected with the entities' commingling or lack of formalities or how the claimants relied on the entities' separateness or the lack thereof. As the Utah corporate veil test demonstrates, it is not enough to declare that two corporations or a corporation and its prime shareholder are not really separate. The claimant must show that recognition of the corporate form would sanction a fraud, promote injustice, or [produce] an inequitable result.
But the "injustice" or "inequity" on which a piercing claim is based cannot stem from the mere existence of limited liability, which is a legitimate characteristic of the corporate form. Rather, the "injustice" or "inequity" to the claimant must be connected with the lack of separateness between the corporation and its controlling shareholder and the failure to observe corporate formalities. Cascade Energy and Metals Corp. v. Banks, 896 F.2d at 1578.
Having concluded that the Trustee has failed to state a claim under his Sixth Claim for Relief, his Seventh Claim for Relief, which is premised on a finding that HPC is the alter ego of the Debtor, necessarily fails as well. Accordingly, this Court concludes that the Trustee's Sixth and Seventh Claims for Relief fail to state a claim upon which relief can be granted and ARE HEREBY DISMISSED.
RENT ASSIGNMENT CLAIMS
HPC's primary defense to the Trustee's Eighth and Ninth Claims for Relief is that they are barred by the statute of limitations imposed by 11 U.S.C. § 546, specifically that the Trustee failed to file this action within two years following his appointment. The file and the record in this case establish that the Debtor filed his bankruptcy case on March 19, 1993. The notice of the section 341 meeting of creditors, which issued on March 24, 1993, advised that Jeffrey A. Weinman was the Interim Trustee. A Notice of Appointment of Interim Trustee dated March 30, 1993, was filed with the Court on March 31, 1993. That Notice advised that
Unless another trustee is elected at the meeting of creditors held pursuant to 11 U.S.C. Section 341, the interim trustee shall serve as trustee without further appointment or qualification. The interim trustee shall be deemed to have accepted the appointment unless the interim trustee notifies the Court and the United States *1004 Trustee in writing of rejection within five (5) days after receipt of notice of appointment.
The section 341 meeting of creditors was held on April 23, 1993, and the Complaint in this adversary case was filed on April 21, 1995.
It is the position of HPC that the section 546 statute of limitations runs from the appointment of an interim trustee, not from the section 341 meeting of creditors. The Trustee, on the other hand, maintains that the time period should run from the section 341 meeting of creditors at which time his position becomes permanent.
Section 546 of the Code applicable to this case reads as follows:
An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of (1) two years after the appointment of a trustee under section 702 . . . of this title; or (2) the time the case is closed or dismissed.
Section 702 of the Code, to which section 546 explicitly refers, speaks to the election of a trustee at the meeting of creditors held under section 341. Particularly, that section dictates that "if a trustee is not elected under this section, then the interim trustee shall serve as trustee in the case."
The section 546 limitations period has been the source of significant debate but the majority of courts have followed the view espoused by the Trustee. In re Art & Co., Inc., 179 B.R. 757, 761 (Bankr.D.Mass.1995). Very recently, in a well articulated and persuasive opinion, the bankruptcy judge in Art & Co. concluded that the majority view is the better view.
There are two rationales that support the majority view. First and foremost, Section 546(a)(1) expressly and plainly refers to the appointment of a permanent trustee under Section 702 and not the appointment of an interim trustee under Section 701. Secondly, the role of the interim trustee is that of a caretaker as his duties and tenure are restricted under Section 701.
This Court adopts the rationale pronounced, especially with respect to the explicit language of section 546(a)(1) and its reference to section 702 and not 701, and concludes, that the Complaint was timely filed.
With respect, then, to the substance of the Eighth and Ninth Claims for Relief, HPC secondarily argues that the Rent Assignment Claims are meritless because HPC returned the entire economic benefit of the assignment to the Debtor through accounting credits. What is evident is that HPC does not dispute the essential facts which are alleged in the Complaint.[3] Rather, HPC's argument is in the nature of an affirmative defense as to which it carries the burden of proof at trial.
HPC points out that it appears as though HPC received a net benefit of $20,000.00, but that the issue is whether, because "the entire economic benefit of the transaction" was restored to the Debtor through the accounting credits a year later (described in the affidavit of Kenneth A. McCarty, a CPA and the accountant for HPC and the Debtor), the transfer should not be set aside. The Trustee observes succinctly that HPC's position is stated without any supporting legal authority. The Court makes the same observation and finds that, without more, what HPC has proffered does not provide grounds for the grant of summary judgment in HPC's favor nor is it sufficient to shift the burden to the Trustee to come forward with evidence in support of the elements of his case. Accordingly, the Motion for Summary Judgment on this issue must be DENIED.
CONCLUSION
The Court has considered the arguments of the parties as presented in the Motion to Dismiss and for Summary Judgment, with Memorandum Brief[4] and the file in this case *1005 and, in accordance with the foregoing findings and conclusions, it is hereby
ORDERED, that the Motion to Dismiss and for Summary Judgment, with Memorandum Brief IS GRANTED as to the Sixth and Seventh Claims for Relief of the Complaint and the Trustee's Sixth and Seventh Claims for Relief ARE DISMISSED; and it is
FURTHER ORDERED, that the Motion to Dismiss and for Summary Judgment, with Memorandum Brief as to the Eighth and Ninth Claims for Relief of the Complaint IS DENIED; and it is
FURTHER ORDERED, that the Eighth and Ninth Claims for Relief are reserved for a trial in this case, and the Court will issue a separate order setting the matter for trial before the undersigned judge.
NOTES
[1] The Complaint was originally brought against multiple Defendants for different causes of action. The Court issued an order to show cause to the Plaintiff as to why the Defendants other than Hamilton Properties Corporation ought not be dismissed as having been improperly joined. At a hearing on the order to show cause the Court concluded that it was appropriate to sever all Defendants other than Hamilton Properties Corporation. The Trustee has since filed separate adversary proceedings against those Defendants.
[2] Because the motion was filed in response to the Complaint, it addresses various claims for relief as to all Defendants. In light of the order severing all Defendants except HPC, the procedural order also limited the issues to be argued to the claims against HPC only.
[3] The undisputed facts regarding the Rent Assignment are set forth in paragraphs 44-48 on page 9 above.
[4] Various legal theories have been argued by the parties in the pleadings. Although this opinion does not explicitly address each of them, that should not be construed to mean they were not considered. Rather, the various positions were considered and rejected or not considered as dispositive or necessary to a resolution of the Motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030929/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7080
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT JAMES GADSEN, a/k/a Axe-Head, a/k/a Robert James,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:97-cr-00274-PMD-1)
Submitted: November 10, 2009 Decided: December 10, 2009
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert James Gadsen, Appellant Pro Se. Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert James Gadsen seeks to appeal the district
court’s order treating his petition for a writ of error audita
querela as a successive 28 U.S.C.A. § 2255 (West Supp. 2009)
motion, and dismissing it on that basis. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Jones v. Braxton, 392 F.3d 683, 687 (4th Cir. 2004); Reid v.
Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Gadsen has
not made the requisite showing.
Accordingly, we deny a certificate of appealability
and dismiss the appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
2
materials before the court and argument would not aid the
decisional process.
DISMISSED
3 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/453018/ | 763 F.2d 17
2 Fed.R.Serv.3d 486
Robert J. BORERI, et al., Plaintiffs, Appellees,v.FIAT S.P.A., Defendant, Appellant.
No. 84-1774.
United States Court of Appeals,First Circuit.
Argued March 7, 1985.Decided May 30, 1985.
1
Richard L. Edwards, Boston, Mass., with whom Richard P. Campbell and Campbell & Associates Professional Corp., Boston, Mass., were on brief for defendant, appellant.
2
Lawrence Moniz, Taunton, Mass., with whom Francis M. O'Boy and O'Boy & Moniz, P.C., Taunton, Mass., were on brief for plaintiffs, appellees.
3
Before TORRUELLA and ALDRICH, Circuit Judges, and SELYA,* District Judge.
4
SELYA, District Judge.
5
This proceeding has its roots in a traffic accident which occurred on August 12, 1979 in Freetown, Massachusetts. On that date, Robert J. Boreri was severely injured when his 1972 Fiat 128AF station wagon left the road. Contending that the proximate cause of the mishap was the failure of the vehicle's steering mechanism, Boreri brought this product liability suit on August 9, 1982 in the United States District Court for the District of Massachusetts.1 We review in some detail the factual/procedural backdrop against which this appeal is played out before attempting to frame the issues.
6
I. BACKGROUND.
7
Boreri's complaint, which asserted claims sounding in negligence, breach of warranty, and strict liability, was sued out against both Fiat S.p.A. (Fiat), the manufacturer of his vehicle, and Fiat Motors of North America, Inc. (Fiat N.A.), Fiat's distributor in the United States. Fiat is an Italian corporation with its principal place of business in Turin, Italy. Fiat N.A., which is not a party to this appeal, is a New York corporation headquartered in Montvale, New Jersey.
8
On November 22, 1982, Boreri filed and served a set of interrogatories to be answered by Fiat in accordance with Fed.R.Civ.P. 33. But, the attention of the parties was soon diverted from this initiative. On February 4, 1983, Fiat moved to dismiss the action against it for lack of personal jurisdiction, arguing that it was an Italian corporation wholly distinct from Fiat N.A., doing no business in Massachusetts, and not susceptible to the amenities of a Massachusetts forum. Fiat also moved to quash service of the summons and complaint, claiming a failure of compliance with the provisions of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163 (1969). The district court denied Fiat's motion to dismiss on July 25, 1983 and ordered the parties to resolve any dispute anent service on that basis. That decree, in time, rekindled the parties' interest in the dormant interrogatories; on December 23, 1983, they moved jointly to extend Fiat's time to "answer or otherwise respond" until February 1, 1984. (The court below never ruled on this motion.)
9
On the appointed date (February 1), Fiat served no answers; instead, it filed a broadbrush motion to strike the interrogatories, on the ground that they had been promulgated without regard to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, done March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, codified at 28 U.S.C. Secs. 1781 et seq. (Hague Convention). The appellant requested, inter alia, an order that it be exempted from future discovery except in strict accordance with the Hague Convention. The motion was unaccompanied by any affidavits, documentary proffers, or source material referable to the stance of the Italian government. The district court's attention was not directed to any specific provision of foreign law. See Fed.R.Civ.P. 44.1.
10
We digress for a moment. The Hague Convention "was designed to deal with the frustration of American lawyers seeking evidence in foreign countries and foreign nations' perceptions of excessively broad discovery from America." Note, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad, 132 U.Pa.L.Rev. 1461, 1465 (1984). In the United States in this modern era, civil pretrial discovery is not only extensive, but is in the first instance conducted by the parties themselves. Such a concept is alien to the ways of most civil law countries, where the taking of all evidence is exclusively a function of the court. In those countries, discovery American-style is often considered an affront to the nation's judicial sovereignty.
11
The Hague Convention represented an attempt to bridge this gap between the American and civil law methods of obtaining discovery. It outlines three methods of securing evidence, i.e., (i) letters of request (Articles 1-14), (ii) taking of evidence by diplomatic officers of the forum state (Articles 15-16), and (iii) taking of evidence by duly appointed commissioners (Article 17). Under Article 23, however, signatory nations may refuse to execute any or all letters of request. Most of the member nations have imposed some restriction on the procedure; five nations, including Italy, have precluded it entirely. The United States ratified the Convention in 1972, but Italy did not do so until 1982 (and then, only with the plenary exercise of its Article 23 right).
12
It is in the albedo of this delicate diplomatic byplay that we return to the case at bar. On February 22, 1984, a magistrate of the district court, to whom the nondispositive motion to strike had been referred, see Fed.R.Civ.P. 72(a), denied the motion in its entirety. The magistrate held that the motion was untimely; that Fiat had waived its right to object both by utilizing standard pretrial discovery techniques to its own behoof (the appellant, for example, had sought to depose Boreri's expert pursuant to Fed.R.Civ.P. 26) and by moving for the aforementioned extension of time; and that use of the Hague Convention was in any event not obligatory, but was discretionary with the judicial officers of the contracting states. Noting that Fiat had failed affirmatively to demonstrate that the Italian government objected to private litigants utilizing the Federal Rules of Civil Procedure to propound interrogatories to Italian citizens who do business in the United States, the magistrate declined to impress the strictures of the Convention upon the appellee.
13
On March 6, 1984, Fiat moved to have the district court reconsider and set aside the magistrate's order.2 On August 10, 1984, the district court summarily affirmed the magistrate's order denying Fiat's motion to strike, and simultaneously entered an order denying Fiat's request that it reconsider the magistrate's decision.
14
The instant appeal thereupon ensued.3 Instanter, we issued an order questioning appellate jurisdiction in light of the absence of any final judgment. Fiat vouchsafed the appropriateness of our jurisdiction under 28 U.S.C. Sec. 1291, contending that the August 10 decrees met all of the criteria required of immediately-appealable collateral orders. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Alternatively, Fiat requested that we treat its appeal as a petition for a writ of mandamus, thereby conferring jurisdiction under 28 U.S.C. Sec. 1651. After full briefing upon the jurisdictional issues, we entered an order on December 3, 1984 reserving those questions for decision until the time of hearing on the merits of Fiat's appeal. Incremental briefing and oral argument followed in due course.
15
Inasmuch as we conclude, for the reasons which are stated below, that this appeal is not seasonably before us, we have no occasion to attempt to calibrate the delicate balance of competing concerns which must eventually be struck in determining the force and effect of the Hague Convention in civil litigation throughout our federal court system.4II. COLLATERAL ORDER JURISDICTION.
16
Congress has empowered the federal courts of appeal to review "all final decisions of the district courts." 28 U.S.C. Sec. 1291. Discovery orders, in the ordinary course, are not considered "final", as the litigation in conjunction with which the discovery has been sought continues to pend in the district court. Grinnell Corp. v. Hackett, 519 F.2d 595, 596 (1st Cir.), cert. denied sub nom. Chamber of Commerce v. United Steelworkers of America, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975). Hence, such orders are not, usually, immediately appealable. Id. Fiat, however, argues that the exigencies of its situation warrant special treatment under the exception to the finality rule enunciated by the Court in Cohen, 337 U.S. at 545-47, 96 S.Ct. at 1225-26, and further explicated in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-172, 94 S.Ct. 2140, 2148-2150, 40 L.Ed.2d 732 (1974). To be eligible for review as a collateral order under the grace of Cohen, the ruling "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); see also Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981).
17
In this circuit,
18
"(f)our requisites of appealability have been gleaned from the Cohen opinion and the cases applying it. The order must involve: (1) an issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial; (2) a complete resolution of the issue, not one that is "unfinished" or "inconclusive"; (3) a right incapable of vindication on appeal from final judgment; and (4) an important and unsettled question of controlling law, not merely a question of the proper exercise of the trial court's discretion.
19
United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979). See also, to like effect, In re American Colonial Broadcasting Corp., 758 F.2d 794, 803 (1st Cir.1985); In re San Juan Star Co., 662 F.2d 108, 113 (1st Cir.1981); In re Continental Investment Corporation, 637 F.2d 1, 4 (1st Cir.1980). We have summarized these requisites as "separability, finality, urgency, and importance." Continental Investment Corp., 637 F.2d at 5.
20
Refining the essence still further, we have observed that the third integer, variously referred to as urgency or irreparable harm, should be the "central focus" and perhaps even the "dispositive criterion" of appellate jurisdiction over such orders. San Juan Star Co., 662 F.2d at 112. The first and second criteria--separability and finality--have been described as facets of the analysis of urgency, e.g., id., while the last, importance, has been said to be either another facet of that element, or simply not relevant. Id. See also Continental Investment Corp., 637 F.2d at 6-7. Despite our expressed sense that importance "is not analytically a proper component of the collateral order test," San Juan Star, 662 F.2d at 113, we are mindful that the Court (although apparently never having rejected an appeal by reason of the absence of that factor alone) has continued to include importance in its formulation of the doctrine. Firestone Tire and Rubber Co., 449 U.S. at 374-75, 101 S.Ct. at 673-74.
21
With the subtle shadings of this chiaroscuro standard in mind, we will ponder our jurisdiction to hear this appeal in light of the quadrat of enumerated benchmarks. Before proceeding to do so, however, we note--and promptly debunk--the appellant's attempt to skew the issue. Fiat argues that whether a district court may refuse to apply the Hague Convention to pretrial discovery involving a foreign litigant is an issue of first impression at the appellate level,5 which must in and of itself be seen as collateral to the main litigation. But, this focus on the novelty and salience of the underlying issue alone is out of kilter. Cohen and its progeny teach that, for purposes of appellate review, the primary question to be asked is whether the circumstances surrounding the substantive question render it immediately appealable. So, in fidelity to our precedents and to the guideposts of the Court, we cannot take the easy road mapped out by the appellant; rather, we must analyze whether the posture of this appeal permits us to vault the jurisdictional hurdle.
22
We turn, therefore, to the four-part analysis which the caselaw demands.
A. Separability
23
The degree of primacy to be accorded to the Hague Convention involves the rights of foreign sovereigns and their nationals, concerns of international comity, and the manner or procedure by which evidence may be obtained in a civil trial involving foreign litigants. These considerations are peripheral to the litigation itself (which involves, at bottom, questions of negligence, breach of warranty, liability, and damages). In this sense, the issues which animate this interlocutory appeal have no direct effect upon, and are not directly affected by, the triable issues in the main litigation. In light of these factors, we are willing to concede that this appeal does involve "an issue essentially unrelated to the merits of the main dispute," Continental Investment Corp., 637 F.2d at 4, and that the August 10 orders are separable within the meaning of Cohen.
B. Finality
24
In this circuit, finality, which customarily requires a complete decision on the issue by the trial judge, see, e.g., San Juan Star Co., 662 F.2d at 112; Continental Investment Corp., 637 F.2d at 5, has been found to exist when "[t]here are no further steps that the [appellant] can take to avoid imposition of the procedural requirements it seeks to challenge here." United States v. Alcon Laboratories, 636 F.2d 876, 885 (1st Cir.), cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981). Even under this fairly generous routing, Fiat's ship founders on these shoals.
25
First, we have reason to question, generally, the posture in which the instant appeal arises. Even a litigant which is under a perceived duty to make discovery may simply refuse to comply and seek to palliate or relieve any sanction which may ensue for that refusal. See Grinnell Corp., 519 F.2d at 598. (In this case, of course, the district court has not yet ordered Fiat to answer the interrogatories; the court below has only denied the appellant's motion to strike.) As a general rule, the Court has denied review of pretrial discovery orders under the Cohen collateral order doctrine precisely because "a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling." Firestone Tire and Rubber Co., 449 U.S. at 377, 101 S.Ct. at 675. Following such a path, of course, enhances at least two worthwhile objectives: it erases any doubts as to "finality" and it retains the essential shape of Cohen as a narrow exception to the salutary rule interdicting interlocutory appeals. Since Fiat can in this manner, by following a different procedure, yet obtain a final decision which would raise more squarely the very issues which it labors to present here, the finality prong of the four-part test would, under the best of circumstances, be subject to the gravest of doubts.
26
The no-finality cheese is made the more binding in this instance by meticulous analysis of what has transpired to date. Fiat received these interrogatories in September, 1982. It did not raise, then or promptly thereafter, the Hague Convention issue.6 In December of 1983, the parties filed their joint motion to extend the time within which Fiat would respond to the interrogatories. Fiat gave no contemporaneous indication that it objected to the appellee's Rule 33 initiative at all. It was not until February 1, 1984 that Fiat challenged the entire set of interrogatories, clutching the Hague Convention to its corporate breast as an impenetrable shield. At that point, the appellant chose to raise the issue in the most nonspecific way. It filed a motion to strike all of the interrogatories. Such a motion may be employed by a defendant only to obtain relief from "redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). And, such motions are narrow in scope, disfavored in practice, and not calculated readily to invoke the court's discretion. See, e.g., Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J.1984); Allegheny County Sanitary Authority v. United States Environmental Protection Agency, 557 F.Supp. 419, 426 (W.D.Pa.1983) aff'd, 732 F.2d 1167 (3d Cir.1984); Magnavox Co. v. APF Electronics, Inc., 496 F.Supp. 29, 35 (N.D.Ill.1980).
27
Fiat undertook no particularized examination of the interrogatories themselves; assayed no effort to provide even partial answers from sources which would not implicate information immurred on Italian soil; and made no sufficient fact-based showing that the evidence requested in the interrogatories, or some or all of it, was available only in Italy. No finger was lifted to ascertain whether some of the data was available through Fiat N.A. (although the codefendants are closely allied in their business dealings and share common counsel in this litigation). Rather than carefully using a scalpel deftly to reveal authentic Hague Convention problems which might exist, the appellant wielded a scythe with considerable abandon in a heavyhanded effort to mow down the whole field of questions. There is, in fine, no sign that the appellant sought any method for resolving the dilemma short of waving the Italian flag.7 Inasmuch as Fiat eschewed the entire array of intermediate maneuvers which could have avoided or mitigated the perceived onus of which it now complains, the appellant falls far short of our settled requirement: it has not approached the requisite showing that "[t]here are no further steps that [it] can take to avoid imposition of the procedural requirements it seeks to challenge here." Alcon Laboratories, 636 F.2d at 885.
28
Since Fiat still possesses options to ward off harm to any rights which may be conferred on it by the Hague Convention (e.g., attempting to answer some or all of the interrogatories with evidence obtainable in the United States, refusing to comply with an order--if one eventuates--which does violence to the treaty), the August 10 decrees of the district court lack the necessary finality.
C. Urgency
29
The urgency prong of the Cohen test turns on "whether irreparable harm would result to appellant[ ], not from the district court order itself, but from a delay in obtaining appellate review of it." Continental Investment Corporation, 637 F.2d at 5. In this instance, Fiat argues that compliance with the order would accomplish the harm and that appellate review after the completion of the main litigation would be useless. This asseveration, however, misses the point: the appellant has yet to be ordered to furnish answers to interrogatories; if such an order was to be made, it is presently unclear to what extent (if at all) the framing of answers would invade the encincture of the Hague Convention;8 if such an invasion was to be launched, it is sheer guesswork as to what sanction (if any) might be levied; and, if a sanction emerged, such an order would presumably be final and subject to immediate appeal under 28 U.S.C. Sec. 1291.9 See Firestone Tire and Rubber Co., 449 U.S. at 376, 101 S.Ct. at 674. See also text post at 18-19. And in this manner, Fiat may yet legitimately secure appellate review of its ostensible Hague Convention rights in the context of a final ruling, without being required to surrender them first. Denying review at this point simply does not leave the parties "powerless to avert the mischief of the order." Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 419, 62 L.Ed. 950 (1918). See also Grinnell Corp., 519 F.2d at 598. Nor does it inexorably result in any irretrievable loss of the appellant's rights.
30
This court is not unaware of the paradox thus created. Though disdaining to hear Fiat's substantive jeremiad now, we may yet be required to hear it anon, in the context of, say, an appeal from a contempt citation. The operative word, however, is "may": so many "ifs" dot the landscape that such a prediction can only be woven of the gossamer strands of vaticination, conjecture, surmise, and speculation. As previously indicated, there has been no showing that the parties, themselves, may not be able to resolve any conflict between the appellee's desire for information and the appellant's asserted rights as a foreign subject. Then, too, even in the absence of any accommodation, a fuller explication of the pertinent circumstances may reveal that no genuine impasse exists. Or, future rulings of the district court may serve to defuse the situation. Courts should not rush in where the need for them to tread is uncertain. Both patience and a due regard for the ripeness of controversies are virtues in judicial oversight. On this scumbled record, it remains entirely possible that the substantive question which Fiat urges us to reach may not, in the long run, require appellate resolution for purposes of this case (or, if it does, that it may subsequently be presented in a narrower, better ordered framework). In view of the oft-stated purpose of 28 U.S.C. Sec. 1291 to avoid "piecemeal appellate disposition[s]," Eisen, 417 U.S. at 170, 94 S.Ct. at 2149, the putative urgency anent this appeal, beset as it is with myriad contingencies, is much more apparent than real. Even if the appellant's present fears prove to be more than horrible imaginings, that prospect alone is not enough to circumvent the policy against scattershot review. As we have observed before, "[i]f the hardships of trial are routinely held to implicate a separate interest reviewable under the collateral order doctrine, the distinction between interlocutory and final orders would be seriously undermined, if not eliminated." Lamphere v. Brown University, 553 F.2d 714, 717 (1st Cir.1977). And, should the eventuality which Fiat dreads come to pass, we doubt that the district court would threaten to enter a default judgment, thereby placing the foreign national between the devil and the deep blue sea. Rather, we see the course of prudence for a trial court, in those circumstances, as being either to issue a contempt order (which we could, without doing violence to established practices, review immediately) or to employ the prophylaxis of 28 U.S.C. Sec. 1292(b).10 Either way, the appellant's rights would be fully protected.
31
We hold, therefore, that on the most salient furculum of the Cohen paradigm, the appellant has fallen several leagues short of making out the requisite showing of urgency and/or irreparable harm.
D. Importance
32
Importance, for collateral order purposes, refers to the scope of precedential value: whether the challenged ruling presents a critical question of controlling law, not theretofore definitively resolved, a decision as to which will settle the matter for the case at hand and for other cases as well. Continental Investment Corp., 637 F.2d at 6. There is no doubt that the question of the proper relationship between the Hague Convention and the Federal Rules of Civil Procedure has great significance for litigants, that the authorities are divided (see, e.g., n. 4, ante ), and that a decision on the issue would be helpful. Yet, the fact that "importance" is one of the requisites of a collateral order suggests that "precedential value" means more than being able to derive or abstract a particular question from an amorphous set of facts. It must also require that the question be presented in such a manner that it can be decided with full regard for its overarching effect. For the reasons to which we have previously adverted, see text ante at Parts II (B)-(C), the issue has been transshipped to us on a barebones record which is woefully inadequate to allow reasoned consideration of the competing concerns of comity and fairness. Such hypoplasia inhibits the careful evaluation needed in order to resolve the central inquiry which lies at the core of Fiat's entreaty. Without some flesh on the bones, it cannot be said that a question of importance, ripe for appellate intervention, has been meaningfully generated below.
E. Recapitulation
33
In summary, Fiat's attempt to force this appeal into the Cohen mold cannot succeed. The two most indispensable square corners--finality and urgency--are prominently absent, and even importance is far from cleancut. Only separability is present. The resultant polygon is misshapen and incomplete, with sides which trail off aimlessly into infinity. Inasmuch as Cohen requires that all of the requisites be met, we have no basis for asserting collateral order jurisdiction at this point in time. As the Second Circuit has noted, "[w]hile discovery orders are often 'separable from, and collateral to rights asserted in the action,' Cohen, supra, at 546, 69 S.Ct. at 1225, they rarely satisfy the further requisites for appealability under the collateral order doctrine." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) v. National Caucus of Labor Committees, 25 F.2d 323, 324 (2d Cir.1975). This case is but one further proof of the wisdom of that observation.
34
III. MANDAMUS JURISDICTION.
35
We need not tarry long in weighing Fiat's plea that we should entertain its quest for present remediation under our mandamus power. Congress has authorized the federal courts to issue writs which are "necessary or appropriate in aid of their respective jurisdictions" under the All Writs Act, 28 U.S.C. Sec. 1651(a). That currency is not profligately to be spent. The Supreme Court has cautioned that "[a]s extraordinary remedies, [writs of mandamus] are reserved for really extraordinary causes." Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 279, 19 L.Ed.2d 305 (1967).
36
This circuit has placed its own gloss on that caveat, noting that:
37
Mandamus is not, however, a substitute for interlocutory appeal for parties attacking the court's jurisdiction: it is appropriate only when the lower court is clearly without jurisdiction and the party seeking the writ has no adequate remedy to appeal.
38
Sorren, 605 F.2d at 1215.
39
As we have already indicated at some length, the appellant is not without recourse, not in unavoidable danger of forfeiting its perceived rights (which rights, at bottom, are less than clear), and not unable to appeal the issues under other (more propitious) circumstances. The district court's finding that it has in personam jurisdiction over Fiat is not presently in issue and the existence of subject matter jurisdiction in this diversity action cannot be gainsaid. 28 U.S.C. Sec. 1332.
40
Fiat's plight, though doubtless uncomfortable in its own view, is totally lacking in those extraordinary attributes which would motivate us to employ "the most potent weapons in the judicial arsenal," Will, 389 U.S. at 107, 88 S.Ct. at 279, and we decline to treat the appellant's desultory firing of blanks as a sufficient predicate for issuance of a writ of mandamus. See Grinnell Corp., 519 F.2d at 598-99.
41
IV. CONCLUSION.
42
We conclude, therefore, that this court has no jurisdiction over the district court's orders of August 10, 1984 because the same were interlocutory, and no adequate basis for the application of any recognized exception to the usual rule prohibiting intermediate appeals has been shown to exist. This being so, we have no cause prematurely to enter the Hague Convention thicket.
43
Fiat's appeal is, for these reasons,
44
Dismissed. The action is remanded to the district court. Costs in favor of the appellees.
*
Of the District of Rhode Island, sitting by designation
1
Boreri's wife (Janice) and his son (Kurt), each of whom claimed derivatively for loss of consortium, joined as parties plaintiff below and appear before us as appellees. Inasmuch as their rights are wholly dependent on the merit of Boreri's position, we treat the appeal as if Boreri was the sole plaintiff and we refer to him singularly as the appellee. But, it should be remarked that our decision applies equally to all
2
This motion, it seems to us, was tantamount to an appeal of the magistrate's order. Fed.R.Civ.P. 72(a). And, it does not appear from the face of the record before us to have been taken within the ten day period allowed for appeals from a magistrate's order on a nondispositive motion. See id. But, since neither the parties nor the court below have raised any issue of timeliness, and inasmuch as the merits of the motion to strike are only peripheral to our perspective on the matters before us, see text post, we need not explore this point further
3
On August 31, 1984, the appellant petitioned the district court to invoke the balm of 28 U.S.C. Sec. 1292(b) and to certify its August 10 rulings as involving important and controlling questions of law as to the merits of the Hague Convention issue. The district court declined so to do. The propriety of that denial is not directly questioned in these proceedings. So, Fiat can in no way hang its jurisdictional hat on the Sec. 1292(b) hook
4
Though we express no opinion today on the scope of the Hague Convention, or on the interplay between it and the Federal Rules of Civil Procedure, we note that federal appellate tribunals have been largely silent on these issues, and that the district courts seem sharply divided. Compare Graco, Inc. v. Kremlin, Inc., 101 F.R.D. 503 (N.D.Ill.1984) (Hague Convention does not preclude court from compelling answers to written interrogatories and compliance with document requests); Murphy v. Reifenhauser KG Maschinenfabrik, 101 F.R.D. 360 (D.Vt.1984) (principles of comity do not require United States plaintiff to use Hague Convention where defendant had already answered two sets of interrogativies, further delay would impede litigation, and Convention requests would likely be futile); Lasky v. Continental Products Corp., 569 F.Supp. 1227 (E.D.Pa.1983) (Hague Convention does not supercede the discovery provisions of the Federal Rules of Civil Procedure, especially in circumstances where it was not clear that compliance would violate German law or sovereignty) with General Electric Co. v. North Star International, Inc., No. 83 C 0838 (N.D.Ill. Feb. 21, 1984) (Plunkett, J.); Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58 (E.D.Pa.1983); and Schroeder v. Lufthansa German Airlines, No. 83 C 1928 (N.D.Ill. Sept. 15, 1983) (Kocoras, J.) (all holding that Hague Convention procedures must be used exclusively). And, in a forum non conveniens case, the District of Columbia Circuit has suggested, but not decided, that Convention procedures would be the only available means of obtaining certain evidence. Pain v. United Technologies Corp., 637 F.2d 775, 788-90 (D.C.Cir.1980) (dictum)
5
We are aware that the Supreme Court has recently refused to hear appeals from two state court rulings requiring foreign nationals to provide evidence consistent with state, rather than Hague Convention, procedures. The Court would not consider either a Michigan trial court's ruling involving the conduct of depositions, Volkswagenwerk Aktiengesellschaft v. Falzon, --- U.S. ----, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984), or a New York trial court's order refusing to strike interrogatories which had been served according to New York law. Club Mediterranee, S.A. v. Dorin, --- U.S. ----, 105 S.Ct. 286, 83 L.Ed.2d 223 (1984). Both appeals were dismissed, without opinion, for want of jurisdiction. Though we may not treat a dismissal for lack of jurisdiction as precedent for the issue of finality, see Pye v. Department of Transportation of the State of Georgia, 513 F.2d 290, 292 (5th Cir.1975), we cannot help but note that Dorin, at least, presented a situation strikingly similar to this one. There, as here, the foreign national defendant corporation moved to strike an entire set of interrogatories on the ground, broadly asserted, that the answers were obtainable only in France and thus required the use of Hague Convention procedures; there, as here, the nisi prius court declined to outlaw the interrogatories; and there, as here, the frustrated foreign national essayed an interlocutory appeal
6
To be sure, the parties spent much of 1983 litigating the question of in personam jurisdiction. But, the record before us does not indicate that any stay of discovery was in effect
7
We are compelled to note that there has been no showing by Fiat that the Italian government itself objects to these interrogatories. Though it is unclear whether this is required (and we express no opinion on the point), the three California cases dealing with this Hague Convention issue upon which the appellant so heavily relies, all revolved around a 1973 declaration by the West German Embassy that the discovery sought was contrary to West German law and public policy. The declaration was first made in Volkswagenwerk Aktiengesellschaft v. Superior Court of Sacramento County, 33 Cal.App.3d 503, 109 Cal.Rptr. 219 (1973), and relied upon in Volkswagenwerk Aktiengesellschaft v. Superior Court of Alameda County, 123 Cal.App.3d 840, 176 Cal.Rptr. 874 (1981), and in Pierburg GMBH & Co. KG v. Superior Court of Los Angeles County, 137 Cal.App.3d 238, 186 Cal.Rptr. 876 (1982)
8
The interrogatories themselves belie the dirge which Fiat so plaintively hums. Some of them appear patently not to encroach upon the precincts of the Hague Convention (e.g., Nos. 1, 2, 21, 22, 23). Some seek information which may or may not be available locally (e.g., Nos. 3, 14). Others are likely susceptible to response by use of the United States files of Fiat N.A. (e.g., Nos. 27, 28). We should not be expected, on this flimsy a record, to search out the needle in the Hague Convention haystack
9
The appellee has argued before us that Fiat, by its conduct and its voluntary resort to the discovery devices of the Federal Rules, has waived any right to fall back upon the Hague Convention. We do not in any way shrug off or foreclose that argument for whatever utility it may have in future proceedings. We simply do not reach it here
10
On a properly developed record, given the present state of the decisional law, see, e.g., n. 4, ante, there can be scant doubt but that carefully framed inquiries as to the scope and effect of the Hague Convention would constitute "difficult and pivotal questions of law not settled by controlling authority." McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir.1984). So postured, the odds are long that the case would then be an appropriate candidate for Sec. 1292(b) certification. See McGillicuddy, supra; In re Heddendorf, 263 F.2d 887, 888-89 (1st Cir.1959) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/336181/ | 536 F.2d 903
76-1 USTC P 9454
M. Elizabeth GARDINER, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 75-1504.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted April 13, 1976.Decided June 3, 1976.
J. Jay Bullock, Salt Lake City, Utah, for plaintiff-appellant.
Dennis M. Donohue, Atty., Tax Div., Dept. of Justice, Washington, D.C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews and Elmer J. Kelsey, Attys., Tax Div., Dept. of Justice, Washington, D.C., and Ramon M. Child, U.S. Atty., Salt Lake City, Utah, on the brief), for defendant-appellee.
Before HILL, SETH and DOYLE, Circuit Judges.
DOYLE, Circuit Judge.
1
This is a so-called income tax refund action in which the plaintiff-taxpayer sought recovery of allegedly erroneously or illegally paid taxes. The claim involves the tax years 1964, 1965 and 1966, and the amount in controversy is $7,846 together with interest. The claim was filed on September 6, 1973, and on April 15, 1974, the action in district court was filed. Thereafter, on March 7, 1975, the district court entered judgment in favor of the government. 391 F. Supp. 1202 (D.Utah 1975). Thereupon, a notice of appeal was filed and the appeal has now been perfected.
2
The problem arises out of the taxpayer's failure to deduct allowable depreciation for the years 1964, 1965 and 1966.
3
In the year 1963 the taxpayer purchased property which was subject to depreciation under Section 167 of the Internal Revenue Code of 1954. Notwithstanding that depreciation was allowable, plaintiff, in the tax years 1964, 1965 and 1966, did not claim depreciation deductions with respect to the property. (In subsequent years she did claim depreciation.) She filed her income tax returns for these years and paid taxes amounting to $2,661 for 1964; $4,858 for 1965; and $4,966 for 1966. When she sold the property in 1971 she did not reduce the basis by the depreciation which was allowed but not claimed for the years 1964, 1965 and 1966. As she figured it, she had a loss in the amount of $3,346.84. In the recomputation of the transaction the IRS determined that the sale of the property produced a taxable gain rather than a loss. It reached this conclusion by adding depreciation allowance of $7,586.79 for each of the years 1964, 1965 and 1966. As a result of the reduction of the basis by the inclusion of depreciation for these years, there resulted a taxable gain in the amount of $19,413.53. Appellant paid additional income tax as a result of the adjustment by the Internal Revenue Service.
4
When appellant discovered that she had failed to claim depreciation for the mentioned years, she filed a claim for refund of federal income taxes paid for those years in the amounts of $2,182, $2,828 and $2,836. The position of the Internal Revenue Service is that the statute of limitations, Section 6511(a) of the Internal Revenue Code of 1954, bars claims filed by a taxpayer after three years from the time the return was filed or two years from the time the tax was paid. The claim in question was not made until September 6, 1973, which is outside the statute of limitations.
5
Appellant argues that Sections 1311-1314 of the Internal Revenue Code are available to allow the case to be reopened even though such years would be otherwise barred by the statute of limitations. The procedural requirements for the application of the mentioned mitigation sections are met. Therefore, the sole issue for determination is whether or not the sections relied on by the plaintiff for relief, namely Sections 1311-1314, but, particularly, Section 1312(1) or (7), apply.
6
The trial court gave full consideration to the appellant's contention and in a fully reasoned opinion gave judgment to the government. In essence, the court determined that the failure to take allowable depreciation did not constitute a "transaction which was erroneously treated as affecting basis."
7
The contentions of appellant on this appeal are:
8
1. That the fact situation here qualifies as a circumstance of adjustment as described in Section 1312(1), and
9
2. As an adjustment of the basis of property after erroneous treatment of a prior transaction within the meaning of Section 1312(7).
10
Appellant would then give a broad interpretation to Sections 1311-1315, an interpretation which would broadly allow correction of an error made in the inclusion of income or in the allowance or disallowance of a deduction or in the tax treatment "of a transaction affecting the basis of property, whereby such error can be corrected notwithstanding the ordinary period of limitations is run."
I.
11
THE ARGUMENT IN SUPPORT OF APPLICABILITY OF SECTION 1312(1)
12
Section 1312(1)1 defines a circumstance in which adjustment is to be made and that is where there has been double inclusion of an item of gross income resulting from a determination by the IRS or a court requiring the inclusion in gross income of an item which was earlier erroneously included in the gross income of the taxpayer for another year. E.g., M. Fine & Sons Mfg. Co. v. United States, 168 F. Supp. 769, 144 Ct. Cl. 46 (1958). In Fine the taxpayer was given a factory by the local Chamber of Commerce. A few years later the factory was sold. IRS policy was that the donated factory had a zero basis and, therefore, no deductions for depreciation were allowed. When the factory was sold, the Fine Company computed its gain and paid the tax using the zero basis. Subsequently, the Supreme Court held in Brown Shoe Co. v. Commissioner, 339 U.S. 583, 70 S. Ct. 820, 94 L. Ed. 1081 (1950), that a taxpayer which received property from a community as an inducement to locate or expand its operations in the area was entitled to deductions for depreciation; that the basis in the hands of the taxpayer was the cost to the donating community. Thereupon, the Fine Company filed a claim for refund for the year of the sale, contending that its basis for the factory had been the cost to the Chamber of Commerce. The Commissioner agreed in part with the Fine Company and allowed the Company to use the donating community's cost basis, reduced by the previously disallowed annual depreciation, in computing the gain from the sale. He rejected the company's claim for refund for the prior years' disallowed depreciation. A suit was thereupon filed in the Court of Claims, relying on Section 1312(1). That court ruled that the disallowance of depreciation resulted in an erroneous inclusion in gross income, thus making the mitigation provisions applicable. Our case differs factually from Fine.
13
The Internal Revenue Service argues that Section 1312(1) is inapplicable. The section is activated by inclusion of an item of gross income required by the Commissioner to be included, notwithstanding that it was erroneously included in gross income in a previous year. The IRS says that this is not present here. The failure to take deductions for allowable depreciation does not constitute an erroneous inclusion in the taxpayer's gross income in another tax year.
14
The meaning of an item of gross income is, under Section 61 of the 1954 Code, limited to specific items and does not include everything that results in an increase in tax. It is restricted to positive items and does not include negative elements such as deductions (like depreciation), the omission of which results in increased taxes.
15
The Fine case does not support appellant's position. The Court of Claims there considered that factory depreciation was a constituent element of the taxpayer's cost of goods in determining its gross income and was not a simple deduction. Such an analysis would not apply here because our case is not concerned with the computation of gross income based upon cost of goods sold.
16
In our view depreciation is not part of the computation of gross income. Rather, it represents a deduction applicable to gross income.
17
In addition to this difference, it is to be conceded that our general approach to the issue differs from that which was followed by the Court of Claims in Fine.
II.
18
WHETHER THE FAILURE TO CLAIM ALLOWABLE DEPRECIATION
DEDUCTIONS FOR THE YEARS 1964, 1965 AND 1966
QUALIFIES AS A CIRCUMSTANCE OF
ADJUSTMENT UNDER SECTION 1312(7)
19
The alternative contention of the taxpayer is that Subsection (7) of Section 1312 of the Revenue Act of 1954, which is entitled "Basis of property after erroneous treatment of a prior transaction", applies in the instant case to relieve the taxpayer by permitting reopening (notwithstanding the statute of limitations) the returns for the taxable years 1964, 1965 and 1966.2
20
Subsection (7) provides for an adjustment in a situation where the determination of the taxpayer's later year tax liability establishes the basis of property and in respect of any transaction on which such basis depends or in respect of any transaction which was erroneously treated as affecting such basis, there occurred with respect to the taxpayer any of the type of errors described in Paragraph (C) of that subsection, such as an erroneous inclusion or omission from gross income under Subparagraph (i); or an erroneous recognition or non-recognition of gain or loss under Subparagraph (ii); an erroneous deduction of an item properly chargeable to a capital account; or an erroneous charge to a capital account of an item properly deductible, under Subparagraph (iii).
21
Section 1312(7) deals then with a capital transaction and relief available in connection with such a transaction where certain errors have taken place affecting the basis of property or in respect of any transaction which was erroneously treated as affecting such basis. The aforementioned errors contained in Subparagraph (C) are summarized above.
22
The district court here ruled that the failure to take an allowable deduction for depreciation, which is the situation here, did not constitute a transaction within the meaning of the section. The court explained that the word transaction contemplates a business transaction in the ordinary sense. For example, a sale, purchase, acquisition or exchange. The court's reasoning was that the failure to take an allowable deduction for depreciation does not quality under the definition of transaction.
23
The cases of United States v. Rushlight, 291 F.2d 508 (9th Cir. 1961) and Granger v. United States, 3 A.F.T.R.2d (RIA) 361 (S.D.Cal.1958), recognize that the neglect of the taxpayer to claim depreciation does not constitute a transaction within the meaning of Section 1312(7)(A).
24
The court was correct then in construing the term "transaction" as meaning business transaction in the ordinary sense of the term such as distributions, sales, purchases, dispositions, acquisitions or exchanges. The failure to make a particular entry falls far short of being a sale, an exchange or transfer, and hence it cannot be considered in and of itself a transaction. At most it is one small element of an entire or whole transaction.
25
There is another reason why the appellant does not qualify under Section 1312(7). None of the errors which are set forth in (C) of Section 1312(7) are present here. There is no erroneous inclusion or omission of gross income (see the discussion in Part I above), (C)(i); nor is there an erroneous recognition or non-recognition of gain of loss, (C)(ii); nor is there an erroneous deduction of an item which should have been capitalized or vice versa, (C) (iii).
26
Appellant argues that the failure to claim allowable depreciation constitutes an erroneous deduction of an item properly chargeable to capital account or is an erroneous charge to a capital account of an item properly deductible, (C) (iii). We do not see failure to claim allowable depreciation as a circumstance in which the cost of property was initially erroneously added at the time of purchase to a capital account instead of being currently deducted in full in the year of said purchase. The cost of the property here at issue is not deductible in full in the year of purchase. Where there is an erroneous charge to capital account of property depreciable or subject to amortization, the taxpayer then simply recovers the cost of the property through depreciation allowance for the useful life of the property. He does not fully deduct it in the year of purchase. The instant case, in which the taxpayer failed by oversight to claim an allowable depreciation allowance on a capital item, just does not fall within the deduction/capitalization dichotomy of Section 1312(7) (C)(iii).
27
Appellant relies on our decision in Oklahoma Gas and Electric Company v. United States, 464 F.2d 1188 (10th Cir. 1972), aff'g 333 F. Supp. 1178 (W.D.Okla.1971). In Oklahoma Gas, the taxpayer was accorded relief under the mitigation provisions for the erroneous capitalization of sales and use taxes paid in the acquisition of certain machinery, subparagraph (7)(C)(iii) of Section 1312. (Federal Power Commission regulations required the capitalization of such expenses on the utility's books; until Oklahoma Gas changed accounting firms in 1957 it capitalized such expenditures for tax accounting purposes as well.) Unlike the depreciation involved in the instant case, Oklahoma Gas' sales and use tax expenses were fully deductible in the year incurred, and, thus, appellant's reliance on that decision is misplaced.
28
Contrary to the appellant's contention, the Ninth Circuit's opinion in United States v. Rushlight, supra, does not support her contention that the failure to claim depreciation allowance constitutes an erroneous charge to the capital account. What was said in Rushlight is dictum and it is not shown in the opinion how the failure to claim depreciation constitutes an erroneous charge to capital account of an item that was fully deductible.
29
We have carefully examined the examples described in the regulations promulgated under Section 1312, and the examples given in the Congressional Committee reports on the predecessor provision to Section 1312 in the 1939 Code, Section 3801(b). These we find to be of no help to appellant's case.
30
The judgment of the district court is affirmed.
1
The provision reads:
"The circumstances under which the adjustment provided in Section 1311 is authorized are as follows:
(1) Double inclusion of an item of gross income. The determination requires the inclusion in gross income of an item which was erroneously included in the gross income of the taxpayer for another taxable year or in the gross income of a related taxpayer."
2
The provision reads:
(A) General rule. The determination determines the basis of property, and in respect of any transaction on which such basis depends, or in respect of any transaction which was erroneously treated, as affecting such basis, there occurred, with respect to a taxpayer described in subparagraph (B) of this paragraph, any of the errors described in subparagraph (C) of this paragraph.
(B) Taxpayers with respect to whom the erroneous treatment occurred. The taxpayer with respect to whom the erroneous treatment occurred must be
(i) the taxpayer with respect to whom the determination is made.
(C) Prior erroneous treatment. With respect to a taxpayer described in subparagraph (b) of this paragraph
(i) there was an erroneous inclusion in, or omission from, gross income,
(ii) there was an erroneous recognition, or nonrecognition, of gain or loss, or
(iii) there was an erroneous deduction of an item properly chargeable to capital account or an erroneous charge to capital account of an item properly deductible. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/519866/ | 869 F.2d 1494
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Alexander G. HORNAK, Defendant-Appellant.
No. 88-3234.
United States Court of Appeals, Sixth Circuit.
Feb. 28, 1989.
Before ENGEL, Chief Judge, KRUPANSKY and BOGGS, Circuit Judges.
PER CURIAM.
1
Alexander Hornak appeals his conviction in the United States District Court for the Northern District of Ohio of willful evasion of income tax in violation of 28 U.S.C. Sec. 7201.
2
Hornak was the principal owner of Hi-Way Distributing Corporation of America. Charlene Wetzel maintained the records for the corporation and was married to Hornak from 1978 to 1983. On August 8, 1983 Wetzel notified the Internal Revenue Service (IRS) regarding tax evasion by both Hornak and the corporation. She met with IRS agents and told them information regarding Hornak's and the corporation's tax reporting and gave them some pertinent documents.
3
On September 7, 1983, Wetzel again met with the IRS agents and more fully described Hornak's activities and gave the agents certain documents which she had removed from Hornak's office since her first meeting with the agents. On December 7, 1984, the IRS agents executed a search warrant at Hornak's office relying in large part on the information from Wetzel to show probable cause. Subsequently, Hornak was charged in a nine-count information for willful evasion of income tax in violation of 26 U.S.C. Sec. 7201. A jury unanimously found Hornak guilty on all nine counts and he was sentenced to three years in prison, and fined $45,000. Hornak appeals.
4
On appeal, Hornak claims that the district court erred in not suppressing the evidence seized from his office by Charlene Wetzel because following her first meeting with the IRS agents she became an agent of the government and therefore such seizure without a warrant violated the fourth amendment. He further contends that the evidence seized by the IRS agents using the search warrant should also have been suppressed because the underlying warrant was based on the illegal evidence obtained by Wetzel.
5
After careful consideration of the briefs and records on appeal, it is evident that affirmance is mandated by our circuit's decision in United States v. Lambert, 771 F.2d 83 (6th Cir.1985). The conduct of Charlene Wetzel here is not unlike that of the housekeeper, Diana Hall, in Lambert and, if anything, involved considerably less contact with investigative authorities. In Lambert, Hall had not only accepted some expense money from the FBI in return for her continued surveillance of Lambert's activities, but had contacted the FBI approximately 25 times over the following year concerning those activities. Notwithstanding this involvement, our court held that her search was a private search and not within the Fourth Amendment: "The defendants insist that the items taken by Diana Hall from Lambert's house and delivered to the FBI violated their Fourth Amendment rights and should, therefore, have been suppressed. Initially, we note that the Fourth Amendment proscribes only governmental action and does not apply to a search or seizure, even an unreasonable one, conducted by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official." Id. at 89 (citing United States v. Jacobson, 466 U.S. 109 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)).
6
The district court's evidentiary rulings must be upheld unless they are clearly erroneous. United States v. Coleman, 628 F.2d 961, 963 (6th Cir.1980). It is evident from the record here that Charlene Wetzel's original private searches were made without any police involvement, and they were the result of her own personal actions. It is also evident that the second search after she had left her employment was also upon her own initiative, and, although perhaps a trespass as to the defendant, did not have approval and was in fact against the express directions of the federal agents to whom she had been communicating. Thus, even if illegal, her actions did not, as we held in Lambert, come within the purview of the Fourth Amendment and render the evidence seized by the agent subject to suppression. Accordingly, the judgment of the district court is AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1030980/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4555
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS R. LUDOLPH, a/k/a Denny,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00003-FPS-JES-1)
Submitted: December 15, 2009 Decided: December 17, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Lisa M. Hawrot, DINSMORE & SHOHL, LLP, Wheeling, West Virginia,
for Appellant. John Castle Parr, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis R. Ludolph pled guilty to conspiracy to
distribute oxycodone and was sentenced to 151 months in prison.
Ludolph’s counsel has filed a brief, pursuant to Anders v.
California, 386 U.S. 738 (1967), explaining that she found no
meritorious grounds for appeal, but suggesting that the court
review the adequacy of the Fed. R. Crim. P. 11 hearing.
Although informed of his right to do so, Ludolph has not filed a
pro se supplemental brief. The Government moves to dismiss the
appeal on the basis of Ludolph’s waiver of appellate rights
contained in his plea agreement. Finding no error, we affirm in
part and dismiss in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005).
The district court informed Ludolph of the waiver at
the Rule 11 hearing, and Ludolph stated that he understood.
Moreover, Ludolph stated that he read and understood the plea
agreement, which contained an explicit waiver of the right to
appeal from his sentence, except in certain limited
2
circumstances not relevant here. On appeal, Ludolph does not
challenge the voluntariness or the validity of the waiver.
Therefore, we find that Ludolph knowingly and intelligently
waived the right to appeal his sentence. However, because
Ludolph only waived the right to appeal his sentence, and not
his conviction, we grant the Government’s motion in part, deny
it in part, and consider counsel’s issue on the merits.
Turning to Ludolph’s challenge to the Rule 11 hearing,
the record reveals that the district court fully complied with
the Rule 11 requirements during the plea colloquy, ensuring that
Ludolph’s plea was knowing and voluntary, that he understood the
rights he was giving up by pleading guilty and the sentence he
faced, and that he committed the offense to which he was
pleading guilty. Because no error was committed during the Rule
11 hearing, and since Ludolph’s plea was knowing, voluntary, and
supported by a sufficient factual basis, we affirm his
conviction.
We have carefully reviewed the record in accordance
with Anders and have found no meritorious issues for appeal not
covered by the waiver. Accordingly, we affirm Ludolph’s
conviction and dismiss the appeal of his sentence. This court
requires that counsel inform Ludolph in writing of his right to
petition the Supreme Court of the United States for further
review. If Ludolph requests that a petition be filed, but
3
counsel believes that such a petition would be frivolous, then
counsel may motion this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on Ludolph. 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 IN PART;
DISMISSED IN PART
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/554036/ | 923 F.2d 335
91-1 USTC P 60,056
ESTATE OF Margaret D. LOVE, Deceased; Anne Love Hall;Stanard T. Klinefelter, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 90-1724.
United States Court of Appeals,Fourth Circuit.
Argued Nov. 2, 1990.Decided Jan. 18, 1991.
1
Kurt James Fischer, Piper & Marbury, Baltimore, Md., argued (Stanard T. Klinefelter, Piper & Marbury, Baltimore, Md., on brief), for petitioners-appellants.
2
Sally J. Schornstheimer, Tax Div., U.S. Dept. of Justice, Washington, D.C., argued (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Jonathan S. Cohen, Tax Div., U.S. Dept. of Justice, Washington, D.C., on brief), for respondent-appellee.
3
Before WIDENER and WILKINSON, Circuit Judges, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.
HIRAM H. WARD, Senior District Judge:
4
This case comes before this Court on appeal from the United States Tax Court, which found that the estate of Margaret D. Love (the "Estate") owed a deficiency of $48,886 in estate taxes. The issues presented are, first, whether deductibility under 26 U.S.C. Sec. 2053(a)(2) is controlled by state or federal law; and, second, whether the Tax Court properly determined that the Estate is not entitled to deduct as administrative expenses a $147,000 payment (the "payment") made pursuant to a "foal-sharing" agreement. Because of compelling policy reasons, we hold that federal law controls and, therefore, affirm the Tax Court.
5
* Margaret D. Love died testate on March 22, 1983. She was, at the time of her death, involved in the business of breeding and racing thoroughbred horses. On January 6, 1983, Love entered into an agreement to have one of her mares, located in France, bred by a stallion owned by Coolmore Stud in Ireland. The agreement dictated that Coolmore Stud was not to receive a straight "stud fee"; rather, Coolmore Stud would own a one-half interest in any offspring--a "foal-sharing" agreement. This foal was to be sold as a yearling at a price determined jointly by Love and Coolmore Stud. The agreement, written in French, also provided that Love would pay Coolmore the sum of 115,000 Irish pounds in the event of "disaster," such as bankruptcy or death, so that the foal could be sold free of any encumbrances. The mare was not impregnated, or "covered," until 15 days after Love's death.
6
Love's will directed that her operations in France be liquidated. Therefore, in September 1983 the Estate paid Coolmore Stud 115,000 Irish pounds ($147,000) to extinguish the foal-sharing agreement. The pregnant mare was auctioned at Newmarket, England, in late November 1983 for 820,000 guineas ($1,220,406).1
7
The Estate deducted the $147,000 from its federal estate tax return as an administration expense under Sec. 2053(a)(2) of the Internal Revenue Code.2 The Estate contended that although the payment was not yet an obligation at the time of Love's death (the mare was not pregnant), it was necessary to the administration of the estate. The Commissioner disallowed the deduction.3
8
The Estate filed a petition in the Tax Court seeking a redetermination of the deficiency. The Tax Court also disallowed the payment, agreeing with the Commissioner that the $147,000 payment was an expenditure for an addition or improvement whereby the Estate purchased Coolmore Stud's remaining one-half interest in the unborn foal.4 This appeal followed.
II
9
The first issue before this Court is whether state or federal law controls the determination of what is an administrative expense under 26 U.S.C. Sec. 2053(a)(2). This Court has never directly faced this issue, although a previous panel noted in dicta that the application of a federal standard might be doubtful.5 We must now decide that question. Title 26 U.S.C. Sec. 2053(a)(2) provides:
10
For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate such amounts ... for administration expenses ... as are allowable by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered.
11
Various circuit courts of appeals have dealt with this issue, and there is a split among these courts. The Sixth and Seventh Circuit Courts of Appeals have held that state law controls this issue6 while the Second, Fifth, and Ninth Circuit Courts of Appeals have held that, though the position of state law on the issue is important, policy considerations require that federal regulations be applied to make this determination.7 This Court now joins the Second, Fifth, and Ninth Circuit Courts of Appeals in holding that this is a question of federal law.
12
The reasoning of the Fifth Circuit Court of Appeals is persuasive. That Court stated:
13
[I]t is not enough that the deduction be allowable under state law. It is necessary as well that the deduction be for an "administrative expense" within the meaning of that term as it is used in the statute, and that the amount sought to be deducted be reasonable under the circumstances. These are both questions of federal law and establish the outside limits for what may be considered allowable deductions under section 2053(a)(2).
14
Pitner v. United States, 388 F.2d 651, 659 (5th Cir.1967). This policy was further expounded in Hibernia Bank v. United States, 581 F.2d 741 (9th Cir.1978). Noting that the federal estate tax is a tax on the transfer of property rather than the property itself, that court pointed out that the estate tax "gives meaning to this distinction" by allowing deductions for administrative expenses which in turn creates an estate consisting only of amounts which actually pass to the heirs which are taxed accordingly. Id. at 746. This is only fair. Id. However, it would be unfair to allow the deduction of expenditures not necessary to the estate, and this principle is maintained most effectively by 26 C.F.R. Sec. 20.2053-3(a), the federal regulation which fulfills the intention of the statute.
15
Section 20.2053-3(a) of 26 C.F.R. provides:
16
The amounts deductible from a decedent's gross estate as "administration expenses" ... are limited to such expenses as are actually and necessarily incurred in the administration of the decedent's estate; that is, in the collection of assets, payment of debts, and distribution of property to the persons entitled to it. The expenses contemplated in the law are such only as attend the settlement of the estate and the transfer of the property to individual beneficiaries or to a trustee, whether the trustee is the executor or some other person. Expenses not essential to the administration of the estate, but incurred for the individual benefit of the heirs, legatees, or devisees, may not be taken as deductions. Administration expenses include (1) executor's commissions; (2) attorney's fees; and (3) miscellaneous expenses.
17
Given this regulation, it is clear that this is a question of federal law and federal taxation policy which would not be properly addressed under a state statute. This position is undergirded by the decision of the Supreme Court in Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). There the Court stated that "where federal estate tax liability turns upon ... state law, federal [courts] are not bound by the determination made ... by a state trial court." Id. at 457, 87 S.Ct. at 1778. See also Note, The Estate Tax Deduction for Administration Expenses: Reformulating Complementary Roles for Federal and State Law Under I.R.C. Sec. 2053(a)(2), 67 Cornell L.Rev. 981, 986 (1982). Thus, any state court decision regarding this matter, whether based on federal or state law, would not bind a federal tribunal. Having established that federal law controls, we now turn to the application of that law to the instant case.
III
18
Of the three categories of administration expenses listed in 26 C.F.R. Sec. 20.2053-3(a) as deductible (executor's commissions, attorney's fees, and miscellaneous expenses), the payment in this case could only fall into the category of a miscellaneous expense, but it fails to qualify as such. Section 20.2053-3(d)(1) further defines the items which may be deducted as miscellaneous administration expenses:
19
Miscellaneous administration expenses include such expenses as court costs, surrogates' fees, accountants' fees, appraisers' fees, clerk hire, etc. Expenses necessarily incurred in preserving and distributing the estate are deductible, including the cost of storing or maintaining property of the estate, if it is impossible to effect immediate distribution to the beneficiaries. Expenses for preserving and caring for the property may not include outlays for additions or improvements....
20
Several courts have expanded this list somewhat. Attorneys' fees are deductible as administration expenses, De Niro v. United States, 561 F.2d 653, 658 (6th Cir.1977), as are brokerage fees, Estate of Joslyn, 566 F.2d 677 (9th Cir.1977). Further, guardians' fees are deductible, Estate of Ruxton v. Comm'r, 20 T.C. 487 (1953), and executors' commissions and fees are deductible as well, Hubbard v. Comm'r, 41 B.T.A. 628 (1940).
21
Clearly, the payment the Estate wishes to deduct is not the sort of expense contemplated by the statute, the regulation, or the case law. Such an outlay is not in the nature of a fee required to pay persons who help in administrating the estate, nor is it a cost generally incurred in preserving or maintaining the property. Neither does it fit into the categories of the collection of assets, payment of debts, or distribution of property to the persons entitled to it. Rather, the acquisition of a one-half interest in the fetus constituted an addition to the estate, and, therefore, as the Tax Court correctly stated, "the payment is no more an 'expense' than would be a payment for a new horse or some other asset acquired by the probate estate." (JA 147.)
22
Further, as noted earlier, the purpose of a deduction under 26 U.S.C. Sec. 2053(a) is to ensure that only the net estate is taxed. In this case, the payment of $147,000 was merely substituted for an additional one-half interest in the unborn foal. Therefore, the gross estate was unchanged, unlike the case of an outlay for attorneys' fees or preservation of the property. In those instances, some amount of money is paid out by the estate rather than passed on to the beneficiaries making taxation of that money inappropriate. Deductions are allowed in that context. The purchase of the one-half interest in the foal, however, was an acquisition passed on to the beneficiaries, making taxation appropriate.8 The regulation specifically excludes any reduction in the gross estate for such improvements. 26 C.F.R. Sec. 20.2053-3(d)(1). Thus, no deduction is warranted.
23
There being no error, we affirm the opinion of the Tax Court.
24
AFFIRMED.
1
The mare was valued at $300,000 for estate tax purposes (JA 41); at oral argument we were advised by counsel that the Estate paid capital gains tax on the excess proceeds of the sale
2
Unless otherwise noted, all references are to the Internal Revenue Code of 1954, in effect at the time of decedent's death in 1983
3
Additionally, at the time of her death, Love had entered into two executory stud fee agreements. The total due under these agreements was $13,558.87. The Estate sought to deduct this amount because it constituted obligations existing on the date of death. The Commissioner disallowed these deductions as well as the $147,000 payment
On March 28, 1984, the Orphan's Court for Baltimore County approved a First Administration Account for the Estate which noted that the Estate had paid the $147,000 obligation and the $13,558.87 due under the two stud fee contracts, and allowed deduction of all three as administrative expenses under Maryland law.
4
The Tax Court did allow the deduction of the two executory stud fee payments equalling $13,558.87, holding that because Love was personally liable for both payments on the date of her death, they were deductible under section 2053(a)(3)
5
Commercial Nat'l Bank of Charlotte v. United States, 196 F.2d 182, 185 (4th Cir.1952)
6
See Estate of Park v. Comm'r, 475 F.2d 673 (6th Cir.1973) (Congress has committed to the states the issue of whether a particular expense is allowable as a proper or necessary charge against estate assets); and Estate of Jenner v. Comm'r, 577 F.2d 1100 (7th Cir.1978) (as a general rule the decree of a probate court approving expenditures as proper administrative expenses under state law will control)
7
See Pitner v. United States, 388 F.2d 651, 659 (5th Cir.1967), and Hibernia Bank v. United States, 581 F.2d 741 (9th Cir.1978) (infra ); and see Estate of Smith v. Comm'r, 510 F.2d 479, 482-83 (2d Cir.) ("federal courts cannot be precluded from reexamining a lower state court's allowance of administration expenses to determine whether they were in fact necessary to carry out the administration of the estate or merely prudent or advisable in preserving the interests of the beneficiaries") (footnote omitted), cert. denied sub nom. Lowe v. Commissioner, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975)
8
The purchase of this additional one-half interest allowed the Estate to auction the unencumbered mare at a substantial profit | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/263923/ | 330 F.2d 271
UNITED STATES of America, Appellee.v.Raphael PLATTNER, Defendant-Appellant.
No. 166.
Docket 28377.
United States Court of Appeals Second Circuit.
Submitted November 18, 1963.
Decided March 31, 1964.
Donald F. McCaffrey, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., for Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellee.
Raphael Plattner, defendant-appellant, pro se.
Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
MEDINA, Circuit Judge:
1
Upon his plea of guilty before Judge Abruzzo in the United States District Court for the Eastern District of New York, Raphael Plattner was convicted of transporting in interstate commerce a stolen motor vehicle in violation of Title 18, U.S.C. §§ 2 and 2312, and on June 20, 1957, he was sentenced to imprisonment for two and one-half years. Neither at the time of sentencing nor in the judgment of conviction was any statement made to the effect that the term of imprisonment would run concurrently with the state prison sentences then being served by Plattner. After failing, in 1961, to obtain a mandamus directing that the federal sentence be served concurrently with the state sentences, Plattner, on May 8, 1962, filed a petition for a writ of error coram nobis, alleging that his plea of guilty had been induced by a promise of the prosecutor, an Assistant United States Attorney, that Plattner would either receive a suspended sentence or a direction that the federal and state sentences be served concurrently. The relief sought was resentencing in accordance with the alleged promise or, alternatively, for leave to withdraw the original plea of guilty. On May 14, 1962, Judge Abruzzo granted a hearing, to be held on June 26, 1962 and, without the knowledge or consent of Plattner, assigned an attorney to represent him. In letters to the Clerk of the District Court, dated May 15, and May 19, 1962, Plattner requested permission to appear at the hearing personally. He explained: "Who will testify in my stead? Who is to summon and examine my witnesses? How, in my absence, is it possible to adequately cross-examine the Government's witnesses?"
2
At the hearing on June 26, 1962, assigned counsel for Plattner, in order to obtain time to interview witnesses, requested and was granted an adjournment to July 16, 1962. However, his request that Plattner be permitted to remain in Federal Detention Headquarters so that he would be accessible for consultation was denied, and Plattner was ordered returned to the State Prison in Auburn, New York. Plattner alleges that he then requested the Court to relieve assigned counsel and to allow him to represent himself in all the future coram nobis proceedings. We are informed that the Court Reporter took no notes of what was said at the hearing on June 26, 1962, but it sufficiently appears in the record before us, and is not disputed, that Plattner "expressed the desire to be his own counsel," but the Court "thereupon appointed counsel from Legal Aid to represent him because petitioner was not schooled in the law."
3
After a trial of the issues the Court held against Plattner, his petition for the writ of error coram nobis was dismissed, and Plattner appeals. There was no opinion below, other than a brief statement that the Court did not believe the testimony of Plattner and his witnesses.
4
* As we hold that a defendant on the trial of a criminal case, including a coram nobis proceeding at which the defendant is present and witnesses are to be examined and cross-examined,1 has a right to conduct and manage his own case pro se, we reverse the order appealed from and remand the case. Moreover, we hold the right to act pro se as above stated is a right arising out of the Federal Constitution and not the mere product of legislation or judicial decision. Thus we would be required to remand the case, even if no prejudice to Plattner were shown to have resulted from the refusal to permit him to act pro se.2
5
Under the Fifth Amendment, no person may be deprived of liberty without due process of law. Minimum requirements of due process in federal criminal trials are set forth in the Sixth Amendment. They include the right of the accused to be informed personally of the accusation, to be confronted by witnesses against him, and to have compulsory process for obtaining witnesses in his favor. Implicit in both amendments is the right of the accused personally to manage and conduct his own defense in a criminal case.
6
The framers of the Sixth Amendment recognized that a defendant in a criminal case is not likely to be sufficiently learned in the law effectively to assert all of his guaranteed rights.3 They understood that excessive emotional involvement in the outcome of his case might paralyze the accused in his ability to organize his defense, examine and cross-examine witnesses, and present cogent argument in support of his cause.4 Therefore, to buttress and supplement all the other rights of a defendant charged with crime, the final clause of the Sixth Amendment protects the right of the accused "to have the Assistance of Counsel for his defence."
7
This safeguard was surely not intended to limit in any way the absolute and primary right to conduct one's own defense in propria persona. Nor is the existence of this right made doubtful by the circumstance that the now all but universal requirement of the assignment of counsel to indigent defendants5 is the development of a later generation and more enlightened views. Indeed, and strangely enough, there would probably have been no denial of Plattner's right to act pro se had the Court not been so accustomed in these recent years to assign Legal Aid counsel or other lawyers to defend those indigent defendants who had no means to pay counsel of their own choosing.
8
Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92 (1789), passed by the First Congress and signed by President Washington one day before the same Congress was to propose the Sixth Amendment, provided "[t]hat in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein." (Emphasis supplied.) This statute gives more elaborate expression to the meaning of the terse language of the Bill of Rights and indicates, we think, that the Constitutional right to "the assistance of counsel" was intended to include the right of defendants in criminal cases "to plead and manage their own causes personally." This part of the original Judiciary Act of 1789, in substantially the same language, is now embodied in 28 U.S.C., § 1654.
9
Rule 44 of The Federal Rules of Criminal Procedure, according to the Notes of the Advisory Committee on Rules, "is a restatement of existing law in regard to the defendant's constitutional right of counsel," and it parallels 28 U.S.C. § 1654, and provides that "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." (Emphasis supplied.) Thus, the continued vitality of the Constitutional right to conduct one's own defense without the intervention of an assigned attorney is reaffirmed in the statutes and rules now in force.
10
We also note: six state constitutions guarantee that the accused in a criminal prosecution shall have a right to be heard either by himself or by counsel or both;6 twenty-seven protect the right of an accused to be heard, or to defend, in person and by counsel;7 four provide for the right to appear and defend in person or by counsel.8 Thus, thirty-seven states place the right to proceed pro se on a constitutional level.9
11
In Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268, the Supreme Court stated that "The right to the assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. * * * Essential fairness is lacking if an accused cannot put his case effectively in court. But the Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461." The Supreme Court again referred to the defendant's "recognized privilege of conducting his own defense at the trial" in Price v. Johnston, 1948, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356.
II
12
It is not enough, however, to hold and decide that the right to defend pro se is a constitutionally protected right. The varied circumstances of the large number of cases now pouring in upon us with increasing volume makes it apparent that there should be a critical survey of the problem and a statement of the method of procedure to be followed by the trial judges in cases of indigent defendants, when dealing with the subject of who is to manage and conduct their defense.
13
In many cases of this type coming before appellate courts the record of the colloquy between the Court and the accused, on the subject of who is to conduct the defense, is fragmentary or non-existent. But for the praiseworthy attitude of the United States Attorney for the Eastern District of New York in this case of Plattner, in not disputing and in effect conceding that Plattner's request to be allowed to defend pro se was summarily denied and counsel assigned, we would have been required to hold our decision in abeyance on the appeal from the order dismissing the writ until after a remand for a reconstruction of the record,10 with all the attendant delay and expense. It is not too much, we think, to require that the Court Reporter make a record of whatever is said on the subject of representation, even if the subject is discussed at a series of hearings.
14
Moreover, one of the by-products of the recent developments in the law relative to the assignment of counsel in all but a few of the cases of indigent defendants, has been an awareness by the prison population and a very considerable number of persons who may in the course of time add to the prison population, of the possibility of manipulating the basic rule in a fashion such as to produce a record of confusion on the subject, and to give the accused the opportunity to claim a reversal in the event of conviction on the ground that his rights under the Fifth and Sixth Amendments had been infringed. The ingenuity of these individuals, especially the recidivists, be-tokens a high if misdirected intelligence. This case would seem to provide a background against which some fundamental principles may be sketched.
15
The right to counsel and the right to defend pro se in criminal cases form a single, inseparable bundle of rights, two fases of the same coin. Thus we find the choice between the two sometimes discussed in terms of a waiver of the right to counsel, and sometimes in terms of an election to have a lawyer or to defend pro se. Viewed in this light the problem is simplicity itself.
16
Accordingly, in all cases of this type, no matter how the indigent or other defendant may phrase his prayer for action by the Court, it is incumbent upon the presiding judge, by recorded colloquy with the defendant, to explain to the defendant: that he has the choice between defense by a lawyer and defense pro se; that, if he has no means to retain a lawyer of his own choice, the judge will assign a lawyer to defend him, without expense or obligation to him; that he will be given a reasonable time within which to make the choice; that it is advisable to have a lawyer, because of his special skill and training in the law and that the judge believes it is in the best interest of the defendant to have a lawyer, but that he may, if he elects to do so, waive his right to a lawyer and conduct and manage his defense himself. If the result is a waiver of the right to counsel and an election to defend pro se, the presiding judge should conduct some sort of inquiry bearing upon the defendant's capacity to make an intelligent choice. In other words, there must be a record sufficient to establish to our satisfaction that the defendant "knows what he is doing and his choice is made with eyes open."
17
This is not to say that we will not in the future as in the past examine the records in this type of case as they come before us and piece together the circumstances of each case, and the statements by the Court and the defendant in each of them to see whether there is a proper showing, on the record taken as a whole, that the defendant made his waiver of the right to counsel or his election to conduct his defense pro se with knowledge of what he was doing and with his eyes open. In such cases statements by defendants, made after the decision to assign counsel or not to assign counsel has been made, constitute admissions to be given due consideration on the issue of whether or not the defendant knew what he was doing. Our outline of the procedure to be followed is merely a restatement of the existing decisional law on the subject, made for the use and guidance of the trial judges, rather than an absolute formula to be rigidly adhered to.
18
We do not reach the case where a defendant in the midst of a criminal trial seeks to dismiss his lawyer and for the balance of the trial manage and conduct his own defense pro se. Prior rulings by this Court in several cases involving this problem do not, we think, squarely touch the principles to which we adhere in the case now before us. United States v. Mitchell, 2 Cir., 1943, 137 F.2d 1006, cert. denied, 1944, 321 U.S. 794, 64 S. Ct. 785, 88 L. Ed. 1083; United States v. Gutterman, 2 Cir., 1945, 147 F.2d 540, 157 A.L.R. 1221; United States v. Cantor, 2 Cir., 1954, 217 F.2d 536; United States v. Private Brands, Inc., 2 Cir., 1957, 250 F.2d 554, cert. denied, 1958, 355 U.S. 957, 78 S. Ct. 542, 2 L. Ed. 2d 532. In the earliest of these cases, United States v. Mitchell, there was a demand by Mitchell at the outset of the trial that he be permitted to defend pro se, although the principal point discussed in the majority opinion had to do with the dismissal of counsel in mid-trial. If anything said in Mitchell or the other cases above cited be deemed in conflict with our holding in the case now before us, we disagree with it.
III
19
As there is a possibility that this decision may be reviewed, and for the sake of completeness, we think we should briefly discuss circumstances not as yet referred to that bear upon the question of whether or not the denial of Plattner's request to be permitted to defend pro se prejudiced his rights at the hearing on July 16, 1962. We think the ruling was prejudicial.
20
We have no criticism of the fact that assigned counsel asked only three rather perfunctory questions on cross-examination of the prosecutor who was alleged to have made the promise Plattner said he relied on. He may well have thought, from the questions already asked by the trial judge, that an exhaustive cross-examination would have served no useful purpose. On the other hand, it is abundantly clear that Plattner, quite evidently both intelligent and articulate, would have probed deeper had he been given an opportunity to conduct the cross-examination himself. At least he had intimate knowledge of the facts, as all the conversations he relied on were had by him personally with the prosecutor or others. He claimed to have spent the greater part of a day conferring with the prosecutor on the subject of the plea of guilty the prosecutor was seeking to obtain. He says they had luncheon together and various telephone conversations were had. The result was, according to Plattner, that he prevailed upon one of the co-defendants to join him in pleading guilty. Before Plattner and this co-defendant were sentenced the trial of the other co-defendants was commenced and Plattner was called as a Government witness. His testimony must have differed considerably from what he said on the day he was sentenced. In any event, the case against the other defendants was dismissed. A vigorous cross-examination might well have made the alleged promise seem more plausible than it does on the record now before us. Plattner may have thought that a full record would help his chances on appeal. Perhaps the result would have been the same, but that may be said in any case where we reverse for error and remand for a new trial. We think there is a sufficient showing of prejudice.
21
As Judge Abruzzo has already found Plattner unworthy of belief, the proceedings on the remand should be conducted by some other judge.
22
Reversed and remanded.
Notes:
1
See United States v. Hayman, 1952, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232; United States v. Morgan, 1954, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248; United States v. Pisciotta, 2 Cir., 1952, 199 F.2d 603; Winhoven v. United States, 9 Cir., 1952, 201 F.2d 174
2
See Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158; Coplon v. United States, D.C.Cir.1951, 89 U.S.App.D.C. 103, 191 F.2d 749, 758-760, cert. denied, 1952, 342 U.S. 926, 72 S. Ct. 363, 96 L. Ed. 690; United States ex rel. Cooper v. Denno, 2 Cir., 1955, 221 F.2d 626, 628, 631 (Judge Frank concurring), cert. denied, 349 U.S. 968, 75 S. Ct. 906, 99 L. Ed. 1289; Fina v. United States, 10 Cir., 1931, 46 F.2d 643; WJR, The Goodwill Station, Inc. v. Federal Communications Commission, D.C.Cir., 1948, 84 U.S.App.D.C. 1, 174 F.2d 226, 241, rev'd on other grounds, 1949, 337 U.S. 265, 69 S. Ct. 1097, 93 L. Ed. 1353. See also Kotteakos v. United States, 1946, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 90 L. Ed. 1557
3
See Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; Powell v. State of Alabama, 1932, 287 U.S. 45, 68-69, 53 S. Ct. 55, 77 L. Ed. 158
4
See 5 Macaulay's History of England 94 ("The World's Classics" ed. 1931). Macaulay gives the following account of Anthony Ashley Cooper's maiden speech in Parliament supporting the act of 1696 allowing counsel to the accused in cases of treason: "In the course of his speech he faltered, stammered, and seemed to lose the thread of his reasoning. The House, then, as now, indulgent to novices, and then, as now, well aware that, on a first appearance, the hesitation which is the effect of modesty and sensibility is quite as promising a sign as volubility of utterance and ease of manner, encouraged him to proceed. `How can I, Sir,' said the young orator, recovering himself, `produce a stronger argument in favour of this bill than my own failure? My fortune, my character, my life, are not at stake. I am speaking to an audience whose kindness might well inspire me with courage. And yet, from mere nervousness, from mere want of practice in addressing large assemblies, I have lost my recollection: I am unable to go on with my argument. How helpless, then, must be a poor man who, never having opened his lips in public, is called upon to reply, without a moment's preparation, to the ablest and most experienced advocates in the kingdom, and whose faculties are paralysed by the thought that, if he fails to convince his hearers, he will in a few hours die on a gallows, and leave beggary and infamy to those who are dearest to him!'"
5
See Fed.R.Crim.P. 44; Johnson v. Zerbst, supra, 1938, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; cf. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799
6
Ala.Const. Art. 1, Section 6; Fla.Const. Declaration of Rights, Section 11, F.S.A.; Me.Const. Art. 1, Section 6; Miss.Const. Art. 3, Section 26; Tex.Const. Art. 1, Section 8; S.C.Const. Art. 1, Section 18
7
Ariz.Const. Art. 2, Section 24, A.R.S.; Ark.Const. Art. 2, Section 10; Cal.Const. Art. 1, Section 13; Colo.Const. Art. 2, Section 16; Conn.Const. Art. 1, Section 9; Del.Const. Art. 1, Section 7 Del.C. Ann.; Idaho Const. Art. 1, Section 13; Ill.Const. Art. 2, Section 9; Ind.Const. Art. 1, Section 13; Ky.Const. Bill of Rights, Section 11; Mo.Const. Art. 1, Section 18(a), V.A.M.S.; Mont.Const. Art. 3, Section 16; Nev.Const. Art. 1, Section 18; N.H.Const. Bill of Rights, Art. 15; N.M.Const. Art. 2, Section 23; N.Y.Const. Art. 1, Section 6; N.D.Const. Art. 1, Section 13; Ohio Const. Art. 1, Section 10; Okla.Const. Art. 2, Section 20; Ore.Const. Art. 1, Section 11; Pa. Const. Art. 1, Section 8 P.S.; S.D.Const. Art. 6, Section 7; Tenn.Const. Art. 1, Section 9; Utah Const. Art. 1, Section 10; Vt.Const. Chapter 1, Art. 10; Wis. Const. Art. 1, Section 7; Wyo.Const. Art. 1, Section 10. See also, La.Const. Art. 1, Section 9
8
Kan.Const. Bill of Rights, Section 10; Mass.Const. Part 1, Art. 12; Neb.Const. Art. 1, Section 11; Wash.Const. Art. 1, Section 22
9
See generally Beany, Right to Counsel, 209, 237 (1955); Annot., 77 A.L.R. 2d 1233 (1961)
10
This procedure is authorized by 28 U.S.C. § 2106. See also Macomber v. Gladden, 9 Cir., 1962, 304 F.2d 487; Brown v. United States, 9 Cir., 1963, 314 F.2d 293; United States v. Taylor, 4 Cir., 1962, 303 F.2d 165
MARSHALL, Circuit Judge (concurring):
23
While I agree with Parts I and II of the opinion and am sure that on remand the admonitions in Part II will be carefully followed, I am not certain of the conclusions drawn in Part III of the opinion. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1031020/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4038
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LENNY LYLE CAIN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00551-RDB-3)
Submitted: December 1, 2009 Decided: December 14, 2009
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Dismissed in part, affirmed in part, vacated in part, and
remanded by unpublished per curiam opinion.
William Francis Xavier Becker, Rockville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lenny Lyle Cain appeals his conviction for aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1) (2006),
and his sentence after pleading guilty to possessing false
identification documents, aggravated identity theft, possessing
a seal of the Social Security Administration knowing it was
falsely made, and using the Social Security number of another
person. On appeal, he contends that the district court erred in
finding there was a sufficient factual basis for his aggravated
identity theft conviction in light of Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009), and in calculating his guideline
range on the other counts. Specifically, Cain argues that the
district court erred in not granting his request for a downward
departure under U.S. Sentencing Guidelines Manual § 4A1.3(b)(1)
(2007). The Government concedes there is no evidence in the
record showing Cain’s knowledge that the means of identification
involved in his aggravated identity theft conviction belonged to
another person as required under § 1028A(a)(1), but contends his
sentence on the other counts was both proper and reasonable.
Before entering judgment on a guilty plea, a district
court must determine that there is a factual basis for the plea.
Fed. R. Crim. P. 11(b)(3). The rule is designed to protect a
defendant who is in the position of pleading voluntarily with an
understanding of the nature of the charge but without realizing
2
that his conduct does not actually fall within the charge.
United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)
(citations omitted). “It is ‘well settled that a defendant may
raise on direct appeal the failure of a district court to
develop on the record a factual basis for a plea.’” United
States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008) (quoting
United States v. Mitchell, 104 F.3d 649, 652 n.2 (4th Cir.
1997)). We review the district court’s determination for abuse
of discretion, and we will not find an abuse of discretion so
long as the district court could reasonably have determined that
there was a sufficient factual basis based on the record before
it. Mastrapa, 509 F.3d at 660 (citations omitted). Since Cain
did not challenge the Rule 11 proceedings in the district court,
we review his challenge now for plain error. Id. at 657.
Because we conclude that the record contains no factual basis
showing Cain’s knowledge that the means of identification
involved in his aggravated identity theft conviction belonged to
another person as required under § 1028A(a)(1), we vacate the
conviction and sentence for that conviction.
Cain also contends that the district court erred in
calculating his advisory guideline range on the other counts.
We review a sentence under a deferential abuse-of-discretion
standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
The first step in this review requires us to ensure that the
3
district court committed no significant procedural error, such
as improperly calculating the guideline range. United States v.
Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.
2525 (2008). In assessing a sentencing court’s application of
the guidelines, we review its legal conclusions de novo and its
factual findings for clear error. United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006). We then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Gall, 552 U.S. at 51.
On appeal, Cain notes the objections he made in the
district court and contends the district court erred in not
granting his request for a downward departure under USSG
§ 4A1.3(b)(1). We dismiss this part of Cain’s appeal because a
district court’s decision not to depart from the sentencing
guidelines is not reviewable on appeal unless the court
mistakenly believed that it lacked authority to depart. See
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). To
the extent that Cain otherwise challenges the district court’s
calculation of his advisory guideline range and sentence, we
find no error or abuse of discretion by the district court.
We therefore vacate Cain’s conviction and sentence for
aggravated identity theft; dismiss his appeal in part; affirm
his other convictions and sentences; and remand to the district
court for further proceedings consistent with this opinion. We
4
grant Cain’s motion to advance consideration of this appeal. 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.
DISMISSED IN PART, AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
5 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2809487/ | Lee v I-Sheng Li (2015 NY Slip Op 05163)
Lee v I-Sheng Li
2015 NY Slip Op 05163
Decided on June 17, 2015
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 17, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.
2013-08297
(Index No. 700985/13)
[*1]John Lee, et al., appellants,
vI-Sheng Li, etc., et al., respondents, et al., defendants.
Alliance Law PLLC, New York, N.Y. (Wei Ji of counsel), for appellants.
DECISION & ORDER
In an action, inter alia, to recover damages for fraud, conversion, and breach of fiduciary duty, the plaintiffs appeal from an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated August 21, 2013, which, in effect, dismissed their motion, inter alia, to consolidate this action with a summary proceeding entitled I-Sheng Li v Lee, pending in the Civil Court, Queens County, under Index No. 80325/12.
ORDERED that the order is affirmed, without costs or disbursements.
After commencing this action, inter alia, to recover damages for fraud, conversion, and breach of fiduciary duty, the plaintiffs moved, among other things, to consolidate the action with a summary proceeding entitled I-Sheng Li v Lee, pending in the Civil Court, Queens County, under Index No. 80325/12. The Supreme Court, in effect, dismissed the motion on the ground that the motion papers did not include sufficient proof of service on three of the defendants. The plaintiffs appeal.
The failure to provide proper service of a motion deprives the court of jurisdiction to entertain the motion (see Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965; Daulat v Helms Bros., Inc., 32 AD3d 410, 411). The record before this Court does not demonstrate that the plaintiffs properly served all of the defendants with their motion. The plaintiffs' contention that some of the defendants were properly served using the New York State Courts' electronic filing system, raised for the first time on appeal, is not properly before this Court (see Petrozza v Franzen, 109 AD3d 650). Accordingly, the Supreme Court properly, in effect, dismissed the plaintiffs' motion on the ground that the motion papers did not include sufficient proof of service on three of the defendants (see Wells Fargo Bank, N.A. v Reid, 122 AD3d 832).
In light of our determination, we need not reach the plaintiffs' remaining contentions.
DILLON, J.P., LEVENTHAL, AUSTIN and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 06-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1031169/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1152
MARK BAKER,
Plaintiff - Appellant,
v.
BOOZ ALLEN HAMILTON, INC.,
Defendant - Appellee.
No. 08-2321
MARK BAKER,
Plaintiff - Appellee,
v.
BOOZ ALLEN HAMILTON, INC.,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:06-cv-00889-RWT)
Argued: October 28, 2009 Decided: December 28, 2009
Before MICHAEL, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Jane R. ROTH, Senior Circuit Judge of the United States
Court of Appeals for the Third Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Kathleen Joanna Woody, Silver Spring, Maryland, for
Appellant/Cross-Appellee. Stephen William Robinson,
MCGUIREWOODS, LLP, McLean, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: David L. Greenspan, MCGUIREWOODS, LLP,
McLean, Virginia, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
Mark Baker (Baker) brought this diversity action against
Booz Allen Hamilton, Inc. (BAH), alleging several negligence
claims arising from the alleged sexual assault of Baker by a BAH
employee. The district court granted summary judgment in favor
of BAH. Following this ruling, BAH moved for sanctions, which
the district court denied. Baker appeals the district court’s
summary judgment ruling, and BAH cross-appeals the district
court’s sanctions ruling. We affirm.
I
BAH is a management consulting firm with over 19,000
employees on six continents. In 1995, BAH commenced work for
the United States Agency for International Development as a
contractor on its project for the development and implementation
of an effective bankruptcy system in Kazakhstan and Kyrgyzstan
(the Bankruptcy Project).
On or about October 1, 1995, BAH entered into a one-year
contract with Baker’s mother, Kathleen Woody (Woody), in which
Woody agreed to provide consulting services as an independent
contractor, serving as “Chief of Party” to the Bankruptcy
- 3 -
Project. (J.A. 70). 1 As Chief of Party, Woody was responsible
for supporting the development of legislation to allow
bankruptcy laws to function in Kazakhstan and Kyrgyzstan. She
was also responsible for supervising expatriate staff and
reporting to her supervisors, who were located at BAH’s offices
in McLean, Virginia.
In October 1995, Woody traveled with her then-ten-year-old
son to Almaty, Kazakhstan to begin working on the Bankruptcy
Project. Woody’s primary work station was in Almaty, where she
resided with her son in an apartment, but she also made frequent
trips to the Bankruptcy Project’s Bishkek, Kyrgyzstan office.
During these trips to Bishkek, Woody would bring her son, and
the two would reside at the apartment of Vera Haugh, who worked
for the Bankruptcy Project in Bishkek. On occasion, Woody’s
responsibilities took her away from both Kazakhstan and
Kyrgyzstan, and on these occasions, Baker would stay with Haugh.
In Bishkek, Woody also had contact with another Bishkek-
based BAH employee working on the Bankruptcy Project, Brian
Davenport (Davenport). Davenport’s primary job duties were to
“deal with the non-legal, non-lawyer required aspects of
performance and scope work under the [Bankruptcy Project’s] task
1
Woody’s compensation package covered certain expenses for
her son during his year-long stay in Kazakhstan, including his
airfare to and from Kazakhstan and his school tuition.
- 4 -
order.” (J.A. 81). Davenport reported to Woody for “scope of
work issues related to the task order itself,” but generally
reported to a Virginia-based BAH employee. Id.
Baker produced evidence that portrays Davenport as an
angry, disgruntled, and sometimes explosive employee. For
example, Dr. Igor Klyuchnikov, Deputy Chief of Party on the
Bankruptcy Project, described Davenport as an “angry and
sometimes physically and emotionally abusive person.” (J.A.
474). He personally observed Davenport “yelling at and
threatening staff, kicking furniture and throwing objects.” Id.
Some of the Kyrgyz nationals complained to Dr. Klyuchnikov, and
he received one complaint that Davenport slapped an employee. 2
Woody testified that, between the months of January and
March 1996, she had repeated discussions with her BAH
supervisors concerning Davenport’s “explosive” behavior,
complaining in general about Davenport’s “[s]lapping, throwing,
shouting, screaming, [and] yelling.” (J.A. 257, 268). 3 She
indicated the major catalysts for Davenport’s behavior were his
2
Baker also personally observed Davenport slap an employee
across the face.
3
Haugh testified that Davenport had a “bad temper,” but was
not the type of person who would assault someone. (J.A. 383).
Rather, “he’s the type that would throw things off his desk,
yell and scream, maybe stamp his feet . . . and slam doors.”
Id.
- 5 -
wife’s desire to divorce him and his desire to return to work in
the United States.
Davenport also on occasion got angry with Baker. For
example, on a three-hour car ride from Almaty to Bishkek in
December 1995, Baker was playing a game with the hired driver
and perhaps acting a little rambunctiously. At one point,
Davenport (who was sitting in the front seat with the driver)
turned to Baker (who was sitting next to Woody in the backseat),
pointed his finger at him, and said, raising his voice, “if I
don’t get my REM [(Rapid Eye Movement)] sleep I’m going to
explode.” (J.A. 323). Moreover, at a New Year’s Eve party,
about three months before the alleged sexual assault, in a
threatening tone, Davenport told Baker he was going to “get”
him. (J.A. 287).
On April 6, 2006, Baker brought this negligence action
against BAH in the Circuit Court for Montgomery County,
Maryland. 4 BAH removed the case to the United States District
Court for the District of Maryland. On March 9, 2007, Baker
filed an amended complaint. The amended complaint alleges that
[i]n or about March of 1996, while performing her
duties as hereinabove described in the country of
Kyrgyzstan, the Plaintiff, then a minor, who was
residing with his mother overseas, was raped and
4
Because of Baker’s age, the statute of limitations was
tolled under Maryland law.
- 6 -
sodomized and threatened not to tell his mother by an
employee of BOOZ ALLEN who was known or in the
exercise of reasonable care should have been known to
BOOZ ALLEN as a person with serious emotional
disorders who had previously requested of BOOZ ALLEN
that he be returned to the United States as a result
of said emotional disorders.
(J.A. 32-33). Although not named in the amended complaint,
Davenport is the BAH employee who allegedly sexually assaulted
Baker. Davenport vehemently denies the allegations, but BAH
concedes for purposes of summary judgment we must assume that
Davenport engaged in such conduct. According to Baker, the
alleged sexual assault occurred while he was staying with Haugh
at a time when Woody was away on business in Moscow. During
this time, Davenport lured Baker to his own apartment in Bishkek
and sexually assaulted him. 5
Based on the allegations in the amended complaint, Baker
claimed that BAH was negligent because it: (1) “[f]ailed to
adequately consider the reports” that Davenport was suffering
from emotional disorders which were likely to result in a sexual
assault; (2) “[f]ailed to foresee” that Davenport’s actions
against Baker would be carried out; (3) “[f]ailed to warn” or
provide notice to Woody of Davenport’s emotional disorders; and
5
Baker did not report the sexual assault to his mother.
Rather, he disclosed the sexual assault to his therapist some
time in early 1997. According to Baker, he did not disclose the
sexual assault to Woody because, at the time, he “didn’t trust
anybody.” (J.A. 207).
- 7 -
(4) “[f]ailed to provide” Baker with adequate security. (J.A.
33).
On July 30, 2007, BAH filed a motion for summary judgment.
On December 19, 2007, the district court held a hearing on the
motion. At the conclusion of the hearing, the district court
granted the motion. On January 16, 2008, BAH filed a motion for
sanctions, which the district court denied on October 31, 2008.
Baker filed a timely notice of appeal, and BAH filed a timely
notice of cross-appeal.
II
Baker claims that the district court erred when it granted
summary judgment in favor of BAH on his negligence claims. More
specifically, he claims there are issues of fact regarding BAH’s
liability for the negligent hiring, retention, and supervision
of Davenport.
In a diversity action, the law of the forum court governs
the substantive issues and federal law governs the procedural
issues. Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002).
Thus, Maryland’s choice of law rules govern. Id.; Wells v.
Liddy, 186 F.3d 505, 521 (4th Cir. 1999). Maryland applies the
lex loci delicti rule in tort cases. Philip Morris, Inc. v.
Angeletti, 752 A.2d 200, 230 (Md. 2000). Under that rule, when
a tort occurs in another state, the substantive rights of the
- 8 -
parties, even though they are domiciled in Maryland, are to be
determined by the law of the state in which the alleged tort
took place. Id. A tort occurs “where the injury was suffered,
not where the wrongful act took place.” Johnson v. Oroweat
Foods Co., 785 F.2d 503, 511 (4th Cir. 1986) (applying Maryland
law).
Baker’s alleged injuries were suffered in Kyrgyzstan, the
site of the sexual assault. Thus, Kyrgyz law applies, provided
the requirements of Rule 44.1 of the Federal Rules of Civil
Procedure are met. See Ferrostaal, Inc. v. M/V Sea Phoenix, 447
F.3d 212, 216 (3d Cir. 2006) (noting that where a party fails to
carry its burden of proving foreign law under Rule 44.1, the
forum law should apply); cf. The Hoxie, 297 F. 189, 190 (4th
Cir. 1924) (noting, in pre-Rule 44.1 case, that forum law
applies unless the party seeking to use foreign law establishes
that foreign law differs from forum law).
Federal Rule of Civil Procedure 44.1 controls
determinations of foreign law in federal court. It provides:
A party who intends to raise an issue about a foreign
country’s law must give notice by a pleading or other
writing. In determining foreign law, the court may
consider any relevant material or source, including
testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence. The
court’s determination must be treated as a ruling on a
question of law.
- 9 -
Fed. R. Civ. P. 44.1. Rule 44.1 provides courts with broad
authority to conduct their own independent research to determine
foreign law but imposes no duty upon them to do so. See Carey
v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988)
(“[Rule] 44.1 empowers a federal court to determine foreign law
on its own, but does not oblige it do so.”). Thus, the party
claiming foreign law applies carries both the burden of raising
the issue that foreign law may apply in an action and the burden
of proving foreign law to enable the district court to apply it
in a particular case. Cf. Whirlpool Fin. Corp. v. Sevaux, 96
F.3d 216, 221 (7th Cir. 1996) (holding that party waived
conflicts of law issue because it failed to fulfill its
obligation under Rule 44.1 “to provide the district court with
‘reasonable notice’ of his intention to raise an issue of
foreign law”). Where a party fails to satisfy either burden,
the district court should apply the forum state’s law.
Ferrostaal, 447 F.3d at 216.
In order to meet its burden of proving Kyrgyz law, BAH
proffered the July 25, 2007 declaration of a Kyrgyz lawyer,
Tatiana Ivaschenko. In her declaration, Ivaschenko stated that
Baker’s claims were without merit under Kyrgyz law, opining:
[A] legal entity shall be responsible for its
employee’s actions or inactions, if that employee has
caused harm to third parties in the course of the
performance of his or her employment obligations. . .
.
- 10 -
Even if an employee were to cause harm to a third
party in the course of performance by that employee of
his or her employment obligations, an employer shall
not be liable for its employee’s actions or inactions
unless the predicate act[s], which must have resulted
in criminal sanctions, [were] completed upon the
employer’s order and control. . . .
In the Kyrgyz Republic, the civil courts will not
examine a claim for damages for buggery (defined as
sodomy) unless the fact of buggery has been
established in a criminal procedure . . . .
* * *
In sum, the legislation of the Kyrgyz Republic as of
1996 contains provisions, according to which, an
employer is only liable for damages ca[u]sed by its
employee to a third party only in the course of
performance by such employee of his/her employment
obligations or official duties. An employer cannot be
held responsible for a criminal act (i.e., buggery)
committed by the employee, unless the act is completed
following the order of the employer and under the
employer’s control. Thus, Booz Allen Hamilton Inc.
cannot be held liable for the facts alleged in the
Amended Complaint.
(J.A. 409-10).
In its decision granting BAH’s motion for summary judgment,
the district court, out of an abundance of caution, held that
Baker could not prevail under Kyrgyz (the locus of Baker’s
injuries), Maryland (the forum state), or Virginia law (where
decisions concerning Davenport’s employment were made). Baker
claims that Maryland law should apply because BAH failed to meet
its burden of proving Kyrgyz law and, therefore, Maryland law,
as the forum state’s law, applies. In particular, he claims
that the statutes referenced in the Ivaschenko declaration are
- 11 -
not controlling and, in any event, do not fully explain the
breadth of Kyrgyz law.
We need not decide whether the district court erred in
examining Baker’s claims under Kyrgyz law. This is so because,
even accepting Baker’s invitation to apply Maryland law, Baker’s
negligence claims fail.
The district court rejected Baker’s negligence claims under
Maryland law, principally concluding that Baker failed to
establish that any negligent conduct by BAH proximately caused
Baker’s injuries. In so concluding, the district court
observed:
I’ve received no information in this record that would
support a conclusion that Booz Allen was on notice
that this employee had a proclivity or a high risk of
committing sexual attacks of any nature, much less
violent attacks. All I do have is some incidents of
obnoxious behavior--two instances of slapping someone,
and bitter complaints by the plaintiff’s mother to her
employer that this man should be sent home.
(J.A. 543).
Under Maryland law, a plaintiff alleging a negligence claim
must demonstrate “(1) that the defendant had a duty to protect
the plaintiff from injury, (2) that the defendant breached that
duty, (3) that the plaintiff suffered actual injury or loss, and
(4) that the defendant’s breach of duty proximately caused the
loss or injury.” Pendleton v. State, 921 A.2d 196, 204 (Md.
2007).
- 12 -
In the negligent hiring, retention, and supervision
context, an employer has the duty to use reasonable care to
select employees competent and fit for the work assigned to them
and to refrain from retaining the services of an unfit employee.
Henley v. Prince George’s County, 503 A.2d 1333, 1341 (Md.
1986). The class of persons intended to be protected by the
imposition of this duty necessarily includes those members of
the public who would reasonably be expected to come in contact
with the employee in his performance of his duties. Id.
Proximate cause “involves a conclusion that someone will be
held legally responsible for the consequences of an act or
omission.” Peterson v. Underwood, 264 A.2d 851, 855 (Md. 1970).
To be a proximate cause for an injury, “the negligence must be
1) a cause in fact, and 2) a legally cognizable cause.”
Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 642 A.2d 219,
230 (Md. 1994) (citation and internal quotation marks omitted).
Causation-in-fact concerns the threshold inquiry of
“whether defendant’s conduct actually produced an injury.”
Peterson, 264 A.2d at 855. When two or more independent acts
bring about an injury, as alleged here by Baker, causation-in-
fact may be found if it is more likely than not that the
defendant’s conduct was a substantial factor in producing the
plaintiff’s injuries. Pittway Corp. v. Collins, 973 A.2d 771,
787 (Md. 2009).
- 13 -
Once causation-in-fact is established, the proximate cause
inquiry turns to whether the defendant’s negligent actions
constitute a legally cognizable cause of the plaintiff’s
injuries. Id. This part of the causation analysis requires us
to consider whether the actual harm to the plaintiff falls
within a general field of danger that the defendant should have
anticipated or expected. Stone v. Chicago Title Ins. of Md.,
624 A.2d 496, 500 (Md. 1993). Legal causation is a policy-
oriented doctrine designed to be a method for limiting liability
after cause-in-fact has been established. Pittway, 973 A.2d at
787. The question of legal causation most often involves a
determination of whether the injuries were a foreseeable result
of the defendant’s negligent conduct. Id. at 788. Other public
policy considerations that may play a role in determining legal
causation include the remoteness of the plaintiff’s injury from
the defendant’s negligence and the extent to which the injury is
out of proportion to the defendant’s culpability. Id. Simply
put, the defendant is not liable if it appears highly
extraordinary and unforeseeable that the plaintiff’s injuries
occurred as a result of the defendant’s alleged tortious
conduct. Id.
In our view, the injury in this case (sexual assault)
simply was not a reasonably foreseeable injury arising from the
alleged negligent hiring, retention, and/or supervision of
- 14 -
Davenport. The injury suffered by Baker was criminal sexual
assault. Baker argues that this sexual assault was a
foreseeable result of Davenport’s “explosive” behavior in the
workplace. We disagree. Without question, Davenport’s demeanor
at work was offensive. Slapping fellow employees is deplorable.
However, BAH reasonably can assume that an employee who has
slapped fellow employees on occasion will not sexually assault
the child of an independent contractor of BAH. Therefore, BAH
could not reasonably anticipate that Davenport’s behavior was an
inevitable prelude to sexual assault if his actions did not
clearly and unmistakably threaten particular criminal activity
that would have put a reasonable employer on notice of an
imminent risk of harm to a victim. Slapping a fellow employee
simply does not inexorably lead to criminal sexual assault.
It does not follow that every time an employee slaps
another employee the employer has to fire the aggressor out of
fear that the employee might rape another employee or person.
But this is exactly what Baker is seeking this court to hold.
Such a holding would undoubtedly tear the concept of proximate
cause from its moorings. Accordingly, the district court did
not err when it concluded that Baker’s negligence claims failed
under Maryland law.
- 15 -
III
BAH appeals the district court’s denial of its motion for
sanctions. BAH sought sanctions under Rule 11 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 1927. BAH claims that
sanctions were appropriate because: (1) Baker did not conduct an
adequate pre-filing investigation; and (2) Baker refused to
abandon his negligence claims after it was clear he had no
chance of success. We review the district court’s grant or
denial of a motion for sanctions for an abuse of discretion.
Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999).
Under Rule 11, “a complaint containing allegations
unsupported by any information obtained prior to filing, or
allegations based on information which minimal factual inquiry
would disprove, will subject the author to [Rule 11] sanctions.”
In re Kunstler, 914 F.2d 505, 516 (4th Cir. 1990). Moreover,
Rule 11 empowers the district court to sanction a party or
lawyer for insisting on a position after it is no longer
tenable. Morris v. Wachovia Securities, Inc., 448 F.3d 268, 279
(4th Cir. 2006).
Section 1927 provides in relevant part:
Any attorney . . . who so multiplies the proceedings
in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.
- 16 -
28 U.S.C. § 1927. The Supreme Court has recognized that § 1927
“does not distinguish between winners and losers, or between
plaintiffs and defendants.” Roadway Express, Inc. v. Piper, 447
U.S. 752, 762 (1980). Moreover, “[t]he statute is indifferent
to the equities of a dispute and to the values advanced by the
substantive law.” Id. Instead, the statute is “concerned only
with limiting the abuse of court processes.” Id. For this
reason, a court considering the propriety of a § 1927 award must
focus “on the conduct of the litigation and not on its merits.”
DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999).
BAH claims that Baker falsely alleged in his complaint
that: (1) Davenport had serious emotional disorders; (2)
Davenport had previously requested that he be returned to the
United States as a result of the disorders; (3) BAH failed to
consider reports of Davenport’s disorders; and (4) the sexual
assault was caused by Davenport’s disorders. BAH also claims
that the frivolous nature of Baker’s claims became all the more
apparent following Baker’s deposition. Finally, BAH takes issue
with the manner in which Woody handled certain aspects of the
case.
In this case, the district court did not abuse its
discretion in denying BAH’s motion for sanctions. Baker
presented evidence that Davenport was far from a model employee,
one capable of committing deplorable acts, including slapping
- 17 -
employees. Given his propensity for slapping employees and
committing other unruly acts in the workplace, it was not
objectively unreasonable for Baker to claim that Davenport
suffered from emotional disorders and that said disorders
proximately caused the sexual assault of Baker. Finally, we
have reviewed Woody’s conduct and conclude that the district
court acted well within its discretion when it decided to
decline to sanction her either under Rule 11 or § 1927.
IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
- 18 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1031180/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4811
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIME CALLEJAS-URIBE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:05-cr-00061-gec-bwc-3)
Submitted: December 23, 2009 Decided: January 7, 2010
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Allegra M.C. Black,
Assistant Federal Public Defender, Christine Madeleine Spurell,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Jean Barrett Hudson, Assistant United States Attorney,
Charlottesville, Virginia; Ryan Lee Souders, Jeb Thomas Terrien,
Assistant United States Attorneys, Harrisonburg, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Without a plea agreement, Jaime Callejas-Uribe pled
guilty to conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine hydrochloride, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district
court sentenced him to ninety-six months in prison. Callejas-
Uribe appeals.
Counsel filed an Anders 1 brief, finding no meritorious
grounds for appeal, but questioning whether the district court
erred by imposing an upward variance sentence without giving
Callejas-Uribe notice of its intention to do so. However, the
Supreme Court has held that an upward variance does not require
notice under Fed. R. Crim. P. 32(h). Irizarry v. United States,
128 S. Ct. 2198 (2008).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal. 2
We therefore affirm Callejas-Uribe’s conviction and sentence.
This court requires that counsel inform Callejas-Uribe, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Callejas-Uribe requests
1
Anders v. California, 386 U.S. 738 (1967).
2
Callejas-Uribe was advised of his right to file a pro se
supplemental brief, but he did not file one.
2
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 Callejas-Uribe.
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/1552141/ | 41 B.R. 227 (1984)
In re Thomas C. WHITE, Ind. & d/b/a Thomas C. White & Associates and Joyce A. White, Ind. & f/d/b/a Joyce's Child Care Center, Debtors.
Bankruptcy No. 383-02933.
United States Bankruptcy Court, M.D. Tennessee.
June 20, 1984.
Robert H. Waldschmidt, Nashville, Tenn., for debtors.
Gary Jewel, Memphis, Tenn., for Midland Bank & Trust.
MEMORANDUM
GEORGE C. PAINE, II, Bankruptcy Judge.
This matter is before the court on a request to confirm the plan of reorganization submitted by the debtors pursuant to 11 U.S.C. § 1129 (West 1979). By agreed order entered on March 7, 1984, a final hearing on Midland Bank & Trust Company's (hereinafter referred to as "Midland") motion for relief from the stay pursuant to 11 U.S.C. § 362(d)(2) (West 1979) has been consolidated with this confirmation hearing.
Midland has objected to confirmation on the grounds that the plan is not feasible pursuant to 11 U.S.C. § 1129(a)(11) (West 1979), that the plan was not proposed in good faith pursuant to 11 U.S.C. § 1129(a)(3) (West 1979), and that the plan is not fair and equitable pursuant to 11 U.S.C. § 1129(b) (West 1979). Upon consideration *228 of testimony of witnesses, exhibits, briefs of the parties, statement of counsel, and the entire record, the court concludes that the debtors' plan meets the requirements of 11 U.S.C. § 1129 (West 1979) and shall be CONFIRMED over the objection of Midland pursuant to 11 U.S.C. § 1129(b) (West 1979). Since confirmation of the debtors' plan moots Midland's motion for relief from the stay, the court will not decide that issue.
The following shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
One of the debtors, Thomas C. White, has owned and operated a small land surveying business, Thomas C. White & Associates, in Waverly, Tennessee, over the past 11½ years. In his business, Mr. White employs his wife, the co-debtor, and his two sons as well as three other employees. In order to secure financing for his business, Mr. White borrowed funds from a number of creditors including his largest creditor, Midland. In 1981, Mr. White's business began experiencing financial difficulties due in large part to the depressed economic conditions in Waverly, Tennessee. As a result of these difficulties, the debtors were unable to make a number of mortgage payments and, on October 28, 1983, filed a voluntary petition under Chapter 11 of the Bankruptcy Code.
The objecting creditor, Midland, was listed by the debtors as holding a claim totaling approximately $146,000. Midland's claim was secured by mortgages on four parcels of real property owned by the debtors. By an agreed order entered into between the debtors and Midland on January 12, 1984, Midland was allowed to foreclose upon three of these parcels of real property. Midland is presently seeking relief from the stay imposed by 11 U.S.C. § 362 (West 1979) in order to proceed with foreclosure on the fourth parcel of property, an 87-acre farm in Waverly, Tennessee.
On February 22, 1984, the debtors filed a plan of reorganization with this court. The plan provided for payment of claims identified in ten separate classes. The debtors proposed funding their plan by tendering payments of $2,800 per month received from the debtors' surveying business and by subdividing a portion of the 87-acre farm property. Midland, the sole member of class IX, rejected the plan; members of class IV and VI abstained from voting; and, all other classes of creditors accepted the plan.
The debtors' plan provides for the payment of two claims asserted by Midland. The first claim will be secured by the accounts receivable of Mr. White's business to the extent of $12,000 and shall be paid at a rate of $270 per month with interest accruing at the rate of 12% per annum until the claim is paid in full. Midland's second claim is in the amount of $88,200 and will be secured by a security interest in the 87-acre farm owned by the debtors. This latter claim, accruing interest at a rate equal to the FMHA mortgage rate modified in accordance with the current FMHA mortgage rates on May 15 and November 15 of each year, will be paid over a ten-year period. Midland will also receive any funds from the sale of the debtors' subdivided farm land, which will accordingly reduce the debt to Midland.
The debtors, Thomas C. White and Joyce A. White, and their son, Greg White, testified in support of the plan. This testimony dealt primarily with the farm property which the debtors proposed to subdivide and the income the debtors expected to receive from the surveying business.
The debtors testified that they intended to subdivide 28.78 acres of wooded farm land located on Cane Creek Road, two-tenths of a mile from the city limits of Hohenwald, Tennessee. The debtors' remaining farm land is separated by Cane Creek Road from that which the debtors intend to subdivide. The farm land has been owned by Mr. White's family since 1961 and Mr. White's mother presently resides on the farm. The debtors claimed that the only improvements necessary to allow subdivision of the farm property would be the improvement of a dirt road *229 and the installation of water mains. They estimated that the road could be improved for $1,500 and that the water mains could be installed for a small amount. Although no contracts for sale were tendered, Mr. White stated that an adjoining land owner as well as a local company had expressed interest in purchasing a combined total of approximately ten to twelve acres.
Several exhibits were tendered and evidence was presented concerning the history and probable future of Mr. White's surveying business. Although Mr. White's business had grossed only $52,000 a year over the past two years, Mr. White projected that gross income for 1984 would total $102,787.23. Mr. White's projections were based on the value of new projects acquired in the first 3 2/3's months of 1984, current work in progress, current accounts receivable, the general economic conditions in Humphreys and surrounding counties and his significant work experience. On cross-examination, Mr. White admitted that he could not have funded the proposed plan in either of the prior two years; however, the volume of new work acquired by his business in the first few months of 1984 reflect that his business is indeed expanding.
Midland presented the testimony of Mr. Hines, a vice-president of Midland Bank with experience in the foreclosure and resale of real property, who had visited the farm property in question. He testified that in order to subdivide this property, the debtors would need to improve the existing road at a probable cost of $30,000 to $32,000. He further testified that the market for real property in Humphreys County is presently very weak. Finally, Mr. Hines testified that the bank felt the interest rate provided to the bank under the plan for repayment of the $12,000 secured by accounts receivable and the $88,000 secured by real property was too low. He stated that both loans had been commercial loans which the bank expected the debtors would repay in a short period of time.
In order for a plan of reorganization to be approved by this court, the plan must comply with all the requirements of Chapter 11 as stated in 11 U.S.C. § 1129(a)(1). The court has a duty to examine the plan and determine whether or not the plan conforms to the requirements of 11 U.S.C. § 1129, regardless of whether objections are filed. In re Toy & Sports Warehouse, Inc., 37 B.R. 141 (Bankr.S.D.N.Y.1984); In re Economy Cast Stone Company, 16 B.R. 647, 650 (Bankr.E.D.Va.1981). In fulfilling this duty, the court concludes that the specific objections raised by Midland are without merit.
First, Midland asserts that the plan was not proposed in good faith as required by 11 U.S.C. § 1129(a)(3).[1] Essentially, a reorganization plan is proposed in good faith when there is "a reasonable likelihood that the plan will achieve a result consistent with the objectives and purposes of the Bankruptcy Code." In re Nite Lite Inns, 17 B.R. 367, 371 (Bankr.S.D.Cal.1982). See Connell v. Coastal Cable T.V., Inc., 709 F.2d 762, 764 (1st Cir.1983); In re Toy & Sports Warehouse, Inc., supra at 141, 149; In re Nikron, Inc., 27 B.R. 773, 778 (Bankr.E.D.Mich.1983). Herein, the debtors have proposed a plan which provides for payments to both secured and unsecured creditors. The secured creditors will receive the value of their collateral plus interest while the unsecured creditors will receive payment contingent upon both the surveying business and the subdivision of the debtors' property. The court finds that the financial assumptions underlying the debtors' plan are reasonable and there is a likelihood of success. Thus, the requisite good faith has been established by the debtors.
Midland also claims that the proposed plan does not comply with § 1129(a)(11) in that it is not feasible and *230 will most likely be followed by liquidation.[2] Courts have held that in order to determine whether a plan is feasible, the court must examine ". . . the adequacy of the capital structures; the business's earning power; economic conditions; management's ability; the probability of the present management's continuation; and any other factors related to the successful performance of the plan." In re Polytherm Industries, Inc., 33 B.R. 823, 831 (W.D.Wis.1983). See In re Huckabee Auto Company, 33 B.R. 141, 145 n. 2 (Bankr.M.D.Ga.1981); In re Merrimack Valley Oil Co., Inc., 32 B.R. 485, 488 (Bankr.D.Mass.1983). The court need not find that the plan is guaranteed of success, but only that a reasonable expectation of success exists. Huckabee Auto Company at 145 n. 2. At trial, the court heard testimony concerning the present earning power of the surveying business and the projected earning power of the business based on work in progress. The court also heard testimony concerning prospective purchasers of the subdivided farm land. Based on this evidence, as well as the debtors' demonstrated expertise in the surveying business, the court has determined that the plan is feasible within the meaning of § 1129(a)(11).
Finally, Midland alleges that the debtors' plan does not meet the fair and equitable requirements of § 1129(b)(2) and thus, may not be confirmed over its objection. The court finds that the debtors' plan allows Midland to retain its lien on the property securing its claims, provides Midland with deferred cash payments totaling the allowed amount of its claims plus appropriate interest, and provides that Midland receive any proceeds obtained from the sale of its collateral.[3] With respect to Midland, the court finds that the debtors' plan meets both the fair and equitable requirement of 1129(b)(2) and the requirement that the plan not discriminate unfairly pursuant to 1129(b)(1). See In re Patel, 21 B.R. 101 (Bankr.M.D.Fla.1982); In re W.E. Parks Lumber Co., Inc., 19 B.R. 285, 290 (Bankr. W.D.La.1982).
The plan proposed by the debtor not only conforms to all of the applicable requirements of § 1129(a) but it also conforms to the requirements of § 1129(b) with respect to each class of dissenting creditors. Therefore, the court hereby ORDERS that the plan proposed by the debtor is CONFIRMED.
This court's order confirming the debtors' plan renders Midland's request for relief from the stay moot. See Central Trust Company N.A. v. Mr. D Realty Company, 27 B.R. 359, 364 (Bankr.S.D. Ohio 1983); Paradise Valley Country Club v. Sun Valley Development Company, 26 B.R. 990, 991-992 (Bankr.D.Colo. 1983), aff'd. 31 B.R. 613 (D.Colo.1983).
IT IS, THEREFORE, SO ORDERED.
JUDGMENT
In accordance with the Memorandum contemporaneously entered herein, this court hereby ORDERS, ADJUDGES AND DECREES that the plan of reorganization submitted by the debtors is hereby CONFIRMED.
IT IS, THEREFORE, SO ORDERED.
NOTES
[1] 11 U.S.C. § 1129(a)(3) (West 1979) provides:
"(a) The court shall confirm a plan only if all of the following requirements are met:
. . . . .
(3) The plan has been proposed in good faith and not by any means forbidden by law.
[2] 11 U.S.C. 1129(a)(11) (West 1979) provides:
"(a) The court shall confirm a plan only if all of the following requirements are met:
. . . . .
(11) Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan."
[3] The court finds that the parties have agreed on the allowed amount of Midland's secured claims and, thus, valuation is not at issue in this hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552150/ | 41 B.R. 791 (1984)
In re J.C. WYCKOFF & ASSOCIATES, INC., a Michigan corporation, Debtor.
J.C. WYCKOFF & ASSOCIATES, INC., a Michigan corporation, Plaintiff,
v.
AETNA CASUALTY & SURETY COMPANY, Defendant.
Bankruptcy No. 83-00579, Adv. No. 83-0337.
United States Bankruptcy Court, E.D. Michigan, N.D.
August 24, 1984.
*792 Susan M. Cook, Bay City, Mich., for Second National Bank.
Charles R. Tuffley, Southfield, Mich., for Aetna.
Larry Preston, Timothy McLeod, Polasky, Miesel, Rosenbaum & McLeod, Roland Jersevic, Saginaw, Mich., for debtor/plaintiff, Wyckoff.
MEMORANDUM OPINION
ARTHUR J. SPECTOR, Bankruptcy Judge.
In this case the Plaintiff Debtor-in-Possession is suing its insurer for proceeds of its fire insurance policy after the Plaintiff's building was destroyed by fire. The Defendant asserts an arson defense. This is a motion by Second National Bank of Saginaw (the Bank) to intervene under F.R.C.P. 24(a)(2) and 24(b). The Bank holds a first mortgage on the destroyed property. Defendant resists the motion, arguing that since the Bank was listed only as a "loss payee" and not as a "mortgagee" in the policy, it holds no rights greater than the named insured, to-wit: the Plaintiff. Therefore, according to the Defendant, there is no necessity for the Bank to participate in this action as its rights are coincidental with and well protected by the Plaintiff. The Bank responds by claiming that its rights are greater than those of its mortgagor for the following reasons:
(1) It was endorsed as a mortgagee on the policy;
(2) If it was not so endorsed, it was due to the negligence of the defendant's agent;
(3) Even as a loss payee, under recent Michigan case law, which holds that a co-insured that is not in pari delicto with the arsonist may collect the proceeds of the insurance policy notwithstanding the other co-insured's involvement, it is entitled to collect notwithstanding its mortgagor's malfeasance.[1]
*793 An applicant for intervention by right under F.R.C.P. 24(a)(2) must:
(1) Claim an interest relating to the property or transaction that is the subject of the action; and
(2) Be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and
(3) Show that its interest is adequately represented by existing parties.
All three requirements must be met. Commonwealth of Virginia v. Westinghouse Electric Co., 542 F.2d 214 (4th Cir. 1976).
Although there is no clear definition of what type of interest is sufficient to meet the first requirement, courts have found this element to be satisfied when the intervenor shows a "readily identifiable property interest". Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir. 1970). "The `interest' test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Smuck v. Hobson, 408 F.2d 175, 179 (D.C.Cir.1969). This standard has been leniently applied. A mere equitable lien on property has been found sufficient. Calvert Fire Ins. v. Environs Development Corp., 601 F.2d 851 (5th Cir. 1979). In that case, a builder sought to intervene in a fire insurance company's declaratory judgment action dealing with the disposition of the fire insurance proceeds. The builder asserted that it had a contractor's lien on the destroyed building, that the owner had contracted to insure the premises and the builder's machinery and supplies stored therein for the builder's benefit, but had breached this contract by failing to do so. The district court denied the builder's motion to intervene. The Court of Appeals reversed and held that the builder had a right to intervene under F.R.C.P. 24(a)(2). The rationale was that the builder had alleged facts sufficient to claim an insurable interest in the property. This was based on two theories. First, a contractor's lien alone would give it an insurable interest. Second, the owner's alleged breach of its promise to insure for the builder's protection would create an equitable lien on the insurance proceeds in the builder's favor, which too is an insurable interest. Also see Spring Construction v. Harris, 614 F.2d 374 (4th Cir.1980) (equitable right to subrogation deemed sufficient). In the present case, the Bank clearly claims an insurable interest in the property, and thus meets the first requirement for intervention by right.
When the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented. Against this presumption the party seeking intervention must demonstrate either: (a) collusion between the representative and an opposing party, (b) that the representative has or represents an interest adverse to the intervenor, or (c) that the representative is incompetent or is otherwise not fulfilling its duty. Commonwealth of Virginia v. Westinghouse Electric Corp., supra; Ordnance Container Corp. v. Sperry Rand Corp., 478 F.2d 844 (5th Cir.1973); United States v. International Business Machines Corp., 62 F.R.D. 530 (S.D.N.Y. 1974).
In Coleman v. Capital v. Fidelity & Deposit Co. of Maryland, 43 F.R.D. 407 (S.D.N.Y.1967), the court held that the intervenor was not adequately represented by the defendant because the defendant may not have been able to interpose the personal defenses of the intervenor. Similarly, in the case at bar, the plaintiff lacks standing to plead or prove the Bank's allegedly greater rights to the insurance proceeds.
Additionally, the Plaintiff is asserting the rights of a trustee in bankruptcy under 11 U.S.C. § 1107(a). Since a trustee in bankruptcy represents all the creditors of the bankrupt and may not represent any particular creditor, it cannot be said to be guarding the individual rights of the Bank. In re David M. Hunt Construction Co., 3 *794 B.R. 256 (Bankr.E.D.Pa.1980). In that case the debtor was a general contractor. The trustee sued the owner of property under the bankrupt's construction contract. The intervenor was a subcontractor. The court allowed intervention because the subcontractor asserted an equitable lien to the recovery on account of its nonpayment by the bankrupt on the job in question. The court reasoned that the intervenor's right to the proceeds was adverse to the claim of the general creditors, who were represented by the trustee. This theoretical adversity was enough to allow intervention. Here, although there appears to be no dispute that the Bank has a valid mortgage on the property and would prevail to the extent of its mortgage balance against general creditors' claims to the insurance proceeds, the theoretical adversity exists nonetheless. Therefore, the third requirement of Rule 24(a)(2) has been met by the Bank.
It is the requirement that the Bank show that it is so situated that the disposition of the action may as a practical matter impair or impede its ability to protect its interest that causes the most concern. Although it is true that since the 1966 revision of Rule 24(a), it is no longer necessary for the movant to show that it would be "bound" under theories of res judicata, on the particular facts of this case, unless the Bank would be collaterally estopped from relitigating the question of arson, as a practical matter, the disposition of this action would not impair or impede the Bank's ability to protect its interest.
Because its preliminary independent research on this question was inconclusive, the Court requested the parties to brief the issue of whether the Bank is in privity with the debtor with respect to the debtor's cause of action against the defendant. If it is, then the theory of collateral estoppel would estop the Bank from relitigating the question of arson. Very little by way of case authority was shown to the Court on this question. In Ionian Shipping Co. v. British Law Insurance Co., 426 F.2d 186 (2d Cir.1970), the Court assumed that the intervenor was the beneficiary of a standard mortgage clause and therefore had rights superior to the plaintiff even in the face of intentional misfeasance by the plaintiff, and held that it was hornbook law that the intervenor would not be barred either by collateral estoppel or res judicata from litigating its rights in a separate proceeding. If the Bank's claim in this case is correct that it is indeed the beneficiary of a standard mortgage clause, or is entitled to the rights of someone who is, then clearly it would not be bound by collateral estoppel, and denial of intervention by right would be no impediment to the protection of its rights through a subsequent action. Accord Better Valu Homes v. Preferred Mutual Insurance Co., 60 Mich.App. 315, 230 N.W.2d 412 (1975). On the other hand, in Posner v. Firemans Insurance Co., 49 Ill.App.2d 209, 199 N.E.2d 44 (1964), it was held that the bank, which had the status merely of a loss payee, was collaterally estopped from bringing suit against the insurer where the insured's suit was barred by an affirmative policy defense. Thus, if this or another court were to hold that the defendant's theory of the Bank's rights is correct, then the Bank could find itself precluded in a subsequent action from relitigating an adverse determination on the question of arson. Such a preclusion would certainly rise to the status of an impairment or impediment to its ability to protect its interest. Indeed, this is precisely what the Defendant argued in its supplemental brief. Specifically, the Defendant stated its intention to preclude the Bank in any other action from relitigating issues decided in this case.[2]
Because all three of the requirements of Rule 24(a)(2) have been met by the Bank, it may intervene in this action by right.
*795 Even if intervention by right under F.R.C.P. 24(a)(2) were unavailable, intervention by leave under F.R.C.P. 24(b) is appropriate here. That rule permits intervention, in the court's discretion, "(2) when an applicant's claim or defense and the main action have a question of law or fact in common." When exercising its discretion, the Court must consider whether allowing intervention would unduly delay or prejudice the adjudication of the original action. In this case, one of the Bank's principal claims is identical to that of the Plaintiff'swhether the Plaintiff committed arson. Of course, the Bank raised numerous other factual issues on its behalf in case the Court finds that arson is a good defense as against the Plaintiff. But these issues are contingent and secondary to the principal one of arson. Intervention will not unduly delay, prejudice or confuse the trial of the original action. The trial will first decide the arson issue. Once that is resolved, if necessary the trial will continue to the sub-issues raised by the Bank.
Furthermore, if intervention is denied and the Court ultimately rules against the Plaintiff, the Bank would have a substantial unsecured claim against the estate, which would have to be addressed in any plan of reorganization. However, if the Bank ultimately succeeded in a separate action against the Defendant, its claim would evaporate, necessitating the filing of an amended plan or a post-confirmation modification. Thus intervention would serve the interests of efficient administration of a Chapter 11 reorganization case.
Finally, even the case relied upon by the Defendant for the proposition that a mortgagee is not entitled by right to intervene in the mortgagor's lawsuit against the insurer stated that such intervention was appropriate by leave in such cases. Ionian Shipping Co. v. British Law Insurance Co., 426 F.2d at 191-192.
For the reasons stated, the Bank's motion to intervene will be granted. The Bank may submit an order consistent with this opinion.
NOTES
[1] The Bank and the Defendant vigorously argued the merits of their cases in support of their positions on this motion. However, a motion for intervention is rarely the proper vehicle for deciding the merits of a putative lawsuit. As explained in Atlantis Development Corp. v. United States, 379 F.2d 818, 827 (5th Cir.1967):
". . . it is, of course, conceivable that there will be some instances in which the total lack of merit is so evident from the face of the moving papers that denial of the right of intervention rests upon a complete lack of a substantial claim. But it hardly comports with good administration, if not due process, to determine the merits of a claim asserted in a pleading seeking an adjudication through an adversary hearing by denying access to the court at all."
This is especially true where, as here, the issues are complex and involve factual determinations.
[2] Its brief stated: "Therefore, if the named insured, J.C. Wykoff and Associates, Inc., is determined to be barred from recovering under the policy as a result of arson, then Second National Bank would not be entitled to any recovery under the policy, since its right of recovery was totally dependent upon the named insured's right of recovery. . . . if Second National Bank is a loss payee, as contended by Aetna, then its claim rises or falls with the named insured." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032025/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 10-561V
Filed: June 12, 2013
***************************************
ROBERT and ROSA COX, as parents and, * NOT TO BE PUBLISHED
Legal representatives of their minor daughter, *
KAITLYN COX, *
*
Petitioner, * Special Master Zane
*
v. * Stipulation; hepatitis A (“Hep A”)
* vaccine; varicella vaccine;
SECRETARY OF HEALTH * neurological abnormalities; seizures
AND HUMAN SERVICES, * and dystonia
*
Respondent. *
*
***************************************
Ramon Rodriguez, III, Rawls, McNelis, and Mitchell, P.C., Richmond, VA, for Petitioner
Ryan Pyles, United States Dep’t of Justice, Washington, DC, for Respondent
UNPUBLISHED DECISION 1
On June 11, 2013, the parties in the above-captioned case filed a Stipulation
memorializing their agreement as to the appropriate amount of compensation in this case.
Petitioners allege that their daughter suffered from neurological abnormalities, manifesting as
seizures and dystonia, as a consequence of her receipt of the hepatitis A (“Hep A”) and varicella
vaccines, which are vaccines contained in the Vaccine Injury Table, 42 C.F.R § 100.3(a), and
1
Because this decision contains a reasoned explanation for the Special Master’s action in this
case, the Special Master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 113 Stat. 2899,
2913 (Dec. 17, 2002). All decisions of the Special Master will be made available to the public
unless they contain trade secret or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would clearly be an
unwarranted invasion of privacy. When such a decision or designated substantive order is filed,
a party has 14 days to identify and to move to redact such information before the document’s
disclosure. Absent a timely motion to redact, the decision will be made available to the public in
its entirety. If the Special Master, upon review of a timely-filed motion, agrees that the
identified material fits within the categories listed above, the Special Master shall redact such
material from the decision made available to the public. 42 U.S.C. § 300aa-12(d)(4); Vaccine
Rule 18(b).
1
which Petitioners’ daughter received on or about August 30, 2007. Petitioners allege that their
daughter experienced the residual effects of this injury for more than six months. Petitioners also
represent that there have been no prior awards or settlement of a civil action for these damages.
Petitioners seek compensation related to her injuries pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. §300aa-10 to 34.
Respondent denies that the Hep A or varicella vaccines caused Petitioners’ daughter to
suffer from neurological abnormalities or any other injury and denies that Petitioners’
daughter’s current disabilities are sequelae of her alleged vaccine-related injury. Nonetheless,
the parties have agreed informally to resolve this matter. Stipulation, Appendix A hereto.
The undersigned hereby ADOPTS the parties’ said Stipulation, attached hereto as
Appendix A, and awards compensation in the amount and on the terms set forth therein.
Specifically, Petitioner is awarded:
a lump sum of $175,000.00, in the form of a check payable to petitioners as
guardians/conservators of the estate of Kaitlyn Cox. This amount represents
compensation for all damages that would be available under 42 U.S.C. § 300aa-
15(a).
The Court thanks the parties for their cooperative efforts in resolving this matter. In the
absence of a motion for review filed pursuant to RCFC, Appendix B, the Clerk is directed to
enter judgment accordingly. 2
IT IS SO ORDERED.
s/Daria J. Zane
Daria J. Zane
Special Master
2
This document constitutes a final “decision” in this case pursuant to 42 U.S.C. § 300aa-
12(d)(3)(A). Unless a motion for review of this decision is filed within 30 days, the Clerk of the
Court shall enter judgment in accordance with this decision. Pursuant to Vaccine Rule 11(a), the
parties can expedite entry of judgment by each party filing a notice renouncing the right to seek
review by a United States Court of Federal Claims judge.
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/717275/ | 82 F.3d 424
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Burley James WOLFORD, Defendant-Appellant.
No. 95-30287.
United States Court of Appeals, Ninth Circuit.
Submitted March 26, 1996.*Decided April 1, 1996.
Before: GOODWIN, WIGGINS and O'SCANNLAIN, Circuit Judges.
1
MEMORANDUM**
2
Burley James Wolford appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for bankruptcy fraud. We have jurisdiction to review the district court's refusal to depart downward only if the court concluded that it did not possess the discretion to depart. United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir.1993).
3
Wolford contends that the district court failed to recognize it could depart downward for a combination of factors which take his case out of the heartland of guideline cases based on his extraordinary family ties, extraordinary employment history and extraordinary emotional condition. We disagree. It is apparent from the record that the sentencing court was aware of its authority to depart on the permissible grounds offered by Wolford, and declined to do so. See id. Thus, this court lacks jurisdiction to review the district court's discretionary refusal to depart downward. See United States v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 S.Ct. 55 (1994).
4
DISMISSED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/717278/ | 82 F.3d 424
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Ali REZABAADY, Defendant-Appellant.
No. 95-50348.
United States Court of Appeals, Ninth Circuit.
Submitted March 26, 1996.*Decided April 1, 1996.
Before: GOODWIN, WIGGINS, and O'SCANNLAIN, Circuit Judges.
1
MEMORANDUM*
2
Ali Rezabaady appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for conspiracy to distribute heroin, possession with intent to distribute heroin, and money laundering. He contends that the district court improperly increased his offense level under U.S.S.G. § 3C1.1 for attempted obstruction of justice when Rezabaady called his girlfriend after his arrest and asked her to destroy heroin he had placed in a storage unit. We review the district court's factual findings for clear error, United States v. Ancheta, 38 F.3d 1114, 1117 (9th Cir.1994), and affirm.
3
The Sentencing Guidelines provide for an obstruction of justice enhancement for "directing or procuring another person to destroy or conceal evidence that is material to an official investigation." U.S.S.G. § 3C1.1, Application Note 3(d). Rezabaady contends, however, that his attempt to obstruct justice was not willful conduct, but occurred contemporaneously with his arrest, when he was in a panic. Our review of the record indicates that Rezabaady had been arrested, interrogated by agents and transported to the Metropolitan Detention Center before he made several calls to his girlfriend. Thus, the district court properly rejected this argument. See United States v. Stout, 936 F.2d 433, 435 (9th Cir.1991).
4
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1603239/ | 418 F.Supp. 138 (1976)
UNITED STATES of America, Plaintiff,
v.
Barry Buckman WHITLOCK, Defendant.
Crim. No. 5-80643.
United States District Court, E. D. Michigan, S. D.
July 30, 1976.
*139 Robert D. Sharp, Asst. U. S. Atty., Detroit, Mich., for plaintiff.
James C. Thomas, Royal Oak, Mich., for defendant.
MEMORANDUM OPINION AND ORDER
KEITH, Chief Judge.
This matter is before the Court on defendant's Motion to Suppress Evidence filed pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. The defendant has been charged in a two-count Indictment with possession with intent to distribute cocaine, a Schedule II Narcotic Drug Controlled Substance and with unlawful importation of cocaine in violation of 21 U.S.C. Section 841(a)(1) and 21 U.S.C. Section 952(a). An evidentiary hearing was held on this matter to determine the relevant facts.
On April 15, 1975, Special Agent Keith Baudoin of the Drug Enforcement Administration obtained a search warrant to search the apartment of defendant Barry Whitlock at 5625 Parview Drive, Apartment 307, Clarkston, Michigan. The warrant was supported by the affidavit of Agent Baudoin which stated that two manilla envelopes containing suspected cocaine, addressed to Mike Kempton, PHD, c/o 5625 Parview, Apt. 307, Clarkston, Michigan, would be delivered to the addressee in the normal course of the mail for the purpose of making a controlled delivery. The affidavit further stated that the envelopes, bearing the return address Univ. de Bogota, Depto. DeAgricola, CL234-47, Bogota, Colombia, had been intercepted in New York at which time a Customs examination of the contents revealed the presence of cocaine in each envelope.
*140 Agent Baudoin testified that at approximately 8:15 P.M. in the course of executing the warrant, he observed the defendant park a vehicle and proceed through the front door of the apartment building. At approximately 8:25 P.M., Agent Baudoin observed the defendant exit the front door of the building and enter the same vehicle. At this point, Agent Baudoin, with his gun drawn and pointed at the defendant, got out of his vehicle and approached the defendant. Agent Baudoin detained the defendant, having been advised by other DEA agents who were stationed in the building that the defendant had picked up the two packages containing cocaine which had been delivered to defendant's mailbox earlier as part of the controlled delivery.
Agent Baudoin testified that he proceeded to place the defendant in handcuffs because the defendant was being belligerent and Agent Baudoin was concerned for the safety of his fellow agents.[1] Agent Baudoin lead the defendant back to the apartment building and entered defendant's apartment, no. 307. Agent Baudoin testified that upon entering the apartment, he seated the defendant in a chair and allowed the defendant to read the search warrant. According to the testimony of Agent Baudoin, the defendant was still handcuffed but not yet under arrest. It was only after another agent handed Agent Baudoin an envelope which the agent had discovered in the apartment and which envelope was addressed to Mike Kempton, P. O. Box 3899, Pontiac, Michigan, with the same return address as the envelopes which were the subject of the warrant that Agent Baudoin advised defendant Whitlock of his rights. The agent read the defendant his Miranda warnings, but at no time during the agent's visit did he, or any of the other five agents who accompanied him, ever advise the defendant that he had a right to refuse the agents access to property or places not described in the warrant.
There is conflicting testimony about what happened next. Special Agent Baudoin testified that after advising Mr. Whitlock of his rights, Agent Baudoin questioned Mr. Whitlock about the whereabouts of the envelopes which had been delivered earlier that day. According to Agent Baudoin, Mr. Whitlock answered that he had placed the envelopes in his briefcase and that his briefcase was in a green Vega which was parked outside. Agent Baudoin further testified that Mr. Whitlock told him that the vehicle was locked and that the keys were on the table. After taking the keys, opening the car, and returning with the briefcase, Agent Baudoin, according to his testimony, opened the briefcase with Mr. Whitlock's assistance. The briefcase was locked, and Mr. Whitlock gave the agent the combination.
On the other hand, both Mr. Whitlock and his wife testified that after Mr. Whitlock said that his briefcase was in his wife's Vega, the agent took the keys to the Vega from the top of the bookcase, because neither the defendant nor his wife was aware that they could object to the agent's actions. In that there were five agents in the defendant's apartment at the time, and considering the abrupt manner in which the "first wave" of agents "secured the premises,"[2] the testimony of the defendant and his wife is extremely credible. Indeed, on *141 cross-examination, Agent Baudoin admitted that at the time Mr. Whitlock or his wife identified the location of the keys to the Vega, Agent Baudoin did not inform Mr. Whitlock that he had a right to object to the search of the car. Again, when the agent attempted to open the briefcase which he had seized from the Vega, the agent did not give Mr. Whitlock any indication that the defendant had a right not to have his briefcase opened.
It is the defendant's position that the search of the Vega and seizure of his briefcase violated defendant's rights under the Fourth Amendment to the United States Constitution. It is the government's position that the search and seizure of the evidence in this cause were lawful on the following grounds: (1) The defendant consented to the search, and (2) The seizure was pursuant to 49 U.S.C. §§ 781 and 782.
Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, except in a "few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). It is the opinion of this Court that the government has failed to establish that the search of the Vega in this case falls within any of the exceptions to the warrant requirement. Specifically, the Court finds that the defendant did not consent to the search nor can the search be justified under 49 U.S.C. §§ 781 or 782.
I.
As its first ground for upholding the search, the government contends that the search of the green Vega was legal since the car was subject to seizure and forfeiture pursuant to 49 U.S.C. § 782 and, therefore, subject to a lawful search.[3] The forfeiture statute, however, does not dispense with the Fourth Amendment requirements of the United States Constitution. The Act merely authorizes the seizure of a vehicle in the absence of a warrant once a determination of probable cause has been made. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). United States v. Capra, 501 F.2d 267 (2nd Cir. 1974). A warrantless search of the vehicle may proceed after a seizure pursuant to 49 U.S.C. § 782, but such seizure must have been based on probable cause. United States v. White, 488 F.2d 563 (6th Cir. 1973).
The fact that the agents in this case may have been acting pursuant to an Act of Congress, therefore, does not remove the search and subsequent seizure from the purview of the basic constitutional proposition that searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment. Katz v. United States, supra. As the Ninth Circuit observed in United States v. McCormick, 502 F.2d 281, 285 (1974), unless the statute itself falls within one of the exceptions to the warrant requirement, it must yield to the right to be secure against unreasonable searches and seizures.
Simply stated, Section 782 cannot justify an otherwise unconstitutional search. Accordingly, this Court must inquire into whether the search was reasonable under the Fourth Amendment. In making such an inquiry, the Court is mindful that the relevant test for what constitutes an unreasonable search under the Fourth Amendment is "not the reasonableness of the opportunity to procure a warrant, but the *142 reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts." Coolidge v. New Hampshire, 403 U.S. 443 (1971) at 509-510, 91 S.Ct. 2022, at 2060, 29 L.Ed.2d 564 (Justice Black concurring and dissenting), cited with approval in South Dakota v. Opperman, ___ U.S. ___, ___, 96 S.Ct. 3092, 49 L.Ed.2d ___, 19 CrL 3314, 3316 (1976).
With this background in mind, the Court has analyzed both Section 782 and the search of the Vega and finds that the search was not reasonable under all the circumstances of this case. Deciding this case on its facts, the Court finds that there was insufficient probable cause to justify the search and seizure. Any claim of probable cause in this case must be based on the statements which the defendant made in response to inquiries about the location of his briefcase containing the "searched for" manilla envelopes. However, the Court has found that these statements were coerced and do not constitute a "free and voluntary" consent to search on the part of the defendant. See discussion of consent, infra. Accordingly, the Court also finds that these statements cannot be relied upon for the purposes of establishing probable cause.
It is unreasonable for the government to use information obtained as a result of a coerced statement to furnish probable cause. Such a prohibition follows directly from the policy of the exclusionary rule. As Mr. Justice Holmes said in speaking for the Supreme Court in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all," at 392, 40 S.Ct. at 183. See also Wong Sun v. United States, 371 U.S. 471 (1963), at 485, 83 S.Ct. 407, at 416, 9 L.Ed.2d 441.
In addition, the Court has reached the conclusion that the evidence in this case must be suppressed because the search was conducted as a result of an illegal arrest and was, therefore, tainted as the fruit of the poisonous tree. Wong Sun v. United States, supra.
Despite the claims of Special Agent Baudoin (see, n.1, supra), the conclusion is inescapable that Mr. Whitlock was arrested as soon as he was accosted by the agents outside his vehicle. Agent Baudoin contends that Mr. Whitlock was not arrested until after a third manilla envelope was discovered in the course of executing the search warrant inside Mr. Whitlock's apartment. This interpretation, as the District Court in United States v. Gonzalez, 362 F.Supp. 415 (S.D.N.Y.1973), observed, accords neither with the applicable precedents nor with common sense. As the Court in Gonzalez states:
"As soon as the liberty of movement of a suspect is restricted by law enforcement officials (other than what has come to be known as an investigatory `stop'), an arrest is complete. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Boston, 330 F.2d 937 (2nd Cir. 1964); Moran v. United States, 404 F.2d 663 (10th Cir. 1968). No formula need be uttered nor declaration made to the person arrested; it is sufficient that he be aware that he has been deprived of his full liberty." (citations omitted)
Here, Mr. Whitlock was apprehended at gun point by several federal agents who arrived in a vehicle and parked it so that the vehicle blocked Mr. Whitlock's automobile as Mr. Whitlock was backing out. The defendant was handcuffed and searched, his billfold was confiscated and so were the keys to his car. His car was searched. The detention that was effected by the agents in this case was clearly not limited to an initial stop for the purposes of making an on-the-scene investigation. Such a stop, involving a temporary detention, may be justified on facts that do not constitute probable cause to effect a formal arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such official action, however, *143 must be limited to "the minimal intrusion of a brief stop" for investigation. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
In the instant case, the detention that was effected was not a minimal intrusion but a massive assault on the defendant's freedom of movement under the authority of law. The defendant was never told that he was free to leave or that he could refuse to cooperate with the agents. Quite to the contrary, the defendant was physically restrained by the handcuffs, demobilized by the seizure of his car keys, denied his identification by the confiscation of his billfold, and was, even according to the testimony of Agent Baudoin, "not free to leave."
From the very outset of his detention, therefore, Mr. Whitlock was under arrest. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974). For his arrest to have been lawful, the defendant's arrest must have been based upon probable cause. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Probable cause to effectuate a warrantless arrest would exist only if the facts and circumstances known to Agent Baudoin, at the time the arrest was effected, would warrant a prudent person in believing that an offense has been or is being committed and that defendant committed it. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The fact that a subsequent search may disclose evidence that a crime has been committed, in this case that defendant may knowingly have possessed or imported a controlled substance, is not enough. "An arrest is not justified by what the subsequent search discloses." Henry v. United States, 361 U.S. 98 (1959), at 103, 80 S.Ct. 168, at 171, 4 L.Ed.2d 134.
The facts and circumstances within Agent Baudoin's knowledge, at the time the arrest was initiated, do not give rise to reasonable grounds for believing that defendant Whitlock was committing a violation of either 21 U.S.C. Section 841(a)(1) or 21 U.S.C. Section 952(a). At the time of the arrest, Agent Baudoin knew only that two packages containing cocaine had been delivered to the defendant's residence and that the defendant had picked up the packages in the course of picking up his mail, and had placed the envelopes in his briefcase. In other words, at the time of defendant's arrest, Agent Baudoin had no more incriminating information about the defendant's activities than he had had at the time he swore out an affidavit in support of a search warrant to search the defendant's premises.[4] The agent had no information whatsoever that the defendant either knew the addressee or the contents of the envelopes or that defendant was still in actual possession of the envelopes.[5]
In effect, Agent Baudoin further admitted that in his own mind he lacked probable cause to make an arrest by his delay in "formally arresting" the defendant and giving the defendant his Miranda warnings. It was not until the discovery of a third package in defendant's apartment in the course of executing the search warrant that the agent did in fact place defendant formally under arrest. By his awareness of the appropriate procedure to effect an arrest, Agent Baudoin in effect indicated that *144 his prior actions in not arresting the defendant could only be in recognition of the absence of probable cause. It is also telling that the agent, upon seizing Mr. Whitlock and detaining him, took him immediately back to Mr. Whitlock's apartment, as if to corroborate the fact that the agent felt that further evidence of Mr. Whitlock's knowing involvement in the receipt of the two packages was necessary before a lawful arrest could be made.
This Court finds that when defendant Whitlock was initially stopped by Agent Baudoin and placed in handcuffs, the defendant's arrest was, at that time, completed. The Court further finds that the arrest was not based upon probable cause and was, therefore, violative of the defendant's rights under the Fourth Amendment. All evidence derived from that illegal arrest must be suppressed. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Lawrence v. Henderson, 344 F.Supp. 1287 (E.D.La.1972). As the Sixth Circuit has stated in Manning v. Jarnigan, supra, at 411:
"(I)n view of the deterrent purposes of the exclusionary rule (see United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), any illegal arrest must require suppression of the evidence subsequently seized as a result under the rationale of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)."
The exclusionary rule and the rationale of Wong Sun were designed to inhibit illicit police practices. The conduct of the agents in the instant case was outrageous and must not be encouraged. However, before suppressing the derivative evidence, the Court will consider whether the taint of defendant's illegal arrest was purged by his alleged consent to the subsequent search of the green Vega.
II.
This Court finds that the search of the Vega and the seizure of defendant's briefcase cannot be justified on the basis of the defendant's alleged consent. Where the consent of the defendant is being used by the government to justify the lawfulness of a warrantless search, the government bears the burden of proving that the consent was, in fact, "freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In this case, the government has failed to meet its burden.
The Court's conclusion that there was no consent to search is based on the Court's evaluation of the factual circumstances surrounding the search. As the Supreme Court held in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the question whether a consent to search is in fact "voluntary," is a question of fact to be determined from the totality of all the circumstances. Thus, the presence or absence of a single consensual or coercive factor is not of itself controlling as a matter of law. United States v. Hearn, 496 F.2d 236 (6th Cir. 1974). Rather, the Court must carefully sift the unique facts and circumstances of the case before it to determine whether the coercive factors, even those that are subtle and implicit, nevertheless outweigh the non-coercive ones, United States v. Hearn, supra, at 243. As stated in the Schneckloth case:
"In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." 412 U.S. at 229, 93 S.Ct. at 2049.
In Schneckloth, therefore, the Supreme Court recognized that the setting in which the alleged consent is obtained is a critical factor to be considered in determining whether the consent was freely and voluntarily given. The Supreme Court indicated that in making such a determination the courts must be aware of the inherently coercive nature of custodial interrogation. 412 U.S. at 247, 93 S.Ct. 2041. Some recent *145 cases in the Ninth Circuit suggest even further that the fact that a defendant is under arrest at the time of his alleged consent, while not singularly dispositive, is certainly a factor. United States v. Heimforth, 493 F.2d 970 (9th Cir. 1974); United States v. Rothman, 492 F.2d 1260 (9th Cir. 1973):
Where the atmosphere in which defendant's consent is sought is inherently coercive, it "is squarely `inapposite' to the questioning environment contemplated when consent searches were held permissible. (citation omitted). In a situation such as this, the government's burden to prove voluntary consent is increased. (citations omitted)." at 1264-5.
In this case, the defendant was approached at gun point, handcuffed, and escorted back into his apartment where he was surrounded by approximately five DEA agents. He was placed in a chair and not allowed to move about freely although Agent Baudoin claims that he was not yet "under arrest." The manner in which this initial detention was effected is earmarked by surprise, fright, and confusion. Even after he was formally placed under arrest and given his Miranda warnings, the defendant was never advised that he could refuse to cooperate with the agent's request that he locate and open his briefcase containing the manilla envelopes which had been the subject of a controlled delivery earlier in the day.
In viewing all the circumstances surrounding the giving of the alleged consent, this Court finds that the fact that the defendant acquiesced to the agents' demands that led to the taking of his car keys and the seizure of his briefcase was not voluntary consent under the standards set forth in Schneckloth. The factors tending to establish an involuntary and coercive acquiescence rather than consent include: (a) The manner in which the defendant was initially approached and detained; (b) The presence of five DEA agents surrounding the defendant and his wife; (c) The fact that the defendant, from the time of his initial encounter with the agents was handcuffed, denied his liberty, and in this Court's opinion, under arrest; (d) The fact that defendant was never advised that he had a right to refuse consent and was not given his Miranda warnings immediately upon his initially being placed in handcuffs and, in this Court's opinion, put under arrest; and (e) The abusive manner in which both the defendant and his wife were treated by the agents.[6] The manner in which the defendant's arrest was effected and the psychologically coercive setting of a custodial interrogation convince the Court that, if there were consent, the consent was not the product of a free and voluntary choice. It is the finding of this Court that the government has failed to show consent that was "unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion." United States v. Hearn, supra.
In the absence of uncoerced consent, there is nothing in the record which purges the taint of defendant's illegal arrest. Accordingly, defendant's Motion to Suppress should be, and hereby is granted.
IT IS SO ORDERED.
NOTES
[1] Agent Baudoin testified that he did not place the defendant "under arrest" at this time, nor did he advise the defendant of any of his constitutional rights. He also testified, however, that he had parked his vehicle so that it blocked Mr. Whitlock's car and that the defendant was not free to leave. "I would not have allowed him to leave the area."
[2] Approximately three or four agents entered the Whitlock's apartment with a pass key. Mrs. Whitlock testified that she heard voices in the hall, and when she went to open the door, thinking it was her husband, the door was already being opened by the agents. The agents, according to the testimony of Agent James William Hanf, had knocked first, but it is questionable just how hard or how loudly they had knocked, since Mrs. Whitlock heard the key in the door not their knock. Upon entering the apartment, Special Agent William Isenhour testified that anyone inside the premises was "put in a neutral corner." Accordingly, Mrs. Whitlock was "placed on a couch in the front room" and while she was not formally arrested, "she would not have been allowed to leave the apartment."
[3] Section 782 reads as follows:
Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited . . .
Section 781, in relevant part, states:
(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any . . . vehicle . . .; or (3) to use any . . . vehicle . . . to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
[4] That the agent did not also swear out an arrest warrant at that time further suggests that, in the agent's own mind, there was insufficient information to furnish probable cause for an arrest. As the Supreme Court held in Wong Sun v. United States, supra, 371 U.S. at 480, 83 S.Ct. 407, the threshold question in this case is whether the agents could, on the information which impelled them to act, have procured a warrant for the defendant's arrest.
[5] Between the time that the defendant picked up his mail and the time that he was approached by Agent Baudoin, the agents had lost track of defendant's activities. The defendant testified that he picked up his mail, exited the building, and placed his briefcase, containing the envelopes, into his wife's Vega which was parked in the rear of the building. He then re-entered the building through the back and went up to his apartment where his wife was waiting for him to run an errand. He was driving his own car and on his way to the store when the agents caught up with him. The agents admitted that he was not under surveillance during this interim period.
[6] Mrs. Whitlock testified that the agents were very loud and extremely rough in their handling of her and her husband. According to Mrs. Whitlock's testimony, the agents "acted like it was their place." One of the agents, according to her testimony as well as the defendant's, told them that she and her husband would be arrested and taken downtown and their daughter, who was asleep in the next room, would be taken care of by Juvenile Authorities. In his testimony, Mr. Whitlock also expressed his concern for the welfare of his daughter while the agents were on the premises. At one point during the agents' stay, there was some laughing in the back bedroom where the daughter was sleeping. Mrs. Whitlock stood up instinctively, and Mr. Whitlock leaned forward in his chair to see what was going on, whereupon one of the officers pulled out his gun and, pointing it at Mr. Whitlock, told Mr. Whitlock to sit back in his chair. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603127/ | 8 So.3d 574 (2009)
STATE ex rel. Simuel SHAW, Jr.
v.
STATE of Louisiana.
No. 2008-KH-1957.
Supreme Court of Louisiana.
May 15, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603137/ | 8 So.3d 22 (2009)
Harry J. BROCK, III and Amy L. Brock, individually and on behalf of their minor daughter, Cassie Brock
v.
Victor J. CARONNA.
No. 08-CA-370.
Court of Appeal of Louisiana, Fifth Circuit.
January 13, 2009.
*24 Craig P. Hart, Tammy L. Karas, Covington, LA, for Defendant/Third-Party Plaintiff/Appellant, Victor J. Caronna.
Kathleen E. Simon, Porteous, Hainkel & Johnson, Covington, LA, for Third-Party Defendant/Appellee, Farmers Insurance Exchange.
Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
SUSAN M. CHEHARDY, Judge.
This is a personal injury suit by the parents of a teenage girl for damages arising from the rape of their daughter. The defendant filed a third-party demand against his homeowners' insurer for indemnification under its policy. The trial court granted a summary judgment dismissing the third party demand and the defendant/third-party plaintiff appeals. We affirm.
STATEMENT OF THE CASE
Harry J. Brock, III and Amy L. Brock ("the Brocks") filed suit against Victor J. Caronna ("Caronna"), individually and on behalf of their minor daughter ("Plaintiff"). The Brocks alleged that Caronna had been their daughter's dog-training advisor and mentor; that on March 14, 2005 he came to the Brock family home in St. Charles Parish while their sixteen-year-old daughter was there alone, and he forcibly raped their minor daughter in her bedroom. They asserted claims pursuant to La.C.C. art. 2315, 2315.7, and 2316 for intentional and negligent infliction of emotional and mental anguish, unauthorized touching of the minor, sexual harassment, and forcible rape. They sought compensatory and punitive damages for mental anguish, emotional distress, embarrassment, medical expenses, pain and suffering, loss of consortium, and any other damages to be proven at trial.
Caronna answered, admitting he is of the age of majority but denying the other allegations of the petition. He filed a third party demand against his homeowners insurer, Farmers Insurance Exchange ("Farmers"), in which he alleged that Farmers is obligated to indemnify him against any liabilities he may have to any third parties, including payment and satisfaction of any and all liabilities to third parties arising out of the claims made in this lawsuit.
Farmers denied the allegations of the third party demand and pleaded the terms and conditions of its policy. Farmers raised specific affirmative defenses and policy exclusions in denial of coverage and denial of a duty to defend. Farmers asserted that at the time of the sexual assault at issue, Caronna was insured under a Special Form Homeowners Preferred policy issued by Farmers, which did not afford coverage for the incident made the basis of this lawsuit. Farmers asserted it had specifically denied both coverage and a defense to Caronna, under the policy exclusions for bodily injury or property damage that is expected or intended by the insured, or arising out of sexual molestation, corporal punishment, or physical or mental abuse.
Farmers filed a Motion for Summary Judgment, seeking to have the third-party demand against it dismissed on the basis that the claims are specifically excluded from coverage under its policy. In support of the motion Farmers submitted a statement of material facts of which there is no genuine issue to be tried, which listed the following matters among others[1]:
*25 1. Caronna is a person of full age of majority residing in St. Tammany Parish, Louisiana;
2. According to the petition for damages, on March 14, 2005, Caronna came to the Brocks' home when their minor daughter was home alone;
3. Caronna proceeded to forcibly rape the minor child in the bedroom of her residence through vaginal intercourse;
4. Farmers is not a named defendant in the petition for damages;
5. Caronna is the sole named defendant;
6. At all times herein, Caronna had a Special Form Homeowners-Preferred policy issued by Farmers on which Caronna is listed as the named insured;
7. The policy is the best evidence of its contents, including the terms, provisions, conditions, applications, exclusions, and limitations of liability and coverage contained therein;
8. The Farmers policy provides no coverage for "bodily injury" which is expected or intended by the "insured" or "arising out of sexual molestation, corporal punishment or physical or mental abuse."
9. Caronna can provide no evidence that the Farmers policy provides coverage for any damages arising out of the events of March 14, 2005;
10. Caronna can provide no evidence that the Farmers policy owes any duty to defend him under the policy for the litigation arising out of the events of March 14, 2005 in St. Charles Parish, Louisiana.
In opposition Caronna argued that although intentional acts may not be covered under the policy, the plaintiffs also allege negligence. In addition, he asserted, the acts alleged in the petition have yet to be proven and, in the absence of proof of the occurrence of the acts, it is premature to speculate as to the intent or state of mind of the defendant at the time of the alleged act. Caronna asserted it is his intent to establish through discovery that the acts complained of in the petition were consensual. He asserted that under the policy, Farmers has an obligation to defend him even if the suit is groundless, false or fraudulent. He argued that he has never admitted guilt, no case has been proven against him, the facts alleged have not been proven, and he rigorously denies them.
Caronna filed a Statement of Disputed Material Facts that set forth the following: (1) The acts complained of in the petition are disputed by the defendant; (2) The policy of insurance issued to defendant by Farmers provides coverage for the acts complained of in the petition; (3) Farmers owes a duty to defend and indemnify Caronna for the plaintiffs' claims; and (4) Caronna can provide evidence that the Farmers policy provides both coverage and a duty to defend related to the assertions in the petition for damages.
Caronna attached an affidavit, in which he stated he had entered a plea of no contest in connection with the charges arising from the alleged incident involving the Brocks' minor daughter that allegedly occurred on March 14, 2005. He denied the facts stated in the petition for damages and in Farmers' statement of facts filed in conjunction with the motion for summary judgment.
At the hearing on the motion for summary judgment, the court gave the following oral reasons for granting the motion: "It's clear from the language of the policy that coverage is excluded. And plaintiffs counsel was astute in not even filing that. *26 Regardless of what they alleged in their petition, be it intentional or not, it's still a sex crime. They're still excluded. To defend such is excluded."
In the written judgment, the court found there is no genuine issue as to any material fact as to Farmer's motion for summary judgment that there is no coverage under the policy of insurance issued by Farmers to Caronna for his actions as set out in the original Petition for Damages and as alleged in his Third Party Demand and that no duty to defend Caronna exists under the Farmers policy at issue.
Caronna appeals.
LAW AND ANALYSIS
Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Waguespack v. Richard Waguespack, Inc., 06-0711, p. 3 (La.App. 1 Cir. 2/14/07), 959 So.2d 982.
Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. The movant bears the burden of proof. If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Thereafter, if plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. [Citations omitted.]
Champagne v. Ward, XXXX-XXXX, pp. 4-5 (La.1/19/05), 893 So.2d 773, 776.
A genuine issue is a triable issue, an issue on which reasonable persons could disagree. Champagne, XXXX-XXXX at p. 5, 893 So.2d at 777. Further, a material fact is one whose existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id.
"Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is `material' for summary judgment purposes can be seen only in light of the substantive law applicable to the case." Richard v. Hall, XXXX-XXXX, p. 5 (La.4/23/04), 874 So.2d 131, 137.
In Ledbetter v. Concord General Corp., 95-0809, pp. 3-4 (La.1/6/96), 665 So.2d 1166, 1169, judgment amended, 95-0809 (La.4/18/96), 671 So.2d 915, the supreme court set forth the following legal axioms concerning the interpretation of insurance policies:
An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. The parties' intent, as reflected by the words of the policy, determine the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written.
Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. However, the rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. [Citations omitted.]
*27 The policy in this case defines "bodily injury" as "bodily harm, sickness or disease, including required care, loss of services and death that results." It defines "occurrence" as "an accident . . . which results, during the policy period, in: a. `Bodily injury'. . .; or b. `Property damage.'"
In Section II Liability Coverages, Coverage E Personal Liability, the policy states,
If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" . . . caused by an "occurrence" to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the "insured" is legally liable . . .; and
2. Provide a defense at our expense. . ., even if the suit is groundless, false or fraudulent. . . .
In Section II Exclusions the policy provides,
1. Coverage E Personal Liability and Coverage F Medical Payments to Others do not apply to "bodily injury" or "property damage":
a. Which is expected or intended by the "insured";
* * *
k. Arising out of sexual molestation, corporal punishment or physical or mental abuse. . . .
Assignment of Error No. 1
Caronna first asserts the trial court erred by "relying on mere allegations of rape in the absence of any evidence in the record regarding same." Caronna contends that whether the act was a rape is a disputed material fact and, hence, it is not a basis for summary judgment.
Farmers responds that Caronna presented only an affidavit denying all allegations of the petition, and advising that he had entered a plea of no contest "in connection with the charges arising from the alleged incident involving Cassie Brock." Caronna provided no other documents or evidence in opposition to the motion for summary judgment.
Caronna does not dispute that an act of sexual intercourse took place between Caronna and Plaintiff. He does not deny that Plaintiff was a minor at the time of the incident, and he admitted in his answer that he is a person of the age of majority. Under Louisiana law, his having sexual intercourse with Plaintiff even with her consent could be considered molestation of a juvenile at a minimum,[2] or indecent behavior with a juvenile,[3] or felony carnal knowledge of a juvenile.[4] The allegations of the petition place the act within the more serious categories of sexual battery[5] and rape.[6]
As such, whether the behavior was an intentional act and/or sexual molestation is not a genuine issue of material fact for purposes of the coverage issue. We find no merit to this assignment.
Assignment of Error No. 2
Caronna next argues that the trial court erred by "relying on the existence of a nolo contendere plea." He asserts the trial court erred in relying on his nolo contendere plea, because his affidavit simply states, "[I]n connection with the charges *28 arising from the alleged incident involving Cassie Brock that allegedly occurred on or about March 14, 2005, I entered a plea of No Contest." He points out he did not state the charge to which he entered the plea, and he did not plead so to rape.
Caronna asserts further that evidence of a nolo contendere plea is not admissible in a civil matter and, therefore, the plea should not have been made an issue on the record. He argues that even if the plea were admissible, it would not necessarily be conclusive of guilt because a trial on the merits would be needed to evaluate the evidence and determine how much weight to afford the plea.
We find no merit to this assignment. Neither the written judgment nor the oral reasons for judgment make any reference to Caronna's plea or to any criminal proceedings. There is nothing to indicate the plea had any part in the court's determination. Further, Caronna himself brought up the plea by mentioning it in his affidavit.
Finally, even if the trial court did consider the plea and even if such consideration was error, "[r]egardless of the trier of fact's reasons, if a judgment is correct, it should be affirmed." Bergeron v. Watkins, 98-0717, p. 5 (La.App. 1 Cir. 3/2/99), 731 So.2d 399, 402.
Assignment of Error No. 3
In his third assignment of error, Caronna argues the trial court erred by applying the intentional injury exclusion in the absence of any evidence in the record regarding Plaintiffs injuries. He asserts that without evidence in the record regarding Plaintiff's injuries, no determination can properly be made as to what injuries are excluded from coverage by the intentional injury exclusion.
The policy language does not require that the act be intended or expected, but rather than the injuries and medical expenses be intended. He argues one could intend a particular act and still have coverage if he or she did not intend the damages caused by the action.
Child molestation is a rare instance in which a factual determination of negligence or intentional conduct is inappropriate as a practical matter. It cannot result from careless conduct and only occurs as a result of a deliberate act by the perpetrator. Molestation of a child is a deliberate act, and, therefore, is an intentional act. Because the relator's policy excludes coverage for bodily injury intended or expected by the insured, there is no coverage under the policy. [Citations omitted.]
Wallace v. Cappel, 592 So.2d 418 (La.App. 1 Cir.1991), writ denied 593 So.2d 651 (La.1992).
Regardless of any claims referring to negligence, under the facts set forth in the petition all damages arise from Caronna's act of sexual intercourse with the minor Plaintiff. That act by its very nature was intentional.
"Louisiana jurisprudence recognizes as a matter of law that the act of child molestation is of itself a deliberate and intentional act." Belsom v. Bravo, 94-876, p. 4 (La. App. 5 Cir. 4/25/95), 658 So.2d 1304, 1306, writ denied, 95-1327 (La.9/1/95), 659 So.2d 737.
Accordingly, the intentional act exclusion applies to preclude coverage. We find no merit to this assignment.
Assignment of Error No. 4
Caronna's fourth assignment is that the trial court erred by applying the sexual molestation, corporal punishment or physical or mental abuse exclusion in the absence of any evidence regarding same in the record.
*29 The coverage defense is raised based on allegations in the petition: A court must examine the well-pleaded allegations of the plaintiffs petition to determine whether the plaintiff's allegations unambiguously exclude coverage. Suire v. Lafayette City-Parish Consolidated Government, 04-1459, p. 18 (La.4/12/05), 907 So.2d 37, 52.
The insurance policy in this case states that if a claim is made or a suit is brought against an insured for damages because of bodily injury caused by an occurrence to which this coverage applies, Farmers will pay for the damages for which the insured in legally liable, and provide a defense even if the suit is groundless, false or fraudulent. The key to coverage, however, is that there must be an "occurrence" to which the coverage applies. By its nature, an act of sexual intercourse by an adult with a minor to whom he is not married is an occurrence excluded from coverage.
There is no merit to this assignment.
Assignment of Error No. 5
In his fifth and final assignment, Caronna contends the trial court erred by granting summary judgment with respect to the plaintiffs' injuries grounded in negligence in the absence of any evidence regarding same in the record and in the absence of any policy language excluding negligence. He argues the trial court erred in granting summary judgment because the petition includes a number of claims based on negligence, so even if the intentional injury exclusion was properly found to apply, the policy language does not exclude injury resulting from negligence.
The nature of the occurrencesexual intercourse by an adult with a minor is the basis for the determination of coverage or lack of coverage. That determination applies regardless of whether injuries arose from negligence or intention. As stated in our discussion of Assignment of Error Nos. 3 and 4, above, the claims made in the petition are excluded because they arise from an "occurrence" to which the policy's coverage does not apply. Accordingly, there is no merit to this assignment.
No reasonable insured could expect there to be coverage under a liability insurance policy for such a despicable act as rape, sexual battery, or "date rape." Louisiana Civil Code article 2323(C) embodies the public policy of this state that an intentional tortfeasor cannot invoke the contributory negligence of his victim as a defense to a claim for damages.
Doe v. Breedlove, XXXX-XXXX, p. 16 (La. App. 1 Cir. 2/11/05), 906 So.2d 565, 575.
For the foregoing reasons, we affirm the judgment. Costs of this appeal are assessed against the appellant, Victor J. Caronna.
AFFIRMED.
GUIDRY, J., concurs with reasons.
GUIDRY, Judge, concurs with reasons.
I concur in the result reached by the majority in this case. The insurance coverage and defense issues raised herein are being considered pretrial, on the allegations of the Plaintiffs' petition. The Plaintiffs are alleging that the Defendant, an adult, forcibly raped their minor daughter causing her injuries for which he is liable. The policy in question clearly and unequivocally excludes coverage for bodily injury "[a]rising out of a sexual molestation, corporal punishment or physical or mental abuse. . . ." Therefore, the third party demand by the Defendant against his homeowner's insurer was properly dismissed by summary judgment upon finding that under *30 the allegations of the petition coverage was unambiguously excluded.
NOTES
[1] We have omitted some items that were conclusions of law rather than statements of fact.
[2] La.R.S. 14:81.2.
[3] La.R.S. 14:81.
[4] La.R.S. 14:80.
[5] La.R.S. 14:43.1.
[6] La.R.S. 14:42-14:43. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/779919/ | 311 F.3d 259
UNITED STATES OF AMERICAv.Ruth WHITED, Appellant
No. 02-1112.
United States Court of Appeals, Third Circuit.
Argued July 29, 2002.
Filed November 19, 2002.
William Ruzzo [Argued], Kingston, PA, for Appellant.
Lorna N. Graham [Argued], Office of the U.S. Attorney, Scranton, PA, for Appellee.
Before BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.
OPINION OF THE COURT
RENDELL, Circuit Judge.
1
Ruth Whited appeals from the District Court's order sentencing her to prison and requiring her to make restitution for embezzling from a health care provider in violation of 18 U.S.C. § 669. Whited challenges the sufficiency of the charging indictment and the District Court's jurisdiction to adjudicate the charge as set forth therein. She also contends that the Commerce Clause does not grant Congress the power to criminalize her actions, and that 18 U.S.C. § 669 is thus unconstitutional as applied to the facts of her case. We note that we are the first court to address the constitutionality of this statute as an exercise of Congress' power under the Commerce Clause. We agree with the District Court that Whited's indictment sufficiently alleged the material elements of the offense and that her conviction withstands constitutional scrutiny, and will affirm.
I.
2
The relevant facts are not in dispute and may be briefly recounted. As a receptionist for the Back Mountain Chiropractic Center ("the Center"), Whited was responsible for receiving payment from Center patients. It was common practice for patients to pay by endorsing a check from their insurance provider, Blue Cross of Northeastern Pennsylvania ("Blue Cross"), to the Center. During 1996 and 1997, Whited deposited over fifty of those checks into her personal account, totaling over $34,000.
3
In early 2001, Whited was charged by indictment of one count of theft or embezzlement in connection with health care, in violation of 18 U.S.C. § 669. That provision provides, in relevant part:
4
Whoever knowingly and willfully embezzles, steals, or otherwise without authority converts to the use of any person other than the rightful owner, or intentionally misapplies any of the moneys, funds, securities, premiums, credits, property, or other assets of a health care benefit program, shall be fined under this title or imprisoned not more than 10 years, or both....
5
18 U.S.C. § 669.
6
The term "health care benefit program" is defined as:
7
any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.
8
Id. § 24(b).
The government's indictment charged:
9
That from on or about November 1996 and continuing up to and including on or about November 1997, in the Middle District of Pennsylvania, the Defendant, Ruth Whited, knowing and willfully embezzled, stole or otherwise without authority converted to the use of any person other than the rightful owner, or intentionally misapplied any of the monies, funds, securities, premiums, credits, property or other assets of a health care benefit program to wit: approximately $5,956.52 of subscriber checks from Blue Cross of Northeastern Pennsylvania, a health care benefit program within the meaning of 18 United States Code Section 24(b), which checks rightfully belonged to the Back Mountain Chiropractic Center located in Dallas, Pennsylvania.1
10
Whited originally pled not guilty, and subsequently filed a motion to dismiss the indictment. She argued that the indictment was insufficient because, although she admitted she stole checks from the Center, the indictment appeared to charge that Blue Cross, rather than the Center, was the victim "health care benefit program." Further, she urged that Congress did not have the authority to criminalize embezzlement from individual medical care providers such as the Center. After the District Court denied the motion, Whited withdrew her original plea and pled guilty to the indictment. She was sentenced in January, 2002, and this timely appeal followed.
11
On appeal, Whited reiterates the challenges to the indictment she made in the District Court. First, she argues that the indictment does not allege an essential element of § 669, the theft or embezzlement from a "health care benefit program." In her view, the indictment refers to subscriber checks from Blue Cross, not the Center. She also contends that the Center is not a "health care benefit program" as defined in the statute. Thus, she asserts, the District Court lacked subject matter jurisdiction to adjudicate this matter because Congress did not criminalize embezzlement from a mere medical care provider such as a chiropractor. Finally, Whited argues that § 669 is unconstitutional as applied to this case. She admits to embezzlement from the Center, a medical care provider, but argues that Congress is without the authority under the Commerce Clause to criminalize that behavior because her theft from the Center lacked the requisite relation to interstate commerce.
12
The District Court exercised jurisdiction to determine the sufficiency of the indictment and interpret the relevant statutes pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. Although Whited did not preserve her right to appeal the pretrial motion by entering a conditional guilty plea, see Fed. R.Crim.P. 11(a)(2), all of the issues presented here properly fall within the narrow scope of review not barred by a guilty plea. See United States v. Rodia, 194 F.3d 465, 469 (3d Cir.1999) (stating that notwithstanding a guilty plea we retain jurisdiction over issues that "go[] to the jurisdiction of the District Court"); see also United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006 (9th Cir.2000) (listing issues reviewable after an unconditional guilty plea, including the constitutionality of the underlying statute and that the indictment fails to state an offense); 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3918.7 (2d ed.1991) (same).
II.
13
Preliminarily, Whited argues that the indictment against her was insufficient because it failed to allege an essential element of the crime, and that the District Court was without subject matter jurisdiction to adjudicate the matter as set forth in the indictment. We find little merit to these arguments, and will treat them only briefly.
A.
14
We exercise plenary review over Whited's challenge to the sufficiency of the indictment. See Virgin Islands v. Moolenaar, 133 F.3d 246, 247 (3d Cir.1998). Whited argues that the indictment does not allege an essential element of § 669, specifically the theft or embezzlement from a health care benefit program. She notes that the indictment identifies Blue Cross as a health care benefit program, but reiterates that her theft was from the Center, which is never explicitly identified as a qualifying program in the indictment.
15
We consider an indictment sufficient if, when considered in its entirety, it adequately informs the defendant of the charges against her such that she may prepare a defense and invoke the double jeopardy clause when appropriate. See, e.g., United States v. Stansfield, 171 F.3d 806, 812 (3d Cir.1999); United States v. Turley, 891 F.2d 57, 59 (3d Cir.1989).
16
Whited's argument hinges on the unfortunate fact that the indictment says both too much and too little. Because Blue Cross was not the entity defrauded by Whited, whether or not Blue Cross is a health care benefit program under 24(b) was entirely irrelevant, and the indictment's identification of Blue Cross as a qualifying program was thus entirely superfluous. But because the indictment did identify Blue Cross as a health care benefit program under 24(b), the indictment was problematic in that it did not similarly identify the Center as a qualifying program.
17
Despite this carelessness in language, the facts alleged do amount to a crime under 669. Again, the indictment reads, in relevant part:
18
[T]he Defendant, Ruth Whited, knowing and willfully embezzled, stole or otherwise without authority converted to the use of any person other than the rightful owner, or intentionally misapplied any of the monies, funds, securities, premiums, credits, property or other assets of a health care benefit program to wit: approximately $5,956.52 of subscriber checks from Blue Cross of Northeastern Pennsylvania, a health care benefit program within the meaning of 18 United States Code Section 24(b), which checks rightfully belonged to the Back Mountain Chiropractic Center located in Dallas, Pennsylvania.
19
The indictment clearly states that the checks at issue "belonged to" the Center, and that the theft was from a health care benefit program. The Center is thus identified as a health care benefit program by implication. As we discuss below, the Center is in fact a qualifying "health care benefit program" because it is an "individual or entity who is providing a medical benefit, item, or service for which payment may be made under [a qualifying health care] plan or contract." 18 U.S.C. § 24(b). Consequently, when considered in its entirety the indictment's charge — that there was a theft from a health care benefit program of subscriber checks belonging to the Center — suffered from no material omissions, sufficiently apprised Whited of the charges against her, and would enable her to invoke the bar of double jeopardy if necessary. See Turley, 891 F.2d at 59; see also Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974) ("[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense."). Further, we note that there is no evidence that Whited was prejudiced by the potentially confusing indictment. See Stansfield, 171 F.3d at 811-12. Whited "acknowledge[d]" in her brief that the "indictment language [was] sufficient to put [her] on notice that she [was] accused of stealing property of Back Mountain Chiropractic Clinic," App. Br. at 12, and Whited's counsel conceded at oral argument that Whited in fact understood the document to charge her with that crime. Thus, although poorly drafted, the indictment was legally sufficient.
B.
20
In the alternative, Whited contends that the Center is not a qualifying health care benefit program at all, and that consequently the District Court was without subject matter jurisdiction because the general theft or embezzlement from a medical care provider is not a federal crime. We disagree.
21
Our review over matters of statutory interpretation is plenary, and our role is limited to effectuating the intent of Congress. Rosenberg v. XM Ventures, 274 F.3d 137, 140 n. 1, 141 (3d Cir.2001). Congressional intent is presumed to be expressed through the ordinary meaning of the statute's plain language. Id. at 141. Here, Whited's contention that the Center is not a health care benefit program as defined in 18 U.S.C. § 24(b) is belied by the statutory language, which provides:
22
[T]he term "health care benefit program" means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.
23
18 U.S.C. § 24(b) (emphasis added).
24
The Center is a local provider of chiropractic services, and even Whited concedes that payment is made for those services through Blue Cross, which is undisputably a health care benefit program. Section 24(b) explicitly "includes" precisely those types of local medical service providers. The statute thus makes clear Congress's intent to criminalize theft or embezzlement under 18 U.S.C. § 669 when the victim of that theft or embezzlement is a medical services provider — such as the Center — being compensated pursuant to a public or private plan, such as Blue Cross.
25
Despite the clarity of the statute's plain language, Whited invokes certain portions of the statute's legislative history in arguing that Congress did not intend to criminalize theft from a local medical service provider. Where a statute is "plain and unambiguous" on its face, however, further inquiry into legislative intent is unnecessary. Rosenberg, 274 F.3d at 141. Here, nothing in the "language itself, the specific context in which the language is used, [or] the broader context of the statute as a whole" suggests any ambiguity whatsoever. Id. Instead, the plain language of the statute is strongly supported by the broader context of the legislation, an extensive attack on frauds against the health care industry. See Health Insurance Portability Act of 1996, Pub.L. No. 104-191, 110 Stat.1936. Accordingly, we conclude that the Center is a qualifying "health care benefit program" as defined in the statute, and that the District Court therefore properly exercised subject matter jurisdiction over Whited's criminal indictment.
III.
26
Having concluded that neither of Whited's arguments relating to her particular indictment have merit, we turn to Whited's constitutional challenge to her prosecution for a federal offense. Whited argues that authorizing the prosecution of individuals like herself who have simply stolen from local medical service providers exceeds the limited powers vested in Congress under the Commerce Clause. Thus, Whited argues, 18 U.S.C. § 669 is unconstitutional insofar as it was applied here.
27
The District Court disagreed. After noting that we are to accord deference to Congressional determinations that particular legislation is within its constitutional authority, the District Court wrote:
28
[T]he United States correctly points out that a payer such as Blue Cross of Northeastern Pennsylvania made payments to Back Mountain under a contract with its subscriber under a health care program which Congress has deemed appropriate to regulate as an economic and commercial enterprise which affects interstate commerce by prohibiting fraud.
29
United States v. Whited, No. CR-01-0008, slip op. at 4 (M.D.Pa. May 12, 2001).
30
In its opinion, the District Court emphasized the interstate nature of the commercial enterprises and contractual relationships through which the payment for health care services is made. Ultimately, although reiterating its view that Congressional authority under the Commerce Clause is and should be limited, it held that Congress was within the appropriate scope of its power in criminalizing the actions at issue here. We exercise plenary review of the District Court's determination of the statute's constitutionality, United States v. Singletary, 268 F.3d 196, 198-99 (3d Cir.2001), and will affirm.
A.
31
We are presented once again with the difficult and delicate task of determining whether Congress has exceeded its authority "[t]o regulate Commerce ... among the several States," U.S. Const. art I, § 8, cl. 3, an issue that is now commonplace in our courts as a result of the Supreme Court's ruling in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). In Lopez, the Court held that Congress had exceeded its Commerce Clause authority in adopting the Gun-Free School Zones Act of 1990, which essentially made it a federal crime to possess a firearm near a school. In doing so, the Court first clearly identified the three areas within which Congress is authorized to regulate pursuant to the Commerce Clause: (1) "the use of the channels of interstate commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) "those activities having a substantial relation to interstate commerce." Id. at 558-59, 115 S. Ct. 1624. Because the Gun-Free School Zones Act regulated neither the channels nor instrumentalities of commerce, the Court was left to consider whether the Act could be sustained as a regulation of activities substantially affecting interstate commerce. Id. at 559, 115 S. Ct. 1624.
32
The Court reiterated that laws regulating intrastate economic activity have been upheld against Commerce Clause challenges where the underlying intrastate "economic activity substantially affects interstate commerce," or where the law regulates "activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Id. at 560-61, 115 S. Ct. 1624. In Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942), for instance, the Court upheld Congressional regulation of production limits for wheat that was exclusively produced and consumed by a single local farm. The Court reasoned that even homegrown wheat in some sense competes with wheat traded in interstate commerce, particularly when considered in the aggregate. Id. at 127-28, 63 S. Ct. 82.
33
By contrast, the Gun-Free School Zones Act on its face criminalized an action — gun possession near a school — that is wholly unrelated to "`commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, 514 U.S. at 561, 115 S. Ct. 1624. Nor was the Act "part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Id.
34
The Court further took note of two additional factors. First, the Act did not contain an "express jurisdictional element" that would limit its application to particular instances in which the "firearm possession[]... ha[d] an explicit connection with or effect on interstate commerce." Id. at 561-62, 115 S. Ct. 1624. Second, "neither the statute nor its legislative history contain express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Id. at 562, 115 S. Ct. 1624 (quotations omitted). Although making clear that congressional findings are not required, the Court suggested that findings indicating the "legislative judgment that the activity in question substantially affected interstate commerce," would be helpful where the "substantial effect was [not] visible to the naked eye." Id. at 563, 115 S. Ct. 1624.
35
Ultimately, the Lopez Court was unpersuaded by the proffered nexus between gun possession near schools and interstate commerce, the theory "that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy." Id. at 563, 115 S. Ct. 1624. That sort of tenuous connection, the Court reasoned, would impermissibly allow Congressional intervention in areas far beyond the scope of their necessarily limited powers. Id. at 564-67, 115 S. Ct. 1624. In sum, the Court concluded, "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 567, 115 S. Ct. 1624.
36
Five years later the Court struck down the Violence Against Women Act ("VAWA") in United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), which echoed both the holding of Lopez and its underlying reasoning. In Morrison, the Court again emphasized that the general nature of the regulated activity was not commercial or economic in character. Id. at 610-11, 120 S. Ct. 1740. Although the Court specifically avoided adopting "a categorical rule against aggregating the effects of any noneconomic activity," it relied heavily for its ultimate conclusion on the fact that "[g]ender motivated crimes of violence are not, in any sense of the phrase, economic activity." Id. at 613, 120 S. Ct. 1740.
37
The Morrison Court also followed the Lopez Court in taking note of the lack of a "jurisdictional element" in the VAWA, and in considering the presence or absence of congressional findings. Id. at 613, 120 S. Ct. 1740. Unlike the Gun-Free School Zones Act, however, the legislative history of the VAWA was replete with extensive congressional findings "regarding the serious impact that gender-motivated violence has on victims and their families." Id. at 614, 120 S. Ct. 1740. But the mere presence of congressional findings was not deemed dispositive, and the Court found that Congress's findings failed to support the requisite connection between gender-motivated violence and interstate commerce. Id. at 614-15, 120 S. Ct. 1740. According to the Court, the findings at best demonstrated an attenuated but-for relation of the type specifically rejected in Lopez. Id. at 615-19, 120 S. Ct. 1740. With or without congressional findings, the Morrison Court made clear that the Commerce Clause does not authorize Congress to "regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. at 617, 120 S. Ct. 1740.
B.
38
At the outset, we note that our analysis is to be conducted with the understanding that congressional acts are entitled to a "presumption of constitutionality," and will only be invalidated upon a "plain showing that Congress has exceeded its constitutional bounds." Id. at 607, 120 S. Ct. 1740. That presumption is "not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power...." United States v. Five Gambling Devices, 346 U.S. 441, 449, 74 S. Ct. 190, 98 L. Ed. 179 (1953). Accordingly, "[a]lthough the judicial branch is the final arbiter of the constitutionality of a statute," we review Congress's determination that it was within its constitutional authority with "substantial deference." United States v. Gregg, 226 F.3d 253, 261 (3d Cir.2000). In the particular context of the Commerce Clause, we have frequently framed our inquiry as the narrow one of whether Congress had a "rational basis" for concluding that the activity it was regulating — here, theft involving the health care industry — was sufficiently related to interstate commerce to support the statute's constitutionality. See, e.g., United States v. Spinello, 265 F.3d 150, 153 (3d Cir.2001); Gregg, 226 F.3d at 261-62; see also Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 276, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981) (same).
39
Like the statutes considered in Lopez and Morrison, 18 U.S.C. § 669 is properly analyzed as an attempt by Congress to regulate within the third category of its powers as enumerated by the Court — those activities that are substantially related to interstate commerce. As suggested in our discussion above, there are four considerations relevant to the determination of whether a particular law regulates activity that has a substantial effect on interstate commerce:
40
1) the economic nature of the regulated activity; 2) a jurisdictional element limiting the reach of the law to a discrete set of activities that additionally has an explicit connection with or effect on interstate commerce; 3) express congressional findings regarding the effects upon interstate commerce of the activity in question; and 4) the link between the regulated activity and interstate commerce.
41
Gregg, 226 F.3d at 262 (citations omitted).
42
We conclude that, unlike the statutes considered in Lopez and Morrison, Congress had a rational basis for believing that § 669 regulates distinctly economic activity bearing a clear and significant relation to interstate commerce. Accordingly, we hold that Congress's criminalization of the activity in question here was a proper exercise of Congress's Commerce Clause authority.
43
1. The Economic Nature of the Regulated Activity
44
The first stage of our Commerce Clause analysis is an inquiry into the fundamental character of the activity being regulated. Our recent decisions in this area reflect the importance of the initial inquiry into the character of the underlying activity, and illustrate the crucial distinction between real economic activity and the fundamentally noneconomic activity at issue in Lopez and Morrison. Most recently, in United States v. Spinello, 265 F.3d 150 (3d Cir.2001), we upheld Congress's authority to criminalize bank robbery pursuant to its Commerce Clause powers. In doing so, we noted particularly that bank robbery is an "`economic' activity almost by definition" given that it is motivated by money, explicitly affects money, and moreover imposes substantial difficulties on the victim banks with regard to their ability to interact appropriately with their business partners. Id. at 156-57. Similarly, in United States v. Bishop, 66 F.3d 569 (3d Cir.1995), in which we upheld the federal criminalization of carjacking, we stated that "[w]hen a criminal points a gun at a victim and takes his or her car, the criminal has made an economic gain and the victim has suffered an undeniable and substantial loss." Id. at 581. Thus, although we have held that "economic activity can be understood in broad terms," Gregg, 226 F.3d at 262, we have also distinguished between activities that are essentially economic and those that "ha[ve] nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, 514 U.S. at 561, 115 S. Ct. 1624; see also United States v. Orozco, 98 F.3d 105, 107 (1996) ("Drug trafficking is an inherently economic activity; the mere possession of a firearm is not.").
45
Here, following these precedents, we can readily conclude that the activity regulated by § 669 — theft in connection with health care — is economic in nature. The theft itself is motivated exclusively by an immediate pecuniary gain, see Spinello, 265 F.3d at 156, and effects an explicit economic transfer. See Bishop, 66 F.3d at 581. Moreover, § 669 is crucially "an essential part of a larger regulation of economic activity." Lopez, 514 U.S. at 561, 115 S. Ct. 1624. The criminalization of theft in connection with health care was just one of a number of broad measures Congress enacted in its effort to "combat waste, fraud, and abuse in health insurance and health care delivery." Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub.L. No. 104-191, 110 Stat.1936. Accordingly, it can hardly be disputed that the theft criminalized by Congress here is fundamentally an economic endeavor.
2. The Presence of a Jurisdictional Element
46
The presence or absence of a jurisdictional element limiting the statute's scope to those cases with "an explicit connection with or effect on interstate commerce," is a second important factor in the constitutional analysis. Morrison, 529 U.S. at 611-612, 120 S. Ct. 1740. Although the Supreme Court has made it unequivocally clear that the presence of a jurisdictional element is not dispositive of the statute's constitutionality, it is equally clear that its presence may "lend support" for that conclusion. Id. at 613, 120 S. Ct. 1740. In short, a jurisdictional element can "ensure, through case-by-case inquiry, that the [crime] in question affects interstate commerce." Lopez, 514 U.S. at 561, 115 S. Ct. 1624; see also Jones v. United States, 529 U.S. 848, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000) (analyzing the federal arson statute's jurisdictional element to avoid potential constitutional issues and ensure the requisite nexus to interstate commerce).
47
The statute at issue here does benefit from the existence of a jurisdictional element. In relevant part, § 669 criminalizes theft from a health care benefit program, the definition of which is explicitly qualified with the phrase "affecting commerce." 18 U.S.C. § 24(b). Section 669 therefore criminalizes only thefts from health care plans or contracts — or medical providers under those plans or contracts — that affect commerce. See Jones, 529 U.S. at 854, 120 S. Ct. 1904 (noting that the qualifying phrase "affecting commerce" generally "signal[s] Congress' intent to invoke its full authority under the Commerce Clause").
48
We recognize that this particular jurisdictional element could be said to be of little practical import. Given the complex state of modern health care delivery, it is difficult to envision any public or private health care plan or contract that does not affect commerce. That is, this jurisdictional element in actuality likely eliminates little from the scope of the statute's operation. If anything, however, that fact simply serves to strengthen our conclusion that Congress properly exercised its constitutional authority in criminalizing this activity under § 669. See Gregg, 226 F.3d at 263 (suggesting that a jurisdictional element is not essential where the regulated activity necessarily affects interstate commerce). And, if there is in fact a set of health care benefit programs that do not affect commerce, the presence of the jurisdictional element will properly exclude them. See, e.g., United States v. McGuire, 178 F.3d 203, 212 (3d Cir.1999) (reversing a conviction because there was an insufficient connection to interstate commerce to satisfy the jurisdictional element). Overall, then, the jurisdictional element provides support for the conclusion that the crimes at issue here are sufficiently related to interstate commerce to be validly regulated pursuant to Congress's Commerce Clause authority.
3. The Presence of Congressional Findings
49
Although the Court has not departed from the general rule that Congress need not make explicit findings detailing the relationship some particular activity has with interstate commerce, it has directed that such findings may, on the margins, bolster an argument that such a relationship exists where it is not evident "to the naked eye." Lopez, 514 U.S. at 563, 115 S. Ct. 1624. If Congress does make relevant findings, we must ask whether they actually support the existence of the requisite relationship. Morrison, 529 U.S. at 614-15, 120 S. Ct. 1740. Thus, congressional findings may provide independent support for a determination of constitutionality, and may also serve to indicate whether Congress had a rational basis for concluding that the activity being regulated was sufficiently related to interstate commerce. See Gregg, 226 F.3d at 263.
50
Section 669 was enacted as part of the HIPAA, a massive statute marking significant legislative reform of the health insurance industry. The most relevant and helpful piece of the legislative history with regard to the anti-fraud and abuse provisions of the HIPAA is a report prepared on that subject by the House Committee on Government Reform and Oversight ("Reform Report"). H.R.Rep. No. 104-747 (1996). The Reform Report summarizes the progression of earlier attempts at legislation to address fraud and abuse in the health care industry, and details the extensive need for reform.
51
The Report states that according to 1995 figures, health care spending in the United States was approximately $1 trillion, divided among Medicare, Medicaid, and various State and private programs. Id. at 2. Strikingly, estimates indicated that as much as 10% of every health care dollar spent — or $100 billion ($274 million a day) — was lost to fraud and abuse. Id. at 2, 7.
52
These startling figures prompted numerous efforts at legislation, frequently including efforts to craft more efficient and effective federal criminal sanctions. Id. at 2-3. Not surprisingly, Congress was particularly concerned with large scale schemes to defraud Medicare, Medicaid, and massive private insurers operating on a national level, such as Aetna and Blue Cross. Nonetheless, Congress was presented with the unfortunate fact that the problems existed in "all segments of the health care industry" and "in every geographic area of the country." Id. at 3 (quoting United States General Accounting Office, Health Insurance: Vulnerable Payers Lose Billions to Fraud and Abuse 2 (1992)). That ubiquity suggests a rational basis for concluding, as Congress did, that even seemingly minor local thefts in connection with health care have direct and significant effects on interstate commerce.
53
First, the health care industry's troubling afflictions simply are not confined by "the jurisdictional boundaries that divide Federal, State and local health care finance and law enforcement." Id. at 1. The relationships among patients, providers, and insurers are extraordinarily complex, and Congress could certainly have reasonably determined that those sophisticated relationships made traditional distinctions between federal, state, and local governments at best unhelpful. Second, at its most general level, Congress's motivation for the legislation was the simple fact that billions of dollars were being illegally removed from the health care system at the expense of ordinary citizens, who, as both taxpayers and consumers of health care services, bear directly the dramatic costs of those losses. With regard to the disturbing "scope and variety of health care fraud," the Reform Report quoted a Department of Justice report stating, "Everyone pays the price for health care fraud: beneficiaries for Government health care insurance such as Medicare and Medicaid pay more for medical services and equipment; consumers of private health insurance pay higher premiums; and taxpayers pay more to cover health care expenditures." Id. at 4 (quoting United States Department of Justice, Department of Justice Health Care Fraud Report, Fiscal Year 1994 3 (1995)).
54
In sum, this history provides independent support for the conclusion that fraud and abuse within the health care industry is a massive national problem that transcends the traditional boundaries of policing as between local, state, and federal governments. It is also readily apparent that such activity — the illegal conversion of many billions of dollars annually — has a substantial effect on interstate commerce. And given the scope and variety of the defects in the system, we cannot conclude that Congress was without a rational basis for determining that it was within its constitutional authority in criminalizing even seemingly minor local thefts or embezzlements in connection with health care. Thus, although the absence of detailed congressional findings would not alter our ultimate decision in this case, we find that the legislative history supports our conclusion that § 669 is a valid exercise of Congress's Commerce Clause authority.2
55
4. The Nexus Between the Regulated Activity and Interstate Commerce
56
At the core of the Supreme Court's analysis in Lopez and Morrison was a justifiable if somewhat visceral skepticism about whether the activity being regulated could be sufficiently linked to interstate commerce. In short, the relationship was simply too attenuated — a test for but-for causation may have been satisfied, but it was a search for proximate causation that was ultimately needed. Indeed, both opinions quoted Justice Cardozo's graphic allusion to this dilemma of causation in his concurring opinion in Schechter Poultry:
57
There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours `is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.'
58
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554, 55 S. Ct. 837, 79 L. Ed. 1570 (1935) (Cardozo, J., concurring) (quoting United States v. A.L.A. Schechter Poultry Corp., 76 F.2d 617, 624 (2d Cir. 1935) (Hand, J. concurring)).
59
The Supreme Court's opinions in Lopez and Morrison make clear that the Court has ultimately been most concerned with the potential slipperiness of but-for reasoning. "In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence," Justice Kennedy noted, "but we have not yet said the commerce power may reach so far." Lopez, 514 U.S. at 580, 115 S. Ct. 1624 (Kennedy, J., concurring). Allowing Congress to regulate in areas with such an attenuated connection to interstate commerce would be "unworkable if we are to maintain the Constitution's enumeration of powers," Morrison, 529 U.S. at 615, 120 S. Ct. 1740, and would ultimately threaten the "distinction between what is truly national and what is truly local." Lopez, 514 U.S. at 567-68, 115 S. Ct. 1624. In sum, the Court has simply been unwilling to "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Lopez, 514 U.S. at 567, 115 S. Ct. 1624.
60
The question "is necessarily one of degree." Lopez, 514 U.S. at 567, 115 S. Ct. 1624 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S. Ct. 615, 81 L. Ed. 893 (1937)). Whatever the "precise formulations" of the boundaries, however, we believe this case presents little worry of Congress overstepping its constitutional bounds. In essence, Whited argues that her minor theft from a local chiropractor has not even the most attenuated connection to interstate commerce. We disagree. "If interstate commerce feels the pinch, it does not matter how local the operation which applies the squeeze." United States v. Women's Sportswear Mfg. Ass'n., 336 U.S. 460, 464, 69 S. Ct. 714, 93 L. Ed. 805 (1949).
61
In Wickard, the Court "emphasized that although Filburn's own contribution to the demand for wheat may have been trivial by itself, that was not `enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial,'" Lopez, 514 U.S. at 556, 115 S. Ct. 1624 (quoting Wickard, 317 U.S. at 127-28, 63 S. Ct. 82). That long-standing principle of aggregation is directly applicable to our facts. Although the wheat Wickard himself produced could scarcely be considered to have a substantial effect on the national wheat industry, when considered in conjunction with all those similarly situated it is evident that homegrown wheat does impact interstate commerce. Similarly, although Whited's $34,000 theft may seem relatively inconsequential or even de minimis when viewed within the broader context of the trillion dollar health care industry, when replicated over and again the economic effects of such acts are "indeed profound."3 Bishop, 66 F.3d at 581. Thus, like the production of homegrown wheat in Wickard, theft or embezzlement in connection with health care is "an economic activity that ... through repetition elsewhere, substantially affect[s] ... interstate commerce."4 theft in connection with health care substantially affects interstate Lopez, 514 U.S. at 567, 115 S. Ct. 1624. This case is therefore clearly distinguishable from those cases in which the requisite connection to interstate commerce was found to be lacking. See, e.g., McGuire, 178 F.3d at 212 ("Proof that [a] single bottle of orange juice was to have been used by a business that is ... concededly local in character ... is simply not sufficient" to satisfy the nexus to interstate commerce).
62
Unlike the attenuated but-for relationships present in Lopez and Morrison, the relation between theft in connection with health care and interstate commerce is direct and present. At the very least, we will not "second-guess" Congress's reasonable determination on that score.5 Bishop, 66 F.3d at 577.
IV.
63
Although poorly drafted, Whited's indictment charged her with embezzling from the Center, a qualifying health care benefit program under the plain statutory language, and thus sufficiently alleged the material elements of the offense. We further conclude that the application of 669 to Whited's theft was not a violation of the Commerce Clause. Section 669's regulation of theft or embezzlement from local medical service providers such as the Center is regulation of inherently economic activity. The statute contains a jurisdictional element limiting its applicability to particular instances affecting interstate commerce, and it is supported by a legislative history indicating its part in a comprehensive legislative response to profound problems in the health care industry that are not confined by traditional jurisdictional or geographic borders. Finally, within the broader context of medical service plans and contracts, Congress was certainly justified in concluding that the theft or embezzlement from even a local chiropractor such as the Center has a direct, present, and substantial relation to interstate commerce.
64
For all of the reasons recited above, the order of the District Court will be AFFIRMED.
Notes:
1
Although the indictment charged Whited with embezzling $5,956.52, there was evidence indicating that the amount actually involved was far greater. Whited and the government eventually agreed on $34,327 as a reasonable figure for restitution purposes
2
It is worth noting that the Reform Report explicitly, if briefly, considered the question of whether criminalizing these activities was within Congress's Commerce Clause authority, and concluded that "Lopez and the subsequent lower court cases indicate [that Congress] may prescribe health care fraud under its commerce clause powers" because of health care fraud's "interstate attributes." Reform Report, at 14 n. 46.
3
Notably, Congress was apparently concerned with thefts as small as $100, providing specifically in § 669 that such crimes could be punishable with up to a year in prison
4
Moreover, because Congress had a rational basis for concluding that commerce, "we do not have the power to excise, as trivial, individual instances falling within that rationally defined class of activities."Bishop, 66 F.3d at 584 (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88 S. Ct. 2017, 20 L. Ed. 2d 1020 (1968)).
5
The reliance by Whited's counsel onUnited States v. Five Gambling Devices, 346 U.S. 441, 74 S. Ct. 190, 98 L. Ed. 179 (1953), is wholly without merit. We note in particular counsel's mischaracterization of that opinion in stating that the Court "invalidated a portion of the statute," and "reasoned [that] limits on the commerce power do exist, and [that] Congress had exceeded them in that case." App. Br. at 18. At issue in Five Gambling Devices was a statute that "prohibit[ed] shipment of gambling machines in interstate commerce [and] included incidental registration and reporting provisions" that were not expressly limited to interstate commerce. Five Gambling Devices, 346 U.S. at 442-45, 74 S. Ct. 190. Notwithstanding counsel's statements to the contrary, not a single member of the Court voted to invalidate any portion of the statute on Commerce Clause grounds. Moreover, not a single member of the Court even stated that it was his opinion that the statute was unconstitutional on those grounds. The judgment of the Court was announced by Justice Jackson who, in a plurality opinion joined by two other justices, employed the canon of avoidance and construed the statute to avoid any troublesome constitutional issues. Id. at 442-52, 74 S. Ct. 190. In doing so, Justice Jackson noted the potentially difficult Commerce Clause issues, but made absolutely no statement as to their merits. Id. Justice Black wrote a brief concurrence, joined by Justice Douglas, expressing his belief that the statute was unconstitutionally vague. Id. at 452-54, 74 S. Ct. 190. Justice Black's concurrence expressed no view whatsoever as to the Commerce Clause issues. Id. Justice Clark's dissent, which was joined by the three remaining members of the Court, was the only opinion to confront the Commerce Clause issue directly, and it argued strenuously that the statute at issue fell within Congress's authority. Id. at 454-463, 74 S. Ct. 190. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/738770/ | 110 F.3d 64
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.James Luke SANDERS, Plaintiff-Appellant,Karen Trudeau, Plaintiff,v.ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
No. 96-5441.
United States Court of Appeals, Sixth Circuit.
March 21, 1997.
Before: KEITH, NELSON, and MOORE, Circuit Judges.
ORDER
1
James Luke Sanders, a Tennessee citizen proceeding pro se, appeals a district court judgment in favor of the defendant in this diversity action based upon an alleged breach of an insurance policy. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
On June 26, 1993, a residence owned by Sanders was destroyed by fire. Two days later, Sanders notified his insurer, Allstate Insurance Company (Allstate), of the damage and presented a proof of loss in the amount of $43,000. Allstate denied Sanders's claim for several reasons, including its contention that Sanders had committed arson and caused the fire. Karen Trudeau, also a plaintiff in this action, rented the house owned by Sanders and was insured for her personal property under a renter's policy with Allstate. Trudeau's claim for approximately $10,000 was also denied by the defendant. Thereupon, both claimants filed a complaint against Allstate, seeking recovery under the terms of their respective insurance policies. In addition, Sanders claimed that Allstate's refusal to honor his insurance claim constituted bad faith and sought the penalty provided under Tenn.Code Ann. § 56-7-105. In its answer, Allstate continued to assert that the plaintiffs intentionally caused the fire loss and violated the provision of their insurance policies relating to concealment or fraud. On February 3, 1995, the district court dismissed Trudeau's claim for her failure to respond to a previous order that she either obtain new counsel or notify the court of her intent to proceed pro se. Trudeau had previously assigned her claim to Sanders for $7,500, despite a clause in the contract barring such assignments.
3
A jury trial commenced on February 9, 1996. Following testimony, including that of Karen Trudeau, the jury returned a verdict on February 21, 1996, in favor of Allstate. The district court's judgment on the verdict was entered on February 23, 1996. On appeal, Sanders argues that Trudeau committed perjury in her deposition and that only one of the two depositions she gave was brought out in court. Allstate counters in its brief on appeal that Sanders's appeal is frivolous and requests sanctions pursuant to 28 U.S.C. § 1912 and Fed.R.App.P. 38.
4
Upon review, we affirm the district court's judgment. Sanders does not directly attack the verdict or any of the trial court's rulings. Instead, he merely presents a vague and conclusory allegation that Trudeau committed perjury in one of two pre-trial depositions. However, Sanders failed to include in the record on appeal the relevant excerpts from the transcripts of those depositions and Trudeau's trial testimony as required by Fed.R.App.P. 10(b)(2). If a transcript is unavailable, Fed.R.App.P. 10(c) provides that the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. Despite the permissive "may" in Rule 10(c), if an appellant intends to argue on appeal that a finding or conclusion is unsupported by the evidence and a transcript is unavailable, he must follow the procedure set forth in that rule and submit a statement of the evidence. Hawley v. City of Cleveland, 24 F.3d 814, 821 (6th Cir.1994). Sanders has not complied with this rule. For this reason, and because Sanders does not state how the alleged perjury prejudiced his case, this court cannot perform a meaningful review. The failure to comply with Rule 10(c) further amounts to a waiver of Sanders's right to appeal this issue. See Hawley, 24 F.3d at 821; Herndon v. City of Massillon, 638 F.2d 963, 965 (6th Cir.1981).
5
Trudeau testified and was subject to cross-examination regarding any prior inconsistent statements. See Fed.R.Evid. 613. The resolution of credibility questions is left to the jury. See Boutros v. Canton Reg'l Transit Auth., 997 F.2d 198, 202 (6th Cir.1993). Moreover, it is well-settled that an appellant may not substantiate a perjury charge merely by pointing out apparent inconsistencies in testimony uncorroborated by factual evidence. United States v. Lochmondy, 890 F.2d 817, 822-23 (6th Cir.1989); Barnett v. United States, 439 F.2d 801, 802 (6th Cir.1971) (per curiam). Therefore, even if Sanders had identified the inconsistencies in Trudeau's depositions, without corroborating evidence he would still be unable to prevail on appeal.
6
Accordingly, the district court's judgment, entered on February 23, 1996, is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-03-2023 | 04-17-2012 |
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