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https://www.courtlistener.com/api/rest/v3/opinions/1604050/ | 882 F. Supp. 353 (1995)
Enid M. BENT, Plaintiff,
v.
MOUNT SINAI MEDICAL CENTER and Jeanne Vezeris, Defendants.
No. 94 Civ. 8027 (JGK).
United States District Court, S.D. New York.
April 24, 1995.
*354 Enid M. Bent, Bronx, NY, pro se.
Christopher A. Considine, Asst. Gen. Counsel, Mount Sinai Hosp., Office of the Gen. Counsel, New York City, for defendants.
OPINION AND ORDER
KOELTL, District Judge:
The plaintiff in this case, Enid Bent, had been an employee of Mount Sinai Hospital for almost nine years when she was terminated on June 13 or June 14, 1991. Ms. Bent suffers from a thyroid condition, pulmonary fibrosis, cardiac arrhythmia, hypertension, osteoporosis and blindness in the left eye. Following her termination, Ms. Bent brought suit, alleging that the defendants had violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., both in their treatment of her while she was employed and in their decision to terminate her.
The defendants have moved to dismiss the complaint with prejudice for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The defendants advance two arguments in support of their motion: first, that because the ADA did not become effective until July 26, 1992 and because it is not retroactive, the plaintiff cannot pursue a claim under that statute; and second, that even if the ADA were retroactive, the plaintiff would be foreclosed from pursuing her claim because she failed to file charges with the Equal Employment Opportunity Commission ("EEOC"), a prerequisite to filing a suit in federal court under the ADA.
I.
The defendants argue that because the plaintiff complains of behavior that occurred before July 26, 1992, the effective date of the ADA, the plaintiff cannot state a claim under the ADA and her complaint must be dismissed.
A court should dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) only "if `it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Valmonte v. Bane, 18 F.3d *355 992, 998 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957)).
The plaintiff claims that the defendants violated Title I of the ADA, which prohibits discrimination in employment on the basis of disability. See 42 U.S.C. §§ 12111-12117. She alleges that during the course of her employment, the defendants failed to accommodate her disability, that she was the victim of constant harassment, that she received discriminatory warnings and that she was forced to handle an unfair distribution of work. The plaintiff also contends that her termination violated the ADA. Ms. Bent alleges that after a dispute on June 13, 1991, she was told that she was fired. Upon arriving at work the next day, she received her termination papers. The plaintiff does not allege that the defendants discriminated against her in violation of the ADA at any time after June 14, 1991.
The effective date of the ADA is July 26, 1992. See ADA, Pub.L. No. 101-336, 104 Stat. 327, § 108 (1990) (providing that the ADA will not become effective until two years after its enactment on July 26, 1990); 42 U.S.C. § 12111, Historical and Statutory Notes. All of the courts that have addressed the issue of whether the ADA is retroactive unanimously have held that it is not. See, e.g., Vande Zande v. State of Wisconsin Dep't of Admin., 44 F.3d 538, 545 (7th Cir. 1995); Reyes v. Pacific Bell, 21 F.3d 1115 (9th Cir.1994) (Table, text in Westlaw); O'Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir.1993); Noel v. Cornell Univ. Medical College, 853 F. Supp. 93, 94 (S.D.N.Y.) (Cedarbaum, J.), aff'd, 41 F.3d 1502 (2d Cir. 1994) (Table); Smith v. United Parcel Serv. of Am., No. 93 Civ. 5061, 1994 WL 620946, *3 (S.D.N.Y. Nov. 8, 1994) (Martin, J.). Therefore, the plaintiff cannot sustain her claim under the ADA. On this ground alone, the Court is required to dismiss the complaint under Rule 12(b)(6).
II.
Even assuming that the ADA were retroactive, the defendants argue, correctly, that the Court still would be required to dismiss the complaint because the plaintiff did not file charges with the EEOC, a prerequisite under Title I of the ADA to filing a suit in federal court. See 42 U.S.C. § 12117 (adopting for claims under Title I of the ADA the administrative exhaustion requirement of Title VII codified at 42 U.S.C. § 2000e-5); Finley v. Giacobbe, 827 F. Supp. 215, 219 n. 3 (S.D.N.Y.1993) (Goettel, J.) (recognizing that Title I of the ADA incorporates Title VII's enforcement procedures); see also Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("When a plaintiff fails to file a timely charge with the EEOC [in a Title VII case], the claim is time-barred.... A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge.") (citations omitted).[1]
The plaintiff admits that she did not file charges with the EEOC; she claims that she did not do so because she filed a complaint with the New York City Commission on Human Rights on September 12, 1991. However, rather than excuse her from filing a charge with the EEOC, filing a charge with a state agency merely extends the time that a plaintiff has to file with the EEOC from one *356 hundred and eighty to three hundred days. See 42 U.S.C. § 2000e-5(e); see also Butts, 990 F.2d at 1401 (claim is time-barred when a timely charge is not filed with the EEOC within three hundred days); Skeet v. New York City Dep't of Consumer Affairs, No. 93 Civ. 2121, 1994 WL 86405, *2 (S.D.N.Y. March 15, 1994) (Leisure, J.) (same). Therefore, even if the ADA were retroactive, which it is not, the plaintiff's failure to file a charge with the EEOC would preclude her from bringing her case in federal court.
For the foregoing reasons, the defendants' motion is granted. The plaintiff's complaint is dismissed with prejudice.
SO ORDERED.
NOTES
[1] As the court explained in Donnelly-Keller v. H & R Block, Inc., No. 92-CV-273, 1992 WL 218282 (N.D.N.Y. Sept. 3, 1992), aff'd, 992 F.2d 319 (2d Cir.1993) (Table), pursuant to the Supreme Court's holding in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982), the filing of a timely charge with the EEOC is not a jurisdictional prerequisite to suit in a federal court. Id. at *4. The court went on to explain:
[T]his timeliness requirement, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. It does not follow from this conclusion, however, that plaintiff may forego filing her complaint with the EEOC altogether. In other words, although the timeliness of the filing with the EEOC is in the nature of a statute of limitations, the act of filing is a jurisdictional prerequisite to the commencement of a Title VII suit in the federal courts. Thus, absent plaintiff's filing of a complaint with the EEOC and her receipt of a right to sue letter, this court lacks jurisdiction to entertain plaintiff's Title VII claims.
Id. (citations omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604063/ | 882 F. Supp. 1217 (1995)
UNITED STATES of America, Plaintiff,
v.
William M. DAVIS, et al., Defendants.
Civ. A. No. 90-0484 P.
United States District Court, D. Rhode Island.
April 6, 1995.
*1218 Lois Schiffer, Asst. Atty. Gen., Robert E. Maher, Cynthia Huber, Robert H. Oakley, Environmental Enforcement Section, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, Kathleen Woodward, Asst. Regional Counsel, U.S.E.P.A., Region I, Boston, MA, for plaintiff.
R. Bradford Fawley, Down, Rachlin & Martin, Brattleboro, VT, Samuel D. Rosen, Paul Hastings Janofsky & Walker, New York City, Tom Angelone, Hodosh, Spinella & Angelone, Providence, RI, Robert Sanoff, Seth Jaffe, Foley Hoag & Eliot, Boston, MA, Roxanne Jayne, Cohen, Shapiro, Polisher, Sheikman and Cohen, Lawrenceville, NJ, Russell V. Randle, Patton, Boggs & Blow, Washington, DC, Alan C. Zetterberg, Sr. Corporate Counsel, Legal Div., Pfizer, Inc., New York City, Richard M. Squire, Cohen, Shapiro, Polisher, Sheikman and Cohen, Philadelphia, PA, Mark O. Denehy, Adler Pollock & Sheehan, Deming Sherman, Edwards & Angell, Providence, RI, S. Paul Ryan, East Providence, RI, Benjamin White, Vetter & White, Steven Raffa, Blish & Cavanagh, Providence, RI, William & Eleanor Davis, Greenville, RI, Barry P. Allen, Environmental Counsel, Briston-Myers Squibb Co., New York City, LB Kregenow, Pepper, Hamilton & Scheetz, Philadelphia, PA, for defendants.
*1219 MEMORANDUM AND ORDER
PETTINE, Senior District Judge.
In this case, the United States has filed suit under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") to recover costs incurred and to be incurred in responding to the release and threatened release of hazardous substances at the Davis Liquid Waste Site in Smithfield, Rhode Island. For the convenience of the Court and the parties the case has been trifurcated; at this initial stage, the only issues before the Court are those of liability. All issues pertaining to past and future costs incurred by the United States, as well as all issues pertaining to contribution among defendants and third-party defendants, are reserved for the later stages of the case.
BACKGROUND:
This is a case in which many issues of fact are hotly disputed by the parties, and one in which the outcome of these disputes will ultimately determine the outcome of the case. Nevertheless, the parties either agree on the following facts or the Court has adopted them as true, in the light of the evidence presented. First, although the exact dates during which the liquid waste disposal site was in operation are in dispute, the parties appear to agree that it was running at least from the fall of 1976 to some time in 1977. (Tr. at 132: 14-17, 11/12/93; UTC's Proposed Findings of Fact at 1.) The wastes found at the Site include various solvents, such as perchloroethylene, that were used as solvents in the metal finishing process, a process engaged in by UTC. Pratt & Whitney Aircraft ("Pratt & Whitney") was a division of defendant United Technologies Corporation ("UTC") in the 1970's and operated facilities for the manufacture of jet engines in East Hartford, Connecticut. UTC produced a hazardous waxy waste stream which was dark brown with a solvent smell and which contained solvents such as perchloroethylene. They disposed of their hazardous waste in drums, some of which were dark in color and others of which were light. The parties disagree as to what markings appeared on these drums. UTC also produced a non-hazardous waxy waste that was light in color.
In 1985, the United States' Environmental Protection Agency ("EPA") commenced a removal action at the Site, during which they sampled and investigated several hundred drums at the Site, categorized them, and disposed of them off-site. The United States filed suit pursuant to Section 107 of CERCLA against the following parties: William Davis as an owner and/or operator of the facility; Eleanor Davis as an owner of the facility; United Sanitation, Inc. and A. Capuano Brothers Inc. as "transporters" and "arrangers;" and Ciba-Geigy Corporation, Clairol Inc., Pfizer Inc., The Providence Journal Company, and United Technologies Corporation as "generators." At the start of trial, only UTC remained as a defendant in the case.
The fundamental dispute between the United States and UTC is factual. The United States claims to have found UTC's hazardous waste at the Davis Site and to have established the chain by which it arrived at the Site, whereas UTC claims that their hazardous waste was never deposited at the Site and that the United States' "proof" is simply a tissue of equivocal items that fails to prove liability by a preponderance of the evidence. The Court must turn its attention to these diametrically opposed stories in order to weigh the evidence and establish the facts.
DISCUSSION:
Liability under CERCLA is defined at Section 107. Under this section, the following four classes of individuals are subject to liability for the costs associated with the cleanup of hazardous waste from waste sites:
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another *1220 party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance....
42 U.S.C. §§ 9607(a)(1-4) (1994). Clearly, if UTC meets any of these definitions, it is the third one, that of a "generator."[1] In order to find generator liability under Section 107(a)(3) of CERCLA, courts have uniformly required proof of four basic elements: (1) the generator must have disposed of hazardous substances;[2] (2) the disposal must have been at a facility[3] which contains at the time of discovery hazardous substances of the kind disposed of by the generator; (3) there must be a release[4] or threatened release of that or any hazardous substance; and (4) the release or threatened release must trigger the incurrence of response[5] costs.
In the instant case, the parties agree that the Davis Site was a facility within the meaning of CERCLA (Common Stip. 3, Tr. at 97: 1-3, 11/18/93), that there was a release of hazardous substances at the Site (Colloquy, Tr. at 76: 5-16, 11/10/93), and that the United States has incurred response costs for response activities performed at the Site (Common Stips. 5-6, Tr. at 97: 6-12, *1221 11/18/93). The only elements of the prima facie case of generator liability that still remain at issue, therefore, are whether UTC arranged for the disposal of any substances at all that were ultimately deposited at the Davis Site, and if so, whether any of UTC's waste that was deposited at the Site was hazardous within the meaning of CERCLA. It is to these matters that the Court now turns.
Was UTC Waste Deposited at the Davis Site?
The first key issue at trial was whether UTC arranged for the disposal of any wastes that wound up at the Davis Site. It is established law that UTC is liable under CERCLA if its waste can be located and identified at the Davis Site, regardless of whether UTC intended its waste to end up there. This legal standard has already been articulated in this case:
A generator need not have chosen a particular disposal site to be liable under section 107(a)(3). Violet v. Picillo, supra, 648 F.Supp. at 1290-91; United States v. Conservation Chem. Co., 619 F. Supp. 162, 176, 233-234 (W.D.Mo.1985). It is no defense to liability to claim that a transporter, with whom a generator arranged for the disposal of waste at a particular site, disposes of the waste somewhere else (unbeknownst to the generator). O'Neil v. Picillo, supra, 883 F.2d [176] at 182, n. 9 [(1st Cir.1989)]; Violet v. Picillo, supra, 648 F.Supp. at 1294; United States v. Conservation Chem. Co., supra, 619 F.Supp. at 176.
United States v. Davis, Report and Recommendation of Magistrate-Judge Boudewyns at 9 (D.R.I. August 5, 1991).
The government has assembled a variety of evidentiary items in support of its position that UTC's waste was in fact present at the Site. First, the government offers the testimony of William Davis, the owner and operator of the Davis Site. Davis testified that during the 1970's the waste haulers Macera Brothers brought a few hundred drums to the Site, and that he saw Pratt & Whitney labels on some of the drums brought to the Site by Macera Brothers. He testified that the main wastes brought to the Site by Macera Brothers were waxy-type substances, and that some of the waste was a wax and solvent mix that could be poured. According to Davis, the color of the wax solvent mix contained in the drums with Pratt & Whitney labels was brown, and some of these Pratt & Whitney drums were dark in color. In general, the drums in which the wastes were contained appeared to be recycled drums, most of which were dark in color and some of which were light in color. Davis testified that the liquid that was in the wax-containing drums "smelled like it was carbon-tet," which he believed was a solvent. (Tr. at 149-151: 11/12/93.) Davis made a rough estimate that there were "maybe a few hundred" drums brought to the Site with Pratt & Whitney labels on them. (Id. at 153:1.)
In 1985, because of his belief that there were some drums on his property that belonged to Pratt & Whitney, Davis testified that he telephoned John Casey, attorney for Pratt & Whitney. Davis asked Casey to remove the drums, and soon thereafter, according to Davis' testimony, two people who said they were from Pratt & Whitney appeared at the Site to inspect the drums. Davis further testified that one of these two representatives of Pratt & Whitney said, upon examining the contents of the drums, either "that's my stuff" or "that's our stuff." (Tr. at 17: 19-20, 11/15/93).[6]
Davis' testimony supports the government's contention that UTC's waste was present at the Davis Site. Most obviously, Davis testified to seeing Pratt & Whitney labels on the drums of waxy waste that Macera Brothers brought to the Site. If this is true, and in the absence of persuasive evidence that despite the Pratt & Whitney labels *1222 the drums did not belong to UTC, it strongly supports the government's position. Davis also testified that the waxy waste contained in the drums labeled Pratt & Whitney was brown in color and that the drums were dark. In general, Davis' description of the waste brought to the Site by Macera Brothers is closely similar to uncontradicted evidence about the appearance and nature of Pratt & Whitney's hazardous waxy waste, i.e. their combination of masking wax and solvent. The government's position is further substantiated by Davis' testimony that an agent of Pratt & Whitney, upon viewing drums and waste at the Site, admitted that they belonged to Pratt & Whitney.
UTC attempted to persuade the Court that Davis fabricated both his claim that he saw drums at the Site that were labeled "Pratt & Whitney" and his claim that an agent of Pratt & Whitney conceded that the drums originated at that company. In their effort to do so, UTC pointed both to inconsistencies between Davis' trial testimony and his prior deposition testimony and inconsistencies between Davis' testimony and other evidence presented in the case.[7] Having reviewed the evidence, it is the opinion of this Court that these inconsistencies are not sufficient to sustain a finding that Davis lied, made up his evidence, or perjured himself. Therefore, I reject UTC's contention that none of Davis' testimony should be given any weight.
The second vital piece of evidence relied upon by the government in building its case is the testimony of Paul Palughi. Palughi was an employee of O.H. Materials, a contractor retained by EPA to assist in the 1985 removal of drums from the Site, and was present at the Site during the removal. At trial, Palughi testified that during the cleanup, he noticed a rotted out drum with "Pratt & Whitney Aircraft" labelled on it. He took particular notice of this because only a few days previously he had concluded a three month period of work at the UTC Pratt & Whitney Aircraft jet engine manufacturing plant in East Hartford.[8]
UTC urges the Court to disregard this evidence, claiming that an empty drum cannot establish liability.
[T]he empty scrap is insufficient to establish Pratt & Whitney's liability because there is no proof that the drum scrap came from Pratt & Whitney, there is no proof *1223 that the drum scrap ever contained any waste, there is no proof that any waste that may have been in the drum at some time was released at the Davis Site, and there is no proof that any waste which may have been in the drum was a hazardous substance.
UTC's Post Trial Brief at 26. In response, the government cites to a prior case in front of this Court for the notion that an empty drum at a hazardous waste site can be assumed to have discharged its contents. O'Neil v. Picillo, 682 F. Supp. 706, 725 (D.R.I. 1988). In the instant case, the drum identified by Palughi as having a Pratt & Whitney label is not sufficient in and of itself to establish that UTC's waste was at the Site; however, in connection with other evidence, the Palughi testimony does serve as a corroboration of the government's version of the facts.
The next set of evidence upon which the government relies is the evidence surrounding the so-called "PMC drums." Pratt & Whitney had an internal numbering system it used to identify the chemicals and other raw materials it used (the Process Material Code or PMC system). Each chemical was assigned a unique PMC number, such as PMC 9015, which referred to perchloroethylene and PMC 9063, which referred to mineral spirits. Pratt & Whitney required its suppliers, such as Astro Chemicals (a supplier of perchloroethylene to Pratt & Whitney), to place the PMC numbers on the drums of chemicals delivered to Pratt & Whitney. Although Pratt & Whitney was not the only plating shop in New England to use PMC numbers (or to use perchloroethylene in their operations), long-time employees of Astro Chemicals testified that Pratt & Whitney was the only company for which Astro placed PMC numbers on drums.
A number of drums found at the Site were marked with PMC numbers. The extent to which these numbers substantiate UTC's ownership of the drums is bitterly contested. UTC argues that inconsistencies between their numbering system and the numbers that appeared on the drums prove that the drums could not have originated at Pratt & Whitney. The government maintains that the inconsistencies to which UTC points are minor and explainable, and that the strong correlations between Pratt & Whitney's PMC system and the numbers that appeared on the drums at the Davis Site show that the drums were in fact filled with Pratt & Whitney's waste.
UTC's most persuasive argument with regard to the PMC numbers is based upon the testimony of William Greene, a long-time Pratt & Whitney employee currently working in the manufacturing policies and process documentation group. Greene testified that he was in charge of issuing and maintaining PMC numbers and of the historic records of the PMC system. He further testified that when he worked as foreman in the plating department from 1967 to 1979, Pratt & Whitney had a specific PMC number, PMC 9551, which was on the drums in which hazardous wax waste from the plating department was placed. The word "wax" was also placed on some of those drums, but Greene never saw drums designated for hazardous wax waste disposal with "Pratt & Whitney" on them. UTC points to the fact that none of the drums found at the Site had "PMC 9551" or "wax" written on them to support its assertion that the waste at the Davis Site did not originate at Pratt & Whitney.
The government offers several points in rebuttal. First, the government points to the fact that hazardous masking wax waste was placed into barrels in more than one location at the Pratt & Whitney plant; some waste was placed in drums in the plating department, and some masking wax waste from the solvent recovery stills in the plating department was sent by means of a portable tank to the distilling unit of the maintenance department, where it was drummed. Greene worked in the plating department and is competent to serve as a witness as to waste disposal in that department. However, he did not work in the distilling unit of the maintenance department, and did not know what happened to that masking wax waste, or in what sort of barrels it was placed. Also, the testimony of Charles Nelson conflicted with that of Greene in that Nelson, whose work did take him to the maintenance department, testified that some of the drums *1224 Pratt & Whitney used for waxy waste disposal were "reclaim barrels" that were in good shape and could be reused. These reclaim barrels were distinct both from new barrels purchased specifically for disposal purposes from a vendor and from barrels reconditioned by Pratt & Whitney. One can conclude from Nelson's testimony that the reclaim barrels used in the maintenance department may have been barrels that were originally sent to Pratt & Whitney from distributors such as Astro. When received by Pratt & Whitney from the distributors, these barrels would have borne PMC numbers corresponding to the original contents of the drums (such as "PMC 9015" for perchloroethylene). If Pratt & Whitney simply reused the drums without reconditioning them or changing their markings, then even after the barrels were filled with hazardous wax waste, they may still have borne old PMC numbers that corresponded to their original contents, not to their new wax and solvent waste contents. Greene, who worked in the plating department, would not have known about the custom in the maintenance department of using "reclaim barrels."
A number of drums at the Site had either PMC numbers on them or other markings arguably attributable to Pratt & Whitney. UTC focuses on three drums with PMC numbers; drum 12 had "PMC 9015," "astro," and "Perchloroethylene;" drum 10 had "PMC 9013," "Astro," and "Perchloroethylene;" and drum 9 had "PMC 6063," "Exxon," and "Varsol."[9] UTC's PMC number for perchloroethylene was 9015, and the government argues that drum 12, in and of itself, is evidence that Pratt & Whitney's waste was deposited at the Site. For further support, the government points to the PMC 9013 appearing on drum 10 and the PMC 6063 appearing on drum 9, each of which is one digit off from the proper PMC number for the element labeled on the drum. They claim that several years of exposure to the outdoor elements, as well as the fire that occurred at the Site, may either have caused the digit on the drum to appear distorted or caused an observer to misread it. In contrast, UTC relies upon the incorrect digits to sustain their position that drums 9 and 10 did not originate at Pratt & Whitney. With regard to drum 12, UTC argues that "PMC 9015" could have been Astro's date designation for the barrel, or that the drum, with its PMC marking, could have been old, in the stream of commerce for many years, and no longer attributable to Pratt & Whitney. In the light of the testimony discussed supra (Davis' identification of Pratt & Whitney drums at the Site, Astro's practice of placing PMC numbers only on Pratt & Whitney drums, Palughi's observation of a Pratt & Whitney label on a drum), this Court is persuaded by the government's arguments to accept the position that certainly drum 12, and very likely drums 9 and 10, originated at Pratt & Whitney. It is the finding of this Court, based on a preponderance of the evidence, that Pratt & Whitney waste was present at the Davis Site.[10] I now turn to the question of whether that waste was hazardous.
Was the UTC Waste Deposited at the Davis Site Hazardous?
Having established that UTC drums filled with UTC waste were present at the Davis Site, I am now faced with the question of the nature of that waste. In order for UTC to be liable under CERCLA, the UTC wastes disposed of at the Davis Site must include hazardous substances, and the hazardous substances present at the Davis Site *1225 must be of the same type. Thus, this Court must establish the nature of UTC's hazardous waste and must make the determination that the same type of hazardous waste was present at the Site.
Pratt & Whitney's hazardous waste stream consisted of a combination of masking wax and solvent, such as perchloroethylene or 1,1,1-trichloroethane. It was dark brown in color, smelled strongly of solvent, and was viscous or partly solid and partly liquid in consistency. During the 1985 investigation of the Davis Site by Pratt & Whitney agents, Nelson and Averill both examined drums filled with a waxy waste. Nelson described the waste as "a very dark brown, almost black, very greasy looking waste with a strong solvent smell to it" (Tr. at 158: 11-16, 11/15/93), and as looking and smelling very similar to Pratt & Whitney's solvent-contaminated wax waste. (Tr. at 158: 21-23; 159: 10-12, 11/15/93). Averill confirmed the similarity between the waste at the Site and Pratt & Whitney's waste; "[t]he appearance would be the same as the wax bottom type of materials that would come out of Pratt-Whitney's [still bottom] recovery process." (Tr. at 126: 22-127: 3, 11/16/93). Furthermore, Averill's analysis of two samples of waste from the Site showed high levels of the solvent perchloroethylene, levels that were comparable to those appearing in Pratt & Whitney's solvent contaminated waste. Based on this evidence, it is my conclusion that, based on a preponderance of the evidence, the waste deposited by Pratt & Whitney at the Site was hazardous. Thus, I find that UTC is liable as a generator under Section 107(a)(3) of CERCLA.
UTC's Statute of Limitations Defense:
UTC claims that the United States' claims against it are barred by the statute of limitations contained in Section 113(g)(2)(A) of CERCLA, 42 U.S.C. § 9613(g)(2)(A), which states that "an initial action for recovery of the costs [of removal actions] ... must be commenced ... within 3 years after completion of the removal action." UTC contends that the drum cleanup was completed in February of 1986, but the suit was not filed until September 27, 1990, and that because more than three years passed between the completion of cleanup and the commencement of the suit, the United States' case is time barred.
The government responds to this claim with the assertion that, under CERCLA, the statute of limitations does not begin to run until the EPA issues a Record of Decision ("ROD"). In this case, EPA issued the ROD on September 27, 1987, precisely three years prior to the government's filing of the complaint in this case. Under the government's theory, then, the statute of limitations contained in CERCLA does not bar their case.
At issue is whether the removal action at the Davis Site was limited to taking the drums off the Site, or whether it included the Remedial Investigation and Feasibility Study ("RI/FS") and the issuance of the ROD.[11] Both the statutory language and the relevant case law squarely support the government's position that a removal action includes the RI/FS and the issuance of the ROD.
CERCLA offers the following definition of removal:
The terms "remove" or "removal" means [sic] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.
42 U.S.C. § 9601(23) (1994) (emphasis added).[12] While preparing and issuing the *1226 RI/FS and the ROD, EPA engages in activities that fall under CERCLA's definition of "removal;" EPA does "monitor, assess, and evaluate the release or threat of release of hazardous substances." Thus, to decide that a removal action is over when the physical removal is over but before the process of monitoring, assessing and evaluating the damage has come to completion violates the clear sense of the statutory language.
Cases that have grappled with this issue have overwhelmingly concluded that the removal process does not end until the completion of the RI/FS and the issuance of the ROD. The clearest articulation of this notion appears in United States v. Jack Allen, No. 90-2093, 1990 WL 339488, *6 (W.D.Ark. Nov. 6, 1990), in which the court made the following statement:
Clearly, the term removal (as defined by CERCLA), is not limited to on-site activity and includes the time needed to dispose of the removed material as well as the time needed to evaluate the need for further activity. Defendants have not alleged that the EPA unnecessarily delayed in making the determination that no further on-site activity was needed. We therefore conclude that this suit was timely filed under 42 U.S.C. § 9613(g)(2)(A).
See also United States v. Rohm and Haas Company, 790 F. Supp. 1255, 1264 (E.D.Pa. 1992) ("The limitations period begins to run as of the time when all contamination has been removed. However, "removal" is not confined to on-site removal"); United States v. Petersen Sand and Gravel, Inc., 824 F. Supp. 751, 755 (N.D.Ill.1991) ("the record of decision serves as the EPA's final action in the remedial investigation and feasibility study removal action process.... the statute of limitations begins running when the remedial investigation and feasibility study removal action are completed by the EPA's issuance of its record of decision"); United States v. R.A. Corbett Transport, Inc., 785 F. Supp. 81, 82 (E.D.Tex.1990) ("all Site activities conducted by the United States, including the remedial investigation, were removal actions under the meaning of CERCLA").
UTC makes one more ingenious albeit ultimately unpersuasive argument as to why the government's case is time-barred. They argue that the cases that measure the statute of limitations to the date of the issuance of the ROD are inapplicable to the facts at hand because the removal costs in those precedents relate to clean-up from leaking drums whereas, under UTC's theory of this case, any drums from the Davis Site that may have been attributable to them were intact and non-leaking.[13] Thus, they argue,
[i]f this Court were to hold that the statute of limitations for the discrete removal of non-leaking drums continues beyond three *1227 years after they are removed from the site just because EPA continues to incur response costs at the site as a result of other leaking drums or tanker waste disposals, the three year statutory limitation on recovery of removal costs provided by Congress will have been eviscerated and indefinitely extended until EPA completes all activities at a Site.
UTC's Post Trial Brief at 44. Although this argument is creative, UTC fails to indicate any statutory or judicial authority for its belief that Congress intended CERCLA's scheme of a statute of limitations that dates from a single removal action for a site not to apply in a case where wastes are contained in discrete, intact drums. The logic that underlies the teaching that all activities surrounding the cleanup and monitoring of a site comprise one "removal action" is not compromised because the waste is of a certain type or in a certain form. This Court rejects UTC's statute of limitations arguments, and holds that this case was timely filed under 42 U.S.C. § 9613(g)(2)(A).[14]
SO ORDERED.
NOTES
[1] This Court has had previous opportunity to reflect upon the ambiguity of the language in CERCLA covering generator liability:
The ambiguity of this provision is apparent upon close inspection. As one court has noted, the literal terms of the statute could be interpreted to impose liability on a waste generator who arranges for waste disposal by contract or agreement, but who never actually delivers the waste to a disposal facility. CERCLA is a hastily-drawn statute quickly passed through a lame-duck Congressional session. Nonetheless, Congress intended broad judicial interpretation of CERCLA in order to give full effect to two important legislative purposes: to give the federal government the tools necessary for a prompt and effective response to hazardous waste problems and to force those responsible for creating hazardous waste problems to bear the cost of their actions.
Violet v. Picillo, 648 F. Supp. 1283, 1288 (D.R.I. 1986) (citations omitted).
[2] Section 101(14) defines the term "hazardous substance" as follows:
(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and synthetic gas.)
42 U.S.C. § 9601(14) (1994).
[3] The statute defines a "facility" as follows:
(A) any building, structure, installation, equipment, pipe, or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
42 U.S.C. § 9601(9) (1994).
[4] The statute defines "release" as
any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)....
42 U.S.C. § 9601(22) (1994).
[5] Under the statute, "response" includes both removal and remedial activities; "[t]he terms `respond' or `response' means remove, removal, remedy, and remedial action, all such terms (including the terms `removal' and `remedial action') include enforcement activities related thereto." 42 U.S.C. § 9601(25) (1994). For a more detailed discussion of the distinction between removal and remedial actions, see infra note 12 and accompanying text.
[6] Both at trial and in their post-trial brief, UTC objected to the admission into evidence of the statement "that's my stuff" or "that's our stuff." UTC argues that because Davis was unable to identify whether it was Nelson or Averill who made the admission, and because Averill was an outside independent contractor for Pratt & Whitney, therefore the introduction of the statement through Davis is inadmissible hearsay because Averill, an independent contractor, is not a party opponent. I reject this argument now, as I did at trial, because Averill was UTC's agent for the purpose of determining whether the drums originated at Pratt & Whitney.
[7] These inconsistencies include the following:
despite Davis' testimony that a Pratt & Whitney representative said "that's my stuff" or "that's our stuff" when inspecting the waste at the Site, neither Nelson or Averill recall making such a statement or hearing the other make such a statement (although they did testify that the waste in the drums looked "the same" as or "very similar" to the waste they had observed at Pratt & Whitney);
despite Davis' testimony that he pointed out drums with Pratt & Whitney labels to the Pratt & Whitney representatives, neither Nelson nor Averill recall seeing such markings; and
in his August 13, 1991 deposition, when asked if the Pratt & Whitney people had made any statements regarding what was in the barrels, Davis answered that they had not.
[8] The following interchange took place between Mr. Palughi and the Court:
THE COURT: Okay. Tell me, as you sit here now, and as you recall the evidence, can you tell me whether or not any of these drums had any identifying marks on them or any identifying names on them?
THE WITNESS: Yes, sir. There was one drum it's not it wasn't still a drum any more. It had rotted.
THE COURT: It had what?
THE WITNESS: It had rotted away. When we were doing the original cleanup of the area to build the pad, I believe it was Chris found it, Chris Friis found it, and pointed it out to me. It had a small label about this big, a shipping label that said Pratt-Whitney Aircraft on it.
THE COURT: Is that the only one?
THE WITNESS: That's the only one that
THE COURT: Had an identifying label on it?
THE WITNESS: that I have knowledge of. There could have been a lot more. I wasn't looking for labels, sir. I was just sampling.
THE COURT: You personally saw.
THE WITNESS: I did see this, sir.
THE COURT: And what did it say?
THE WITNESS: It was a white label with black letters; it said Pratt-Whitney Aircraft on it. It had other writing. It was pointed out to me by Chris because we had just come from Pratt-Whitney and he made a joke about it. That's the only reason I remember it.
THE COURT: Did you see the contents of that drum.
THE WITNESS: It had no contents as I recall it, sir. It was a drum that had been rotted away and we were moving it like scrap metal to clean up the area so we could build the pad.
Tr. 181-183: 11/15/93.
[9] Varsol is a brand name for the solvent known as mineral spirits. Pratt & Whitney had a PMC number for mineral spirits, PMC 9063.
[10] At trial, this Court admitted a line of evidence de bene. This evidence included testimony by Irving Blinkhorn, the manager of Acme Services in the mid 1970's. Blinkhorn testified as to information told to him by Donald Turner, who at the time served as Acme's manager of operations, and who had died by the time of trial. The government argued that this evidence was admissible in one of several ways: under Fed.R.Evid. 803(6) as an oral statement made in the regular course of business; under Fed.R.Evid. 804(b)(5) as a residual exception; or under Fed.R.Evid. 803(24) as a residual exception. UTC argues that this evidence is inadmissible under any of these provisions and that it should be disregarded by the Court. Because the government presented other evidence sufficient for me to decide this case, I need not come to a decision on whether or not to allow the de bene Blinkhorn testimony into evidence.
[11] The RI/FS is a process in which EPA gathers information concerning whether additional cleanup measures need to be carried out at the Site, and if so, which measures would be appropriate. The ROD sets forth subsequent remedial measures for the Site.
[12] As discussed supra at note 5, "response" activities not only include "removal" activities, they also include "remedial" activities. Remedial action is defined by the statute as follows:
The terms "remedy" or "remedial action" means [sic] those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.
42 U.S.C. § 9601(24) (1994).
[13] This theory of the case has not been accepted by the Court. Evidence such as Palughi's identification of an empty drum scrap with a Pratt & Whitney label supports this Court's belief that UTC's wastes were discharged into the environment at the Davis Site.
[14] Because of this holding, I need not reach the government's argument this action is timely under the statute of limitations contained in Section of 113(g)(2)(B) of CERCLA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604090/ | 8 So. 3d 693 (2009)
Randal W. GREFF, Jr. a/k/a Randel W. Greff and Randal W. Greff a/k/a Randy W. Greff, as the Administrator of the Estate of His Minor Child, Dustin James Greff
v.
Patrick E. MILAM, Individually, and as Trustee of the Tri Greff Trust, et al.
No. 08-CA-726.
Court of Appeal of Louisiana, Fifth Circuit.
February 10, 2009.
*694 Warren Horn, Attorney at Law, Heller, Draper, Hayden, Patrick & Horn, LLC, New Orleans, LA, for Plaintiff/Appellant, Randal W. Greff, Jr.
Kevin M. Wheeler, Larry E. Demmons, Attorneys at Law, Taggart Morton, L.L.C., New Orleans, LA, for Defendant/Appellee, Patrick E. Milam, Individually and as Trustee of the Tri Greff Trust.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
SUSAN M. CHEHARDY, Judge.
This is a suit by beneficiaries of a trust arising out of the termination of their trust benefits. The trial court granted a partial summary judgment that dismissed the claims of one plaintiff as to some of the defendants, but denied summary judgment as to the other plaintiff. In addition, a motion for partial summary judgment by other defendants is still pending. The plaintiff whose claims were partially dismissed has appealed. We dismiss the appeal for lack of jurisdiction.
On July 27, 1990 Leon J. Greff, as Settlor, created an irrevocable inter vivos trust by a document titled "Act of Donation Creating an Irrevocable Inter Vivos Trust," by Leon J. Greff to Ernest A. Burguieres, III and Patrick E. Milam, dated July 27, 1990. The trust instrument gave the trust the name "The Tri Greff Trust,"[1] named two co-Trustees, Ernest A. Burguieres, III and Patrick E. Milam,[2] and stated the Trust was set up under the laws of Florida, particularly the Florida Trust Statutes.[3]
The Tri Greff Trust created a "class college educational trust" for the benefit of Leon J. Greff's great-grandchildren.[4] The instrument states, "This Trust is being created for the sole purpose of giving an opportunity to the Great Grandchildren of Leon J. Greff to secure an education which will prepare them to secure more from life than would otherwise be available...."[5]
To participate in the Trust, the prospective beneficiaries are required to comply with certain criteria in their academic performances. A beneficiary in grades 5 though 8 is required to "maintain a `B Plus' average or a `2.5 G.P.A.' on a `4.0 *695 scale['], each school year."[6] A beneficiary in high school is required to take a college-preparatory curriculum that includes designated subjects, and to "maintain a 3.0 grade point average on a 4.0 scale for the school year."[7]
In the case of 5th-through-8th-grade and high-school beneficiaries, if the beneficiary fails to maintain the designated average the Trustees are charged with determining the cause for such failure. If the failure was due to a cause beyond the beneficiary's control, the Trustees may maintain the benefits for another term, during which the Trustees "shall make every effort to remove the cause or the causes of the failure" to maintain the grade average.[8] If the cause or causes cannot be removed and the beneficiary does not achieve the required grade average within a year, the Trustees "shall disqualify the beneficiary" from any future benefits and the "beneficiary's interest in the trust shall be forfeited."[9]
The Trust requires that each beneficiary be enrolled and attending full time classes in a college or university by their 20th birthday, or forfeit all interest and benefits.[10] A beneficiary may select and attend any accredited college or university of his choice, "except he must secure a BA or BS degree within 5 years or original enrollment" and "must maintain a `B Plus' or a `3.0 point average' on a scale of 4.0 ... to continue to secure the benefits of the trust."[11]
The Trust also provided,
Should any of the beneficiaries become physically or mentally disabled and ... unable to attend or be tutored in college subjects they have been studying, they shall receive one sixth of their proportional shall [sic] of the funds as allocated, until fully expended, subject to review and the joint approval of the trustees after receiving all medical data surrounding the condition of such beneficiary.[12]
It is uncontested that plaintiffs Randal W. Greff, Jr., known as "Randy Jr.," and his younger brother, Dustin James Greff, are great-grandchildren of the Settlor and as such were eligible to be beneficiaries of the Trust. Both were receiving benefits under the Trust for several years, until 2004, when the sole remaining Trustee, Patrick Milam, determining they were disqualified from receiving benefits because of low grade point averages, and discontinued payments.
Randy Jr. and Dustin (through his father, Randal W. Greff, Sr., as administrator of his estate) filed suit against the Trustee in August 2004. They asserted the Trustee wrongfully disqualified them as beneficiaries and wrongfully ceased paying them benefits; that he breached his fiduciary duty by failing to give accountings as required by the trust instrument; that he failed to comply with the trust's requirement to appoint a co-trustee to replace Ernest Burguieres (who resigned several years after inception of the trust). The plaintiffs also alleged the Trustee *696 failed to comply with various provisions of the Trust before deciding the plaintiffs were no longer entitled to receive the benefits of the Trust.
The plaintiffs asserted the Trust was negligently and/or improperly drafted, and provisions of the Trust are vague, ambiguous, and subject to varying interpretations that frustrate and prohibit satisfying the Trust's stated goals and educational purposes. The plaintiffs seek judicial reformation of the Trust, requesting that the court determine the true intent of the Settlor and modify the Trust accordingly. They ask the court to disregard the ambiguous and unclear terms of the Trust, and render an interpretation that allows the beneficiaries an opportunity to achieve the stated goals of the Trust and fulfill the intent of the Settlor.
The plaintiffs also seek to have Milam removed as Trustee and to recover against him all educational expenses they have incurred since the date the Trustee failed and/or refused to pay same, as well as future such expenses pending a ruling on their petition.
In addition to Milam, sued individually and as Trustee, the plaintiffs named as defendants numerous other potential beneficiaries of the Trust, including all present and future great grandchildren of the Settlor, and all contingent beneficiaries of the Trust.
The Trustee filed an incidental demand against the plaintiffs as well as the other beneficiary-class defendants, seeking a declaratory judgment confirming and ratifying his past interpretations of the Trust's provisions. The Trustee later filed a reconventional demand against Randy Jr., in which he sought to recover funds to which the Trustee claimed Randy Jr. was not entitled, and which the Trustee alleged Randy Jr. fraudulently induced the Trustee to pay to him.
Thereafter the Trustee filed a motion for partial summary judgment against the plaintiffs, asserting there was no issue of material fact and he was entitled to judgment as a matter of law that he acted properly in disqualifying them from receiving further benefits of the Trust. Subsequently the other defendants, all contingent beneficiaries of the Trust, filed a motion for partial summary judgment, on the same basis as the Trustee.
The trial court granted partial summary judgment on the Trustee's motion as to Randy Jr., but denied partial summary judgment on the Trustee's motion as to Dustin. The record does not indicate there was any ruling on the motion for partial summary judgment by the contingent beneficiaries. Randy Jr. has appealed.
On reviewing the record in this matter, we find we cannot address the merits of the appeal because we lack jurisdiction. Specifically, the judgment on appeal is a partial summary judgment that is not a final judgment as defined in La.C.C.P. art. 1915. That article provides in pertinent part:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or interveners.
* * *
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
*697 * * *
B. (1) When a court renders a partial judgment or partial summary judgment..., as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. [Emphasis added.]
The judgment on appeal dismissed the claims of Randy Jr. against Patrick Milam, individually and as Trustee. The judgment did not, however, dismiss Randy Jr.'s claims against the other defendants (the contingent beneficiaries) or the claims made in the Trustee's incidental and reconventional demands against Randy Jr. Nor did the judgment decide the motion for partial summary judgment by the contingent beneficiaries. In addition, the trial court did not designate the judgment as a final judgment and did not make the required express determination, pursuant to La.C.C.P. art. 1915(B)(2), that there is no just reason for delay.
Therefore, the judgment is an interlocutory judgment, subject to being "revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties." It is not subject to immediate appeal and we have no jurisdiction over it. Nolan v. High Grass, LLC, 07-80 (La.App. 5 Cir. 5/29/07), 960 So. 2d 1103, 1105.
Accordingly, the appeal is dismissed. Costs of appeal are assessed against the appellant.
APPEAL DISMISSED.
NOTES
[1] Act of Donation Creating an Irrevocable Inter Vivos Trust, by Leon J. Greff to Ernest A. Burguieres, III and Patrick E. Milam, dated July 27, 1990, hereafter The Tri Greff Trust, Art. II (Name of Trust).
[2] The Tri Greff Trust, preamble, ¶ 2.
[3] The Tri Greff Trust, preamble, ¶ 3.
[4] The Tri Greff Trust, Art. III (Beneficiaries).
[5] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust).
[6] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 1.
[7] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 2.
[8] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), §§ 1-2.
[9] Id.
[10] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 5.
[11] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 8.
[12] The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/359037/ | 582 F.2d 1189
78-2 USTC P 9691
Robert Shelton JAGGARD and Marybeth Jaggard, Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 78-1370.
United States Court of Appeals,Eighth Circuit.
Submitted Sept. 1, 1978.Decided Sept. 8, 1978.
Robert S. Jaggard and Marybeth Jaggard, pro se.
M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Crombie J. D. Garrett and Richard D. Buik, Attys., Tax Div., Dept. of Justice, Washington, D.C., on brief, for appellee.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
PER CURIAM.
1
Robert Shelton Jaggard appeals from a decision of the Tax Court holding him liable for self-employment taxes in the amount of $1,042.80.1 Jaggard is a self-employed physician. Although he earned $13,200 of self-employment income in 1974 he paid no self-employment tax. On his 1974 income tax return Jaggard claimed a "religious exemption" from the tax on self-employment income.2 On appeal he argues that he is entitled to an exemption from the self-employment tax under 26 U.S.C. § 1402(g).3
2
Section 1402(g) exempts members of certain religious faiths from payment of the tax if the Secretary of Health, Education and Welfare finds that the religious faith opposes acceptance of the benefits of any private or public insurance as an established tenet; that it reasonably provides for its dependent members; and that it has been in existence at all times since December 31, 1950. Jaggard concedes that he is not a member of a "recognized religious sect" within the meaning of § 1402(g). He contends, however, that the exemption, because it is based in part on such membership, violates the establishment clause of the First Amendment. He argues that since this requirement is invalid, the exemption should be available to all individuals who, like himself, conscientiously oppose acceptance of the benefits of public insurance and who are members of a group which makes provision for its dependent members.
3
Jaggard's argument has been previously considered and rejected by the Tax Court. Henson v. Commissioner, 66 T.C. 835, 840 (1976); Palmer v. Commissioner, 52 T.C. 310, 314-15 (1969). These cases hold that the purpose of § 1402(g) is neither the advancement nor the inhibition of religion. It represents a congressional attempt to accommodate sincerely held religious beliefs against private and public insurance programs consistent with the overall welfare purpose of the Social Security Act. Congress could reasonably conclude that individuals on their own could not be relied upon to provide for themselves in the event of dependency, but that members of a religious sect who share these views would provide for dependent members. Although in any legislative accommodation of religion there is an inherent balancing of interest, the balance struck here was a constitutionally permissible one. We find the reasoning of these opinions to be dispositive of the issue. Cf. Wisconsin v. Yoder, 406 U.S. 205, 222 & n. 11, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
4
The decision of the Tax Court is affirmed.
1
Marybeth Jaggard, wife of Robert Shelton Jaggard, is a party to this appeal solely by virtue of having filed a joint return for the taxable year in issue
2
Jaggard requested an application for exemption from self-employment taxes, Form 4029, from the Internal Revenue Service, but received no response. Jaggard, however, received a copy of Form 4029 from another individual. He failed to file this form because he considered it to be unconstitutional
3
Prior to the Tax Reform Act of 1976, 26 U.S.C. § 1402(g) was designated 26 U.S.C. § 1402(h) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1605598/ | 7 So.3d 961 (2009)
Herbert TUCKER, individually and d/b/a H & G Construction, Inc., Appellants,
v.
Tyrone WILLIAMS and Sharon Williams, Appellees.
No. 2007-CA-02223-COA.
Court of Appeals of Mississippi.
March 31, 2009.
*962 K.F. Boackle, attorney for appellants.
S. Malcolm O. Harrison, attorney for appellees.
Before KING, C.J., ROBERTS and CARLTON, JJ.
ROBERTS, J., for the Court.
¶ 1. After H & G Construction, Inc., filed two construction liens on Tyrone Williams and Sharon Williams's property, the Williamses filed a complaint in the Hinds County Chancery Court accusing H & G *963 and Herbert Tucker of slander of title.[1] The Williamses attempted to serve H & G and Tucker with service of process. When neither H & G nor Tucker responded, the Williamses obtained a default judgment against both. Having unsuccessfully moved to set aside the default judgments, H & G and Tucker appeal. According to H & G and Tucker, the chancery court did not have personal jurisdiction to enter a default judgment against them because the Williamses failed to properly serve them with process. After careful consideration, we agree. Consequently, we reverse the chancellor's judgment and remand this matter to the chancery court.
FACTS AND PROCEDURAL HISTORY
¶ 2. This appeal was set into motion when the Williamses contracted with Tucker and H & G to build a house at lot twenty in the Levon Owens Estate subdivision in Hinds County, Mississippi.[2] Tucker and the Williamses present different versions of events, but by any account, there was a dispute regarding the proper construction of the Williamses' home. By all accounts, on November 3, 2006, H & G filed a notice of construction lien (lien one) for what would have been its final draw of approximately $34,000. Four days later, H & G discovered that the Williamses stopped payment on their check for the previous draw of approximately $50,000. Tucker filed a second notice of construction lien (lien two) for the amount represented in that previous draw.
¶ 3. On December 14, 2006, the Williamses filed a complaint in the Hinds County Chancery Court. The Williamses sued Tucker and H & G for slander of title and sought to remove the cloud upon their title created by Tucker's two liens. The primary issue on appeal is whether the Williamses properly served Tucker and/or H&G.
¶ 4. According to the record, the Williamses twice tried to serve Tucker and H&G. The Williamses' first attempt was by mail. Although the Williamses' complaint recognizes that Tucker was H & G's registered agent for service of process, on January 10, 2007, the Williamses mailed process to the attorney that filed H & G's construction liens. The record indicates that on the same date, the Williamses sent certified mail to Tucker's address and H & G's business address. The record does not indicate that those pieces of certified mail were successfully delivered.
¶ 5. The Williamses' second attempt occurred when a Hinds County deputy sheriff attempted to serve Tucker and H&G. On January 17, 2007, that deputy filed two return of service forms.[3] There is a handwritten notation on those forms indicating that the deputy "posted" process to H & G's property and Tucker's property on January 8, 2006.[4] Additionally, the deputy filed documents titled "certificate of service by mailing." By way of those documents, the deputy indicated that he mailed process to Tucker and H & G on January *964 8, 2006.[5]
¶ 6. The Williamses did not receive a response from Tucker or H & G. On February 12, 2007, the Williamses filed an application for entry of default. Three days later, the chancellor filed a final judgment of default and removed the clouds Tucker's construction liensfrom the Williamses' title.
¶ 7. H & G and Tucker claim that they were first served with process on Sunday, February 25, 2007.[6] On March 27, 2007, H & G and Tucker filed a motion to dismiss or, alternatively, an answer and a counterclaim to the Williamses' complaint. The Williamses did not respond to that motion and alternative pleading. On May 14, 2007, H & G and Tucker filed an application for entry of a default judgment. H & G and Tucker claim that, while attempting to schedule a hearing on the matter, their attorney discovered, for the first time, the existence of the Williamses' default judgment in the court file.
¶ 8. On August 9, 2007, Tucker filed a motion to set aside the chancellor's default judgment. Apparently, there was a hearing on Tucker's motion on November 20, 2007, although the record does not contain a transcript of that hearing. In any event, three days later, the chancellor entered an order denying Tucker's motion to set aside the Williamses' default judgment. Specifically, the chancellor found as follows:
that service of process on the defendants was proper; that under the circumstances enunciated in argument by counsel relative to their contact with each other on behalf of their respective clients, counsel for [the] plaintiff was entitled to treat K.F. Boackle, Esquire, as counsel for [the] defendants from and after the filing of the Complaint for Slander of Title and for Removal of Cloud Upon Title; that [the] defendants failed to appear, plead, or otherwise defend against the complaint exhibited against them; and that [the] plaintiffs were entitled to the entry of a default judgment against the defendants removing the cloud upon their title in the form of a construction lien filed by [the] defendants.
Aggrieved, Tucker and H & G appeal. The central issue on appeal is whether the Williamses properly served process and, by extension, whether the chancery court acquired personal jurisdiction over H & G or Tucker.
ANALYSIS
I. SERVICE OF PROCESS
¶ 9. Tucker and H & G claim the chancery court never had personal jurisdiction over them because the Williamses failed to properly serve them with process. "The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process." Lexington Ins. Co. v. Buckley, 925 So.2d 859, 865(¶ 25) (Miss.Ct.App.2005). "Service of process is simply the physical means by which personal jurisdiction is asserted." Id. Without proper service of process or the entry of an appearance, a trial court does not have jurisdiction over the person. Young v. Sherrod, 919 So.2d 145, 149(¶ 15) (Miss.Ct.App.2005) (citing Mansour v. Charmax Indus., Inc., 680 So.2d 852, 854 (Miss.1996)). Id. If the chancery court lacked personal jurisdiction over H & G and Tucker, then the default judgment is invalid because "no judgment[,] order[,] or decree is valid or binding *965 upon a party who has had no notice of the proceeding against him." Buckley, 925 So.2d at 864(¶ 23) (quoting James v. McMullen, 733 So.2d 358, 359(¶ 3) (Miss. Ct.App.1999)).
1. Attempted Service by Mail to K.F. Boackle
¶ 10. The Williamses first attempted to serve H&G and Tucker by mailing process to K.F. Boackle, the attorney that filed H&G and Tucker's two construction liens. The Mississippi Rules of Civil Procedure provide a mechanism for service of process by mail. M.R.C.P. 4(c)(3). However, service by mail is restricted to two classes of defendants. M.R.C.P. 4(c)(3)(A). To accomplish service in this manner, a plaintiff must mail "a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment." Id. The defendant, either individually or through its agent, must then return the acknowledgment to the plaintiff. Id. If the person or entity being served by mail does not return the acknowledgment to the plaintiff within twenty days "after the date of mailing, service of such summons and complaint may be made in any other manner permitted by" Rule 4 M.R.C.P. 4(c)(3)(B).
A. Tucker
¶ 11. As mentioned, a plaintiff may serve two classes of defendants with process by mail. M.R.C.P. 4(c)(3)(A). Tucker falls under one such class, as he is an "individual other than an unmarried infant or a mentally incompetent person." M.R.C.P. 4(d)(1). However, the Williamses' attempt to serve Tucker by mail was insufficient. First and foremost, the Williamses were obligated to mail a summons and complaint to "the person to be served." M.R.C.P. 4(c)(3)(A). Tucker was "the person to be served"not Tucker's attorney.
¶ 12. In addition, to accomplish service of process by mail, the defendant must return a properly executed acknowledgment to the plaintiff. M.R.C.P. 4(c)(3)(B). Nothing in the record demonstrates that Tucker returned an acknowledgment of service to the Williamses. The rules regarding service of process are to be strictly construed. Young, 919 So.2d at 148(¶ 12). The Williamses failed to properly serve Tucker with process by mail. It follows that the chancery court did not acquire personal jurisdiction over Tucker by virtue of the Williamses attempt to serve Tucker by mail.
¶ 13. The Williamses argue that it was sufficient to serve Boackle because Tucker was avoiding service of process. However, nothing in the record corroborates their claims. While it is true that the Williamses attempted to serve Tucker by mail, as best we can tell, the first attempt to serve process was by mailing to Boackle and later to Tucker individually and in his capacity as H & G's registered agent for service of process. There is no indication that the Williamses hired a process server or requested that a law enforcement officer try to personally serve Tucker before attempting to serve him by mail. Likewise, there is no indication that such attempts were unsuccessful. Accordingly, we cannot find that Tucker evaded service of process.
B. H&G
¶ 14. H & G is a domestic corporation. Domestic corporations are included among the second class of defendants that may be served with process pursuant to Rule 4(c)(3)(A). M.R.C.P. 4(d)(4). Pursuant to Rule 4(d), which governs the "person to be served," to serve a domestic corporation, a plaintiff must serve "an officer, *966 a managing or general agent, or ... any other agent authorized by appointment or by law to receive service of process." M.R.C.P. 4(d)(4). The record contains no evidence that Boackle was an officer, a managing agent, a general agent, a registered agent for service of process, or that Boackle was otherwise authorized to receive service of process on H & G's behalf. The Williamses acknowledged that Tucker was the person to be served in that they listed Tucker as H & G's registered agent for service of process.
¶ 15. Further, as with Tucker, there is no evidence that the Williamses received an acknowledgment of service from anyone on H & G's behalf. It follows that the chancery court did not acquire personal jurisdiction over H & G as a result of the Williamses' mailing process to Boackle as H & G's agent.
2. Attempted Service by Mailing to Tucker
¶ 16. According to the record, separate from their attempt to serve Tucker by mailing process to Boackle, the Williamses also attempted to serve H & G and Tucker by mailing process to Tucker. However, there is no evidence that either H & G or Tucker returned an acknowledgment to the Williamses. To accomplish service by mail in this manner, a plaintiff must mail "a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment." M.R.C.P. 4(c)(3)(A). The defendant, either individually or through its agent, must then return the acknowledgment. If the person or entity being served by mail does not return the acknowledgment to the plaintiff within twenty days "after the date of mailing, service of such summons and complaint may be made in any other manner permitted by" Rule 4 M.R.C.P. 4(c)(3)(B). The implication is clear. If an allegedly served defendant does not return an acknowledgment of service by mail, the plaintiff must serve the defendant by some other means. Accordingly, without the acknowledgment, service is incomplete. The record contains no indication that Tucker returned an acknowledgment in his individual capacity or in his capacity as H & G's registered agent for service of process. Accordingly, the circuit court did not acquire personal jurisdiction over Tucker or H & G via service of process by mail.
3. "Posting to the Property"
¶ 17. A deputy sheriff filed a process server's return and claimed he served Tucker and H & G by posting process to their respective property. We interpret the deputy sheriff's notation that he "posted" a summons and complaint "to the property" as an indication that the deputy left the summons and complaint at Tucker's personal physical address and H & G's physical business address.
A. Tucker
¶ 18. If, "with reasonable diligence" one cannot deliver process to an individual, other than an "unmarried infant or a mentally incompetent person," one can serve an individual "by leaving a copy of the summons and complaint at the defendant's usual place of abode with the defendant's spouse or some other person of the defendant's family above the age of sixteen years who is willing to receive service." M.R.C.P. 4(d)(1)(B). Afterwards, a plaintiff must mail "a copy of the summons and complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and complaint were left." Id. Even then, "[s]ervice of a summons in this manner is deemed complete on the 10th *967 day after such mailing." Id. There is no indication that the deputy left the summons with anyone at Tucker's home, much less such a person that would meet the criteria set forth in Rule 4(d)(1)(B). Additionally, there is no indication that the Williamses fulfilled the second step of Rule 4(d)(1)(B) service by mailing a copy of the summons and complaint to Tucker. Consequently, the chancery court did not acquire personal jurisdiction over Tucker individually by this method of service.
B. H&G
¶ 19. As for H & G, the only specific method for serving a "domestic corporation" is to deliver "a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." M.R.C.P. 4(d)(4). "Post[ing] to the Property" is clearly not an authorized means to serve process upon a corporate entity. Accordingly, the chancery court did not acquire personal jurisdiction over H & G by virtue of the deputy sheriff's attempt to serve process by "posting" it to H & G's property.
¶ 20. The Williamses failed to properly serve Tucker and H&G with process on three occasions: (1) when they mailed process to Boackle, (2) when they mailed process to Tucker, and (3) when a deputy sheriff acting on their behalf "posted" process to Tucker's property and H & G's property. As previously mentioned, the rules regarding service of process are to be strictly construed. Young, 919 So.2d at 148(¶ 12). Because the chancery court never had personal jurisdiction over Tucker or H & G, the Williamses' default judgment is void. See, Buckley, 925 So.2d at 870(¶ 50).
¶ 21. Before we conclude, another matter bears discussion. As noted above, the Williamses vigorously argue that Tucker and H&G avoided service of process. The Williamses claim that they were entitled to serve Boackle because Boackle filed H & G's two construction liens. The Williamses reason that Boackle was representing Tucker and H&G. The Williamses further reason that a plaintiff is entitled to serve a defendant's attorney when that defendant evades service of process. To demonstrate the fact that Boackle was representing Tucker and H&G, the Williamses draw our attention to what they term a "pile" of correspondence. Additionally, the Williamses particularly point out that, in a portion of that correspondence, Boackle relayed Tucker's and H & G's intent to file a counterclaim in the event that the Williamses filed a complaint against them.
¶ 22. "If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application." M.R.C.P. 55(b). A Rule 55(b) appearance is not the equivalent of an appearance that could confer personal jurisdiction to a trial court. See, e.g., Holmes v. Holmes, 628 So.2d 1361, 1363-64 (Miss.1993) (citing H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C.Cir.1970) (holding that a defendant was due notice where a trial court was informed that during settlement negotiations, correspondence between attorneys indicated that the defendants intended to defend the suit)).
¶ 23. In the matter presently before us, correspondence between attorneys reveals that Boackle relayed Tucker's and H & G's intent to file a counterclaim if the Williamses filed their complaint. A statement that one will file a counterclaim is obviously a statement indicative of intent *968 to defend a claim. Consequently, the Williamses were obligated to provide Tucker and H & G's attorney three days' notice of the hearing on their application for default judgment. Nothing in the record demonstrates that the Williamses fulfilled their obligation.
¶ 24. In Holmes, the Mississippi Supreme Court was imminently clear when it stated, "[w]e refuse to condone such behavior." Holmes, 628 So.2d at 1365. The Mississippi Supreme Court reversed the trial court's judgment and remanded the matter to the trial court. Id. Because we reverse the chancellor for lack of personal jurisdiction, it is unnecessary to reverse due to the Williamses' failure to provide adequate notice of the default hearing. In any event, we reverse and render the chancellor's judgment refusing to set aside the default judgment and remand this matter for further proceedings consistent with this opinion.
¶ 25. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED AND RENDERED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
NOTES
[1] Tucker is the president of H & G.
[2] Tucker is a Mississippi resident, and H&G is a domestic corporation headquartered in Mississippi.
[3] The deputy signed the back of the document and included the following handwritten notation: "[p]osted to the [p]roperty 8 January 2006[.]" There is a signature on a stamped signature line. The rank and first name of the deputy are clearly "Lt. Robert," but the deputy's last name is illegible.
[4] The January 2006 date appears to be a scrivener's error, as the Williamses filed their complaint in December 2006.
[5] Again, the 2006 date appears to be another scrivener's error by the same deputy.
[6] Tucker and H & G do not specify how they were served, and there is no documentation in the record to clarify their claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604221/ | 130 N.W.2d 154 (1964)
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, Plaintiff and Respondent,
v.
JOHNSTON'S FUEL LINERS, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant,
v.
Leonard PRINCE, an individual doing business under the trade name of Regent Oil Company, Third-Party Defendant and Respondent.
No. 8144.
Supreme Court of North Dakota.
August 21, 1964.
Rehearing Denied September 11, 1964.
*156 Conmy & Conmy, Bismarck, for defendant and third-party plaintiff and appellant.
Donald R. Crabtree, Ellendale, and Campbell, Voas & Richardson, Aberdeen, S. D., for plaintiff and respondent.
Mackoff, Kellogg, Muggli & Kirby, Dickinson, and Rausch & Chapman, Bismarck, for third-party defendant and respondent.
TEIGEN, Judge.
This is an appeal from an order granting a new trial to a third-party defendant in an action for damages sounding in tort in which the third-party defendant was impleaded for liability over.
This is the second appeal in this case. The first opinion is contained in 122 N.W.2d 140. In that case we sustained the trial court's order overruling the defendant's motion for judgment notwithstanding the verdict and affirmed the judgment in favor of the plaintiff against the defendant. We also reversed the trial court's order granting judgment notwithstanding the verdict in favor of the third-party defendant, subject, however, "to the right of the respondent [third-party defendant], Leonard Prince, to proceed promptly to press for a ruling on his motion for a new trial." The third-party defendant in its original motion had moved in the alternative for judgment notwithstanding the verdict or a new trial. The trial court, in granting the motion for judgment notwithstanding the verdict, did not decide the motion for new trial as it should have done under Rule 50(c), North Dakota Rules of Civil Procedure. Therefore, we permitted the movant to press for a ruling after remittitur.
The third-party defendant, Prince, after the remittitur in the first case, pressed for a ruling on his motion for a new trial. It was granted by the trial court. This is the order with which we are concerned in this appeal.
For the sake of convenience, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a corporation, the plaintiff in this action, will hereinafter be referred to as the railroad. Johnston's Fuel Liners, Inc., a corporation, the defendant and third-party plaintiff, will be referred to as Johnston's. Leonard Prince, an individual doing business under the trade name of Regent Oil Company, the third-party defendant, will be referred to as Prince.
A thumbnail sketch of the history of the case may be stated thus: The plaintiff, the railroad, sued the defendant, Johnston's, for damages to its railroad property resulting from a gasoline fire that occurred when the third-party defendant's, Prince's, gasoline storage tanks caught fire while one of the tanks was being filled by the defendant, Johnston's, which is a gasoline transportation company. The plaintiff, the railroad, alleged negligence on the part of the defendant, Johnston's, as the proximate cause of its damage.
The defendant, Johnston's, impleaded Prince, as third-party defendant, for liability over, alleging negligence on the part of Prince. Johnston's also prayed for judgment against Prince for its loss and damage. The third-party defendant, Prince, denied negligence on his part, alleged negligence on the part of the defendant, Johnston's, and counterclaimed against Johnston's for his loss as a result of the fire.
The case was tried to a jury. The jury returned a verdict in four parts: (1) In *157 favor of the plaintiff, the railroad, and against the defendant, Johnston's, and assessed damages; (2) In favor of Johnston's and against the third-party defendant, Prince, for liability over and assessed the amount; (3) Against Johnston's in its claim against the third-party defendant, Prince, for Johnston's damages as a result of the fire; and (4) Against the third-party defendant, Prince, and in favor of Johnston's on Prince's counterclaim.
The new trial was granted on the ground of insufficiency of the evidence to justify the verdict.
The trial court, in its written memorandum filed with the order granting new trial, prefaced its opinion with the following statement:
"My opinion on the physical facts, as disclosed by the record, and my conclusions that the negligent acts, if any, of Prince, were not a proximate cause of the damages to plaintiffs' properties, are very positive and directly contrary to those of the Supreme Court. In granting the motion of Prince for a new trial I am exercising my judgment and discretion, as I should have on January 4, 1962, under rule 50 c, when I wrote my opinion determining that Prince was entitled to Judgment Notwithstanding the Verdict. I am still of the same opinion and in writing this memorandum now, after the decisions of the Supreme Court, I wish to say that I do recognize that the Supreme Court has the final say, and I am not assuming an attitude of defiance or attempting to display any disrespect."
In the former appeal, this court found the trial court in error when it granted judgment notwithstanding the verdict in favor of Prince, the third-party defendant, for the reason that the evidence, when viewed in the light most favorable to the plaintiff and Johnston's, as third-party plaintiff, who were the prevailing parties, permitted a finding by the jury that the proximate cause of plaintiff's damages was the concurrent negligence of both Johnston's and Prince. We held it was error for the trial court to grant the motion of Prince, third-party defendant, for judgment notwithstanding the verdict. We applied the rule that on a motion for judgment notwithstanding the verdict, the evidence will be construed most favorably to the party against whom such judgment is sought, and that the questions of negligence and proximate cause are questions of fact for the jury in tort actions, unless the evidence is such that reasonable minds can draw but one conclusion therefrom.
Applying these rules we found the facts were not such that but one conclusion could be drawn therefrom by reasonable minds. We granted Prince leave to press for a ruling on his alternate motion for new trial because justice required he be permitted to obtain a ruling thereon in view of our procedural rule. Rule 50(c), N.D.R.Civ.P.
A motion for judgment notwithstanding the verdict does not go to the weight of the evidence and such judgment should not be granted, unless the moving party is entitled to judgment as a matter of law. Richmire v. Andrews & Gage Elevator Co., 11 N.D. 453, 92 N.W. 819; State v. Yellow Cab Co., 62 N.D. 733, 245 N.W. 382; Taylor v. Minneapolis, St. P. & S. S. N. Ry. Co., 63 N.D. 332, 248 N.W. 268; La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476; Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323; Dahl v. North American Creameries, N.D., 61 N.W.2d 916.
The foregoing rule does not apply in considering a motion for new trial on the ground urged here of insufficiency of the evidence to justify the verdict. It is well established that a motion for a new trial on the ground of insufficiency of the evidence to justify the verdict invokes the legal discretion of the trial court to be exercised in the interest of justice. Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228; Delaloye v. Kaisershot, 72 N.D. 637, 10 N.W.2d 593; Hochstetler v. Graber, 78 *158 N.D. 90, 48 N.W.2d 15; McDermott v. Sway, 78 N.D. 521, 50 N.W.2d 235; Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240; Mann v. Policyholders' National Life Insurance Co., 78 N.D. 724, 51 N.W.2d 853; and Maier v. Holzer, N.D., 123 N.W.2d 29.
Where it appears to the trial court that the verdict is against the weight of the evidence, it is the duty of the trial court to set the verdict aside and grant new trial. Crossen v. Rognlie, N.D., 68 N.W.2d 110; Hoffman v. Berger, N.D., 76 N.W.2d 515; Hamre v. Senger, N.D., 79 N.W.2d 41; and Long v. People's Department Store, N.D., 95 N.W.2d 904.
Upon this appeal Johnston's, the third-party plaintiff, specifies: (1) The trial court was barred by the Supreme Court's decision in the first appeal from granting new trial on the ground of insufficiency of the evidence; (2) If it was not barred, it abused its discretion in granting a new trial; and (3) It erred in granting new trial to Prince alone and, if new trial is to be granted, it should be granted to Johnston's also.
The first specification, we believe, has already been answered. It has no merit. The trial court has discretion within limits to be exercised in the interests of justice in ruling upon a motion for new trial. Different rules apply to the two types of motion. A judgment notwithstanding the verdict determines the issues; whereas, an order granting a new trial leaves the issues where they were before trial and for trial anew to a different jury. On the basis of these rules and the difference in the nature of the relief granted, the state of the evidence may be such that the trial court is not warranted in granting judgment notwithstanding the verdict but is warranted in granting a new trial.
Johnston's second specification is that the court abused its discretion in that the cause or ground upon which the trial court relied did not have actual existence. It cites in support thereof Kohlman v. Hyland, supra.
We note that in our former decision, after having reviewed the evidence in the light most favorable to the prevailing parties, including the third-party plaintiff, Johnston's, we concluded "reasonable minds could differ" and, therefore, the case was properly one for the jury to decide.
One test as to whether a decision is within the discretion of the court is whether or not the question may properly be decided either way. Kohlman v. Hyland, supra.
The trial court, in its memorandum, stated the argument on the motion for new trial was confined to the question of proximate cause and its decision is made on the premise that the facts do not sustain the verdict of the jury on its finding that the acts of negligence, if any, by Prince were a proximate cause of the damages to the plaintiff, the railroad. In consideration of the second specification, we have again reviewed the evidence in this case sufficiently to point out issues of fact on the question of proximate cause of the plaintiff railroad's loss.
Johnston's delivered a truck-transport load of gasoline to Prince at Prince's bulk station located adjacent to the plaintiff's railroad property. Johnston's employee in charge of the truck transport, after being directed by Prince's employee to Prince's bulk station, proceeded to unload the gasoline into Prince's storage tank No. 3. This was the proper tank. Johnston's provided all of the equipment, including pump with gasoline engine, hoses and couplers (except one furnished by Prince) for this purpose and performed the work. The portable pump with engine was placed on the ground between Prince's storage tank and Johnston's transport. A hose connected the tank to the pump and another hose connected the pump to the transport. Prince's vertical storage tank had an intake pipe and manual valve control near the bottom, which valve was opened by Prince's employee when Johnston's employee had made the required connections. Some trouble was encountered by Johnston's employee in starting *159 the pumping operation because of an air lock. This necessitated the temporary loosening of a coupler at the pump. Some gasoline was spilled in the process. The amount was not determined but one statement was that it did not exceed a cupful. Prince's storage tank had a capacity of about 17,300 gallons but was partially filled. Johnston's transport contained about 8,000 gallons of gasoline. No determination was made of the amount of gasoline contained in the storage tank before the unloading operations commenced.
The gasoline from the transport was then pumped into a storage tank at the rate of from 70 to 90 gallons per minute. The pumping operation continued until the transport was almost empty when it was discovered that the engine operating the gasoline pump was laboring and gasoline was coming over the top of Prince's storage tank and flowing down the side. There was an air vent at the top of the tank. Johnston's employee then closed the trip shut-off valve on the transport to stop the flow of gasoline from the transport and went to the gasoline engine attached to the pump to stop it by shorting the ignition. This was to be accomplished by touching a metal strap, attached to the engine, to the spark plug of the engine. An explosion occurred resulting in a fire that consumed all of the gasoline, destroyed Prince's storage tanks, Johnston's transport, and damaged the plaintiff's railroad property, as well as other property in the area belonging to other persons. Other suits are pending for these losses.
The evidence discloses the day was hot, from 85 to 100 degrees, and the air calm. Gasoline vapor is from three to four times heavier than air and, under the conditions described, tends to settle in the lower areas. The engine and pump were located in a depression. When gasoline is pumped into a storage tank, it displaces gasoline vapor contained therein which is permitted to escape through the air vent at the top of the tank. Almost 8,000 gallons of gasoline vapor had escaped from the storage tank in this manner during the pumping operation. Gasoline vapor of proper density may be ignited by a spark, flame or heat. The evidence does not establish whether or not Johnston's employee shorted the engine but he intended to stop it by this method. The explosion was violent and occurred simultaneously with the attempt to short the engine and stop it. His testimony as to whether or not he actually shorted the engine is not clear. Shorting the engine to stop it ordinarily creates a spark. No evidence was produced indicating any other cause for the explosion.
The explosion caused a fire. The fire caused the damage complained of. The gasoline vapor in the immediate area at the time of the explosion was consumed by the explosion. It did not continue to burn. The fuel for the resulting fire consisted of gasoline escaping from Prince's storage tank. Two theories were advanced by respective counsel as to how this fuel was supplied. The third-party plaintiff argues the evidence establishes the fuel consisted of gasoline which ran down the side of the storage tank and into the gravel bed at the base of the storage tank. This gravel bed extended beyond the perimeter of the base of the tank several feet and this area was fenced. There was evidence that the first fire was seen in the weeds located in this fence. The pump and engine were located some distance farther from the storage tank. Thus, he argues, the failure of Prince to measure or otherwise determine the amount of gasoline stored in the storage tank before the unloading operation began, and the granting of permission to Johnston's to pump a large quantity of gasoline into a tank that would not accommodate the quantity to be placed therein, was negligence and was the proximate cause of the fire.
Prince, third-party defendant, argues the evidence establishes the explosion ignited gasoline in the area of the pump and that the explosion blew off the intake pipe of the pump to which the hose leading from the storage tank was attached. It also *160 separated the pipe from the hose. This permitted a free flow of gasoline from the storage tank through the end of the hose lying near the pump and fueled the fire. Prince further argues that if he was negligent, as claimed by Johnston's, his negligence was not a proximate cause of the resulting fire which caused the damage.
The trial court reasons that the gasoline spilled at the location of the pump, when Johnston's employee bled the hose to eliminate the air lock, was ignited by the explosion. The spilled gasoline was located below the hose leading from the tank and, when this gasoline burned, it also burned the hose. This provided a free flow of gasoline from the tank into the fire area and fueled the resulting inferno. The trial judge found there was no evidence to establish that the gasoline running from the top of the tank ever reached the ground. The trial court found that the burning of the gasoline on the side of the tank could not have burned the hose because that fire was above the hose.
Both parties agree it was the fire that caused the damage and not the explosion. It is probable that the explosion was caused by a spark emitting from the spark plug of the pump's engine when Johnston's employee chose to stop it. Prince argues the equipment was not safe to use for this type of operation and that its use has been discontinued by most gasoline transport companies. Some evidence supports this argument.
There is some conflict in the evidence and in some areas the evidence is not clear. There is testimony that fire was seen burning in the weeds in the area of the fence around the tanks. There is also evidence to indicate fire was first seen in the area of the pump, several feet from the fence. The only eye witnesses to the explosion that testified were Prince and Johnston's employee. Another witness who saw the fire from a distance a very short time after it commenced burning also testified. On the basis of the evidence as we see it and upon the whole record, several conclusions can be drawn.
The trial court in its memorandum stated:
"There is no evidence that any of the gasoline which overflowed from the bulk tank reached or flowed over to the Fuel Liners' pump or hose, or that any of the fire resulting from the overflow of gasoline from Prince's tank, burned the hose connecting the pump to Prince's pipeline. Nor can there be any presumption that such was the case. The pump and the end of the hose which connected to Prince's pipeline were at least 17 feet from the nearest end or side of the bulk storage tank."
The trial court reasoned that heat from fire rises upward; therefore, heat from gasoline burning on the side of the tank could not possibly have burned the hose which was below it. It concludes the fire at the side of the bulk tank and the one at the pump were undoubtedly burning at the same time but that they were separate and apart; that there can be but one conclusion from the evidence and that is "the fire resulting from the gasoline spilled by King burned the hose connecting the Fuel Liners' pump with Prince's pipeline, and released the 17000 gallons of gasoline in the storage tanks." The trial court concludes, therefore, that Prince's acts or his failure to act resulted only in the overflowing of the storage tanks. This did not cause the fire which burned the hose, nor did it permit gasoline to escape from the hose. It found: "It is evident that if the storage tank had not overflowed, the hose in question still would have burned and caused the same fire which damaged plaintiffs' property." The court concludes that new trial should be granted on the grounds of insufficiency and entire lack of evidence to sustain the verdict of the jury. Based on these findings, the acts of negligence by Prince, if any, were not a proximate cause of the damage to the plaintiff.
*161 The testimony from which these various theories may have arisen, we believe, may succinctly be quoted as follows:
Johnston's employee testified, in part:
"Q. And where was the first place after the explosion that you saw fire?
"A. I believe it was in the fence and the weeds and so forth?
"Q. In the fence?
"A. Between the pump and the receiving tank.
"Q. The first place you saw fire was between the pump and tank No. 3?
"A. I believe so, yes.
* * * * * *
"Q. Was the whole area on fire between the pump and the tanks?
"A. There was no fire right around the pump itself then that I noticed.
* * * * * *
"Q. At any time from the explosion on did you see the fire going up the side of the receiving tank?
"A. Yes, I did.
"Q. And when did you see that?
"A. I am not certain whether it was before I became dizzy or after.
"Q. At the gasoline that you say you saw coming out of the top of the receiving tankat the time of the explosion do you know where this gasolinehow much had come out and where it was located?
"A. No, I don't.
"Q. Can you state that that gasoline had reached the ground?
"A. No, I can't.
"Q. Can you state that it had run over to the engine?
"A. It hadn't run that far, I am certain.
"Q. So that you were sure there was no gasoline, raw gasoline, at the engine at the time of the explosion?
"A. I believe that is correct, yes."
Mr. Prince, who was also present, testified in respect thereto, in part, as follows:
"Q. Did you see a fire at any time after this explosion?
"A. When I turned around after catching Mr. King I observed a fire at that point.
"Q. That was the first time you saw a fire?
"A. That was the first time I observed, and the location
"Q. You observed a fire at that time?
"A. Yes.
"Q. Where was the fire?
"A. Around the pump and crawling toward the tanks and around the ground in that entire area.
"Q. And you say it was traveling toward the tanks?
"A. Yes. There was fire going in that direction."
Mr. Gatzke, third-party observer, testified he was driving about three blocks from the fire when he saw it and described it as follows:
"Q. And did you observe anything unusual as you were coming into Regent?
"A. Well, as we could see we seen some fire there.
"Q. Some fire where?
"A. By the Regent Oil tanks.
*162 "Q. Would you describe that fire?
"A. Well, it was about 10 feet high, the fire, at that time, so we just kept on driving into town.
"Q. Where was the fire located?
"A. At the Regent Oil tanks.
"Q. To the north or south of the tanks or adjacent to the tanks?
"A. On the unloading side of the tanks.
"Q. How high did you say the flames were?
"A. Roughly, maybe a car height.
"Q. And the area encompassed by the fire. Do you know roughly how large that was?
"A. That was, I couldn't really say it was very large then.
* * * * * *
"Q. Did you see the fire go up the side of the tanks?
"A. No, I didn't. I just seen it. I didn't see it go up the side of the tanks.
* * * * * *
"Q. Was it at the top of the tanks?
"A. No, it wasn't."
He then testified he drove to put in a fire alarm and found that Mr. Prince had done so. He then returned to the scene of the fire and testified as to his observations as follows:
"Q. Did you return to the fire?
"A. Yes, I did.
"Q. What was the condition of the fire?
"A. It was up to the top of the tanks and burning really good then.
"Q. Up at the top of the tanks. Was there fire on top?
"A. No, it was burning up, going up the side of the tanks, not on the top.
"Q. About how long did it take you to go from the Co-op store to the fire whistle and come back?
"A. Ten to 15 minutes."
On cross-examination he testified, in part, as follows:
"Q. Mr. Gatzke, I understand you first drove up and made an observation of the fire and drove away and came back again?
"A. That's right.
"Q. When you first made an observation of the fire it was about as high as a car?
"A. Um-hmm.
"Q. It was in the area between the warehouse and the receiving tanks?
"A. That's right.
"Q. Around that truck?
"A. Um-hmm.
"Q. And it hadn't gone up the sides of the tanks at that time?
"A. No.
"Q. The fire was pretty much in the middle of the area between the tanks and the warehouse, is that right?
"A. That's right."
The trial court has made it clear that, in its opinion, the evidence was insufficient to justify the verdict against Prince for liability over on the ground that the evidence does not satisfactorily establish that Prince's negligence, if any, was a proximate cause of the damage to the plaintiff.
Upon re-examination of this evidence, we reaffirm the statements contained in our *163 first decision that "the evidence was such that reasonable minds could differ" on the question of proximate cause.
A motion for new trial on the ground of insufficiency of the evidence is addressed to the sound discretion of the trial court. The granting of such a motion will not be disturbed upon appeal, except for manifest abuse of discretion. Crossen v. Rognlie, supra; Hoffman v. Berger, supra; and Long v. People's Department Store, supra.
In Hoffman v. Berger, supra, we said:
"In the consideration of such motions trial courts are not confined to a consideration of whether the verdict and judgment are supported by substantial evidence. `A margin of discretion is vested in trial courts, which permits them, with a view to promoting the ends of justice, to weigh the evidence, and, within certain limitations, act upon their own judgment with reference to its weight and credibility. Nor, in such cases will the court necessarily be governed by the fact that the verdict returned has the support of an apparent preponderance of the evidence. Unrighteous verdicts sometimes are supported by apparently substantial evidence, and to meet such exceptional cases the presiding judge, who sees and hears the witnesses, is vested with a discretion to vacate such verdicts and order a new trial in furtherance of justice.' Pengilly v. J. I. Case Threshing Mach. Co., 11 N.D. 249, 255, 91 N.W. 63, 66." Hoffman v. Berger, N.D., 76 N.W.2d 515, 517.
We find the trial court did not abuse its discretion.
As a final challenge to the validity of the court's order granting new trial, the appellant, Johnston's (original defendant and third-party plaintiff), specifies the court erred in granting a new trial to Prince, third-party defendant, alone. It argues that if a new trial is to be granted to Prince, it should also be granted to Johnston's. Various arguments are made but are not applicable here because the appellant has construed the defendant, Johnston's, and the third-party defendant, Prince, as joint defendants in the main action. They are not joint defendants. The original plaintiff took no steps to make the third-party defendant a defendant in the main action, either by amendment of its complaint or by the service of any additional pleadings. It elected to stand on its original complaint against Johnston's alone.
The third-party proceeding was initiated by the appellant, Johnston's, who was named as the original defendant in the main action and who became the third-party plaintiff in the ancillary third-party proceeding. The third-party proceeding was brought for liability over and this is clear. It was brought under the rule of third-party practice. Rule 14, North Dakota Rules of Civil Procedure. The prayer of the third-party complaint prays that the defendant in the main action, as a third-party plaintiff, "have Judgment against the Third-Party Defendant for any sum that may be adjudged against it, if any, in favor of the Plaintiff."
The third-party plaintiff in its third-party complaint, in addition to asking for liability over, also pleads a second cause of action. It alleges negligence on the part of the third-party defendant as a proximate cause of the fire and prays for judgment in its favor against the third-party defendant for its losses as a result of the fire. In other words, the original defendant, as a third-party plaintiff, claimed more than the original plaintiff was claiming. It attempts to set up a new cause of action based on the same occurrence. We do not pass on the question of whether or not this is permissible under the third-party practice rule cited above. The rule states that a defendant, who claims that a person not a party to the action is liable to him "for all or part of *164 the plaintiff's claim against him," may, as a third-party plaintiff, implead such person as a third-party defendant. This would seem to negative a third-party claim for more than the plaintiff's claim against the original defendant. However, there was no motion to strike or dismiss the second cause of action alleged in the third-party complaint and the issue was litigated and resulted in a verdict of dismissal. The third-party defendant, as an affirmative defense to the second cause of action of the third-party complaint, alleged contributory negligence. The original defendant, Johnston's, has been adjudged negligent in the main case and its negligence was determined by the jury to be the proximate cause of the fire which caused plaintiff's damage. It was the same fire that caused the defendant's, Johnston's, loss for which it sought damages by its second cause of action against the third-party defendant in its third-party complaint. The plaintiff's judgment against the original defendant is now final. The question of contributory negligence pleaded by the third-party defendant, as an affirmative defense, has been judicially established as a fact in the main case where it was determined that Johnston's was negligent and its negligence was a proximate cause of the fire.
The jury also found the defendant was not entitled to recover for its loss from the third-party defendant. The trial court, in considering the motion for new trial, did not find the evidence insufficient to justify this verdict. Defendant did not move for a new trial in the main case. It permitted the plaintiff's judgment to become final. We have reviewed the evidence and find there was no error in failing to grant a new trial to the defendant on its second cause of action and that the trial court did not abuse its discretion.
The present situation is quite analogous to one where a plaintiff has final judgment and the defendant brings suit for contribution against an alleged joint tort-feasor for contribution under Chapter 32-28, N.D.C.C., and also brings an action for its own damages resulting from the same tort.
The trial court in granting motion for new trial in its order states, in part, as follows:
"That the Defendant, Leonard Prince, an individual doing business under the trade name of Regent Oil Company, is hereby granted a new trial in the above entitled action insofar as it relates to (a) the issue of whether said Defendant is not liable, or is liable jointly with the Defendant, Johnston's Fuel Liners, Inc., as a joint tort feasor for damages sustained by Plaintiff, if any, and the amount of Plaintiff's damages, if any, if such joint liability is found and determined; and (b) all matters at issue between the Defendant Johnston's Fuel Liners, Inc. and the Third Party Defendant Leonard Prince, an individual doing business under the trade name of Regent Oil Company, with respect to the counterclaim of said Third Party Defendant against said Defendant."
We find this order lacks clarity. Also, it is partially in error. It follows that it must be modified. We, therefore, modify it to provide as follows: That the defendant, Leonard Prince, an individual doing business under the trade name of Regent Oil Company, is hereby granted a new trial on the issue of whether or not he is liable to the third-party plaintiff for his pro-rata share of the original plaintiff's judgment against the defendant in the main action as a joint tort-feasor and, if it is found that he is not liable, then it shall be determined whether Prince, the third-party defendant, is entitled to judgment against the third-party plaintiff on its counterclaim.
The amount of the plaintiff's damages in the main action has been established. The plaintiff has no issue for trial in the new trial. The only issue in the new trial will be the question of whether *165 or not the third-party defendant's negligence, if any, was a proximate cause of the fire which resulted in the plaintiff's damages and, if it is found that the third-party defendant is not liable over as a joint tortfeasor, it must then be determined whether or not the third-party defendant, Prince, is entitled to recover from the third-party plaintiff, Johnston's, on the issues as framed in Prince's counterclaim and Johnston's reply thereto and the amount of damages, if any. Thus, the new trial is limited to the issues framed in the third-party proceedings, except the second cause of action has been eliminated therefrom.
The order granting new trial is ordered modified in conformity with this opinion and, as modified, it is affirmed.
MORRIS, C. J., and BURKE and ERICKSTAD, JJ., concur.
STRUTZ, J., did not participate.
On Petition for Rehearing.
TEIGEN, Judge.
The appellant has petitioned for a rehearing upon several grounds. All of them have been fully discussed and disposed of in the original opinion with one exception. The appellant points out that we failed to pass upon its assignment of error No. 5, in which it urges that the trial court in its order granting judgment notwithstanding the verdict also denied the motion for a new trial. This point was argued, considered and decided in the first appeal of this case reported in 122 N.W.2d 140. In that case we found the trial judge had not passed upon the motion for new trial. We reversed the judgment notwithstanding the verdict and ordered judgment entered consistent with the verdict, subject however to the right of Prince to proceed promptly to press for a ruling on his motion for a new trial. For this reason this matter was res judicata on this appeal. The petition is denied.
MORRIS, C. J., and BURKE and ERICKSTAD, JJ., concur.
STRUTZ, J., did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604225/ | 373 Mich. 589 (1964)
130 N.W.2d 404
ROBBINS
v.
EVENING NEWS ASSOCIATION.
Calendar No. 67, Docket No. 50,508.
Supreme Court of Michigan.
Decided October 5, 1964.
*590 Jesse H. Butler, for plaintiff.
Butzel, Eaman, Long, Gust & Kennedy (Rockwell T. Gust, Jr., and Joseph Pawl, of counsel) for defendants.
KELLY, J.
Plaintiff alleges that defendants, libeled him a few days before the 1960 general election by publishing on the editorial page of the Detroit News the following:
"Every time John D. Dingell, Democratic incumbent, gets re-elected we keep hoping he will live up to his potential for better service. Maybe, if re-elected, he will this time. In any event we cannot indorse his opponent, Robert J. Robbins, a Republican who represents the thinking of the ultra old guard group which complains that President Eisenhower has made socialism respectable."
The trial judge granted defendants' motion for a summary judgment, and the only question that must be decided by this Court is whether, accepting all well-pleaded facts as being true, the article so published is capable in law of a defamatory meaning. Plaintiff has not alleged any innuendoes nor pleaded any special damages, and so must thereby contend that this is a case of libel per se. See 33 Am Jur, Libel and Slander, § 5, pp 39-41.
The wide latitude given to a writer or speaker in expressing opinions in regard to one who becomes a candidate for public office has been recognized in this State for many years, as is evidenced by the *591 following from Belknap v. Ball, 83 Mich 583, 588 (11 LRA 72, 21 Am St Rep 622):
"Criticism is a discussion, or, as applicable in libel cases, a censure, of the conduct or character or utterances of the person criticised. When one becomes a candidate for public office he thereby deliberately places these before the public for their discussion and consideration. They may be criticised according to the taste of the writer or speaker, and the law will protect them in so doing, provided that in their statements of or reference to the facts upon which their criticisms are based they observe an honest regard for the truth. In such a discussion the law gives a wide liberty. Within this limit public journals, speakers upon the hustings, and private individuals may express opinions, and indulge in criticisms upon the character or habits or mental and moral qualifications of official candidates. Cooley, Torts, p 217. This is the freedom of the press guaranteed by the Constitution, a freedom necessary for the protection of the liberties and the proper enlightenment of the people."
This wide latitude was again expressed by this Court in Smurthwaite v. News Publishing Co., 124 Mich 377, 384, as follows:
"These publications were discussions of the matters involved in the election, and of the fitness of the candidates for the offices for which they sought election. A good deal of latitude must be allowed to newspapers and individuals in discussions of this character. The rule is so fully stated in recent cases that we content ourselves with calling attention to them. Belknap v. Ball, 83 Mich 583 (11 LRA 72, 21 Am St Rep 622); Dunneback v. Tribune Printing Co., 108 Mich 75; Eikhoff v. Gilbert, 124 Mich 353 (51 LRA 451)."
Applying and readopting the above-mentioned decisions of this Court, we conclude that the trial *592 court properly granted defendants' motion for summary judgment.
Affirmed. Costs to appellees.
KAVANAGH, C.J., and DETHMERS, BLACK, SOURIS, SMITH, O'HARA, and ADAMS, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604112/ | 25 Wis.2d 169 (1964)
ASH REALTY CORPORATION, Plaintiff and Appellant,
v.
CITY OF MILWAUKEE, Defendant:
VILLAGE OF BROWN DEER, Defendant and Respondent.[*]
Supreme Court of Wisconsin.
September 2, 1964.
October 6, 1964.
*171 For the appellant there were briefs by Whyte, Hirschboeck, Minahan, Harding & Harland, attorneys, and Richard P. Buellesbach and Richard D. Silberman of counsel, all of Milwaukee, and oral argument by Mr. Buellesbach.
For the respondent there was a brief and oral argument by Harold H. Fuhrman of Milwaukee.
A brief amicus curiae was filed by Julian Bradbury of Madison, for the League of Wisconsin Municipalities.
HEFFERNAN, J.
Ash Realty's complaint states that the tax was paid under protest to the village of Brown Deer and to Milwaukee and that the plaintiff is unable to determine respective claims of Brown Deer and Milwaukee. Ash Realty's complaint states only what would constitute a cause of action under sec. 74.73 (1), Stats. That statute reads:
"Any person aggrieved by the levy and collection of any unlawful tax assessed against him may file a claim therefor against the town, city, or village, whether incorporated under general law or special charter, which collected such tax *172 in the manner prescribed by law for filing claims in other cases, and if it shall appear that the tax for which such claim was filed or any part thereof is unlawful and that all conditions prescribed by law for the recovery of illegal taxes have been complied with, the proper town board, village board, or common council of any city, whether incorporated under general law or special charter, may allow and the proper town, city, or village treasurer shall pay such person the amount of such claim found to be illegal and excessive. If any town, city, or village shall fail or refuse to allow such claim, the claimant may have and maintain an action against the same for the recovery of all money so unlawfully levied and collected of him. Every such claim shall be filed; and every action to recover any money so paid shall be brought within one year after such payment and not thereafter."
Ash Realty contends that it has alleged a common-law action to recover illegal taxes and that therefore the limitation is not the year set by sec. 74.73 (1), Stats., but a longer period as provided by appropriate sections of ch. 330, Stats. A review of the requirements of a common-law cause of action reveals that the complaint herein does not allege facts sufficient to constitute the common-law action. Under the doctrine of early cases of Powell v. Board of Supervisors (1879), 46 Wis. 210, 50 N. W. 1013, and Parcher v. Marathon County (1881), 52 Wis. 388, 9 N. W. 23, the common law prevailed that the taxpayer must allege that the tax was paid under a threatened or impending levy by the sheriff. In the Parcher Case, the plaintiff alleged: (1) That the tax was illegal; (2) that the sheriff threatened levy and sale, but that plaintiff intended to recover the same.
Referring to the requirements necessary to a common-law cause of action, this court has said:
"The rule formerly prevailed in Wisconsin that a mere payment of taxes under protest was not sufficient; that to entitle one to recover taxes paid under protest it must appear that the tax collector had done more than to merely *173 notify the taxpayer that the tax roll is in his possession for collection, as was done in the case at bar." Welch v. Oconomowoc (1928), 197 Wis. 173, 178, 221 N. W. 750.
By merely alleging that the taxes were paid under protest, Ash Realty fails to meet the requirements of the commonlaw cause of action. There must be evidence of compulsion, 64 C. J. S., Municipal Corporations, p. 828, sec. 2069b. Ash Realty made no allegation of threatening levy by the sheriff or the other elements that the common law requires. Ash Realty has only pleaded the allegations requisite to the statutory action described by sec. 74.73 (1), Stats.
It is apparent therefore that no common-law cause of action has been pleaded or now can be pleaded by the appellant.
Whatever rights it has are those that are conferred upon it by statute. The statute provides that "every action to recover any money so paid shall be brought within one year after such payment and not thereafter." Appellant contends, however, that the annexation was wholly void and that any attempt to levy and collect a tax was a mere usurpation and that as to wholly void taxes, no statute of limitations is applicable.
We are in disagreement, at least insofar as this proposition would apply here; we cannot agree that the action of Brown Deer was a "mere usurpation" or that the annexation was wholly void in the sense intended by the appellant.
A review of the previous cases involving this annexation shows that substantial doubt did exist as to the true status of this property. By the appellant's very pleading there is revealed the good-faith doubt whether its property was, at the time the tax was paid, in the city of Milwaukee or the village of Brown Deer. At one point in the proceedings an order had been entered enjoining the village of Brown Deer from exercising jurisdiction over the territory involved. Subsequently in Brown Deer v. Milwaukee (1956), 274 Wis. *174 50, 79 N. W. (2d) 340, this court affirmed the vacation of that order. It is clear from the statements in the briefs of both counsel that during the period in question the village of Brown Deer did exercise municipal jurisdiction. It cannot be said that the annexation attempted by Brown Deer was void or unlawful in the sense that the appellant urges. It attempted an annexation that apparently would have been in all respects valid, if one of the corporate petitioners had taken the appropriate internal action to authorize its officers to sign the petition. Despite competing claims, what Brown Deer attempted to do was lawful. The cases that appellant urges as precedent are of a different type. Trustees of Clinton Lodge v. Rock County (1937), 224 Wis. 168, 272 N. W. 5. To tax exempt property is unlawful in the sense that the local government is attempting to do what the legislature has specifically forbidden. To attempt the annexation of noncontiguous property is unlawful in that no substantive right had been conferred upon the municipality to annex other than contiguous territory. Smith v. Sherry (1880), 50 Wis. 210, 6 N. W. 561. By law noncontiguous property can under no circumstances be annexed, and any attempt to tax such property is void. Nor was the situation similar to that discussed in Smith v. Sherry (1882), 54 Wis. 114, 11 N. W. 465, where the action failed to follow legislative dictates by attempting annexation by an unpublished order. The court reasoned that such action, if allowed, would cause "interminable mistakes." See also Knox v. Cleveland (1860), 13 Wis. 274 (*245), and Wisconsin Real Estate Co. v. Milwaukee (1912), 151 Wis. 198, 138 N. W. 642.
However, here a different situation exists. Brown Deer had the substantive right to attempt the annexation. It was through no unlawful act of Brown Deer, or of any overreaching of its delegated powers that the annexation failed. What it attempted could have been legally done. We hold *175 therefore that for the purpose of this situation, at least, the exercise of jurisdiction over the territory here involved was of colorable legality. This court recognized in Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N. W. (2d) 340, that Brown Deer's annexation had created an affinity between it and the residents of the area that gave rise to at least a provisional governmental relationship. It is recognized that Brown Deer did render municipal services to the area involved during the years 1957, 1958, and 1959. Brown Deer did exercise jurisdiction over the area in those years. The government of the area during that time was the government given to it by Brown Deer.
The status of an annexation de facto is recognized, 37 Am Jur., Municipal Corporations, p. 649, sec. 32. The elements required of a de facto corporation are these: A valid statute, an organization in good faith, a colorable compliance with the statutes, and the assumption of corporate powers, 37 Am. Jur., Municipal Corporations, p. 630, sec. 11. All of these elements were present here. We hold that the tax was levied under the color of right, though all parties concerned knew that the annexation remained to be tested in the courts. Despite the fact that the dual payment of taxes to Milwaukee and Brown Deer showed the recognition of the eventual uncertainty of outcome, the taxpayer took not even the most elementary steps to protect itself. It now, after it has foreclosed itself from further rights against Milwaukee by failing to appeal from the order sustaining Milwaukee's demurrer, is proceeding against Brown Deer for the recovery of taxes, though Brown Deer rendered the services during the period in question. While equity is sometimes available to succor the bewildered taxpayer, who may be caught in a thicket of intergovernmental litigation, we do not think it equitable to allow recoupment from Brown Deer which has rendered services to it.
*176 Reference should be made to Town of Fond du Lac v. City of Fond du Lac (1963), 22 Wis. (2d) 525, 126 N. W. (2d) 206, for a discussion of the equitable powers of the trial court to afford relief from the uncertainty arising during the course of contested annexation proceedings. Although the appellant herein now finds itself in the unenviable position of being burdened by double taxation, it must be recognized that it failed to take prompt action on its own behalf although it was fully aware of the situation it faced.
Short statutes of limitation particularly where the financial structure of our government is concerned, are in the public interest. As stated in the brief filed amicus curiae, "Municipalities ... need such legislative bulwarks against uncertainty as are provided by statutes of limitation on tax litigation under s. 74.73 (1)."
The object of such a statute is to compel the prompt exercise of a right of action. This is particularly important in the assertion of a claim against a municipal corporation where terms of office are short and personnel is constantly changing.
Our court in an early case summed up the philosophy behind such statutes.
"Interest reipublicae ut sit finis litium. It is therefore the policy of the law that some reasonable lapse of time should end all controversies; ... This is the philosophy of statutes of limitation. They are therefore called statutes of repose. They give possession rest from litigation. When they have run, they bar forever all previous rights...; silence forever all objections against it and all criticisms upon it. The claims which would have prevailed over it before, become extinct. The defects which would have been fatal to it before, are cured. Whatever could have been heard to impeach it before, can be heard no more forever. So it is here. The respondents had their day to impeach the tax proceeding. ... Then they might have said that the groundwork was so defective that there was no tax,... This they did not then do, and they are now too late to do it. They suffered *177 the statute to purge the tax proceeding of all defects, to raise the tax deed above impeachment. Their objections may be well founded. But they come out of time. What the respondents might have said, they can not now say. The statute has left them like one estopped to speak the truth, because they did not speak it when they might." Oconto County v. Jerrard (1879), 46 Wis. 317, 326, 50 N. W. 591.
By the Court.Judgment affirmed.
HALLOWS and BEILFUSS, JJ., dissent.
NOTES
[*] Motion for rehearing denied, with costs, on November 24, 1964. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604091/ | 645 So. 2d 166 (1994)
Maurice FRANKLIN, Appellant,
v.
STATE of Florida, Appellee.
No. 94-1961.
District Court of Appeal of Florida, Fourth District.
November 23, 1994.
Maurice Franklin, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ettie Feistmann, Asst. Atty. Gen., West Palm Beach, for appellee.
STEVENSON, Judge.
This is an appeal from the summary denial of a motion for relief under rule 3.850. The trial court denied appellant's motion without an evidentiary hearing but with attachment of excerpts, including his waiver of rights form, sentencing documents and a transcript of the change of plea/sentencing hearing. We affirm the denial on appellant's claims of an alleged involuntary confession and ineffective assistance of counsel. However, we find that the attachments alone are insufficient to support summary denial of appellant's claim that there was no factual basis for his guilty plea.
Appellant was originally indicted for first degree murder but negotiated a plea agreement on which he pled guilty to a lesser charge of second degree murder. Appellant argues that the facts supported only a manslaughter conviction, not a second degree murder conviction. He further argues that manslaughter was consistent with his defense. The transcript of the change of plea hearing reveals that the only attempt to establish a factual basis was the following colloquy between the trial court and the appellant:
The Court: Are you admitting that you killed Sonia Baits?
The [Appellant]: Yes.
An appellant can challenge the factual basis for his plea in a rule 3.850 motion. Scott v. State, 629 So. 2d 888, 890 (Fla. 4th DCA 1993). The requirement that the trial court determine whether there is a factual basis for the guilty plea before it is accepted is set out in rule 3.172(a), Florida Rules of Criminal Procedure which provides in pertinent part:
(a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo contendere, the trial judge shall be satisfied that the plea is voluntarily entered and that there is a factual basis for it....
Under rule 3.172(a), the trial court is required to "receive in the record" evidence establishing a factual basis for the plea. *167 Koenig v. State, 597 So. 2d 256 (Fla. 1992). The trial court may look to any source in the record to establish the factual basis, but the source used should be reflected in the record of the plea proceedings. Williams v. State, 316 So. 2d 267 (Fla. 1975).
Appellant's bare admission during the plea colloquy that he killed the victim is as consistent with the elements of manslaughter as it is with second degree murder. Therefore, the transcript of the change of plea hearing, which was attached to the order denying the rule 3.850 motion, does not conclusively demonstrate that appellant is not entitled to relief. See rule 9.140(g), Florida Rules of Appellate Procedure. See also Williams; Koenig.
Accordingly, we reverse and remand with instructions to either supplement the attachments to the order of denial with any other record excerpts supporting denial, or to hold an evidentiary hearing on the issue of whether there was a factual basis for appellant's guilty plea to the charge of second degree murder.
REVERSED AND REMANDED.
KLEIN, J., concurs.
STONE, J., dissents without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604088/ | 882 F. Supp. 1575 (1995)
Felix Justiz CEPERO, Petitioner,
v.
BOARD OF IMMIGRATION APPEALS, Respondent.
No. 92-3046-RDR.
United States District Court, D. Kansas.
March 31, 1995.
*1576 *1577 Felix Justiz Cepero, Three Rivers, TX, pro se.
Melanie D. Caro, Office of U.S. Atty., Topeka, KS, Emily A. Radford, and Lauri Steven Filppu, Office of Immigration Litigation, Civil Div., Frank W. Hunger, U.S. Dept. of Justice, Civil Div., Washington, DC, for Board of Immigration Appeals, William Barr, Atty. Gen., Ron Sanders, District Director.
MEMORANDUM AND ORDER
ROGERS, Senior District Judge.
This matter is before the court on a petition for habeas corpus filed by a person detained under the authority of the Immigration and Naturalization Service ("INS"). Petitioner, a native of Cuba, seeks relief from a final order of exclusion and deportation issued by the Board of Immigration Appeals ("BIA"). The court has heard oral argument in this matter, and this action is now ripe for review. Having examined the record, the court makes the following findings and order.
Factual Background
Petitioner was born in Havana, Cuba, and served in the Cuban army from 1969 to 1972. Upon release from active duty, he enrolled in the University of Havana, where, as a student, he participated in a secret group opposing the Communist principles of the Cuban government. In November 1975, petitioner, still a military reservist, was ordered to fight in Angola. Upon his refusal, he was expelled from the University.
Petitioner was arrested in February 1976 on charges of disloyalty and conspiracy against the revolution. He was interrogated, beaten, and eventually transferred to a high security work camp. He later was transferred to a prison before being released in 1979. Due to conditions in Cuba, petitioner was unable to leave the country, and he was sent to a labor farm. In April 1980, petitioner, along with a number of others, sought refuge in the Peruvian Embassy in Havana.[1]
During this period, Castro essentially opened Cuban ports for emigration not only to members of the general public but to those housed in prisons and mental institutions, ultimately resulting in a flow of some 125,000 Cubans to American shores. Petitioner arrived in Florida in 1980 among this swell of immigrants, and was released on immigration parole shortly thereafter. He filed his initial application for asylum on May 3, 1980.
In 1982, plaintiff became involved in a bank robbery. He entered a guilty plea to a charge of aiding and abetting an armed robbery and was sentenced to twelve years. After serving seven years and four months, petitioner was released to INS custody.
During his detention, petitioner has successfully pursued academic and vocational programs, and he has maintained a clear disciplinary record for the last several years. A mental health evaluation conducted in April 1990 suggested petitioner was neither a danger to himself or others nor likely to become a burden to society.
In January 1991, the INS issued petitioner notice of a hearing which charged him with being excludable under 8 U.S.C. § 1182(a)(9) as an alien convicted of a crime of moral turpitude and under § 1182(a)(20) as an alien seeking entry without proper documentation. *1578 At the hearing, the Immigration Judge found petitioner excludable under both grounds charged. After considering petitioner's testimony, the Immigration Judge found petitioner had shown a well-founded fear of torture or death if forced to return to Cuba and found him eligible for both asylum and withholding of deportation. On administrative appeal, the Board of Immigration Appeals determined petitioner had been convicted of a "particularly serious crime" and was therefore barred from asylum. Accordingly, the BIA reversed the relief granted by the Immigration Judge and ordered petitioner deported to Cuba. This petition for habeas corpus relief followed.[2]
Discussion
Petitioner's claims for relief must be evaluated against the background of developments in immigration regulation and procedure in recent years.
An alien in deportation or exclusion proceedings has two primary avenues for relief: asylum and withholding of deportation. A grant of asylum permits an alien to remain in the United States. See 8 U.S.C. § 1158. To qualify for asylum, an alien must demonstrate a "well-founded fear of persecution" if returned to his country of origin. See id.; 8 U.S.C. § 1101(a)(42)(A). In contrast, withholding of deportation is a remedy which prevents an alien from return to a particular country but does not bar deportation to a third country where the alien would not face persecution. See 8 U.S.C. § 1253(h). However, withholding of deportation will not be granted where the Attorney General finds "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 U.S.C. § 1253(h)(2)(B).
Before 1980, the United States Attorney General had discretionary authority under 8 U.S.C. § 1253(h) to withhold the deportation of an alien subject to persecution in the receiving nation due to race, religion, or political opinion. In 1980, Congress passed comprehensive refugee legislation with the Refugee Act of 1980, amending § 1253(h) to harmonize its contents with the principle of nonrefoulement embodied in Article 33 of the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223 (1968).[3] Article 33 of the Convention provides first, that no contracting state shall expel or return ("refouler") a refugee to territories where his life or freedom is jeopardized on the basis of race, religion, nationality, group affiliation, or political opinion, and second, that the benefit of nonrefoulement shall not extend to one who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the country.
Following the enactment of the Refugee Act of 1980, the BIA's interpretation of "particularly serious" crimes was essentially the result of case-by-case analysis, involving several factors, including "whether the type and circumstances of the crime indicate that the alien will be a danger to the community." In re Frentescu, 18 I & N Dec. 244, 247 (1982). However, when the crime committed by an alien was determined to be particularly serious, the BIA did not interpret § 1253(h) to require a separate finding the alien constituted a danger to the community. In re Carballe, 19 I & N Dec. 357 (1986).
The Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5053 (1990), however, supplanted the Frentescu approach by amending § 1253(h) to establish that an alien convicted of an aggravated felony shall be deemed to have committed a particularly serious crime, thus imposing significant new limitations on the availability of remedies for aliens convicted of certain crimes in the United States. Specifically, the 1990 Act provides that "[a]n alien who has been convicted *1579 of an aggravated felony ... may not apply for or be granted asylum." 8 U.S.C. § 1158(d). A 1990 amendment to § 1253 also limited the withholding of deportation by providing that an alien convicted of an aggravated felony shall be deemed to have committed a particularly serious crime, a circumstance which precludes relief. 8 U.S.C. § 1253(h)(2).
Petitioner's claims
The petitioner's arguments, which have been raised both in the record and at oral argument, are, essentially, (1) the BIA erred in denying him asylum and withholding of deportation solely on the basis of his criminal conviction, without an individualized examination of the circumstances; (2) the BIA erred in finding petitioner committed a particularly serious crime; (3) the BIA erred in applying its 1990 regulations to petitioner's application for asylum filed in 1980; and (4) petitioner has a colorable claim of refugee status under the April 14, 1980, declaration of President Carter, and therefore should have been admitted as a refugee. The court will address these claims in turn.
Denial based on criminal conviction
Petitioner asserts the BIA erred in denying his requests for asylum or withholding of deportation by failing to give individualized consideration to the circumstances of his crime in its determination that the crime was particularly serious. He contends the applicable statutory provisions[4] require a two-part analysis, first, whether the crime committed was a particularly serious offense, and second, whether the alien, as a result, presents a danger to the community.
The United States Court of Appeals for the Tenth Circuit recently considered the appropriate interpretation of § 1253(h)(2)(B) and determined that an aggravated felony conviction creates an absolute bar to withholding of deportation and removes the need for a separate finding of danger to the community. In Al-Salehi v. INS, 47 F.3d 390 (10th Cir.) the Court of Appeals considered and rejected many of the arguments presented to the court in the present action, namely, the statutory language, the structure of the statutory scheme and the disparate treatment of asylum, the legislative history of the 1990 amendments, and the treaty obligations of the United States. 47 F.3d at 393-95. The Tenth Circuit's conclusion that the interpretation of the BIA, which found in that case the petitioner's conviction of an aggravated felony was sufficient to foreclose the withholding of deportation without an additional finding of dangerousness, was appropriate and that "the legislative history accompanying the Refugee Act of 1980 indicates Congress explicitly intended the construction imposed on § 1253(h)(2)(B) by the BIA and these courts" appears to be dispositive of the petitioner's arguments in this matter concerning the appropriate analysis of a request for asylum or withholding of deportation by an alien convicted of a particularly serious crime. Id. 47 F.3d at 394 n. 4. The court therefore finds no error in the BIA's evaluation of the effect of petitioner's crime.
BIA's interpretation of "particularly serious crime"
Petitioner next contends the BIA erred in determining he committed a particularly serious crime. Petitioner entered a guilty plea to the third count of a three count indictment which charged:
On or about the 13th day of August 1982, in the State and district of Maryland, Omar Vazquez del Rosario, Felix Justiz, Reynaldo Molina-Lopez in committing the offenses charged in the first two counts of *1580 this indictment, did assault Robin Shifflett, David Roberts, Leslie Clark, and Gary Slocum, and other bank employees and customers, by pointing handguns and a knife at them and in their direction, said persons being in the Equitable Trust Company, 16575 S. Frederick Avenue, Gaithersburg, Maryland, a bank the deposits of which were then insured by the Federal Deposit Insurance Corporation. (AR 311)
As a result of the guilty plea, the United States Attorney declined to prosecute the remaining counts, which charged petitioner and the other perpetrators with the theft of over $11,000.00 by "force, violence and intimidation." Id. At the hearing before the Immigration Judge held in 1991 at the United States Penitentiary, Leavenworth, petitioner admitted his participation in the robbery, that the other participants had guns, and that he had moved into the teller area and gathered the currency. He disputed portions of the criminal record which suggested he was armed with a knife during the robbery.
After considering the record and testimony, the Immigration Judge found the petitioner was excludable but determined the conviction did not represent a particularly serious crime. (AR 114). As a result, the Immigration Judge issued an oral decision finding petitioner should be granted both asylum and withholding of deportation. On appeal, the BIA, while sustaining the appeal on the ground that asylum was inappropriately granted, ruled that the grant of withholding of deportation was not an accurate depiction of the Immigration Judge's decision and found that portion of the decision a nullity. (AR 2). Despite this, the BIA went on to find petitioner ineligible for both asylum and withholding of deportation. (AR 7).
Generally, in reviewing an agency's interpretation of a statute, where Congress has spoken clearly, a court must give effect to the unambiguous legislative intent. However, where Congress has not spoken clearly, the agency's interpretation is entitled to some deference, and must stand if its construction of the statute is a permissible one. Al-Salehi, 47 F.3d at 392; Rubio-Rubio v. I.N.S., 23 F.3d 273, 276 (10th Cir.1994). Thus, because the phrase "particularly serious crime" is not defined in the statute, review of the BIA's evaluation of the crime committed by petitioner must be given deference.
Here, the bank robbery in which petitioner participated was a felony offense in which petitioner acknowledges his accomplices were armed with guns. The robbery occurred in the presence of bank employees and customers, who were placed in the apprehension of imminent harm. Petitioner received a significant prison term for his participation in the crime. Under the deferential standard of review applicable in this action, the court finds no error in the BIA's determination the robbery constituted a particularly serious crime. See In re Carballe, 19 I & N Dec. 357 (BIA 1986) (discussing robbery convictions by Cuban alien who sought refuge in Peruvian Embassy).
Processing of application for asylum
Petitioner contends the BIA erred in applying the 1990 regulations to his application for asylum submitted in 1980, immediately after his arrival, rather than the regulations in effect at the time.
The current regulations, effective October 1, 1990, provide that "[a]ny previously filed but unadjudicated asylum application must be resubmitted by the alien to the Immigration Judge." 8 C.F.R. § 208.2(b). This practice of requiring resubmission of unadjudicated applications has been upheld. Silwany-Rodriguez v. INS, 975 F.2d 1157 (5th Cir.1992).
In Silwany-Rodriguez, the court reviewed the BIA's ruling, in Matter of B__, Interim Decision (BIA) 3164 (1991 WL 353531), that a subsequent filing of an application with an immigration judge requires the application to be evaluated under the current regulations. The BIA, noting the initial system of interim regulations and the express intent to implement permanent procedures after a period of experience and review, found adjudication under the current regulations served the purpose of the statutory scheme to remove eligibility for asylum for aliens convicted of aggravated felonies or particularly serious *1581 crimes, while a contrary result would make asylum available to aliens convicted of crimes for a number of years despite the current regulations.
The court agrees the BIA's interpretation of the regulatory scheme is reasonable, and therefore, under the deferential standard of review which applies to agency interpretation, the BIA's reading must be upheld.
Petitioner's claim of refugee status
Finally, petitioner contends he has a colorable claim to refugee status.
At the time of the petitioner's move to sanctuary in the Peruvian Embassy, President Carter issued a statement that those in the Embassy "who otherwise qualify may be considered refugees even though they are within their countries of nationality or habitual residents."[5] Petitioner testified credibly before this court that he came to the United States in reliance on this declaration.
While a review of the statement issued by President Carter clearly indicates petitioner was within a group identified as eligible for refugee status, there is no evidence before the court which suggests petitioner was among those ultimately awarded refugee status. The record is simply silent on this point.
Likewise, at the hearing in this matter, petitioner's identification as an individual subject to the 1984 agreement between the United States and Cuba for the repatriation of certain Cuban citizens was a subject of dispute between the parties.
Therefore, in view of the likelihood of persecution if petitioner is forcibly returned to Cuba, his apparent qualification for refugee status at the time of his departure from Cuba, the confused circumstances at the time of petitioner's arrival on American soil, and the availability of counsel to assist petitioner in future proceedings, the court finds it in the interest of justice to remand this matter to immigration authorities for further administrative proceedings to determine whether petitioner's claims on these issues might entitle him to relief.
Conclusion
For the reasons set forth, the court concludes petitioner is not entitled to relief on the grounds the BIA determined his conviction of aiding and abetting an armed robbery precludes him from certain relief and applied its 1990 regulations to his application for asylum. Nevertheless, because of unresolved questions concerning petitioner's claim *1582 of refugee status as a person seeking asylum in the Peruvian Embassy and whether petitioner is in fact subject to repatriation under the 1984 agreement, the court remands this matter for evaluation of these issues.
IT IS THEREFORE ORDERED the petition for habeas corpus is granted and this matter remanded to the Immigration and Naturalization Service for further proceedings as set forth herein.
NOTES
[1] "In early April 1980, some 10,800 Cuban citizens claiming status as political refugees sought sanctuary in the Peruvian Embassy in Havana. On April 14, 1980, President Carter declared that, pursuant to the Refugee Act of 1980, up to 3,500 of these refugees would be admitted into the United States. He allocated up to $4.25 million for their resettlement. 45 Fed.Reg. 28079 (April 28, 1980). An airlift was started but within three days Castro stopped the flights, announcing that anyone who wanted to leave could do so through the harbor at Mariel. Almost immediately, small boats, funded by members of the Cuban-American community, began leaving Key West." United States v. Frade, 709 F.2d 1387, 1389 (11th Cir.1983).
[2] Jurisdiction for this action is based upon 8 U.S.C. § 1105a(b), which states:
Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made ... under the provisions of section 1226 of this title or comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise.
[3] Parties to the Protocol are bound to the provisions of Articles 2-34 of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150. The United States acceded to the Protocol in 1968.
[4] 8 U.S.C. § 1253(h) provides, in relevant part, as follows:
(h) Withholding of deportation or return
(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that ... (B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.
8 U.S.C. § 1158(d) provides:
(d) Aliens convicted of aggravated felony. An alien who has been convicted of an aggravated felony ... may not apply for or be granted asylum.
[5] President Carter issued the following statement concerning those in the Peruvian Embassy:
Presidential Determination No. 80-16 of April 14, 1980
Specification pursuant to Section 101(a)(42) of the Immigration and Nationality Act (INA), as amended, and Determination pursuant to Sections 2(b)(2) and 2(c)(1) of the Migration and Refugee Assistance Act of 1962, as amended (the "Act"), authorizing the obligation of $4,250,000 in funds
Memorandum for the Secretary of State
Pursuant to Section 101(a)(42) of the INA as amended, I hereby determine, after appropriate consultation with the Congress, that special circumstances exist such that persons who have taken sanctuary in the Peruvian Embassy in Havana who otherwise qualify may be considered refugees even though they are still within their country of nationality or habitual residence. Pursuant to Section 207(b) of the INA as amended, I determine that an unforeseen emergency refugee situation exists, that the admission in response to the emergency refugee situation of the 25 to 33 percent of the persons who have taken sanctuary at the Peruvian Embassy in Havana, up to a maximum of 3,500 refugees, is justified by grave humanitarian concerns and is otherwise in the national interest, and that the admission to the United States of these refugees cannot be accomplished under subsection 207(a) of the INA.
In order to respond to the urgent humanitarian needs of those people in cuba who have taken sanctuary at the Peruvian Embassy in Havana, I hereby determine pursuant to Section 2(b)(2) of the Act that it is in the foreign policy interests of the United States to designate such persons at this Peruvian Embassy as a class of refugees eligible for assistance under the Act. Pursuant to Section 2(c)(1) of the Act, I hereby determine that it is important to the national interest that up to $4,250,000 in funds appropriated under the United State Emergency Refugee and Migration Assistance fund be made available to aid in the resettlement of these refugees.
The Secretary is requested to inform the appropriate committees of the congress of this determination and the obligation of funds under this authority.
This Determination shall be published in the Federal Register.
/s/ Jimmy Carter
THE WHITE HOUSE
Washington, April 14, 1980. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604083/ | 645 So. 2d 1384 (1994)
GREEN TREE ACCEPTANCE, INC.
v.
Louis TUNSTALL.
Louis TUNSTALL
v.
GREEN TREE ACCEPTANCE, INC.
1921767, 1921848 and 1921847.
Supreme Court of Alabama.
July 29, 1994.
Rehearing Denied August 26, 1994.
*1385 James J. Robinson, F.A. Flowers III and Paul P. Bolus of Burr & Forman, Birmingham, Mayer W. Perloff of Reed Friedman Perloff & Ross, Mobile, for appellant/cross appellee Green Tree Acceptance, Inc.
Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, William P. Gray, Jr., Tuscaloosa, for appellee/cross appellant Louis Tunstall.
ALMON, Justice.
Green Tree Acceptance, Inc., appeals from a judgment awarding Louis Tunstall $176,367 on his claims alleging conversion, breach of trust, and breach of fiduciary duty. Tunstall cross appeals from the trial court's order requiring a remittitur of $200,000 of the jury's award.[1] Green Tree also had filed an earlier notice of appeal before the judgment became final, but that appeal is due to be dismissed as premature. The principal issue is whether the circuit court erred in denying Green Tree's motion for a judgment notwithstanding the verdict on the ground that an action will not lie for conversion of money except in the case of specific money capable of identification.
In January 1991, Tunstall purchased a mobile home from Don Graves, Inc. ("Graves"). Tunstall financed $14,701.20 of the purchase price by executing an installment sales contract. The contract shows Green Tree as assignee, but it appears that Green Tree approved Tunstall's credit before the sale was closed. Green Tree's "Manufactured Home, Home Improvement Credit Loan Verification" shows an allowance of $1200 for an air conditioner and heat pump. On January 29, 1991, a Green Tree employee spoke to Tunstall by telephone, and she wrote information on a form entitled "Telephone Audit (Prior to Purchase of a Retail Installment Contract)." Tunstall told her that the heater and air conditioner had not been delivered. On the basis of this interview, Green Tree withheld $1200 from the check it sent to Graves. On February 1, Green Tree executed a second check to Graves for $1200, with Tunstall's loan number and the notation "A/C Holdback," and placed the check in a file.
Graves went out of business in March 1991, and a heating and air conditioning system was not installed in Tunstall's mobile home until January 1992. Green Tree paid the installer $1150 and credited $50 to Tunstall's loan. In August 1991 Tunstall filed an action against Graves and the manufacturer of the mobile home; in August 1992 Tunstall amended his complaint to add claims against Green Tree. The manufacturer settled the claims against it (unrelated to the claim at issue here), and the case went to trial against Graves and Green Tree. The jury returned a verdict of $1367 against Graves; no one has appealed from the judgment on that verdict. The jury returned a verdict of $1367 compensatory damages and $375,000 punitive damages against Green Tree. The circuit court conditioned its denial of Green Tree's motion for a new trial on Tunstall's accepting a remittitur of $200,000. Green Tree appealed. Tunstall refused to accept the remittitur and cross appealed from the grant of Green Tree's motion for new trial.
Tunstall's complaint against Green Tree alleged that it "received specific money from" Graves, "which said sum of money was specifically set aside" to purchase a heating and air conditioning system. Tunstall alleged that he telephoned Green Tree on numerous occasions but was never told that Green Tree "had his money." The conversion count concluded that, on or about February 1, 1991, Green Tree "converted to its own use that specific sum of money which it had received for the sole and express purpose" of purchasing and installing a heating and air conditioning unit for his mobile home. Another count alleged that Green Tree held the money in trust for Tunstall for the purchase of a heating and air conditioning system, that it breached its duty under this trust by failing to inform Tunstall that it held the money, by failing to deliver the money to him, or by failing to purchase and install the heating *1386 and air conditioning system. A third count alleged that Green Tree "became [a] fiduciar[y]" when it received the money and that it breached its fiduciary duty when it failed to act, as alleged in the previous count.
The evidence showed that Green Tree maintains a "zero balance cash management account" at a bank to make payments to mobile home dealers such as Graves. No money is kept in the account. Instead, Green Tree has a line of credit with the bank and, as Green Tree's loan supervisor testified, "once those checks are presented to the bank for payment, we go to our credit line and borrow that amount of money to pay those checks at the end of each day." Thus, Green Tree argues, no specific money was set aside for Tunstall's loan or for the purchase and installation of the air conditioner.
"To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse of another's property. Ex parte SouthTrust Bank of Alabama, N.A., 523 So. 2d 407, 408 (Ala.1988); Ott v. Fox, 362 So. 2d 836 (Ala. 1978). Conversion requires `a wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where said plaintiff has ... the immediate right of possession.' Empiregas of Gadsden, Inc. v. Geary, 431 So. 2d 1258, 1260 (Ala.1983).
"Generally, an action will not lie for the conversion of cash. However, if the cash at issue is `specific money capable of identification,' claims of conversion may be appropriate. Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469 (1903); Russell v. The Praetorians, Inc., 248 Ala. 576, 28 So. 2d 786 (1947)."
Covington v. Exxon Co., U.S.A., 551 So. 2d 935 (Ala.1989).
In Lewis v. Fowler, 479 So. 2d 725, 726 (Ala.1985), the Court stated:
"The requirement that there be `earmarked money or specific money capable of identification' before there can be a conversion has been complicated as a result of the evolution of our economic system.
"Now, in conversion cases, the courts are not confronted so much with a particular piece of money, i.e., a coin or a bill, but with identified or segregated sources from which money has come or types of accounts into which money has been deposited."
Thus, the Court has reversed summary judgments for defendant insurers on claims that the insurer converted funds from the plaintiff's checking account by wrongfully presenting preauthorized checks for premium payments. Gray v. Liberty Nat'l Life Ins. Co., 623 So. 2d 1156 (Ala.1993); Gillis v. Benefit Trust Life Ins. Co., 601 So. 2d 951 (Ala.1992). However, the Court has subsequently held that the mere payment of premiums for a wrongfully issued policy does not support a conversion action:
"The present case is similar to Gillis in that both cases involved the payment of insurance premiums. That, however, is as far as the similarity goes. In Gillis, the insurance premiums were drawn by the defendant insurance company directly from a specific account belonging to the plaintiffs. In the present case, the only evidence is that the premiums were paid by the Willinghams to United. There is no evidence that leads us to conclude that the subject money is or was in any manner segregated or identifiable.
"Even if the Willinghams are entitled to a refund of their premiums or to other money damages, the relationship between the Willinghams and United is akin to that of a debtor and creditor. We have stated that where there is `only a relationship of debtor [and] creditor, an action for conversion of funds representing the indebtedness will not lie against the debtor.' Lewis v. Fowler, 479 So. 2d 725, 727 (Ala.1985) (citing Lyxell v. Vautrin, 604 F.2d 18 (5th Cir.1979))."
Willingham v. United Ins. Co. of America, 628 So. 2d 328, 333 (Ala.1993).
Similarly, in Lewis v. Fowler, supra, the Court held that the withholding of funds from the plaintiff's wages pursuant to a garnishment would not support a conversion action in a situation where the funds had not been paid to the garnishor. In Covington v. *1387 Exxon Co. U.S.A., supra, the Court held that a conversion action would not lie where escrow funds had been commingled and deposited in numerous banks nationwide. In Johnson v. Life Ins. Co. of Alabama, 581 So. 2d 438, 443 (Ala.1991), the Court held that an action would not lie for the alleged conversion of life insurance premiums paid by the plaintiffs, because "there was no specific, identifiable coin or bill [and no] evidence that the money had been placed into a separate account." In Greene County Bd. of Educ. v. Bailey, 586 So. 2d 893, 899-90 (Ala.1991), the Court reversed a Rule 12(b)(6), Ala.R.Civ.P., dismissal of an action because "The allegations of the complaint suggest that the plaintiff may be able to prove that the defendants... converted to their own use funds that had been specifically deposited in the `[Paramount High School] lunchroom account' to pay for the high school's breakfast and lunch programs."
In this case, there is no evidence of money placed in an account at all, much less money placed in a specific account for the benefit of Tunstall. According to the evidence, Green Tree maintained a zero balance in its account and at the end of each day would borrow against its line of credit the amount needed to pay the checks presented that day. It wrote a check to Graves for $1200, but it never delivered the check and never deposited any money into an account to pay it. Tunstall does not argue that Green Tree converted the check itself; aside from any other impediments to such a claim, we do not see how Tunstall could argue that he had title to, or an immediate right to possession of, a check made payable to Graves.
Green Tree became a creditor of Tunstall, whether through its initial approval of the loan or through its purchase of the installment sales contract from Graves. Although it assigned a number to Tunstall's loan, it did not set aside funds to an account with this number. Any funds it held that might be used to fund this loan or to pay for the air conditioner were commingled with other money held by Green Tree. See Covington v. Exxon Co., supra. As stated in the cases cited above, a conversion action will not lie when there is merely a relationship of debtor and creditor.
For the foregoing reasons, the circuit court erred in denying Greentree's motions for a directed verdict and for a J.N.O.V. on the conversion claim.
We see no error in submitting to the jury the claims alleging breach of trust and breach of fiduciary duty. A jury could find that, by withholding the $1200 to ensure that the heating and air conditioning system was installed, Green Tree created a trust in that amount and imposed on itself a duty to act for Tunstall's benefit. See Coosa River Water, Sewer & Fire Protection Authority v. SouthTrust Bank of Alabama, N.A., 611 So. 2d 1058, 1062 n. 5 (Ala.1993), in which the Court referred to a "declaratory trust" as a trust in which "a settlor declares himself trustee of property for the benefit of another, the beneficiary," citing, inter alia, Jones v. Ellis, 551 So. 2d 396 (Ala.1989). "[N]o particular form of words is required to create a trust, but ... any instrument in writing signed by the parties, or party, at the time of the trust's creation, or subsequently, will suffice, if the nature, subject matter, and objects of the trust [are] manifested with reasonable certainty by the instrument." Jones v. Ellis, 551 So.2d at 399. Green Tree's loan verification reflecting a $1200 allowance for the heating and air conditioning system, its telephone audit showing that the system had not been installed, and the $1200 check that it issued and filed with the notation "A/C Holdback" suffice to create a fact question as to whether Green Tree created a trust for Tunstall's benefit with itself as trustee. Similarly, an action alleging breach of fiduciary duty could properly lie under these facts.
However, the judgment must be reversed, because the conversion count was not supported by the evidence. Green Tree made specific directed verdict and J.N.O.V. motions directed to that count; the court denied those motions and the jury returned a general verdict. In such a circumstance, a reviewing court will not presume that the verdict was returned on a good count. Old Southern Life Ins. Co. v. Spann, 472 So. 2d 987 (Ala.1985); Aspinwall v. Gowens, 405 *1388 So.2d 134 (Ala.1981). In fact, the only count on which Tunstall sought punitive damages was the conversion count. We do not presume that the verdict was returned only on the conversion count, however, because the instructions to the jury did not limit the award of punitive damages to the conversion count. We note that the complaint sought punitive damages only on the conversion count only to point out that it would be especially inappropriate in this case to affirm the judgment simply because a good count was submitted to the jury.
For the foregoing reasons, the judgment is reversed and the cause is remanded. Tunstall's cross appeal is dismissed as moot.
1921848 REVERSED AND REMANDED.
1921847 DISMISSED AS MOOT.
1921767 DISMISSED AS PREMATURE.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL, KENNEDY and COOK, JJ., concur.
INGRAM, J., concurs in 1921767, but dissents in 1921847 and 1921848.
INGRAM, Justice (concurring in dismissal of premature appeal, 1921767, but dissenting as to 1921847 and 1921848).
I respectfully dissent from the majority's reversal of the judgment based on the jury's verdict on Louis Tunstall's conversion claim and from the majority's corresponding dismissal of Tunstall's cross-appeal as moot.
In January 1991, Tunstall purchased a mobile home with the expectation of any new home purchaser: that he would receive that for which he had paid. Of the money Tunstall financed in the Green Tree contract, $1,200 was to be set aside to pay for the installation of an electric heating and air conditioning system and a stove. The 68-year-old Tunstall needed the assistance of his cousin in handling business transactions, because, Tunstall stated, his cousin could "hold good thinking in his head, and I cannot." Tunstall and his cousin repeatedly called Green Tree to inquire about the appliance installation, but obtained no productive response. While Green Tree held onto the $1,200 for a year, Tunstall lived in his mobile home without the benefit of a stove and a heating and air conditioning system. In January 1992, these items were finally installed. During the year that Green Tree held Tunstall's $1,200, Tunstall was required to pay interest charges on the loan.
I note that the majority primarily relies upon Green Tree's "zero balance account" argument to hold that no conversion occurred. However, there was ample testimony before the jury, including that from Green Tree's credit manager, to indicate that Green Tree held the $1,200 with full knowledge that it was specifically set aside for the purpose of installing Tunstall's stove and heating and air conditioning system. The $1,200 never left Green Tree's control until the January 1992 installation. Where money is specific and is capable of identification, it may be the subject of a conversion claim. Gray v. Liberty National Life Ins. Co., 623 So. 2d 1156 (Ala. 1993). The evidence indicates that Green Tree exercised wrongful dominion over these specific, identifiable funds; therefore, Tunstall's conversion claim was properly submitted to the jury. Because the conversion claim was properly submitted to the jury and because I believe the jury's verdict was supported by the evidence, I would affirm the judgment based on the jury's verdict.
NOTES
[1] Although Green Tree's notice of appeal was filed in the trial court earlier than Tunstall's, it was given a higher docket number in this Court. The parties have agreed that Green Tree's appeal, number 1921848, is the appeal in this case and that Tunstall's appeal, number 1921847, is a cross appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604084/ | 882 F. Supp. 1582 (1995)
Felix JUSTIZ-CEPERO, Plaintiff,
v.
I.N.S., et al., Defendants.
No. 91-3381-RDR.
United States District Court, D. Kansas.
March 31, 1995.
*1583 Felix Justiz Cepero, Three Rivers, TX, pro se.
Melanie D. Caro, Office of U.S. Atty., Topeka, KS, for defendants.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This matter is before the court on a civil rights complaint filed by a Cuban detainee in custody pursuant to an Immigration and Naturalization Service ("INS") detainer. He alleges he is housed improperly in a Bureau of Prisons facility and that he is subjected to cruel and unusual punishment by his placement in D-Cellhouse at the United States Penitentiary, Leavenworth, Kansas ("USPL"). He seeks damages and transfer to an INS Detention Center. Defendants have filed a motion to dismiss or for summary judgment (Doc. 16), and plaintiff has filed a response (Doc. 18). Having examined the record, the court makes the following findings and order.
Factual Background
Petitioner was housed at USPL from April 12, 1989, until December 8, 1989, pursuant to a twelve year criminal sentence. Following the expiration of his sentence on December 8, 1989, he remained in general population at USPL, until he received notice of repatriation on February 1, 1991. At that time, plaintiff was placed in the D-Cellhouse at the facility.
In February 1992, petitioner was transferred to the Federal Correctional Institution at Talladega, Alabama, for repatriation. Due to the pendency of civil actions in this district,[1] he was returned to USPL shortly thereafter. Upon review of his records, staff at USPL determined plaintiff could function in the general population, and he entered population on May 15, 1992.
The D-Cellhouse living unit at USPL is a secured housing area where most unsentenced Cuban detainees are housed, as well as so-called "holdovers", typically inmates in transit who have not yet been tried or sentenced. Inmates in the unit have restricted movement and generally do not come in contact with inmates in general population who are serving criminal sentences. Placement in the D-Cellhouse Unit routinely follows the delivery of repatriation papers due to increased assaultive behavior which sometimes follows this development.
Cuban detainees at USPL have some access to educational and work programs, including English as a Second Language, Adult Basic Education, and General Equivalency classes. Some inmates work within the unit in orderly and painter positions; others work in the institution laundry. Limited production work is available through Federal Prison Industries. Some recreational opportunities are available five days a week.
Discussion
Standard for granting summary judgment
Summary judgment is appropriate only when the evidence, construed in the light most favorable to the nonmoving party, shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The moving party *1584 has the burden of showing the absence of a genuine issue of material fact, and this burden "may be discharged by `showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986). The nonmoving party may not rest upon mere conclusory allegations or denials. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue for trial. Abercrombie v. City of Catoosa, Okla, 896 F.2d 1228, 1230 (10th Cir.1990).
Detention in correctional facility
Plaintiff first appears to challenge his placement in a prison. It is now generally accepted that the Attorney General has statutory authority to detain indefinitely an excludable alien who cannot be immediately returned either to his country of origin or to another country. See Barrera-Echavarria v. Rison, 44 F.3d 1441, 1148, n. 4 (9th Cir.1995) (citing cases). The authority of the Attorney General to detain appears to include broad discretion to house immigration detainees in appropriate facilities, provided constitutional conditions of confinement exist. See 8 C.F.R. § 212.12(a) (parole provisions applicable to Mariel Cuban detainees detained in any facility, or awaiting transfer to an INS or Bureau of Prisons facility.) Plaintiff's history of a felony conviction supplies a reasonable basis for the decision to detain him in a correctional facility following the expiration of his criminal sentence. The court therefore finds no constitutional error in plaintiff's placement.
Plaintiff next argues his placement in the D-Cellhouse at USPL was arbitrary and capricious. Because plaintiff was not a sentenced inmate at the time of his placement in that unit, and thus was not subject to punishment, the conditions of his confinement must be evaluated under the Due Process Clause, which requires that conditions of confinement meet certain minimal standards for persons confined under governmental authority. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 545, 99 S. Ct. 1861, 1872, n. 16, 1977, 60 L. Ed. 2d 447 (1979) (pretrial detainees); Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S. Ct. 2452, 2457-58, 73 L. Ed. 2d 28 (1982) (mental health facilities); Revere v. Massachusetts General Hospital, 463 U.S. 239, 244-45, 103 S. Ct. 2979, 2983-84, 77 L. Ed. 2d 605 (1983) (arrestees).
Having considered the record, the court finds the conditions described by plaintiff do not violate constitutional guarantees. Although the conditions described by plaintiff are indeed harsh, it is apparent plaintiff's essential needs of food, clothing, shelter, and medical care were provided. Likewise, the decision to house plaintiff in an area with restricted movement and among those similarly situated is a reasonable management decision by Bureau of Prisons officials.[2] Accordingly, the court finds the plaintiff's placement in D-Cellhouse was not arbitrary and capricious, nor did the conditions there violate the minimal standards guaranteed by the Due Process Clause.
IT IS THEREFORE ORDERED defendants' motion for summary judgment is granted. This matter is hereby dismissed and all relief is denied.
NOTES
[1] In addition to this action, plaintiff filed two petitions for habeas corpus relief while housed at the United States Penitentiary, Leavenworth, Kansas; Justiz-Cepero v. Thornburgh, 882 F. Supp. 1572, and Justiz-Cepero v. Board of Immigration Appeals, 882 F. Supp. 1575.
[2] Defendants cite the potentially volatile emotions which frequently attend the service of documents concerning repatriation efforts as a basis for the management decision to place inmates receiving such notices in the D-Cellhouse. The court takes note of disturbances by Mariel Cubans in prisons in Atlanta in 1984 and 1987, Oakdale, Louisiana, in 1987, and Talladega, Alabama in 1991. A brief description of the Oakdale disturbance appears in Buchanan v. United States, 915 F.2d 969, 969-70 (5th Cir.1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604115/ | 130 N.W.2d 732 (1964)
Annabelle BLANEY, Appellee,
v.
John W. BLANEY, Appellant.
No. 51472.
Supreme Court of Iowa.
October 20, 1964.
W. Lawrence Oliver, Des Moines, for appellant.
Theodore Duffield, Des Moines, for appellee.
GARFIELD, Chief Justice.
This appeal by defendant-husband from a decree granting plaintiff-wife a divorce and alimony challenges only the award of alimony. We are persuaded it is excessive and should be reduced.
The parties were married in May, 1949. Each had been married once before. No children were born to the marriage. Plaintiff's petition, filed July 15, 1963, charges defendant with the familiar ground section 598.8, subd. 5, Code 1962, I.C.A., refers to as "such inhuman treatment as to endanger the life of his wife." Proof of the alleged ground is ample. It also appears defendant "has committed adultery subsequent to the marriage" and the action might have been based on section 598.8, subd. 1.
The parties owned as joint tenants their home in Des Moines subject to a mortgage balance of $2000. It cost $6500. Plaintiff furnished part of the down payment of $500 on the home, the rest was borrowed. The court awarded plaintiff the home and its contents. Plaintiff bought the furniture with her own money but it was mortgaged to two finance companies for about $200 each. Defendant was ordered to pay these two loans and other indebtedness except the mortgage debt on the home. The evidence indicates defendant incurred these other debts. Defendant was also ordered to pay plaintiff $3000 in monthly instalments of $100 and plaintiff's attorney a fee of $250.
Defendant's appeal complains only of the award of the $3000 as excessive. Before trial defendant expressed willingness to transfer to plaintiff his interest in the home and its contents. The parties have no other property and no savings.
Both plaintiff and defendant have been steadily employed throughout their marriage. At the time of trial in January, 1964, plaintiff was deputy county auditor in Des Moines at an annual salary of $4760. She had worked in the auditor's office 19 years. In 1963 she earned about $100 additional *733 doing income tax work. Defendant had worked for the city of Des Moines 14 years in the street and garbage departments. He too did some outside work. His gross earnings during 1963 were between $5500 and $5600. Plaintiff used what she earned to pay household expenses and medical, clothing and furniture bills.
Code section 598.14, I.C.A., so far as material, provides: "When a divorce is decreed, the court may make such order in relation to * * * property, parties, and the maintenance of the parties as shall be right."
Our decisions add little to the quoted statute. We have said several times the division of property and award of alimony to the wife in divorce actions depend on the facts of each case. The matters to be considered include the needs of the wife, the husband's ability to pay, the age, health and future prospects of the parties, the contributions of each to the joint accumulations, the earning capacity of each party, the duration of the marriage, and the conduct of the parties. Any other facts should be considered which aid the court in reaching a just and equitable decision. Weiland v. Weiland, 255 Iowa 477, 122 N.W.2d 837, 839, and citations.
Plaintiff has cited Murray v. Murray, 244 Iowa 548, 554, 57 N.W.2d 234, 238, and Farrand v. Farrand, 246 Iowa 488, 492, 67 N.W.2d 20, 22, for the proposition that in considering what is equitable in the way of property division and alimony award, the misconduct of the guilty party which brings about the divorce is material. Such misconduct is surely one of the matters to be considered but, as above indicated, there are others, including the husband's ability to pay and the earning capacity of each spouse.
Probably the two most important facts favorable to the wife upon this appeal are, 1) she was employed throughout the marriage and put most of her earnings in the family till, and 2) the misconduct leading to the divorce was defendant'snone is chargeable to her. However, there should also be considered the fact plaintiff's earning capacity nearly equals defendant's; also plaintiff's future prospects seem brighter than his. She is more thrifty, a better manager and of better conduct than he. She is not indebted except as she must pay the mortgage debt on the home.
Defendant has considerable indebtedness for one without means. It includes a judgment against him for $700, $400 to the finance companies, and support of an illegitimate child. Of course defendant must have food, shelter and clothing for himself if he is to hold his job. And it will not do to burden him to the extent his incentive to pay is destroyed. See White v. White, 251 Iowa 440, 442-443, 101 N.W.2d 18, 20.
In the matter of misconduct defendant came to the home at 3:30 one morning, after the parties separated and he had been restrained by the court from annoying plaintiff or entering upon the premises, and did a good deal of damage to the furniture, including a HiFi set plaintiff paid $400 for. He also took her into the alley, threatened to kill her and tore off her night clothes. Defendant can hardly complain if he is called upon to make good this damage.
Upon the whole record we feel the award of $3000, in addition to the award of virtually everything the parties owned and the requirement defendant pay the debts other than the mortgage on the home, should be reduced by half. The $1500 should be paid into the office of the clerk of the district court of Polk county at the rate of $75 a month for 20 months commencing November 1, 1964, and on the first day of each succeeding month until the entire $1500 is paid. It is hoped this reduction will be an incentive to defendant to do his best to make the reduced payments. The reduction will perhaps result in plaintiff's receiving more money than if the decree were not modified in this respect. In other *734 respects the decree is affirmed. See, as somewhat in point, Weiland v. Weiland, supra, 255 Iowa 477, 122 N.W.2d 837, 840, and citations.
Costs of this appeal are equally divided. Modified and affirmed.
All Justices concur except HAYS, J., not sitting, and MOORE, J., who takes no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604117/ | 8 So.3d 808 (2009)
Triventies JOHNSON, et al.
v.
STATE FARM INS., et al.
No. CA 08-1250.
Court of Appeal of Louisiana, Third Circuit.
April 1, 2009.
*809 Ronald E. Corkern, Jr., Corkern & Crews, Natchitoches, LA, for Defendants/ Appellees, State Farm Mutual Auto Ins. Co. Bobby Reliford.
D. Scott Kendrick, Attorney at Law, Natchitoches, LA, for Plaintiffs/Appellants, Triventies Johnson Roy Farley, Jr.
Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
SAUNDERS, Judge.
This case involves a single-car accident with the two guest passengers suing the driver of the vehicle and the vehicle's insurer. The two plaintiffs riding in the vehicle testified that, as the vehicle was in a curve in the roadway, a motorcycle appeared in their lane of travel causing the driver to swerve and leave the roadway, where the vehicle struck trees. Further, the two plaintiffs testified that the driver of the vehicle was acting in a prudent manner at all times.
The vehicle's insurer and its driver filed a motion for summary judgment based on the sudden emergency doctrine. The trial court granted its motion, dismissed the plaintiffs' case with prejudice, and assessed the costs of the proceeding to the plaintiffs. The plaintiffs appealed. We affirm.
FACTS AND PROCEDURAL HISTORY:
Triventies Johnson (Johnson) and Roy Farley, Jr. (Farley) filed a petition for damages against State Farm Insurance Company (State Farm) and Bobby Reliford (Reliford), alleging injuries sustained as a result of a motor vehicle accident. Johnson and Farley (the plaintiffs) were guest passengers in a 2001 Ford F150 pickup truck driven by Reliford.
The single-car accident occurred on Highway 480 near Campti, Louisiana, at approximately 12:45 A.M. on March 12, 2006. As the pickup truck entered a curve to the left, Reliford was confronted with a motorcycle traveling in his lane of travel at a high rate of speed. Reliford responded by leaving the roadway in order to avoid the motorcycle and, thereafter, struck trees on the side of the roadway.
State Farm and Reliford filed a motion for summary judgment on the ground that, under the Louisiana jurisprudentially-recognized doctrine of sudden emergency, Reliford could not be found guilty of negligence based on the allegation that he failed to adopt what the plaintiffs, upon reflection, considered to be a better method to avoid the collision. The trial court granted the motion and dismissed the plaintiffs' claims with prejudice. The plaintiffs have filed this appeal, alleging one assignment of error.
DISCUSSION OF THE MERITS:
The plaintiffs claim that the trial court erred when it granted the defendants' motion for summary judgment, dismissed their demands with prejudice, and cast them with costs of the proceeding. The plaintiffs' claim has no merit.
*810 Appellate courts review summary judgments de novo, applying the same criteria that govern a trial court's determination of a motion for summary judgment. Louisiana's Code of Civil Procedure [Article 966(B)] states that 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." We are required to construe factual inferences that are reasonably drawn from the evidence presented in favor of the party opposing the motion; all doubt is to be resolved in the non-moving party's favor.
We also are to remain cognizant of the mover's and non-mover's burdens of proof. Although the burden of proof on a motion for summary judgment remains with the moving party, the mover's burden changes depending upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment:
[I]f he or she will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
MaClaff, Inc. v. Arch Ins. Co., 07-1182, pp. 7-8 (La.App. 3 Cir. 02/27/08), 978 So.2d 482, 487-88 (citations omitted).
In the case before us, State Farm and Reliford filed the motion for summary judgment, but the plaintiffs have the burden to prove that Reliford was negligent in the operation of the motor vehicle that he was driving when he swerved off the roadway, crashed, and caused injuries to his guest passengers. Thus, in order to prevail on its motion for summary judgment, State Farm and Reliford merely have to show "an absence of factual support for one or more elements essential to [the plaintiffs'] claim." La.Code Civ.P. art. 966(C)(2).
We find that State Farm and Reliford have done so via pointing out the applicability of the sudden emergency doctrine to this case. Our Louisiana Supreme Court, in Hickman v. Southern Pacific Transport Co., 262 La. 102, 112-13, 262 So.2d 385, 389 (1972), stated the following:
One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.
The evidence in this case is overwhelming that the sudden emergency doctrine is applicable to insulate Reliford from liability. At the accident scene, Reliford told the investigating officer that he was traveling westbound on Louisiana Highway 480 when he came around a curve, and there was a motorcycle in his lane of travel causing him to swerve to avoid hitting the motorcycle. Both of the plaintiffs were treated the same day of the accident at *811 Natchitoches Regional Medical Center for soft tissue injuries. The medical records indicate a history was taken from Johnson during which he stated that he had been involved in a motor vehicle accident in which the vehicle he was in "ran off road trying to avoid oncoming motorcycle, striking trees."
The history taken from Farley on the day of the accident simply makes reference to a single-car accident. However, Farley returned to the emergency room two days later, and the history obtained from him indicates that he was involved in a motor vehicle accident two days before in which the vehicle he was in "ran off road avoiding motorcycle striking trees."
In Johnson's deposition, the following exchanges took place:
Q The Bobby, as I understand it, was swerving to avoid a motorcycle?
A Yes, sir.
Q And this accident happened in a curve?
A Yes, sir.
Q And when you first saw the motorcycle, where was it in relation to the roadway?
A It was like towards more towards our side, you know, coming around the curve. He had like laid over. They used to race out there, so, he was coming pretty fast.
Q And did it appear to you as though Bobby was faced with an emergency situation at that time?
A Yes, sir.
Q If he had continued straight and stayed in his lane of travel, what would have happened?
A He would have ran over the guy.
Q So, he only had his choice was to run over the motorcycle or take to the ditch on the right; is that correct?
A Yes, sir.
....
Q Did Bobby appear to be driving his vehicle at a reasonable rate of speed under the circumstances?
A Yes, sir.
....
Q He didn't appear to be going fast to you too fast for the circumstances or conditions?
A No, sir.
The following exchanges took place during Farley's deposition:
Q And did I understand you to say that as Mr. Reliford entered the curve he suddenly saw a motorcycle coming towards him in his lane of travel?
A Yes, sir.
Q And if he hadn't taken evasive action, he would have hit the motorcycle?
A Yes, sir.
Q Do you know of anything Mr. Reliford could have done to avoid the accident?
A No, sir.
Q Was Mr. Reliford driving at a reasonable rate of speed as far as you could tell?
A Yes, sir.
Q Did he appear to be driving recklessly? A No, sir.
Q It appears, though, he was faced with an emergency situation when he saw that motorcycle?
A Yes, sir.
Q And his choice was to either run over the motorcycle or drive off the road?
A Yes, sir.
Given the evidence cited above, it is clear that Reliford faced a sudden emergency *812 when he rounded the curve to find a motorcycle in his lane of travel. However, this court, in McCann v. State Farm Mutual Automobile Insurance Co., 483 So.2d 205, 211 (La.App. 3 Cir.), writ denied, 486 So.2d 734 (La.1986), stated the following:
Plaintiffs can still defeat defendants' use of the [sudden emergency] doctrine by showing that the defendant created the emergency through his own negligence, or that once confronted with the emergency he did not react as a reasonably prudent person would react. The plaintiffs in this case, not the defendants, bear these burdens of proof.
There is no evidence in the record that Reliford caused the emergency he faced. In fact, given the testimony of the plaintiffs, it is apparent that Reliford did not do anything to create the emergency. The plaintiffs attempt to defeat the defendants' motion by pointing out that Reliford may have some comparative negligence in causing the accident. The plaintiffs claim that the following statement from the investigating officer's report: "I was unable to locate any evidence on the roadway which indicated any evasive actions," coupled with their deposition testimony that Reliford swerved to miss the motorcycle, creates an issue of fact. While it may be true that an issue of fact exists as to whether Reliford swerved to miss the motorcycle, or simply drove straight off the roadway, the plaintiffs must show that this issue of fact is material.
A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Simply put, a "material" fact is one that would matter on the trial on the merits.
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writs denied, 596 So.2d 211 (La.1992) (citations omitted).
We find it immaterial whether Reliford swerved or drove straight off the roadway to avoid the collision with the motorcycle, as either reaction is reasonably prudent. This court cannot fathom how swerving off the roadway to miss the motorcycle or driving straight off the roadway to miss the motorcycle would have changed the result of the incident. As such, a determination of this fact will not change the result of the plaintiffs' claim. Thus, we find this factual issue raised by the plaintiffs is not material.
Accordingly, we find that the sudden emergency doctrine applies to the case before us. Further, we find that the plaintiffs failed to raise any material facts regarding whether Reliford either created the emergency or acted imprudently once he was faced with the emergency. As a result, Reliford cannot be deemed negligent.
CONCLUSION:
The plaintiffs raised one assignment of error claiming that the trial court erred when it granted the defendants' motion for summary judgment, dismissed their demands with prejudice, and assessed them with costs of the proceeding. We found that the sudden emergency doctrine served to insulate Reliford, and, thus, State Farm, from any finding of negligence. As such, we affirm the trial court's judgment. Costs of this proceeding are assessed to the plaintiffs.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604120/ | 25 Wis.2d 288 (1964)
ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff and Respondent,
v.
BURCHARD, Defendant:
BADGER MUTUAL INSURANCE COMPANY, Defendant and Appellant.
KIEFER, Plaintiff and Respondent,
v.
SAME, Defendant:
SAME, Defendant and Appellant.
Supreme Court of Wisconsin.
September 29, 1964.
October 27, 1964.
*292 For the appellant there were briefs by Roberts, Boardman, Suhr & Curry, and oral argument by Henry A. Field, Jr., all of Madison.
For the respondents there was a brief by Aberg, Bell, Blake & Metzner of Madison, and oral argument by Carroll E. Metzner.
WILKIE, J.
Four issues are presented on this appeal:
1. Was there credible evidence to support the jury finding that LaVerne Kiefer was not negligent?
2. Did remarks made by Burchard's counsel during his closing argument constitute reversible error?
3. Did the trial court err in submitting special-verdict questions?
*293 4. Did the trial court err in denying Badger Mutual's motion for a separate trial on the question of its policy defense?
Guest's Negligence.
As to the first issue, appellant contends that Kiefer was negligent as a matter of law in riding with a driver who had been drinking, in respect to lookout, and in his failure to warn or object. A jury verdict will not be upset if there is any credible evidence which, under any reasonable view, fairly admits of an inference supporting the finding.[1] Evidence is to be viewed in the light most favorable to support the verdict.[2] A guest must exercise ordinary care for his own safety.[3] A guest who has indulged in intoxicants is held to exactly the same standard of care.[4] As Kiefer's actions must constitute negligence as a matter of law to upset the verdict, his conduct under the circumstances must always create an unreasonable risk of harm to himself.[5]
First considering Kiefer's alleged negligence in riding with a driver who had been drinking, we believe that the circumstances in this case are quite similar to those in the recent case of Murray v. Reidy,[6] where the court said:
*294 "In the absence of undisputed evidence that the driver had manifested symptoms of being under the influence of liquor which adversely affected his driving ability, it cannot be held as a matter of law that the passenger has proceeded in the face of a known danger and, therefore, has failed to exercise due care for his own safety."
The accident occurred shortly before 6 a. m. Burchard had had at least ten drinks since early the previous afternoon but had not imbibed after the bars closed at 2 a. m. He ate a snack early in the evening. Car trouble had forced him to walk three blocks in the rain. Mrs. Hunt lent her car with no qualms. Neither she nor any of the others on the boat testified that Burchard's actions appeared impaired by the alcohol. The police, of course, smelled liquor on his breath. This they could have done even if he had consumed only a single drink. There is no evidence in the record which would indicate that alcohol affected Burchard.
Although a passenger who encounters a known hazard upon entering an automobile may be negligent,[7] we cannot say that, as a matter of law, Kiefer failed to exercise reasonable care for his own safety in merely riding with Burchard after the latter had been drinking.
As to Kiefer's alleged negligence as to lookout it is, of course, the rule that a passenger is obligated to keep a reasonable lookout.[8] However, the record is barren of any evidence which indicates that Kiefer was derelict in his duty as to lookout.
A passenger is also bound to exercise reasonable care to warn his driver of approaching danger.[9] Burchard testified that he was traveling between 40 and 45 miles an hour. Appellant asserts that the physical evidence conclusively indicates *295 that Burchard's speed was much greater and that Kiefer was therefore negligent in failing to warn Burchard of the upcoming curve. Appellant emphasizes the 96-foot skid marks, the displacement of an embedded boulder (about 3½ to 4 feet wide, 3 feet thick and 4 feet from top to bottom), the sound of the impact, the fact that the windshield was thrown 30 feet, and photographs of the wreck.
This evidence is entirely consistent with Burchard's claim that he was going 40 to 45 miles an hour as he came to the curve. No part of this evidence supports the proposition that as a matter of law his speed was greater. The heavy Chrysler, starting to skid on the wet blacktop, skidded more or less sideways for 96 feet and would have gone farther had it not met stern resistance from the boulder and then the tree. Even on dry pavement it takes 149 feet to brake to a stop from 40 miles an hour.[10] The length of the skid marks does not conclusively show speed in excess of 40 miles an hour. The noise of the crash, the dislodging of the rock, the displaced windshield, and the photographs of the demolished car, all point to a forceful impact but, especially considering how heavy the car was, these physical facts are inconclusive and will not upset the jury's findings based on other evidence.[11] It is argued that even conceding that the speed was only 40 to 45 miles per hour, Kiefer still had a duty to warn the driver of the upcoming curve. The important fact remains that the curve was unmarked and there is no evidence to show that Kiefer was aware of the danger. The trial judge stated:
"... I don't believe that I can hold as a matter of law that a guest in the right rear seat is under duty to criticize and direct the driver to desist from a speed of 40 miles an *296 hour in a 25 miles an hour zone in the city at that hour of the morning when it was perfectly obvious and the testimony shows that there was utterly no traffic at all, ..."
Our conclusion is that there is credible evidence to support the finding of the jury. Kiefer's conduct, under the circumstances, would not always create an unreasonable risk of harm to himself, and it cannot be said as a matter of law that he was negligent.
Prejudicial Argument by Counsel.
Burchard's counsel, in his final argument, said:
"I say that is my only purpose here representing Mr. Burchard to try to help you arrive at an opinion that there were no limitations, and that the insurance carrier cannot crawl out of this by trying to make you believe that there are no limitations."
Appellant contends that because this remark informed the jury of the effect of their answer it constitutes reversible error.[12] The trial judge struck the word "crawl" but otherwise let the remark stand without instruction. The jury question on this particular issue inquired whether Burchard had permission to use the car. The jury found that he had.
At best the statement is confusing. Counsel told the jury that "the insurance carrier cannot crawl out of this by trying to make you believe that there are no limitations." The position of the insurance company was actually just the contrary. The company wanted the jury to find a limitation. Because of the phrasing, had the jury been swayed by the remark, the result would have been favorable to the insurance company.
*297 The issue which was commented upon was put to the jury as follows:
"At the time and place of the accident was the defendant, Gerald C. Burchard, operating the 1959 Chrysler with the permission of the owner, Mrs. Lois Hunt?"
The question was not even couched in terms of a limitation. Therefore, the jury could not have learned the effect of their answer to that question on the ultimate verdict in the case.
Special-Verdict Questions.
As to Burchard's authority to use Mrs. Hunt's car, the trial court rejected the following questions requested by Badger Mutual:
"Did Lois Hunt place a limitation on the use of her vehicle by Gerald Burchard?
"If you answer yes to question No. 6, then answer the following question. Did Gerald Burchard exceed or violate that limitation?"
Sec. 270.27, Stats., gives the trial court discretion in submitting special-verdict questions. There was no doubt that Burchard had permission to borrow Mrs. Hunt's car. It was not clear, however, whether a time limitation had been put on the use of the car. Mrs. Hunt testified that she told Burchard to have it back "within at least a half hour." Another witness said that Burchard was instructed to "bring the car right back." Burchard recalled no limitations. In any event, the accident happened within a half hour of the time Burchard took the car and therefore any question couched in terms of whether the limitation was observed would be completely unsupported by the record.
*298 As to Kiefer's negligence, the court submitted the following question:
"Did LaVerne Kiefer fail to exercise ordinary care for his own safety?"
Appellant requested a question with a breakdown as to riding with Burchard, protestation, lookout, and failure to warn. The trial court properly used discretion, granted to it under sec. 270.27, Stats., in submitting the question in the omnibus form rather than as requested.
Denial of Separate Trial.
The trial court has wide discretion in determining whether a separate trial should be ordered on a coverage question where an insurer has been made a party to a lawsuit under sec. 260.11, Stats.[13] Although in Charneski[14] this court recommended that the procedure of a separate trial be used more frequently, no mandate has been given that trial judges must grant a motion for a separate trial in every case and there was no abuse of discretion by the trial court in deciding that the interests of the parties and the public were better served in the case at bar by disposing of all issues in one trial.
By the Court.Judgment affirmed.
NOTES
[1] Rodenkirch v. Johnson (1960), 9 Wis. (2d) 245, 101 N. W. (2d) 83; Maccaux v. Princl (1958), 3 Wis. (2d) 44, 87 N. W. (2d) 772.
[2] Rodenkirch, supra, footnote 1; Ruid v. Davis (1959), 8 Wis. (2d) 288, 99 N. W. (2d) 129.
[3] Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis. (2d) 91, 118 N. W. (2d) 140, 119 N. W. (2d) 393; McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis. (2d) 374, 113 N. W. (2d) 14.
[4] Watland v. Farmers Mut. Automobile Ins. Co. (1952), 261 Wis. 477, 53 N. W. (2d) 193.
[5] Murray v. Reidy (1963), 21 Wis. (2d) 254, 124 N. W. (2d) 120.
[6] Supra, 21 Wis. (2d) at page 258, 124 N. W. (2d) at page 122, footnote 5.
[7] McConville v. State Farm Mut. Automobile Ins. Co., supra, footnote 3.
[8] Murray v. Reidy, supra, footnote 5, and Theisen v. Milwaukee Automobile Mut. Ins. Co., supra, footnote 3.
[9] Teas v. Eisenlord (1934), 215 Wis. 455, 253 N. W. 795.
[10] Wisconsin's Manual for Motorists (rev. ed. January, 1963).
[11] Pagel v. Holewinski (1960), 11 Wis. (2d) 634, 106 N. W. (2d) 425; New Amsterdam Casualty Co. v. Farmers Mut. Automobile Ins. Co. (1959), 5 Wis. (2d) 646, 94 N. W. (2d) 175.
[12] Relying on Erb v. Mutual Service Casualty Co. (1963), 20 Wis. (2d) 530, 123 N. W. (2d) 493.
[13] Allstate Ins. Co. v. Charneski (1962), 16 Wis. (2d) 325, 114 N. W. (2d) 489; New Amsterdam Casualty Co. v. Farmers Mut. Automobile Ins. Co., supra, footnote 11; Ritterbusch v. Sexmith (1950), 256 Wis. 507, 41 N. W. (2d) 611.
[14] Supra, footnote 13. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604095/ | 645 So. 2d 661 (1994)
Robert G. KRIEG, Plaintiff-Appellant,
v.
KRIEG BROTHERS TERRAZZO CO., INC., et al., Defendants-Appellees.
No. 93-1065.
Court of Appeal of Louisiana, Third Circuit.
September 28, 1994.
Rehearing Denied December 14, 1994.
*662 Kenneth Neal Hawkins, Lafayette, for Robert Kreig.
Robert James May, Metairie, for Kreig Bros. Terrazzo Co., Inc.
Before KNOLL, COOKS and WOODARD, JJ.
WOODARD, Judge.
This is an appeal from a judgment dismissing plaintiff's claim for workers' compensation benefits on a peremptory exception of prescription.
*663 FACTS
Prior to his accident, plaintiff, Robert Krieg, was employed as a terrazzo helper by defendants, Krieg Brothers Terrazzo Co., Inc. Plaintiff worked as both a finisher (lighter work) and an installer (heavier work), but he was paid the same wage of $8.90 per hour whether he worked as a finisher or an installer. Defendants routinely paid plaintiff full wages, even for days on which he did not work.
Plaintiff injured his back on August 1, 1988 while lifting a 100-pound sack of crushed marble. After his accident, plaintiff continued to work as a terrazzo helper for 2 years and 10 months after his injury, performing both the lighter finishing duties and "at times" the heavier installation work, and defendants continued to pay him even when he did not work. The president and office manager of defendant Krieg Brothers state in their affidavits that plaintiff continued to perform the same duties for the same wage as before his injury.
A chiropractor examined plaintiff on August 3, 1988 and diagnosed him with lumbosacral sprain, lumbar sublaxation, lumbar intervertebral disc syndrome, and lumbar radicular neuralgia. Plaintiff received conservative treatment for his injury until a CT scan revealed a right lateral disc herniation at L5-S1. Plaintiff's condition worsened, and Dr. Bertuccini performed a micro-disectomy on him at the L5-S1 level on June 17, 1991.
Plaintiff filed a worker's compensation claim against defendants on September 25, 1991, approximately 3 years after his injury, alleging that defendants had failed to pay the compensation benefits and medical expenses due him. He also alleged that they had failed to furnish either proper medical attention or the reports he had requested of the physicians who had examined him on the defendants' behalf.
Defendants filed a peremptory exception of prescription and moved for summary judgment. The hearing officer sustained the exception and granted the motion for summary judgment on June 21, 1993. Plaintiff appeals and assigns as error (1) the administrative hearing officer's finding that the affidavits submitted by the defendants were sufficient to support their Motion for Summary Judgment, (2) the denial of plaintiff's Motion to Compel, (3) the failure to impose sanctions upon the defendants, (4) the grant of the defendants' Motion for Summary Judgment, and (5) the holding that plaintiff's claim had prescribed.
LAW
We consider plaintiff's assignments of error only concerning prescription and sanctions, because our holding as to prescription is dispositive of plaintiff's claim.
I. THIRD ASSIGNMENT OF ERROR: SANCTIONS
Plaintiff assigns as error the failure of the hearing officer to impose sanctions upon the defendants for not complying with the her judgments on plaintiff's motions to compel. The hearing officer found, however, that the defendants had provided plaintiff with all records and information in their possession. Thus, the defendants did not disobey a court order, and there was therefore no basis for imposing sanctions. Moreover, the imposition of sanctions for failure to comply with a discovery order is discretionary on the part of the court. Castille v. Melancon, 410 So. 2d 1224, 1228 La.App. 3d Cir.1982). There is no indication that the hearing officer abused this discretion, and therefore her decision not to sanction the defendants may not be disturbed on appeal.
II. FIFTH ASSIGNMENT OF ERROR: PRESCRIPTION
An employee has one year to file a workers' compensation claim for an injury that develops at the time of or immediately following an accident. La.R.S. 23:1209(A). The claimant has two years to file, however, if the injury does not develop within one year after an accident. Id. The purpose of this prescriptive period is to protect employers from the burdensome litigation of stale claims. Dupaquier v. City of New Orleans, 260 La. 728, 257 So. 2d 385, 387 (1972). The time period established by section 1209(A) is prescriptive, rather than peremptive. Lester v. Rebel Crane & Servs. Co., 393 So. 2d 674 (La.1981).
*664 Plaintiff's injury manifested itself immediately after the accident, and therefore he had one year to file his claim. As with any prescriptive period, however, prescription on workers' compensation claims may be interrupted or suspended. La.C.C. arts. 3462-72; Latino v. Binswanger Glass Co., 532 So. 2d 960 (La.App. 5th Cir.1988).
The payment of wages in lieu of compensation interrupts prescription for workers' compensation claims, because such payments lull workers into not filing their claims within the prescriptive period. Thornton v. E.I. Du Pont de Nemours & Co., 207 La. 239, 21 So. 2d 46, 52 (1944). Thus, if an employer pays an employee wages in lieu of compensation, the prescriptive period is interrupted and begins anew only upon the last payment. Dupaquier, 257 So.2d at 387.
Wages in lieu of compensation are defined as unearned wages paid to an employee after an injury. Deville v. T.H. Harris Vo-Tech School, 580 So. 2d 561 (La.App. 3d Cir.1991). Thus, if the employee actually earned wages paid to him, they are not wages in lieu of compensation and do not interrupt prescription. Maquar v. Transit Mgt. of Southeast La., 580 So. 2d 1128, 1129 (La.App. 4th Cir.1991). Whether wages were earned is determined by the facts and circumstances of each case. Id. The similarity between and the degree of difficulty involved in the services performed before and after the accident are relevant, though not conclusive. Id.
Plaintiff argues first that he received wages in lieu of compensation because he received the same wage before as after his injury, although his duties were lighter after he was injured. He received the same wage prior to his injury, however, regardless of the duties that he performed, and he continued to perform work for defendants as a finisher. "At times" he even performed the heavy work of an installer. Plaintiff therefore earned the wages given to him by defendants after his injury, and they are not wages in lieu of compensation.
Plaintiff also argues that defendants paid him wages in lieu of compensation on the ground that he was paid the same wage even for days when he was absent or performed no labor. Defendants routinely did so even prior to the accident, however. Thus, it is clear that this practice was not intended to prevent plaintiff from filing a worker's compensation claim within the prescriptive period, and the wages so paid are not wages in lieu of compensation.
Finding that prescription on plaintiff's worker's compensation claim was not interrupted, we hold that the prescriptive period for that claim expired on August 1, 1989. Plaintiff's claim, filed in on September 25, 1991, was therefore not timely, and defendants' exception of prescription was properly sustained by the hearing officer.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the administrative hearing officer dismissing plaintiff's claim on the ground that it has prescribed. Costs of this appeal are assessed against the plaintiff-appellant.
AFFIRMED.
COOKS, Judge, dissenting.
The majority concluded Robert's claim for worker's compensation benefits prescribed and further affirmed the denial of his fourth motion to compel. For the following reasons, I dissent.
FACTS
Robert Krieg was employed by Krieg Brothers Terrazzo Company, Inc. (Krieg Brothers). On August 1, 1988, Robert was lifting a bag of crushed marble when he felt pain in his lower back. Robert was examined by Damon Savoy, a chiropractor, on August 3, 1988. Savoy diagnosed Robert's condition as lumbar radicular neuralgia, lumbar intervertebral disc syndrome and lumbar subluxation. He was conservatively treated until a CT scan, performed on him, revealed a right lateral disc herniation at L5-S1. He was referred to Dr. Thomas Bertuccini, a neurosurgeon, who continued to treat him conservatively. Robert underwent a microdisectomy at L5-S1 on June 17, 1991 after his condition worsened and failed to respond *665 to conservative treatment. He discontinued working for Krieg Brothers in June 1991.
Krieg Brothers paid Robert's work related medical expenses. However, he was not paid disability benefits. Robert filed this claim for compensation benefits on September 25, 1991, approximately three years after his work related accident. Krieg Brothers filed an exception of prescription. The exception was sustained by the hearing officer without reasons.[1]
The hearing officer also denied Robert's fourth motion to compel in this judgment. However, the motion to compel had been sustained in a prior judgment. Robert contends the trial court erred in denying the motion after previously sustaining it.
PRESCRIPTION
LSA-R.S. 23:1209(A) provides three different time limitations on worker's compensation claims. Under the facts of this case, Robert had one year from the date of his accident to file a claim for disability benefits.
Robert was involved in a work accident on August 1, 1988. Immediately thereafter, he experienced back pain. Robert's injury was conservatively treated until he underwent surgery in June 1991. He filed a benefits claim on September 25, 1991, more than a year after the accident. Robert contends his claim for disability benefits has not prescribed because he received wages in lieu of compensation.
The time period established by LSA-R.S. 23:1209(A) to file a worker's compensation claim is prescriptive rather than peremptive. Lester v. Rebel Crane & Service Co., 393 So. 2d 674 (La.1981); Davis v. United General Ins. Co., 93-738 (La.App. 3d Cir.1994), 631 So. 2d 572. Therefore, it may be interrupted or suspended. LSA-C.C. Arts. 3462-72; Latino v. Binswanger Glass Co., 532 So. 2d 960 (La.App. 5th Cir.1988). Prescription is interrupted by the filing of suit or the acknowledgment of the right of the person against whom prescription has commenced. LSA-C.C. Arts. 3462, 3464; Davis, supra. When interruption occurs, the time that has previously run is not counted and prescription commences to run anew from the last day of interruption. LSA-C.C. Art. 3466.
The payment of wages in lieu of compensation interrupts prescription. Lester, supra; Davis, supra, The test to determine if wages were paid in lieu of compensation is whether the wages were earned by the employee. Reeves v. Reeves Dirt Pit, 606 So. 2d 881 (La.App. 2d Cir.1992). If wages were paid in lieu of compensation, the one-year prescriptive period for filing a disability benefits claim begins to run from the last payment. Lester, supra: Dupaquier v. City of New Orleans, 260 La. 728, 257 So. 2d 385 (La.1972).
Krieg Brothers argues it was unreasonable for Robert to believe the wages he received after the accident were in lieu of compensation because he was paid full wages before his accident whether or not he worked, regardless of the reason. This argument is not persuasive. Even assuming Krieg Brothers had a policy of paying Robert whether or not he worked, it had the effect of delaying Robert from filing a claim for worker's compensation benefits. He suffered a work related injury that entitled him to worker's compensation benefits. Krieg Brothers did not challenge Robert's eligibility to receive disability benefits; and they also paid medical expenses associated with his work related injury. Under these circumstances, it was not unreasonable for Robert to believe he was receiving wages in lieu of compensation.
The record shows, after the accident, Krieg Brothers paid Robert full-time wages although he missed several days of work not documented as sick leave or vacation time. On the days he worked, the duties Robert performed after the accident were lighter than those performed prior to it. Robert was paid full wages through the middle of August 1991 even though he had back surgery in June 1991 and he was disabled for an extended period thereafter. The evidence, as a whole, shows Robert received unearned *666 wages in lieu of compensation, which interrupted prescription. Therefore, Robert's claim filed in September 1991 was timely.
MOTION TO COMPEL
The majority affirms the judgment dated June 21, 1993, which denied Robert's fourth motion to compel, even though the motion had been sustained in a judgment dated December 28, 1992. This conclusion is erroneous for two reasons.
First, during the hearing on the fourth motion to compel, the hearing officer clearly sustained the motion and enunciated her reasons for awarding attorney fees. She mentioned the difficulty Robert experienced in obtaining the information he requested throughout the litigation, and Krieg Brothers' failure to provide a timely response to the court order issued in response to Robert's third motion to compel.
Second, and more importantly, LSA-C.C.P. Art. 1951 limits a trial judge's ability to amend judgments to the following conditions:
"A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation."
Thus, the trial judge does not have the authority to substantively amend a judgment. Webster v. Boh Bros. Const. Co., Inc., 603 So. 2d 761 (La.App. 4th Cir.1992).
On December 28, 1992, the hearing officer rendered a favorable judgment on Robert's fourth motion to compel and awarded him attorney fees. On June 21, 1993, in the judgment sustaining Krieg Brothers' exception of prescription, the hearing officer also denied Robert's fourth motion to compel which she granted earlier. The latter ruling constituted an improper substantive amendment to the December 28, 1992 judgment. The ruling presents a patent record error compelling reversal.
I respectfully dissent for the reasons expressed.
NOTES
[1] Krieg Brothers' petition was styled "Peremptory Exception of Prescription and Motion for Summary Judgment." Although the hearing officer used the same language in the judgment, Krieg Brothers' petition was sustained only on the exception of prescription judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604288/ | 8 So. 3d 739 (2009)
CENTURY 21 RICHARD BERRY & ASSOCIATES, INC.
v.
Renee J. LAMBERT.
No. 08-CA-668.
Court of Appeal of Louisiana, Fifth Circuit.
February 25, 2009.
*740 John A.E. Davidson, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
MARION F. EDWARDS, Judge.
Plaintiff/appellant, Century 21 Richard Berry & Associates ("Century 21"), appeals the denial of a preliminary and permanent injunction against defendant/appellee, Renee Lambert ("Lambert").
In May 2007, Century 21 filed a Petition for Preliminary and Permanent Injunction against Lambert, seeking to enjoin her from engaging in business that violated a non-compete clause agreement. Lambert entered into a Broker-Independent Contractor *741 Agreement on March 7, 2005, in which Lambert became a real estate agent with Century 21. The agreement contained the following clause:
It is agreed that the Independent-Contractor will refrain from carrying on or engaging in the Real Estate Marketing, brokerage, sale or similar business to that performed by the Broker and also from soliciting customers of the broker within the parishes of Orleans, Jefferson, St. Charles, St. Tammany, St. Bernard and Plaquemines for a period of two years from the date the Independent-Contractor leaves the Broker's company. This clause shall survive termination of this agreement and prohibits the engagement by Independent-Contractor in any business directly or indirectly which competes with that of the broker.
In February of 2007, Lambert left the company and requested the return of her real estate license. Century 21 returned the license and replied that Lambert would not be released from her agreement. At the time the suit was filed, Century 21 learned that Lambert had placed her license with Keller Williams Realty ("Keller Williams"). Century 21 urged that, although the branch of Keller Williams where the license was placed was outside the parishes listed in the agreement, the brokerage competed directly with Century 21 in all of the listed parishes and maintained an office in each. It was also alleged that Lambert competed directly with Century 21 by placing an advertising sign on a bus bench in Jefferson Parish and had placed signs on real estate also in Jefferson. Finally, it was alleged that Lambert conducted real estate business from her home in Marrero.
The hearing on the injunction was set for August of 2007 and was continued several times until January 2008. On February 15, 2008, the trial court denied the petition for injunctive relief, and it is from this judgment that Century 21 appeals.
At the hearing, Richard Berry ("Berry") testified that Century 21 had properties listed in Jefferson, Orleans, Plaquemines, St. Tammany, St. Bernard, and St. Charles Parishes. Photos were admitted at the hearing showing Lambert's name and photograph with the Keller Williams name on a bus bench. According to Berry, the photos were taken in Jefferson. Other photos showed Lambert's name and image on a "For Sale" sign for Keller Williams in front of property identified as being in Marrero. Lambert testified that the vast majority of Century 21's listings were in Jefferson and Orleans Parishes. She stated that she brought her license to Keller Williams in Laplace, not in one of the parishes listed in the agreement. At the time of the hearing, she had no properties in the listed parishes but just had one closing in Orleans Parish the day before and another in Jefferson Parish. Lambert denied that she was trying to market in Jefferson Parish at that time, although she identified the photos as being located in Jefferson. Allen Leone, owner of the Keller Williams franchise in Laplace, testified that he had the rights to market in the parishes of St. James, St. John, and St. Charles, with the bulk of his business in Laplace. He denied that he competed with Century 21.
The trial court found that Lambert did enter into business within parishes listed in the non-compete clause. However, the court determined that the last sentence of that clause was overbroad and exceeded LSA-R.S. 23:921 and, thus, concluded that, the contract was not enforceable.
LSA-R.S. 23:921, in relevant part, states:
C. Any person, including a corporation and the individual shareholders of *742 such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.
Louisiana's strong public policy restricting non-competition agreements is based on an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden.[1] LSA-R.S. 23:921(C) is an exception to Louisiana public policy against non-compete agreements and, as such, must be strictly construed.[2] Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. However, in the event an employee enters into an agreement with his employer not to compete, pursuant to LSA-R.S. 23:921, and fails to perform his obligation under such an agreement, the court shall order injunctive relief even without a showing of irreparable harm, upon proof by the employer of the employee's breach of the non-compete agreement.[3] Where the actions sought to be enjoined pursuant to a non-compete agreement do not fall within the exception found in LSA-R.S. 23:921(C) or where the non-compete agreement is found to be unenforceable for failure to conform to LSA-R.S. 23:921, the employer is unable to establish that it is entitled to the relief sought.[4]
Generally, a trial court is granted wide discretion in deciding whether to grant or deny an injunction and its ruling will not be disturbed absent manifest error.[5] On review, we find that the trial court was correct in determining that Lambert did enter into business in the parishes listed in the non-competition *743 clause. Further, we agree that the last sentence of the non-compete clause is overbroad. In stating that "[t]his clause shall survive termination of this agreement," it goes on to prohibit the independent contractor from engaging in any business directly or indirectly which competes with the broker. In our opinion, within the context of the agreement, that sentence appears to extend the permissible two-year period allowed by law and is, thus, unenforceable. Under these circumstances, Berry was not entitled to an injunction.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
NOTES
[1] H20 Hair, Inc. v. Marquette, 06-930 (La. App. 5 Cir.5/15/07), 960 So. 2d 250 (La.App. 5 Cir.2007) (citing SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So. 2d 294).
[2] H20 Hair, Inc., supra.
[3] Id.
[4] H20 Hair, Inc., supra (citing Clear Channel Broadcasting, Inc. v. Brown, 04-0133 (La.App. 4 Cir. 3/30/05), 901 So. 2d 553).
[5] See, Limousine Livery, Ltd. v. A Airport Limousine Serv., L.L.C., XXXX-XXXX (La.App. 4 Cir. 3/12/08), 980 So. 2d 780; also Wied v. TRCM, LLC, 30,106 (La.App.2d Cir.07/24/97), 698 So. 2d 685. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604092/ | 24 Wis. 2d 634 (1964)
HURKMAN and others, Appellants,
v.
STATE, Respondent.
Supreme Court of Wisconsin.
August 31, 1964.
September 29, 1964.
*639 For the appellants there was a brief and oral argument by John E. Esler of Kaukauna.
For the respondent the cause was argued by A. J. Feifarek, assistant attorney general, with whom on the brief were George Thompson, attorney general, and A. W. Ponath, corporation counsel of Outagamie county.
*640 BEILFUSS, J.
Is there credible evidence to sustain the verdict?
The plaintiffs contend the evidence of comparable sales, offered by the defendant through its experts, will sustain the jury's after-taking value.
The defendant's position is that evidence of comparable sales was not offered either to support the appraisals of its experts or as direct evidence of value but for the limited purpose of adding weight to the experts' opinion.
While some jurisdictions receive evidence of comparable sales for the limited purposes of qualification of the expert witness and giving weight to his opinion, the majority, including Wisconsin, admit them for the additional purpose of being independent evidence of the value of the land in question.[1]
In this instance the defendant offered the evidence of comparable sales without qualification as to its purpose after the competency of the expert witnesses had been established. The evidence was received by the court without limitation over the objection of the plaintiffs.
As part of the instructions to the jury the trial judge included the instruction on comparable sales which appears in Wis J ICivil, Part II, 8120:
"There has been received into evidence testimony as to other sales as an aid to the jury, if such it be, in determining the fair market value of the property under consideration.
"In determining the weight and effect that is to be given to such other sales, you will consider all of the elements of similarity in situation and time and also all the elements of dissimilarity and determine how far such sales go to establish what was the fair market value of the property in question *641 on the date of taking. However, before such evidence on comparable sales may be considered by you, you must be satisfied that such sales, themselves, meet the test of fair market value, as that term has, heretofore, been defined for you.
"Similarity, as used in this instruction, does not mean identical. No two parcels of land are exactly the same. A parcel of land is said to be comparable to another when there is a fair resemblance between them with respect to size, actual or potential use, location, improvements, and general features and characteristics."
The Comment to this instruction provides:
"If evidence of comparable sales has been introduced for the purpose of qualifying an expert witness, this instruction should not be used. If such evidence is introduced as substantive evidence to establish value, then this instruction may be given.
"Smuda v. Milwaukee County, 3 Wis 2d 473, 477, 89 N.W.2d 186 (1958); American States S Co v Milwaukee N R Co, 139 Wis 199, 120 N.W. 844 (1909); 5 Nicholson [sic] Eminent Domain (3d) § 21.3 (1952) (supp 1962); 1 Orgel on Valuation Under Eminent Domain (2d) § 138 (1953).
"As to similarity, see Stolze and wife v The Manitowoc Terminal Co, 100 Wis 208, 214, 75 N.W. 987 (1898); Washburn v. Milwaukee & Lake Winnebago RR Co, 59 Wis 364, 377, 18 N.W. 328 (1884)."
It is clear that the trial court received the evidence of comparable sales as substantive evidence to establish the value of the land.
We take notice from the records of innumerable land-condemnation cases that opinions of ostensibly equally qualified experts as to values often vary to a substantial and irreconcilable degree. Considering the opinions of the experts alone, in these cases, can leave the jury with little rational basis for its ultimate findings. In these instances proper evidence of comparable sales can be of substantial *642 aid to the jury in the performance of its obligation to find the true value.
The problem is illustrated by the evidence in this case. One of the plaintiffs and their three experts testified to before-taking values of $245,000, $243,000, $210,000, and $245,000, respectively, as contrasted to the opinions of defendant's experts of $125,000 and $126,000.
The defendant offered in evidence these sales for the obvious purpose of establishing a lower before-taking value. The jury did find the before-taking value to be $135,000. If the jury considered the evidence of comparable sales in fixing upon a before-taking value, it probably considered the same evidence in determining the after-taking value. Under the evidence and instructions it had a right to do so.
The experts for the state were of the opinion that the after-taking value was equal to or exceeded the before-taking value because of the special benefits afforded to the land by reason of the improvement. Neither of these witnesses could give an after-taking value exclusive of special benefits.
The jury could, by reason of the testimony of Mr. Doerfler, infer that there were no special benefits or that they were minimal. If it did so and gave weight to the comparable sales its finding of an after-taking value was $85,500 is within the credible evidence of the case.
We, therefore, conclude that there was sufficient credible evidence in the record to sustain the finding of the jury. The answer of the jury in the verdict should be reinstated, order granting a new trial reversed, and judgment rendered for the plaintiffs upon the verdict.
This opinion should not be construed as restating or otherwise affecting the rules regarding admission of sales of other land as independent evidence of the value of the land in question. We express no opinion as to whether the sales offered in this case meet those tests. The defendant, who successfully offered these sales without limitation, cannot *643 now be heard to claim that they were not in fact comparable sales or that they were to be used for a limited purpose.
By the Court.Order reversed, and cause remanded with directions to reinstate the jury verdict and render judgment thereon for plaintiffs.
NOTES
[1] 5 Nichols, Eminent Domain (3d ed.), pp. 408-410, sec. 21.1, and pp. 417-436, sec. 21.3 [1]; Bear v. Kenosha County (1963), 22 Wis. (2d) 92, 100, 125 N. W. (2d) 375; Smuda v. Milwaukee County (1958), 3 Wis. (2d) 473, 477, 89 N. W. (2d) 186; Blick v. Ozaukee County (1923), 180 Wis. 45, 46, 192 N.W. 380. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604124/ | 130 N.W.2d 100 (1964)
George HILDE, Plaintiff and Respondent,
v.
Claude A. FLOOD, Defendant and Appellant.
No. 10103.
Supreme Court of South Dakota.
September 1, 1964.
*101 Mundt & Weisensee, Henry C. Mundt, George D. Weisensee, Sioux Falls, for defendant and appellant.
Davenport, Evans, Hurwitz & Smith, Lyle J. Wirt, Sioux Falls, for plaintiff and respondent.
RENTTO, Judge.
These parties started operating together in the business of earth removal and the installation of sewer and water facilities about February 11, 1958 and continued to do so until March 31, 1961. This suit seeks an accounting of the activities of that association and its dissolution and the winding up of its affairs. That such relationship may be dissolved by a decree of court is not questioned. See Lunn v. Kaiser, 76 S.D. 52, 72 N.W.2d 312. The period in question covers seven separate jobs in which they were involved. Hilde contends that they carried on such activities as a joint venture and were to share all profits and losses equally. Flood admits that this was their arrangement on six of the jobs, but claims that on the Cheyenne River Agency project he was the contractor and Hilde was a subcontractor for a fixed compensation.
The trial court found that all of the work under review was done by the parties as a joint adventure doing business as Flood-Hilde Construction Company and that they were to share the profits and losses of the venture equally. The judgment, and the order amending it, so decreed and ordered the dissolution and winding up of the affairs of the company and appointed a receiver to carry out the provisions of the judgment. It further determined that Flood owed the enterprise a substantial sum of money and ordered him to reimburse it in that amount. The parties were held to be equally liable for such debts of the company as remained after its liquidation.
On this appeal from the judgment Flood specifies 16 claims of error, but they present only two questions. First, did the evidence sustain the finding that the business of the Flood-Hilde Construction Company was operated as a joint venture on an equal basis on all projects; and second, did the court err in accepting the determination of Don W. Doherty, a certified public accountant, in the final accounting that he made of the affairs of the joint venture as to the relative obligations of the parties thereto?
In advancing his position as to the first question Flood makes this statement in his brief: "It is axiomatic that the burden of proof lies with the Plaintiff (Respondent) and that in civil cases the proof must be by a preponderance of the evidence. Now, let us examine the evidence and see if the Respondent has sustained his burden of proof." His view misconceives the function of this court in reviewing facts found by the trial court.
Whether a party having the burden of proof on an issue has sustained it is determined by the trial court. This process entails a weighing of the evidence which in turn is vitally dependent on the credibility of the witnesses. Not having seen nor heard them, we are ill prepared to make this determination. Consequently, when findings of fact are challenged on review we proceed from the premise that they are presumptively correct. In re Rowland's Estate, 70 S.D. 419, 18 N.W.2d 290. This places the burden of establishing incorrectness on the appellant.
It has long been the rule in this state that we may disturb the trial court's findings of fact only if it appears they are contrary to a clear preponderance of the evidence. See West's Dakota Digest, Vol. 2, Appeal and Error. To do so we must be able to say as a matter of law that the facts are other than as found. Martindale v. Dickey, 72 S.D. 595, 38 N.W.2d 140. In reviewing them we are required to accept as true all evidence favorable to *102 the findings, except that which is so unreasonable as to challenge the credulity of the court. Libertin v. St. Paul Fire & Marine Ins. Co., 75 S.D. 238, 63 N.W.2d 248. Otherwise we would be usurping a function which of necessity is committed to the trial court. When he has found facts on evidence that is conflicting the burden on him who would undo them is heavy.
In the fall of 1957 S. E. Gustafson Construction Company learned that it was the low bidder on a construction job that the U.S. Government was undertaking at the Cheyenne River Indian Agency. Before this contract was formalized Gustafson approached the defendant, then operating as C. A. Flood Construction Company, about subletting a part of the project to him. Flood invited the plaintiff, then operating as George Hilde Construction Company, to undertake some of the work as his subcontractor. Hilde orally agreed to do this for about $9,811.80. His version was that this figure covered the "sewer ditching and the water ditching and hoisting in a small amount of concrete sewer pipe, storm sewer pipe." On or about November 15, 1957, they entered into a written agreement concerning such work. It is denominated a subcontract and is in evidence as Exhibit 2. On the face of it, this contract does not appear to conform with their prior oral understanding.
It recites that Flood "holds certain contract for excavation for sewer, storm sewer and water mains, installation of sewer, storm sewer and water mains and refilling of the excavations in regard thereto" on the Cheyenne project and that Hilde "agrees to perform such work under and for said contractor for the consideration hereinafter stated." It describes the work to be done in eight categories, the footage thereof and the compensation to be paid for each, totaling $32,279.70. Hilde agreed at his own expense to furnish the necessary equipment, manpower, tools and materials to do the job, but not pipe, hydrants and fittings. These were to be furnished by the principal contractor. Hilde was also required to furnish at his own expense a performance bond.
After the execution of Exhibit 2 Flood concluded that in order to secure the subcontract from Gustafson he and Hilde would have to do the work as a joint venture. He so informed Hilde. While the reason for this is not clear it is inferable that he was unable to provide the required bond. Thereafter each man had prepared his individual financial statement for the purpose of getting a bond as a joint venture. They made application to several insurance agencies for such bond without success. Eventually they were successful. Both of them executed the application for it and on February 4, 1958, the Standard Surety Company of Rapid City issued them a bond. In this bond the principal was Claude A. Flood and George Hilde, a joint venture. Hilde paid the initial premium on it by his personal check, but was later reimbursed out of company funds. Hilde never furnished a bond to Flood as stipulated in Exhibit 2.
On February 11, 1958, Gustafson entered into a written subcontract agreement with Flood and Hilde. It designates Gustafson as the contractor and Claude A. Flood and George Hilde, a joint venture, as the subcontractor. In essence it provides that the joint venture would furnish the labor, equipment and materials necessary to perform and complete the work required of Gustafson under a described contract with the government on the Cheyenne Indian Agency project, except certain pipe, hydrants and fittings which the contractor was to furnish. It specified the work to be done as all trenching, installation and backfilling of sewers$46,279.83, and the same for watermains$30,808.75, and provided that any additions would be handled under supplementary agreement. Other provisions here significant were that the subcontractor would furnish the contractor with a bond in the amount of the contract; that the subcontractor would not assign the contract without the prior permission of the contractor. *103 This agreement is in evidence as Exhibit 1.
Briefly stated, Flood's position is that Hilde was to receive for his work on the Cheyenne project the sum of $9,811.80 which was their original oral agreement. His answer indicates that this basic arrangement was confirmed in their subsequent written agreement, Exhibit 2, and not altered by the agreement they made with Gustafson, Exhibit 1. Hilde claims that their original oral understanding and their first written agreement were superseded by the arrangement described in Exhibit 1.
On the strength of their individual financial statements the parties on February 13, 1958, secured from the First National Bank of Sioux Falls a loan of $20,000. Their note evidencing this was signed "Flood and Hilde, by Claude A. Flood and George E. Hilde". With this they opened a checking account under the name of Flood-Hilde Construction Company. Both parties signed signature cards at the bank authorizing either of them to write checks on the account. They had checks printed bearing the name Flood-Hilde Construction Company. During the period involved both wrote checks on the account. Payments were made by the joint venture on this loan and additional advances were similarly secured from the bank as required to maintain the account.
They started on the Cheyenne project April 12, 1958, and the last work was done October 17, 1958. In the course of it they did extra work for which they were allowed $14,750.37 in addition to the contract price. Both parties furnished equipment for use on the project, apparently without any agreement as to what each would provide, and were present there doing work and supervising the employees. Hilde participated in all phases of the work. The employees were all carried on the payroll records as employees of Flood-Hilde Construction Company and paid by that company's checks as were the unemployment tax and the amounts withheld for income tax purposes. The Liability and Workmen's Compensation Insurance carried on their jobs was issued in the name of Claude A. Flood and George E. Hilde, doing business as Flood-Hilde Construction Company. All of their jobs appear to have been covered by a common policy. The premiums were paid by checks drawn on the company account. In getting this insurance all equipment was listed as belonging to the company and all employees listed as its employees.
Before and while the Cheyenne project was in progress, as well as after its completion, they undertook six other jobs. In these it was admitted that their association was a joint venture on an equal basis. Flood seems to have been in charge of such books as they kept. These consisted largely of bank statements, deposit slips, canceled checks, check stubs, payroll records and invoices, but did not include a journal or a ledger. The records did not attempt to segregate these accounts as to separate jobs. Rather the items of income and expense of all of their activities, including the Cheyenne project, were intermingled. In fact they were so inadequate the accountant engaged by Hilde to audit their affairs was compelled to consult with both parties and others, to determine from what jobs certain items of their income were received and whether expenditures made were chargeable to work they were doing; and if so, on what job, or whether they were personal to the parties.
On the Cheyenne project, as well as their other jobs, the parties appear to have opened charge accounts in their individual names as well as in the name of the company, but these were all paid by checks drawn on the company checking account. Bills for repair on the equipment by each of them were similarly paid for as well as new equipment which they purchased. During the period in question, Flood, unknown to Hilde, wrote checks on the company account in the sum of $23,000 in payment of personal obligations. Hilde did not do so nor had he drawn any money from the business *104 as income. To the contrary, he made advances to the company from his own funds on occasions of financial distress and made personal loans to Flood. Payments made by Gustafson for work done by the parties on the Cheyenne project were made to the Flood-Hilde Construction Company and deposited in the common account. This project was completed on October 17, 1958, but no effort was made to settle that account with Hilde before the commencement of this action in June 1961.
The court's finding that the association entered into by these parties on February 11, 1958, was a joint venture is, we think, well supported by the evidence. We have carefully reviewed this voluminous record and while there is evidentiary support for the defendant's position it does not warrant interference by us with the finding. In fact, the trial judge could justifiably disregard some of it as being unreasonable.
In connection with this the court also found that the parties were to share the profits and losses equally. This determination we think a proper one. Absent an agreement to the contrary the law presumes they intended that each would share equally. 48 C.J.S. Joint Adventures § 11; 30 Am. Jur., Joint Adventures § 42. Flood made no effort to show that there was any percentage agreement to the contrary. Rather on this issue he confined himself to denying that their association on the Cheyenne project was a joint venture. On the other six projects in which they were joint adventurers he conceded they were to share equally.
Flood's remaining complaint involves Exhibits 5 and 34 prepared by Doherty, the accountant who audited the affairs of this association at the request of Hilde. They are in the nature of financial statements of Flood-Hilde Construction Company. Exhibit 5 covers the period from February 1, 1958 to March 3, 1961 and Exhibit 34 from February 1, 1958 to March 31, 1961. The latter exhibit was prepared at the court's suggestion after it had determined that the association was a joint venture. In the former exhibit many items had been placed in a suspense classification pending the determination of the nature of the enterprise and further conferences with the parties and their counsel. The latter purports to be a final accounting in which these items were reclassified.
In the preparation of Exhibit 5 the accountant, whose competency is nowhere questioned, spent over 300 hours in writing up and reconciling the records. This was in addition to the countless hours spent in conferences with the parties, and counsel, and other persons in preparation for the task. Similarly, additional time was spent in the preparation of Exhibit 34. Both of these exhibits were properly admitted in evidence under the provisions of SDC 1960 Supp. 36.1002, the Uniform Composite Reports as Evidence Act.
Flood's complaint on this point, as we understand it, does not go to the admissibility of the exhibits, but rather he questions the classification of some of the items in them and the omission of others. In other words, his quarrel is with their credibility. The accountant was extensively cross-examined as to all of these items. He certified that Exhibit 34 was prepared with due regard to standard accounting and auditing procedures and noted that "The general condition of the company records makes it impossible for us to certify as to the accuracy of the classifications and the attached statements represent our best judgment based on the information submitted to us." The court adopted this accounting except that it did not allow any part of the accountant's fee to be charged to the company and allowed Flood an additional item of credit. It was for the court to accept such portions of the accounting as to him seemed proper. We are not persuaded that the court erred in the accounting it rendered.
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604105/ | 8 So. 3d 361 (2009)
HANSEN
v.
STATE.
No. 2D09-1517.
District Court of Appeal of Florida, Second District.
April 15, 2009.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604171/ | 269 Minn. 146 (1964)
130 N.W. (2d) 326
CHARLES GACKSTETTER
v.
DART TRANSIT COMPANY AND ANOTHER.
No. 38,879.
Supreme Court of Minnesota.
August 21, 1964.
Mahoney & Mahoney, Richard P. Mahoney, and Peter J. Hiniker, for appellant.
Firestone, Fink, Krawetz, Miley & O'Neill, for respondent.
ROGOSHESKE, JUSTICE.
Action to recover for personal injuries sustained in a collision between plaintiff's motor vehicle and defendant George Merrell's tractor-truck that was being operated while under a lease to defendant Dart Transit Company. At the conclusion of the evidence, the court directed a verdict on the issue of liability against defendant Merrell and in favor of defendant Dart. Plaintiff appealed from the judgment entered in Dart's favor.
*147 Two questions are presented: Whether the tractor was being operated by Merrell in the course and scope of his employment with Dart, and whether the relationship between Dart and Merrell as expressed by the terms of the lease agreement required by Federal and state regulations makes Dart liable for Merrell's negligence any time he operated the tractor with Dart's permission.
The accident happened on August 19, 1959, in St. Paul. As plaintiff was driving his automobile south on Robert Street it was struck from behind by another vehicle propelled by the force of having been struck from behind by a tractor-truck driven by defendant George Merrell. At the time of the accident the tractor was owned by defendant Merrell but was under an exclusive lease to defendant Dart Transit Company. Dart is a specialized common carrier operating under certificates issued by the Interstate Commerce Commission and the Minnesota Railroad and Warehouse Commission. The lease instrument which was prepared by the carrier-lessee contained provisions required by the rules of the I.C.C. and is the basis upon which the plaintiff sought to hold Dart liable for Merrell's negligence. The critical provision is as follows:
"It is understood that the leased equipment under this agreement is in the exclusive possession, control, and use of the authorized carrier, Lessee, and that the said Lessee assumes full responsibility in respect to the equipment it is operating, to the public, the shippers and the I.C.C. (The lessee shall be considered as owner for the purpose of sub-leasing under the rules of the I.C.C. to other authorized Carriers during the duration of this lease.)" (Italics supplied.)[1]
*148 Since the date of the lease on March 3, 1959, Merrell drove the leased tractor, referred to above as the leased equipment, in hauling trailers for Dart to various parts of the country in accordance with dispatch orders and directions issued by Dart. He kept and filed with Dart a daily log of his activities and identified the tractor with appropriate placards or decals bearing Dart's name, address, and permit numbers in accordance with the rules of the I.C.C. Dart financed the costs of maintenance for Merrell, permitting him to reimburse them and to use their garage for repairs. They deducted 25 percent of the freight charges earned by Merrell to cover trailer rentals, charges for services in securing loads, and other operating expenses. Shortly before the accident on August 19, Merrell drove his tractor from the Fruehauf Trailer Company (where it had been painted) to Dart's terminal to advise them that he was ready for a load the next morning. The president and dispatcher of Dart gave Merrell new placards or decals to affix to the tractor and gave Merrell instructions and a "trip settlement sheet" which directed him to pick up a trailer loaded with glue at the Armour & Company plant at South St. Paul the next morning, August 20, 1959, and to take it to Chicago. Merrell testified that after receiving these instructions he told them that he was going to drive to his home at Hampton, Minnesota, located south of St. Paul. Although Mr. Oren, the president of Dart, testified at one point in the trial that Merrell was definitely instructed that the tractor should remain in St. Paul at the terminal when he was not engaged in hauling trailers, no objection was made to this use of the tractor. Since Merrell testified he made *149 such use of the tractor on other occasions with Dart's knowledge, we must conclude that Dart's failure to object implied consent. As Merrell testified further, it was customary for him to receive instructions in the form of a "trip settlement sheet" at Dart's terminal. In this instance he received no advance on the profits he would receive from the load to be hauled for Armour, but he often did receive such advance contemporaneously with his instructions. It also appears that the route taken by Merrell from the terminal to go to his home passed by the Armour & Company plant. The accident occurred before he had reached this point on the route. He reported the accident to Dart. Merrell stated that he intended to go directly to his home as was his custom, but he also said that in the course of driving he might have "changed his mind" and stopped at Armour "to see if the trailer had all of the tires on or not." On the daily log sheet, required to be kept by every driver operating under a franchise, Merrell indicated that he was "off duty" the entire working day of August 19.
By virtue of the I.C.C. rules and the provision of the lease quoted above under which nonowned equipment may be operated under a carrier franchise, it is clear, and the parties agree, that because Merrell's use and operation of the tractor was subject to the exclusive control of Dart, the relationship of master and servant existed. Accordingly, if Merrell was acting in the course of his employment at the time of the accident, his negligence may be imputed to Dart.[2] Thus, as a franchised motor carrier Dart cannot evade liability for the negligence of the owner-lessor upon the defense that the owner is an independent contractor. The effect of the rules and the lease is to make the owner-driver an employee of the lessee.[3]
*150 1. A servant must be acting primarily for the benefit of his master at the time of the tort in order to find that the act was within the course and scope of the servant's employment and thereby imposes vicarious liability for the servant's conduct. If the tort is committed when the servant is in pursuit of activity personal to himself, the master is not liable.[4]
The court ruled that as a matter of law Merrell was engaged in a personal mission. From a review of the testimony most favorable to plaintiff, we are obliged to agree that the evidence is insufficient to support a reasonable inference that Merrell's trip home was a necessary incident of his employment or actuated by an intention to serve Dart.[5] He recorded on his log sheet that he was off duty. His route could not reasonably be regarded otherwise than as incidental to his personal desires and thus unrelated to Dart's business. The only evidence that could arguably support a contrary inference is his testimony that he might have stopped at Armour's to check the trailer tires. At best, this is speculative. In our opinion the trial court was correct in concluding that Merrell was not acting within the course and scope of his employment.[6]
2. Since the record suggests that Merrell may be unable to respond in damages,[7] plaintiff argues by analogy to § 170.54 of the Safety Responsibility Act and its underlying policy that we should accept his second theory that the effect of the rules of the regulating agencies *151 and the lease is to render Dart liable for any negligent operation of the tractor.[8] The trial court in rejecting this position stated:
"* * * Plaintiff's contention on this phase of the matter amounts to an assertion that the effect of these regulations and the lease is to impose for the period of the lease an absolute liability upon Dart for any negligence of Merrell in driving the Mack tractor. If plaintiff is correct in this contention, then it makes no difference whether Merrell was on business for Dart or whether he was on a personal mission of his own. At the time of directing the verdict the Court stated that our Supreme Court had not passed upon this question but that in examining cases from other jurisdictions it appeared that liability was not imposed on an absolute basis and appeared to be based on whether at the time the driver-owner was in the scope of his employment for his carrier's business. None of these cases suggested that the regulations superseded the common law as it existed in the particular jurisdiction."
*152 In our opinion plaintiff's argument ignores the significance of the facts that neither the rules nor the lease prohibits the carrier from permitting a noncommercial use of the tractor, and that its use at the time of the accident was not incident to Dart's business of transporting goods under the franchise granted by public authority. The most that can be said is that Dart gave Merrell permission to use the tractor for a personal mission. No claim is or could be made that Dart failed to use reasonable care by entrusting the vehicle to Merrell. The only basis remaining upon which Merrell's negligence could be imputed to Dart is that he was operating the vehicle with Dart's consent.
From our examination of the I.C.C. rules, the statute authorizing their promulgation, and the cases dealing with the question, we find no basis upon which to conclude that the rule requiring the lease provision in question was intended to subject the carrier to liability for negligent operation of the nonowned equipment permissibly used for any purpose, thereby superseding the substantive law governing vicarious tort liability.[9]
Unlike § 170.54 of our Safety Responsibility Act, which subjects the owner of the vehicle to liability simply upon proof that the vehicle is operated with his consent, the rules and the lease provisions serve only to make the lessor-owner an employee of the carrier-lessee and foreclose giving effect to any agreement which is intended to create the relationship of carrier and independent contractor. Had the Safety Responsibility Act included in the definition of an owner one who was granted exclusive possession and control of a vehicle under a lease,[10] Dart's permission to use the tractor would clearly support liability for Merrell's negligence. However much we may dislike the result, *153 the problem of broadening the provisions of that act to cover the facts presented is for the legislature.
We conclude in accord with the trial court that the rules and lease provisions under the circumstances of this case impose liability on the carrier only when the tractor is being operated in the furtherance of the carrier's business.
Affirmed.
NOTES
[1] The rules on which this provision is based are found in 49 CFR (Rev. 1964) § 207.4. The rules concerning exclusive possession and responsibility for nonowned equipment were promulgated pursuant to the provisions of the Motor Carrier Act of 1935, 49 Stat. 543, as amended, 70 Stat. 983, 49 USCA, § 304(e)(1, 2). For the purpose and constitutionality of the rules, see American Trucking Assns. v. United States, 344 U.S. 298, 73 S. Ct. 307, 97 L. ed. 337. Subparagraph 4 of § 207.4 of the rules permitting franchised carrier to perform authorized transportation with leased equipment requires that the lease "[s]hall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement, except: * * *."
The comparable regulations of the Minnesota Railroad and Warehouse Commission, Motor Bus and Truck Division, provide:
"2. The leased vehicle shall be under the exclusive control of, and its operation the sole responsibility of, the lessee.
"3. * * * if the owner-lessor is to be the driver or is to furnish the driver, such driver shall be as an employee of the lessee, * * * and the lessee shall assume the same responsibility with reference to such owner-driver as lessee does or would to any other employee."
Minnesota Regulations, Title IX, 9015(c), 9027(k), (1960 ed.).
[2] Restatement, Agency (2d) § 2, comment b.
[3] Duke v. Thomas, 343 S.W. (2d) 656 (St. Louis Ct. of App. Mo.); Kaplan Trucking Co. v. Lavine (6 Cir.) 253 F. (2d) 254; Leotta v. Plessinger, 8 N.Y. (2d) 449, 209 N.Y.S. (2d) 304, 171 N.E. (2d) 454; Mellon Nat. Bank v. Sophie Lines, Inc. (3 Cir.) 289 F. (2d) 473; Van Hook v. Strassberger, 259 S.W. (2d) 399; Stevens v. Deaton Truck Line, Inc. 256 Ala. 229, 54 So. (2d) 464; Marriott v. National Mutual Cas. Co. (10 Cir.) 195 F. (2d) 462; Simon v. McCullough Transfer Co. 155 Ohio St. 104, 98 N.E. (2d) 19. See generally, Sloan, Liability of Carriers for Independent Contractors' Negligent Operation of Leased Motor Trucks, 43 Iowa L. Rev. 531.
[4] Simpson v. Egler, 166 Minn. 501, 207 N.W. 724; Robinson v. Pence Automobile Co. 140 Minn. 332, 168 N.W. 10; Restatement, Agency (2d) § 235.
[5] Cf. Marcel v. Cudahy Packing Co. 186 Minn. 336, 243 N.W. 265.
[6] Under the law governing vicarious liability for torts, we refrain from considering analogous fact situations presenting the issue of whether employee's injury arose "out of and in the course of employment" under the compensation act because we have previously declared that "compensation acts are sui generis and belong to a fundamentally different field of litigation." Frankle v. Twedt, 234 Minn. 42, 50, 47 N.W. (2d) 482, 488.
[7] Merrell is now a nonresident. He did not appear at trial, but his testimony was submitted by plaintiff by deposition.
[8] Plaintiff also urged before the trial court that defendant Dart was liable under the rule stated in Restatement, Torts, § 428, which states:
"An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity."
The court declined to consider the application of this rule on the ground that there was no evidence to indicate that a motor truck is a dangerous instrumentality. It should be noted that there are cases recognizing that the operation of motor freight carriers upon the public highways involves unusual risks to the public. See, Hodges v. Johnson (W.D. Va.) 52 F. Supp. 488; Venuto v. Robinson (3 Cir.) 118 F. (2d) 679. In any event, plaintiff was not prejudiced by the trial court's refusal to consider the effect of this rule since its application requires that the activity causing the harm be actually carried on under the public franchise at the time of the alleged negligence. See, Venuto v. Robinson, supra; War Emergency Co-op. Assn. v. Widenhouse (4 Cir.) 169 F. (2d) 403; Werner Transp. Co. v. Dealer's Transport Co. (D. Minn.) 102 F. Supp. 670; Barry v. Keeler, 322 Mass. 114, 76 N.E. (2d) 158. Certainly, the use of a motor truck on a personal mission does not require or involve its operation pursuant to a franchise.
[9] See footnote 3, supra.
[10] Minn. St. 170.21, subd. 9, provides: "`Owner' means a person who holds the legal title of a motor vehicle, or in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purposes of this chapter." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604176/ | 130 N.W.2d 602 (1964)
John A. WATSON, Hjerdis E. Watson, William M. Watson, and Elizabeth Watson, Plaintiffs and Respondents,
v.
Arno A. KRESSE and Minnie Kresse, Defendants and Appellants.
No. 8038.
Supreme Court of North Dakota.
May 22, 1964.
Rehearing Denied October 29, 1964.
*604 Lashkowitz & Lashkowitz, Fargo, for defendants and appellants.
Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiffs and respondents.
STRUTZ, Judge.
This is an action for specific performance of an option agreement given and executed by the defendants to the DX Sunray Oil Company and assigned by DX Sunray Oil Company to Watson & Hawkins, Inc., of Fargo, a corporation, and thereafter assigned by Watson & Hawkins, Inc., to John A. Watson, Hjerdis E. Watson, William M. Watson, and Elizabeth Watson, the plaintiffs herein. The answer of the defendants is in the form of a general denial, together with two affirmative defenses: (1) that the defendants had rescinded the agreement prior to the exercise of the option and (2) that the defendants had been coerced into signing the agreement by fraudulent representations and by use of undue influence. Defendants also contend that the assignments from DX Sunray Oil Company to Watson & Hawkins, Inc., and from Watson & Hawkins, Inc., to the plaintiffs were not properly executed and therefore were invalid, and that the attempted notice of exercise of the option therefore was void and of no effect.
The facts, briefly stated, are as follows: On May 17, 1960, Ray Shackow, one of the owners of Island Park Realty of Fargo, called on the defendant Minnie Kresse for the purpose of soliciting the right to sell her home. Shackow was told by Mrs. Kresse that she wanted to keep her home. There was considerable discussion between the real estate agent and Mrs. Kresse in which he represented that she would be able to secure a lot in the vicinity of the present location of her home, within a block and a half of her present residence, on which the house, which the agency was not to sell, could be relocated. The defendant contends that Shackow agreed to get such lot for her, whereas Shackow claims that he merely told the defendant that certain lots were available. There also was discussion to the effect that the defendant would be able to relocate her home on one of such nearby lots at a cost of "approximately" $6,000, and that she thus would realize "approximately" $10,000 on the transaction. Shackow admitted that this was substantially what occurred, but contended that he did not guarantee that the defendant would make any such sum on the transaction and that, in fact, he had informed her only that lots were available within the area indicated for the relocation of her house.
The record discloses that the defendant Minnie Kresse signed a listing agreement by which Island Park Realty was given an exclusive listing of the defendants' property for the purpose of selling it. The following evening, May 18, Shackow and his brother-in-law, a Mr. Miller, who together operate the Island Park Realty, called on the defendant Minnie Kresse and told her *605 that they had a purchaser for her property. The defendant, however, wanted to talk the matter over with her daughter so, that same evening, Shackow and Miller drove her to the farm home of her daughter near Wheatland, North Dakota. After considerable argument, in which the matter of moving the defendants' house onto a nearby lot again was discussed, the defendant Minnie Kresse signed the option agreement giving to DX Sunray Oil Company an option to purchase the lot on which the defendants' house stood for $16,800. The evidence discloses that the $800 represented the real estate agent's commission. There is no evidence that the defendant Minnie Kresse at any time read the agreement as it was signed.
After the defendant had signed the option agreement, which she had not read because, she contends, Shackow had assured her that he was an honest man and would not take advantage of an elderly woman, she was taken by Shackow and Miller to Pine Lake, Minnesota, some 130 miles distant, for the purpose of securing her husband's signature to the agreement. It was after midnight when they reached Pine Lake and the husband, defendant Arno Kresse, had retired. He was awakened, and, on the assurance of his wife that the agreement was all right and that Shackow had told her that he would get a nearby lot for the relocation of the house, he also signed the option without reading it. The agreement as signed made no mention of the matter of securing a lot in the same neighborhood for the relocation of defendants' house.
Shackow was a notary public commissioned by the State of North Dakota. The option agreement shows that he took the acknowledgment of both defendants, although the evidence shows that the defendant Arno Kresse signed the instrument at Pine Lake, in the State of Minnesota.
The option agreement thereafter was assigned by DX Sunray Oil Company to Watson & Hawkins, Inc., of Fargo. This assignment was executed in the Des Moines, Iowa, office of DX Sunray Oil Company on July 18, 1960. The evidence of the plaintiffs further indicates that, on the same day, July 18, 1960, Watson & Hawkins, Inc., assigned the option agreement to the plaintiffs herein and the plaintiffs, again on the same date, exercised the option by giving notice, by certified mail, to the defendants.
On these facts, the trial court decreed specific performance of the agreement and the defendants have appealed from the judgment, demanding a trial de novo.
After submission and consideration of this case, it was apparent that the principal issue to be determined on this appeal was whether the property involved in the action was the homestead of the defendants. While the record disclosed a number of references to the property as the home of the parties, or the home of the defendant Minnie Kresse, there was no clear and positive evidence from which the court could actually determine whether the premises described in the option to sell was, in fact, the homestead of the parties. We therefore remanded the case to the trial court with direction to take additional testimony on the sole issue of whether this property was the homestead of the defendants at the time the option was executed by them in May of 1960. We requested the trial court to make further findings on this issue and to certify the same to this court. Sec. 28-27-32, N.D.C.C.
The trial court, pursuant to such remand, took additional evidence and made findings thereon and certified the same to this court. Such additional findings are to the effect that the property described in the plaintiff's complaint was not the homestead of the defendants, or of either of them, at the time the option agreement to sell was signed.
In an action tried to the court without a jury, the appellate court, on appeal demanding trial de novo, tries the case anew, giving appreciable weight to the findings of the trial court. Gust v. Wilson, 79 N.D. 865, 60 N.W.2d 202, 38 A.L.R. 2d 1371; Sec. 28-27-32, N.D.C.C. While the appellate *606 court, in reviewing such case tried without a jury, will give appreciable weight to the findings of the trial court, it still has the duty to try anew all questions of fact in the entire case. In doing so, it will carefully review and analyze the evidence and render a just decision based on all of the evidence in the case. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808.
As one of the grounds for avoiding the option agreement, the defendants have alleged rescission of the agreement. The evidence shows that the notice of such attempted rescission, with return of the consideration, was given to Island Park Realty, Inc., which, according to the record, was the agent of the defendants. No attempt was made to rescind the option agreement by serving notice of rescission upon DX Sunray Oil Company, the other party to such option agreement. Therefore, the attempted rescission of the option was ineffectual. Sec. 9-09-04, N.D.C.C.
Generally speaking, when an agreement or contract is in writing, whether or not the law requires it to be written, such written agreement supersedes all the oral negotiations, agreements, or stipulations which preceded or accompanied the execution of such instrument. Sec. 9-06-07, N.D.C.C. Therefore, neither the option agreement given to DX Sunray Oil Company nor the listing agreement, by the terms of which the defendants gave to Island Park Realty the right to sell the property, could be altered or changed by parol testimony, for parol testimony is inadmissible to vary the terms of a complete and unambiguous contract. Stair v. Hibbs, 52 N.D. 910, 204 N.W. 621; Gilbert Manufacturing Co. v. Bryan, 39 N.D. 13, 166 N.W. 805; Streeter v. Archer, 46 N.D. 251, 176 N.W. 826; Larson v. Wood, 75 N.D. 9, 25 N.W.2d 100; Mevorah v. Goodman, 79 N.D. 443, 57 N.W.2d 600, 49 A.L.R. 2d 825. Clearly, no evidence to alter the terms of the written agreement would be admissible.
The defendants also contend that the option was not exercised until the sixty-first day, and therefore was not exercised in time. It is true that the option was exercised on the sixty-first day, but in this case that fact is immaterial. The sixtieth day fell on a Sunday. Our statute specificly provides that whenever an act of a secular nature, other than a work of necessity or mercy, is appointed by law or by contract to be performed upon a particular day which falls on a holiday, such act may be performed upon the next business day with the same effect as if it had been performed on the day appointed. Sec. 1-03-05, N.D.C.C. Thus the defendants' contention that the option was not exercised until the sixty-first day is of no force, since the sixtieth day fell on Sunday.
The defendants raise the question of consideration for the option, which was the sum of one dollar, and which they, in attempting to rescind, had returned to Island Park Realty, Inc. Whether there was good consideration for the option after the dollar had been so returned is immaterial. Our statute specificly provides that a written instrument is presumptive evidence of a consideration. Sec. 9-05-10, N.D.C.C.
It is contended, however, that the defendants' assent to the contract was obtained by misrepresentation and coercion. Our law provides that specific performance cannot be enforced against the party to a contract if his assent thereto was obtained by misrepresentation, concealment, circumvention, or unfair practice "of any party to whom performance would become due under the contract." Sec. 32-04-13, N.D.C.C. There is no contention on the part of the defendants that DX Sunray Oil Company in any way misrepresented any of the facts to the defendants. Such misrepresentation as is claimed by the defendants was committed by the real estate agent who had a listing agreement with the defendants and who, under such listing agreement, was acting as defendants' own agent.
Defendants next contend and strongly emphasize that the assignment of such option agreement from DX Sunray Oil Company *607 to Watson & Hawkins, Inc., was executed on July 18 in Des Moines, Iowa, and that it would have been impossible to transmit such assignment from Des Moines to Fargo so that it could have been received by Watson & Hawkins, Inc., in sufficient time on that day for Watson & Hawkins, Inc., to have held a legal meeting and, in turn, to have executed an assignment of the agreement to the plaintiffs as individuals, and for the plaintiffs thereafter, and still on the same day, to have mailed to the defendants the proper notice of exercise of the option.
The defendants may be correct in their contention, but we do not believe it is material whether or not the assignment from DX Sunray Oil Company to Watson & Hawkins, Inc., actually was delivered to the assignee before it, in turn, assigned to the plaintiffs and the plaintiffs thereafter exercised the option. Defendants clearly are in no position to question whether there was an assignment executed and delivered from DX Sunray Oil Company to Watson & Hawkins, Inc.
The defendants contend that the option was signed by the defendant Minnie Kresse in Cass County, North Dakota, and by defendant Arno Kresse at Pine Lake, Minnesota, and that the acknowledgment of both defendants' signatures was taken by Ray Shackow, who is a North Dakota notary public.
An agreement for the sale of real property, or an interest therein, must be in writing and subscribed by the party to be charged or by his agent. Sec. 9-06-04(4), N.D.C.C.
Ordinarily, such transfer of an estate in real property need not be acknowledged or witnessed to be valid. Secs. 47-10-01 and 47-10-06, N.D.C.C.; Bumann v. Burleigh County, 73 N.D. 655, 18 N.W.2d 10.
The rule is not the same, however, where the property being transferred is the homestead of the parties. A homestead of a married person cannot be conveyed or encumbered unless the instrument transferring the interest therein is executed and acknowledged by both the husband and the wife. Sec. 47-18-05, N.D.C.C.; Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797; Nichols v. Schutte, 75 N.D. 207, 26 N.W.2d 515.
In this case, there was a purported acknowledgment of the signatures of both of the defendants on the option agreement. The record clearly discloses, however, that the defendant Arno Kresse never appeared before the notary in the State of North Dakota. Therefore, if the property was, in fact, the homestead of the parties on the date the option was signed, the purported acknowledgment was void and of no effect. Section 44-06-01 of the North Dakota Century Code provides that a notary shall have the power and authority to take acknowledgments anywhere in the State.
Thus, since the jurisdiction of a notary public appointed in the State of North Dakota is limited to acknowledgments taken within the State, the acknowledgment of the signature of the defendant Arno Kresse made before the North Dakota notary in the State of Minnesota would be of no effect. If, however, as determined by the trial court, the property in question is not the homestead of the parties, no acknowledgment before a notary is necessary and the signature of the defendant Arno Kresse to the option agreement was all that was required.
Section 47-18-02 of the North Dakota Century Code defines "head of a family." The evidence taken by the trial court, pursuant to our remand, discloses that the defendants, although not divorced, are living separate and apart from each other. The husband maintains his residence at the farm where the parties formerly resided, while the wife, the defendant Minnie Kresse, lives on the premises described in the complaint with a daughter and grandchildren who are not dependent upon the defendant. The trial court found that, *608 under these circumstances, she was not the "head of a family" under Section 47-18-02 of the North Dakota Century Code, and therefore not empowered to claim a separate homestead. The appellant contends that the trial court is in error in this finding, that the defendant does qualify as the "head of a family" under this statute, and that the premises, on the date of the signing of the option, were and now are her homestead.
We have examined the record and, having considered all of the evidence, find that the defendant Minnie Kresse is not the "head of a family," as defined by Section 47-18-02, North Dakota Century Code, and that the premises described in the complaint were not her homestead on the 18th day of May, 1960, when she signed the option agreement.
For reasons stated herein, the judgment of the district court is affirmed.
MORRIS, C. J., and BURKE and TEIGEN, JJ., concur.
ERICKSTAD, J., not being a member of this Court at the time of submission of this case, did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604181/ | 130 N.W.2d 69 (1964)
GUCKEEN FARMERS ELEVATOR CO., Respondent,
v.
CARGILL, INC., Defendant and Third-Party Plaintiff, Appellant,
v.
Harold W. STRIEMER, dba Striemer Grain Co., Third-Party Defendant.
No. 39148.
Supreme Court of Minnesota.
August 14, 1964.
*70 Edward J. Schwartzbauer and Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, for appellant, Frundt & Hibbs, Blue Earth, of counsel.
Putnam & Spencer, Blue Earth, for respondent.
THOMAS GALLAGHER, Justice.
Action in conversion by plaintiff, Guckeen Farmers Elevator Company, referred to herein as the Guckeen Company, to recover from defendant Cargill, Inc., the reasonable value of two loads of shelled corn purchased from the Guckeen Company by Harold W. Striemer on May 28, 1958, and resold by him on that date to Cargill, Inc. At the close of the trial the court made findings and ordered judgment for plaintiff in the amount of $1,244.10, and this appeal is taken from the judgment subsequently entered pursuant thereto. Judgment was also ordered *71 against Striemer as third-party defendant, but he does not appeal.
At the time of the sale plaintiff was aware that Striemer was a licensed grain dealer and was purchasing the corn for resale. Plaintiff then made inquiry of another elevator company from whom Striemer had been purchasing corn at the same time and through it became aware that in making the purchases Striemer was acting as agent of Humphrey Grain Company of Carroll, Iowa, referred to herein as Humphrey. As Striemer made various corn purchases for Humphrey, he would draw drafts on the latter for the amounts thereof which he would deposit to his account in the First National Bank of Fairmont. He would then issue his checks from such account in payment of the corn purchased, relying upon payment of the drafts by Humphrey to cover such checks.
The purchases made by Striemer under this arrangement involved substantial amounts. After each purchase the corn would be picked up in his truck and simultaneously paid for with his check as described. The corn would then be hauled and delivered by Striemer to such purchasers as Humphrey would designate. In the instant case it had instructed Striemer to deliver the corn purchased from plaintiff to Cargill, Inc., at Savage, Minnesota, and this was done. Other loads of corn purchased were delivered upon Humphrey's orders by Striemer to other dealers in Minnesota and to dealers in Iowa and Nebraska. All of it was hauled in trucks owned by Striemer for which he had been licensed to operate in hauling grain by the Minnesota Railroad and Warehouse Commission.
In the present transaction with plaintiff Striemer delivered to it two checksboth were dated May 28, 1958, were drawn on the First National Bank of Fairmont, and were signed by Striemer. The names of the payees and the amounts thereof were left blank. Authority was given to plaintiff to fill in the blanks on completion of the sale, and plaintiff then caused its name to be inserted as payee and filled in the amounts due thereon for the corn totaling $1,484.60. It then deposited the checks for collection in the regular course of business. On June 6, 1958, they were returned to it unpaid because funds on deposit in Striemer's account were insufficient to cover them. Striemer testified that the reason for this was that the drafts which he had drawn upon Humphrey to cover them had not been honored by the latter.
In reselling the corn to Cargill, Inc., Striemer presented sales slips indicating that Humphrey was the actual seller, and on June 2, 1958, Cargill, Inc., forwarded its check in payment of the corn to Humphrey. Not until October 1959 did it receive notice that plaintiff claimed ownership of the corn and that the checks received by it in payment therefor had been dishonored.
Shortly after the checks were dishonored, plaintiff filed a claim with the Minnesota Railroad and Warehouse Commission for amounts covering them and others it had received from Striemer, all of which had been dishonored. Therein it sought recovery on a bond filed by Striemer pursuant to Minn. St. 27.04[1] at the time he was licensed by *72 the commission. It recovered a sufficient amount to enable it to apply $240.50 on the two checks described. In the present action (commenced May 1960) for defendant's conversion of the corn, plaintiff fixed its value as equal to the remaining amount due on the checks.
The judgment is based upon findings that title to the corn never passed to Striemer; that although he was given possession and control of it, at no time did he possess the "indicia of title" thereto; and that in the absence of a showing of prejudice, plaintiff's delay in seeking recourse from defendant did not constitute laches or grounds for estoppel.[2] In a memorandum attached to the findings, the court stated:
"* * * Defendant's claim to being a bona fide purchaser would not be a defense since [neither] Striemer nor Humphrey Grain Co. had title to the corn. Section 512.23 * * * provides that the buyer acquires no better title than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. * * *
* * * * * *
"* * * If there was a responsibility upon plaintiff to make inquiry as to the sufficiency of Mr. Striemer's bank account there was an equal responsibility upon the Defendant Cargill, Inc., to make inquiry as to the title of the one delivering the corn and his right to sell the same. Had the corn been stolen no title would have passed to defendant. * * *
* * * * * *
"The record is free of any evidence * * * that Defendant was prejudiced * * * by delay on the part of the Plaintiff in making its demand upon the Defendant. * * * Defendant paid the purchase price to the Humphrey Grain Co. before the checks given by Mr. Striemer to Plaintiff had reached the bank. Defendant had a remedy * * * against the Humphrey Grain Co."
It is defendant's contention that, when plaintiff accepted Striemer's checks in payment of the corn and delivered possession and control of it to him with knowledge that he was purchasing it for resale, it manifested an intention to pass title to him at that time. It suggests that, if plaintiff had not intended to extend credit to Striemer in reliance upon the checks, it would have withheld delivery of the corn until it had investigated his financial standing at the bank upon which the checks were drawn; and would not have sought recovery on his bond before the Railroad and Warehouse Commission on the theory that the sale was complete on May 28, 1958. It advocates application of the "voidable title" theory[3] as more equitable than the "cash sale" doctrine[4] applied here by the court, since ordinarily a seller such as plaintiff is in a better position to prevent a loss due to a dishonored check by timely investigation *73 of the worth of the check and the credit rating of his vendee than is a subsequent purchaser from such vendee who relies upon the latter's possession of the goods as evidence of ownership. It perceives a parallel situation in cases where credit has been extended to a vendee by the acceptance of his note or draft, and wherein it is generally held that title to the goods sold passes immediately to the vendee.
Plaintiff points out that the "cash sale" doctrine has been followed by this court and by a majority of the courts of other jurisdictions. It argues that the ultimate purchaser may be readily protected by demanding evidence of vendor's title other than possession and by investigation of the credit of vendors with whom he customarily deals by means of credit rating facilities usually available to him. It directs attention to the limited facilities for such investigations available to farmers, livestock raisers, grain elevator operators, and other small producers who often are called upon to sell their products before or after banking hours to truckers who purchase and pick up such products with the intent of hauling and reselling them within a few hours to some well-established mill, stockyard, factory, or distributor usually located some distance away.
1. In this state it is well settled that, where a cash sale of goods is intended and a check in payment thereof is accepted, there is an implied representation that the check will be paid upon presentation at the bank upon which it is drawn; and that if not so paid title to the goods will remain in the seller who may recover the goods or their value from a third party who has purchased them from the seller's vendee. Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, 46 N.W. 306; National Bank of Commerce v. Chicago, B. & N. R. Co., 44 Minn. 224, 46 N.W. 342, 9 L.R.A. 263; J. I. Case Threshing Machine Co. v. Bargabos, 143 Minn. 8, 172 N.W. 882; Gustafson v. Equitable Loan Assn., 186 Minn. 236, 243 N.W. 106; Moberg v. Commercial Credit Corp., 230 Minn. 469, 42 N.W.2d 54; DeVries v. Sig Ellingson & Co. (D.Minn.), 100 F. Supp. 781. In Gustafson v. Equitable Loan Assn. supra, this rule is expressed as follows (186 Minn. 239, 243 N.W. 107):
"* * * Where goods are sold for cash on delivery and payment is made by the purchaser by check on his banker, such payment is only conditional, and the delivery of the goods also only conditional; and if the check on due presentation is dishonored, the vendor may retake the goods.' National Bank of Commerce v. Chicago, B. & N. R. Co., 44 Minn. 224, 229, 46 N.W. 342, 560, 9 L.R.A. 263, 20 Am. St. Rep. 566; J. I. Case Threshing Machine Co. v. Bargabos, 143 Minn. 8, 172 N.W. 882; Commercial Investment Trust v. Lundgren-Wittensten Co., 173 Minn. 83, 216 N.W. 531, 56 A.L.R. 492; Pohl v. Johnson, 179 Minn. 398, 229 N.W. 555, Anno. 31 A.L.R. 578."
In Young v. Harris-Cortner Co., 152 Tenn. 15, 28, 268 S.W. 125, 128, 54 A.L.R. 516, the Minnesota rule was expressly followed. The court there stated:
"It is possession coupled with indicia of title that estops the true owner from asserting claim to the goods.
"We have been unable to find a single decision which holds that, where there is no other fact or circumstance that might mislead further than the fact of possession, a purchaser of the goods would be protected against the true owner.
"After carefully considering the facts of this cause, we are unable to say that anything that the complainant said or did misled the defendants, subvendees, or was in any wise responsible for their purchase of this cotton."
To the same effect, see Kirk v. Madsen, 240 Iowa 532, 36 N.W.2d 757.
2. This rule, of course, would have no application where the original seller has *74 not only parted with possession of his goods but has gone further and placed the indicia of title thereto in the hands of the vendee delivering the worthless check, Crosby v. Paine, 170 Minn. 43, 211 N.W. 947; Olsen v. Great Northern Ry. Co., 139 Minn. 316, 166 N.W. 331; Ammon v. Gamble-Robinson Commission Co., 111 Minn. 452, 127 N.W. 448; Cochran v. Stewart, 57 Minn. 499, 59 N.W. 543; or where the seller intended to extend credit to his vendee and the transfer of title to the latter was not contingent upon his payment of cash for the goods. Hoven v. Leedham, 153 Minn. 95, 189 N.W. 601, 31 A.L.R. 574; Jock v. O'Malley, 138 Minn. 388, 165 N.W. 233.
Of course, where a seller has been guilty of laches or conduct injurious to an innocent third party purchasing the goods from his vendee, he will be estopped from recovering them or their value as against such third party.[5] In the instant case any claims based upon laches or estoppel have been waived by defendant.
3. An examination of decisions from other jurisdictions indicates that the great majority of them are in accord with the "cash sale" doctrine followed in Minnesota,[6] with only a few adopting the "voidable title" theory advocated by defendant.[7] Others have denied relief to the original seller as against a subsequent innocent purchaser from the seller's vendee, where the latter possessed not only the physical possession of the goods involved, but the indicia of title thereto as well; and where obviously questions of estoppel under the Uniform Sales Act were involved.[8] Of *75 course where the question of estoppel based on indicia of title or laches is involved, Minnesota is in accord with these latter decisions. See, Moberg v. Commercial Credit Corp., 230 Minn. 469, 42 N.W.2d 54. Here, however, where plaintiff delivered to its vendee nothing more than physical possession of the corn involved, it is obvious that cases determined on the basis of indicia of title would have no application. Determination of the merits of either doctrine would appear to be dependent almost entirely upon concepts of social policy and business convenience.[9] Since the "cash sale" doctrine affords protection to those who by their toil, effort, skill, and risk have produced the marketable commodities involved in cases of this kind, we feel that "concepts of social policy and business convenience" compel and justify our adherence to this doctrine.[10]
Affirmed.
NOTES
[1] Minn.St. 27.04 provides in part: "License to engage in the business of a dealer at wholesale within the state shall be issued by the commissioner to such reputable persons as apply therefor, pay the prescribed fee, and comply with the conditions herein specified.
* * * * *
"The applicant shall execute and file with the commissioner a corporate surety bond * * *, the amount and form thereof to be fixed by the commissioner, conditioned for the faithful performance of his duties as a dealer at wholesale for the observance of all laws relating to the carrying on of the business of a dealer at wholesale, for the payment when due of the purchase price of produce purchased by him when notice of default is given the commissioner within 30 days after the due date; provided, that the bond shall not cover transactions wherein it appears to the commissioner that a voluntary extension of credit has been given on the produce by the seller to the licensee beyond the due date * * *."
[2] Defendant does not rely upon plaintiff's laches or upon the theory of estoppel as a defense or as ground for reversal.
[3] The "voidable title" theory is that where checks subsequently dishonored are given in payment of goods sold the seller may avoid the sale and recover his goods as against his vendee, but has no such recourse against a subsequent purchaser of the goods for value who makes his purchase from the vendee before the original seller has acted to avoid the sale.
[4] The "cash sale" doctrine is that where a sale of goods is for cash, and checks in lieu of cash are accepted in payment of the goods sold, title to such goods nevertheless does not pass until the checks have been honored, and if such checks are dishonored, the seller may recover such goods or their value from his vendee or from a subsequent purchaser of the goods from such vendee.
[5] Minn.St. 512.23(1) of the Uniform Sales Act provides: "Subject to the provisions of this chapter, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell."
In DeVries v. Sig Ellingson & Co. (D. Minn.), 100 F. Supp. 781, 787, affirmed, (8 Cir.) 199 F.2d 677, certiorari denied, 344 U.S. 934, 73 S. Ct. 505, 97 L. Ed. 719, the court quoted from Moberg v. Commercial Credit Corp. (230 Minn. 469, 42 N.W.2d 54), as follows: "In order that the real owner of personal property may be estopped from asserting his title against a person who has dealt with one in possession in faith of his apparent ownership, it is the general rule that something more than mere possession and control is necessary. The authorities indicate that possession must be accompanied by indicia of title." See, also, Gustafson v. Equitable Loan Assn., 186 Minn. 236, 243 N.W. 106.
[6] Ison v. Cofield, 261 Ala. 296, 74 So. 2d 484; Clark v. Hamilton Diamond Co., 209 Cal. 1, 284 P. 915; Publicker Commercial Alcohol Co. v. Harger, 129 Conn. 655, 31 A.2d 27; Kirk v. Madsen, 240 Iowa 532, 36 N.W.2d 757; Farmers Grain & Supply Co. v. Atchison, T. & S. F. Ry. Co., 121 Kan. 10, 245 P. 734; Hickerson v. Con Frazier Buick Co., (Mo.App.) 264 S.W.2d 29; Bustin v. Craven, 57 N.M. 724, 263 P.2d 392; Wilson v. Commercial Finance Co., 239 N.C. 349, 79 S.E.2d 908; Cowan et al. v. Thompson, 25 Tenn.App. 130, 152 S.W.2d 1036; Flatte v. Kossman Buick Co., (Tex.Civ.App.), 265 S.W.2d 643; Richardson v. Seattle First Nat. Bank, 38 Wash.2d 314, 229 P.2d 341; Holt v. Casto, 136 W.Va. 284, 67 S.E.2d 432; John Clay & Co. Livestock Commission v. Clements (5 Cir.), 214 F.2d 803; Commercial Standard Ins. Co. v. McCollum (10 Cir.), 207 F.2d 768.
[7] Hoham v. Aukerman-Tuesburg Motors Inc., 77 Ind.App. 316, 133 N.E. 507; Guckeen Farmers Elevator Co. v. South Soo Grain Co., 172 Neb. 426, 109 N.W.2d 728; Harten-Knodel Distributing Co. v. Harrison, 43 Ohio App. 383, 183 N.E. 294; Trumbull Chevrolet Sales Co. v. v. Maxwell (La.App.) 142 So. 2d 805.
[8] Pingleton v. Shepherd, 219 Ark. 473, 242 S.W.2d 971; Keegan v. Kaufman Bros., 68 Cal. App. 2d 197, 156 P.2d 261; Glass v. Continental Guaranty Corp., 81 Fla. 687, 88 So. 876, 25 A.L.R. 312; Capital Automobile Co. v. Ward, 54 Ga. App. 873, 189 S.E. 713; Watson Bros. Realty Co. v. Associates Discount Corp., 246 Iowa 483, 66 N.W.2d 384; Casey v. Gallagher, 326 Mass. 746, 96 N.E.2d 709; I-Land Auto Sales, Inc. v. Valle, 12 Misc. 2d 1091; 175 N.Y.S.2d 732; Parma v. First Nat. Bank of Cameron (Tex.Civ. App.), 37 S.W.2d 274.
The foregoing decisions would appear to be consistent with provisions of the Uniform Sales Act as embodied in § 512.23, above set forth.
[9] See Corman, Cash Sales, Worthless Checks and The Bona Fide Purchaser, 10 Vanderbilt L.Rev. 55, 76, where it is stated: "Cook has written that the principles applicable generally to bona fide purchasers are the result of various, sometimes confused, ideas of expedience, justice and supposed logic. As a principle in today's law, it can be defended, if at all, upon grounds of social policy and business convenience. Ballantine agrees, commenting that, `The doctrine of bona fide purchase cannot be regarded as based upon self-evident principles of natural justice. It is the expression of various more or less clearly perceived notions of expediency, justice and business policy.'" See, also, Cook, The Alienability of Choses in Action: A Reply to Professor Williston, 30 Harv.L.Rev. 449, 477; Ballantine, Purchase for Value and Estoppel, 6 Minn.L.Rev. 87, 91.
[10] Defendant makes reference to 2 Williston, Sales (Rev. ed.) § 346(a), wherein Professor Williston advocates adoption of the "voidable title" theory on the ground that "where the goods are put into the buyer's hands without more, it can hardly be doubted that the seller means to allow him to deal with them as his own; to resell them immediately if he feels inclined."
Professor Vold takes issue with Professor Williston on this question. In an article in 1 Hastings Journal, 111, 115, Worthless Check Cash Sales, "Substantially Simultaneous" and Conflicting Analogies, he states that the "seller in accepting the buyer's mere personal check actually has the intention of exchanging the ownership of the goods for the check that he receives rather than for the money he receives when the check is cashed, seems extremely questionable. * * * It seems much more nearly accurate * * * to say that the parties usually have no occasion to formulate and particularize with nicety just what the resulting legal relations from moment to moment until the check has been cashed are intended to be. * * *
* * * * *
"* * * There is no reason for supposing that the parties in such cases intend * * * that the seller is to give utterly unsecured credit to the buyer for the interval until the check can be cashed."
Professor Corman in Cash Sales, Worthless Checks and The Bona Fide Purchaser, 10 Vanderbilt L.Rev. 55, 59, in reference to Williston's position states that "few American decisions have adopted Williston's proposition." He points out that the solution proposed by the Uniform Commercial Code, §§ 2-401(1) (b), 2-403(2), 2-403(3), conflicts with the approach evidenced in a major portion of American decisions and states that if the code is adopted", it will effect a reversal of presently established decisions." The author also notes that the "failure of the American Uniform Sales Act to include a section comparable to section 25(3) of the model English Sale of Goods Act, combined to encourage the increased application of the cash sale concept in worthless check cases." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604197/ | 130 N.W.2d 593 (1964)
177 Neb. 682
UNITED BENEFIT LIFE INSURANCE COMPANY, a corporation, Appellee,
v.
Nathan C. HOLMAN, Appellant, Impleaded with Betsey Holman, Appellee, Consolidated in District Court with Nate C. Holman, Appellant,
v.
United Benefit Life Insurance Company, a corporation, Appellee.
No. 35720.
Supreme Court of Nebraska.
October 23, 1964.
*594 Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, for appellant.
Fraizer & Fraizer, Lincoln, for appellee.
Heard before WHITE, C. J., CARTER, MESSMORE, YEAGER, BOSLAUGH, and BROWER, JJ., and DIERKS, District Judge.
WHITE, Chief Justice.
This is a mortgage foreclosure action. Defendants appeal from a decree of foreclosure for the full amount of the balance due, interest, and costs. The questions raised concern the effect of the acceleration clause in the mortgage and the necessity *595 of proof that no action at law was pending to collect the mortgage indebtedness.
The defendants executed the note and mortgage in question on Lot 6, Block 6, Woodsdale, an Addition to Lincoln, Nebraska, on September 19, 1955, in the sum of $16,200. Payments were made and accepted until October 1962. The defendants were in default of the October and November 1962 payments of $136.95 each. On December 4, 1962, the plaintiff owner of the mortgage, by certified mail, notified the defendants that in accordance with the terms of the mortgage, the plaintiff United Benefit Life Insurance Company was thereby exercising its right to declare the entire loan due and payable and further gave notice that no payments would be accepted except payment of the loan in full. Subsequent tenders of payment of the delinquent monthly installments, or the aggregates thereof, were rejected by the plaintiff. On October 18, 1963, decree was entered by the court in the sum of $12,810.11, the balance due on the whole mortgage indebtedness, together with interest, and costs.
Defendants argue that the letter of December 4, 1962, was ineffective to exercise the rights of the plaintiff under the acceleration clause of the mortgage. This letter stated: "In accordance with the terms of the mortgage covering your property, we are exercising our right to hereby declare the entire loan due and payable. We will not accept any payments except payment of your loan in full." (Emphasis supplied.) Defendants argue that the only effective method of exercise of the option is by bringing suit thereon, citing McCarthy v. Benedict, 89 Neb. 293, 131 N.W. 598; Moorehead v. Hungerford, 110 Neb. 315, 193 N.W. 706; Morling v. Bronson, 37 Neb. 608, 56 N.W. 205; and Wentland v. Stewart, 236 Iowa 661, 19 N.W.2d 661, 161 A.L.R. 1206. The effect of the above holdings is that the institution of suit effectively exercises the option regardless of previous actions of the parties. This court has never held that it is an exclusive method or that it is a condition precedent to the right of exercising the option. It is clear, moreover, that mere default and the declaration thereof, does not effectively exercise the acceleration right. We think the true and correct rule is stated in 36 Am.Jur., Mortgages, s. 393, p. 884, as follows: "* * * that where the acceleration of the maturity of a mortgage debt on default is made optional with the mortgagee, some affirmative action must be taken by him evidencing his election to take advantage of the accelerating provision, and that until such action has been taken, the provision has no operation. The exercise of the option should be made in a manner clear and unequivocal, so as to leave no doubt as to the mortgagee's intention. The option is effectively exercised by manifesting the fact in such manner as to apprise the mortgagor."
The validity and enforceability of an acceleration clause in a mortgage, such as this, are not questioned. It is difficult to see what further action than that taken in this case could be reasonably required of a mortgagee to ripen his option into an established right.
The letter of December 4, 1962, was clear and unequivocal and left no doubt as to the mortgagee's intentions. It was effective affirmative action establishing plaintiff's right to collect the full amount due. There is no merit to this contention.
Defendants argue that they tendered the amount of monthly payments in arrears before the action was filed and this should defeat the foreclosure. After valid exercise of the right to accelerate the maturity of the whole debt, the amount in default was the full amount due on the mortgage, and such tender is ineffective. If a default exists, and the option to accelerate is exercised by the mortgagee, the effect thereof cannot be defeated by the *596 mortgagor without the concurrence of the holder of the mortgage. Gasper v. Mazur, 157 Neb. 857, 62 N.W.2d 117. The exercise of the option terminates the right of the mortgagor to compel acceptance by the mortgagee of the defaulted monthly payments. See, 36 Am.Jur., Mortgages, s. 401, p. 888; Graf v. Hope Bldg. Corp., 254 N.Y. 1, 171 N.E. 884, 70 A.L.R. 984; Annotations, 70 A.L.R. 993, 31 A.L.R. 734.
Defendants argue a waiver of the right to foreclose because the plaintiff, over a period of years, accepted late payments. The defendants did not plead either estoppel or waiver, and the record is devoid of any evidence in this respect, except for the mortgagee's tolerance of or acquiescence in the late payments over a period of years. Defendants argue that the court should relieve against a forfeiture. Acceleration of the maturity date of a mortgage is not a forfeiture, not forbidden by statute, not contrary to public policy, and may be enforced. Matthews v. Guenther, 120 Neb. 742, 235 N.W. 98; Beisel v. Artman, 10 Neb. 181, 4 N.W. 1011. There is no merit to these contentions.
Plaintiff alleged, pursuant to the requirements of section 25-2142, R.R.S. 1943, that no proceedings at law had been had for the recovery of said mortgage indebtedness. The defendants denied this allegation. We have carefully examined the bill of exceptions in this case and there is an entire failure of proof in this respect. The witness for the plaintiff offered no testimony to support this allegation. It has been repeatedly held by this court that the allegation, although a negative one, unless admitted, must be proved in order to entitle the plaintiff to a decree of foreclosure. Beebe v. Bahr, 84 Neb. 191, 120 N.W. 1021; Jones v. Burtis, 57 Neb. 604, 78 N.W. 261; McMonies v. Lindgren, 115 Neb. 207, 212 N.W. 45; Hill v. Hinky-Dinky Stores Co., 133 Neb. 147, 274 N.W. 455; Reed v. Good, 114 Neb. 777, 209 N.W. 619.
This has long been the rule in this state. We cannot speculate as to compliance therewith. It is required by statute and the Legislature, over the years, has not seen fit to alter it. For this reason, the judgment must be reversed and the cause remanded for a new trial.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604294/ | 8 So. 3d 1232 (2009)
Andrew GIACALONE, Petitioner,
v.
HELEN ELLIS MEMORIAL HOSPITAL FOUNDATION, INC., Respondent.
No. 2D08-4807.
District Court of Appeal of Florida, Second District.
May 1, 2009.
*1233 Michael D. Walrath and Matthew W. Dietz of Law Offices of Matthew W. Dietz, P.L., Miami, for Petitioner.
Robert A. Vigh of Solomon, Ginsberg, and Vigh, P.A., Tampa, for Respondent.
WALLACE, Judge.
Andrew Giacalone petitions this court for a writ of certiorari to quash the circuit court's order denying his motion to compel responses to discovery requests propounded to Helen Ellis Memorial Hospital Foundation, Inc.[1] We hold that the circuit court's order departed from the essential requirements of the law, causing material injury to Mr. Giacalone for which there is *1234 no adequate remedy at law. Accordingly, we grant the petition and quash the circuit court's order.
FACTS AND PROCEDURAL HISTORY
On October 13, 2006, Mr. Giacalone was admitted to the Hospital on an emergency basis and underwent surgery during which a pacemaker was implanted. On his admission to the Hospital, Mr. Giacalone signed a standard form in which he agreedin pertinent part"to pay the account at the hospital in accordance with the regular rates and terms of the hospital." Mr. Giacalone was uninsured and requested that he be treated under the Hospital's charity program, claiming that he had no income or available credit. He was released on October 16, 2006. The next day, Mr. Giacalone paid the Hospital $1000 on his account. Subsequently, the Hospital determined that Mr. Giacalone was not eligible for the charity program.
On December 13, 2006, the Hospital's attorneys sent Mr. Giacalone a letter notifying him that he owed the Hospital $52,280.70. Mr. Giacalone responded promptly in writing and disputed the charges.
In February 2007, the Hospital filed an action against Mr. Giacalone seeking to recover the unpaid charges. Mr. Giacalone answered, asserting the affirmative defenses of unconscionability (unreasonable pricing), lack of mutual assent and fraudulent nondisclosure, and undue influence. He also counterclaimed, alleging claims for unfair or deceptive trade practices, breach of contract (implied covenants of good faith and fair dealing), and for declaratory relief. The central theme of Mr. Giacalone's defenses and counterclaims was that the Hospital's charges for its services were unreasonable and unconscionable.
Subsequently, Mr. Giacalone served on the Hospital a request for production of documents and a set of interrogatories. The Hospital objected to the production of most of the documents and declined to respond to several of the interrogatories. Mr. Giacalone filed a motion to compel discovery. After a hearing, the circuit court issued a form order denying the motion.
STANDARD OF REVIEW
A party seeking review of a pretrial discovery order must show that the trial court's order departed from the essential requirements of law and caused "material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.1987). Certiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal. State Farm Mut. Auto. Ins. Co. v. Peters, 611 So. 2d 597, 598 (Fla. 2d DCA 1993); see also Power Plant Entm't, LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So. 2d 565, 567 (Fla. 4th DCA 2007) ("[F]ew orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant certiorari review.").
However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence[2] and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested *1235 discovery would have affected the outcome of the proceedings. See Bush v. Schiavo, 866 So. 2d 136, 140 (Fla. 2d DCA 2004); Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA 2000); Criswell v. Best W. Int'l, Inc., 636 So. 2d 562, 563 (Fla. 3d DCA 1994).
DISCUSSION
The primary claim on which Mr. Giacalone bases his defenses and counterclaims is that the charges for the supplies and services rendered to him by the Hospital were unreasonable. The information Mr. Giacalone sought by his motion to compel was broadly pertinent to the Hospital's charges and the discounts granted to the various categories of patients that it serves (e.g., self-pay patients, Medicare patients, Medicaid patients, charity care patients, and privately insured patients) and to the Hospital's internal cost structure. Mr. Giacalone argues that this information was not only relevant but critical to establish his defenses and counterclaims. We agree.
In Payne v. Humana Hospital Orange Park, 661 So. 2d 1239 (Fla. 1st DCA 1995), the First District noted:
A patient may not be bound by unreasonable charges in an agreement to pay charges in accordance with "standard and current rates." Mercy Hosp. v. Carr, 297 So. 2d 598, 599 (Fla. 3d DCA 1974). When a contract fails to fix a price furthermore, a reasonable price is implied. See F.L. Stitt & Co. v. Powell, 94 Fla. 550, 556, 114 So. 375, 378 (1927) (holding that, where a contract for legal services fails to expressly provide for the amount of the fee, a "reasonable" fee is implied); McGill v. Cockrell, 88 Fla. 54, 58, 101 So. 199, 201 (1924) (where a contract fixes no definite sum to be paid for services, "a reasonable sum is presumed by law to have been contemplated by the parties"); cf. 19A Fla. Stat. Ann. 218 (1993) (§ 672.305(2): "A price to be fixed by the seller or by the buyer means a price for him to fix good faith."), cmt. at 219 ("This seemingly unnecessary admonition was included to deny to the seller the unbridled license to fix any exorbitant or unreasonable price he may wish.").
Id. at 1241 (footnote omitted). Thus the reasonableness of the Hospital's charges was the primary issue to be determined in the pending action. We also note that the Hospital first placed the reasonableness of its charges at issue by alleging in its complaint that "[t]he reasonable value of [its] unpaid services totals $52,280.70."
In Colomar v. Mercy Hospital, Inc., 461 F. Supp. 2d 1265 (S.D.Fla.2006), the United States District Court for the Southern District of Florida outlined three nonexclusive kinds of evidence relevant to the determination of a claim of unreasonable pricing by a hospital:
A thorough review of the case law from Florida and elsewhere leads to the conclusion that no single factor can be used to determine the reasonableness of Mercy's hospital charges. Rather, several non-exclusive factors are relevant to the inquiry. As discussed in more detail below, those factors include but are not necessarily limited to: (1) an analysis of the relevant market for hospital services (including the rates charged by other similarly situated hospitals for similar services); (2) the usual and customary rate Mercy charges and receives for its hospital services; and (3) Mercy's internal cost structure. Consideration of the [second amended complaint] in light of these factors establishes that Plaintiff has stated a claim for breach of contract and violation of [Florida's Deceptive and Unfair Trade Practice Act] based on unreasonable pricing.
Id. at 1269. Here, the order denying the motion to compel discovery prevents Mr. Giacalone from developing two of the three *1236 kinds of relevant evidence outlined by the Colomar court: (1) the discovery of the Hospital's charges and the discounts that it grants to the various categories of patients it serves and (2) the Hospital's internal cost structure. By preventing Mr. Giacalone from making any inquiry into this relevant information, the circuit court's order denying the motion to compel departs from the essential requirements of the law.
The Hospital argues that Mr. Giacalone has not shown irreparable injury because he has not exhausted other means of obtaining pertinent information, such as comparative market pricing. We disagree. The use of comparative market pricing is only one type of relevant information which may be helpful in establishing a claim of unreasonable pricing. As the Colomar court points out, the proof of such a claim may also involve inquiry concerning the usual and customary rates the Hospital charges and receives for its services and concerning the Hospital's internal cost structure, in addition to a comparative analysis of the relevant market. Colomar, 461 F.Supp.2d at 1269.
Furthermore, we note that the circuit court's order is a form order containing no explanation of its decision to deny the motion or an analysis of the individual requests. Under the circumstances shown here, such a blanket denial of relevant discovery is insufficient. See Towers v. City of Longwood, 960 So. 2d 845, 849 (Fla. 5th DCA 2007) (holding that the trial court's order labeling the entire document production process a fishing expedition was "insufficient, particularly where it is obvious from looking at the notice to produce and the allegations in the complaint that the document production is being directed at many relevant items").
Finally, we have not overlooked the Hospital's argument that the circuit court properly denied the motion to compel because the information requested by Mr. Giacalone constitutes trade secrets. However, we need not address this issue. Although the Hospital asserted its trade secrets claim in opposition to the motion to compel, the circuit court made no finding either at the hearing on the motion to compel or in its written order that any of the requested information constitutes trade secrets. When the circuit court reconsiders the motion to compel on remand, it should give appropriate consideration to the trade secrets issue under section 90.506, Florida Statutes (2008). See Ameritrust Ins. Corp. v. O'Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005).
CONCLUSION
We conclude that much of the information Mr. Giacalone seeks is either directly relevant to his defenses and counterclaims or is reasonably calculated to lead to the discovery of admissible evidence. Because the documents sought and the questions raised in the interrogatories are critical to Mr. Giacalone's defenses and counterclaims, the circuit court departed from the essential requirements of the law in making a blanket denial of Mr. Giacalone's discovery requests. On remand, the circuit court should reconsider the individual requests and address the Hospital's trade secrets claim.
The circuit court's order will cause irreparable injury that cannot be remedied on appeal. Accordingly, we grant the petition, quash the circuit court's order, and remand for further proceedings consistent with this opinion.
Petition granted; order quashed.
KELLY and VILLANTI, JJ., Concur.
NOTES
[1] We will refer to both the corporate entity and the hospital it operates as "the Hospital."
[2] See Fla. R. Civ. P. 1.280(b)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1511100/ | 266 S.W.2d 846 (1954)
HICKS
v.
MATTHEWS.
No. A-4394.
Supreme Court of Texas.
March 10, 1954.
*847 Collins, Garrison, Renfrow & Zeleskey, Lufkin, V. A. Collins and R. H. Jones, Livingston, for petitioner.
Campbell & Foreman and Ross Hightower, Livingston, Smith & Lehmann, J. Edwin Smith, Houston, for respondent.
HICKMAN, Chief Justice.
Respondent, Kenneth C. Matthews, brought this suit against petitioner, D. W. Hicks, an officer of the State Highway Patrol, for actual and exemplary damages for an alleged illegal arrest and false imprisonment and for the alleged failure of the petitioner to accord him his legal right to be taken before a magistrate immediately after his arrest. In the trial court, judgment was rendered against petitioner for $10,000 as actual damages and $5,000 as exemplary damages. Upon appeal the honorable Court of Civil Appeals found that the amount awarded as actual damages was excessive to the extent of $9,500 and that the amount awarded as exemplary damages was excessive to the extent of $4,500. A remittitur of those amounts having been filed, the judgment of the trial court was reformed and, as reformed, was affirmed. Tex.Civ.App., 261 S.W.2d 207.
Five special issues were submitted to the jury. Issue No. 2 was submitted conditionally and not answered. Issue No. 4 submitted the question of whether exemplary damages should be allowed, and issue No. 5 called for a determination of the amount of exemplary damages. The two special issues material to our decision, together *848 with the answers of the jury thereto, read as follows:
"Special Issue No. 1. Do you find from a preponderance of the evidence that at the time of the arrest in question neither of the magistrates was in his office, or reasonably available, for the presentment of Kenneth C. Matthews: You will answer this question `Yes' or `No.' Answer: No."
"Special Issue No. 3. What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably compensate plaintiff, Kenneth C. Matthews, for the actual damages, if any, sustained by him on the occasion in question, as a direct result of the detention and incarceration of plaintiff, Kenneth C. Matthews, without having been carried immediately before a magistrate having jurisdiction of either of the offenses with which he is charged?
"You will answer this question in dollars and cents, if any.
"Answer: $10,000.00."
The record discloses that Special Issue No. 3 as originally prepared authorized the jury to consider the damages sustained by respondent as a result of the arrest, but, in response to objections by petitioner, the court deleted the word "arrest" from the issue and submitted it as disclosed above.
We sustain petitioner's contention that the only theory of liability submitted by the special issues above quoted was the failure of petitioner to present respondent before a magistrate immediately after the arrest. Liability for unlawful arrest or false imprisonment is not, in our view, covered by the special issues. We also sustain petitioner's contention that the answer of the jury to special issue No. 1 has no support in the evidence, and that therefore no liability can be predicated against him on the ground that he violated respondent's right to be presented immediately before a magistrate.
Petitioner arrested respondent at approximately 4:00 p. m. on July 3, 1950, for a claimed violation of law growing out of a traffic accident, and took him at once to the county jail and delivered him into the custody of the sheriff. He then drove a Mr. Hayman, owner of a lien on the car involved in the accident, to a garage somewhere in the town of Livingston, and proceeded on to the courthouse to prepare complaints against respondent. Petitioner shared office space with the justice of the peace in the courthouse and knew that the justice had not been present in his office that afternoon. The county judge was out of the city. When respondent was placed in jail, petitioner requested Deputy Sheriff Holbrook to look for the justice of the peace. Holbrook went at once throughout the downtown area looking for him, and not being able to find him there, he telephoned the justice at his residence. In response to the telephone call the justice came to his office, arriving there just after the petitioner had finished preparing the complaints. The complaints were handed to the justice and at about the same time respondent's attorney appeared and made bond for his client, who was immediately released. The time which elapsed between the placing of respondent in jail and his release on bond was approximately one hour.
Section 147 of the Uniform Act Regulating Traffic on Highways, enacted by the 50th Legislature, 1947, Chapter 421, page 967 et seq., brought forward in Vernon's Texas Civil Statutes as Article 6701d, makes it the duty of an officer, under certain circumstances therein named, who arrests a person for any violation of the Act punishable as a misdemeanor, to immediately take the party arrested "before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, * * *." It is not clear that any of the circumstances which imposed that duty upon the arresting officer existed in this case, but, granting that one or more of such circumstances *849 did exist, it is our conclusion that the petitioner did not violate his duty in that respect. The word "immediately" is a term of relative signification. Sometimes it is understood to mean instantaneously or without intervention of time, but, as used in most statutes, it is not to be construed so strictly. The law must be given a practical and reasonable application. Accordingly, the word "immediately" is very generally held to mean with due diligence. The accused has the right to be presented without delay, but the question of what is delay must be determined by all the facts and circumstances. Necessarily some time must elapse between the arrest and the presentment before the magistrate. Venable v. Huddy, 77 N.J.L. 351, 72 A. 10; Mullins v. Sanders, 189 Va. 624, 54 S.E.2d 116; State for Use of Kelley v. Yearwood, 204 Miss. 181, 37 So. 2d 174; Fouraker v. Kidd Springs Boating and Fishing Club, Tex.Civ.App., 65 S.W.2d 796 (no writ history); Haverbekken v. Hollingsworth, Tex.Civ.App., 250 S.W. 261 (no writ history); Bishop v. Lucy, 21 Tex. Civ. App. 326, 50 S.W. 1029 (no writ history). While courts must safeguard the rights of individuals, they should not impose liability upon peace officers for delays which are reasonable under all the circumstances. The statute does not make it the duty of the officer to take the accused to the office of the justice of the peace when he knows or has good grounds for the belief that the justice is not in his office. It would have served no purpose whatever for the petitioner to have taken respondent to the courthouse before delivering him at the jail.
When he surrendered possession of the prisoner to the sheriff, he at once requested the deputy sheriff to look for the justice of the peace. No time was lost by petitioner in going to his office and preparing the complaints, and no time was wasted by the deputy sheriff in looking for the justice of the peace. It was but natural that he look in town before telephoning the residence. When he did telephone, the justice of the peace came promptly to his office and approved a bond releasing the prisoner. These facts afford no support for a finding that the petitioner violated his duty to the respondent to present him immediately before a magistrate.
Having determined that the judgments of the lower courts must be reversed, there remains the question of whether judgment should be rendered here that respondent take nothing or the case be remanded to the trial court. It is the position of petitioner that, since the only ground of liability submitted to the jury was his failure immediately to take the respondent before a magistrate, and since respondent did not request the submission of any special issue on any other ground of liability, he thereby waived his right of recovery upon any other ground under Rule 279, Texas Rules of Civil Procedure, and that judgment should therefore be rendered by this court that he take nothing. We cannot adopt that view. The rule is one of procedure only, and the waiver under the rule pertains only to the particular trial involved in the appeal. Ford v. Hackel, 124 Tex. 402, 77 S.W.2d 1043; Adkins-Polk Co. v. Rhodes, Tex.Com.App., 24 S.W.2d 351; Galveston, H. & S. A. R. Co. v. Price, Tex.Com.App., 240 S.W. 524. The only points presented here are directed to the failure of the trial court to render judgment non obstante veredicto. Judgment non obstante veredicto may be rendered by the trial court only in a case where a directed verdict would have been proper. Rule 301, T.R.C.P. A directed verdict would not have been proper in this case, because the pleadings and evidence raised the issue of liability for unlawful arrest. The opinion of the Court of Civil Appeals so holds, and that holding is not challenged in this court.
Further, this court, upon reversing the judgment of the trial court, should remand the case for another trial "if it shall appear that the justice of the case demands another trial". Rule 505, T.R.C.P. This court exercises a wide discretion in determining whether it should render final judgment here or remand the case for another trial. The fact that a *850 peremptory instruction would have been justified does not necessarily mean that the cause should not be remanded to the trial court. Associated Oil Co. v. Hart, Tex.Com.App., 277 S.W. 1043; Texas Employers' Insurance Ass'n v. Herring, Tex.Com.App., 280 S.W. 740. The opinion in Associated Oil Co. v. Hart, supra [277 S.W. 1045], cites many cases in support of this holding: "It is the rule, where a judgment has been reversed, to remand to the trial court rather than to render, where the ends of justice will be better subserved thereby. Such remanding has often been ordered to supply additional testimony, to amend the pleadings, and even to show jurisdiction."
The case was submitted to the jury and decided by the lower courts on what we conceive to be an erroneous theory of law, and it has been long established as a rule of this court that in such instances we should remand the case rather than render judgment contrary to that of the trial court. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178. Accordingly, it is ordered that the judgments of both courts below be reversed and the cause remanded to the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/691339/ | 49 F.3d 1144
41 Fed. R. Serv. 897
UNITED STATES of America, Plaintiff-Appellee,v.James N. BARNES (93-6120) and Doyle R. Pate, Jr. (93-6149),Defendants-Appellants.
Nos. 93-6120, 93-6149.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 3, 1994.Decided March 17, 1995.
Terry Cushing, Asst. U.S. Atty. (argued), Philip C. Chance, Asst. U.S. Atty. (briefed), Louisville, KY, for plaintiff-appellee.
Foster V. Jones, Jr. (argued), Trisha Zeller James (briefed), Louisville, KY, for defendant-appellant.
Before: MILBURN, DAUGHTREY, and WEIS,* Circuit Judges.
WEIS, Circuit Judge.
1
In this appeal, defendants contend that the prosecution failed to give advance notice of its intention to produce evidence of other crimes or wrongs as required by Fed.R.Evid. 404(b). We conclude that the government has a continuing obligation to give such notice, but in this instance, the challenged evidence was "intrinsic" to the crime charged and thus was not within the scope of the Rule. Accordingly, we will affirm the defendants' convictions for drug trafficking.
2
In March 1992, defendants James Barnes and Doyle Pate drove a pickup truck to the United Parcel Service facility in Owensboro, Kentucky to claim a package. Upon their arrival, Pate got out of the truck and was seen placing a pistol on the seat. Pate then walked into the building and was arrested as he left with a parcel containing methamphetamines. Barnes, also armed with a pistol, had waited in the truck, and he, too, was taken into custody at that time.
3
Pate filed a pretrial motion for discovery requesting a list of witnesses the government might call and their anticipated testimony. In a pretrial memorandum, the government stated that it was "unaware of any specific trial problems which should be anticipated by the Court."
4
One evening while the trial was in progress, the government learned that Pate had made incriminating statements in a discussion with his former cell mate, witness Samuel Watson. In that conversation, Pate commented that on the day of his arrest, he was expecting the UPS package to make up for a shortage in an earlier drug shipment.
5
At a chambers conference the following morning, before the trial resumed for the day, the prosecutor discussed with defense counsel and the trial judge evidence that might be used to impeach Watson. The Assistant U.S. Attorney, however, did not disclose the content of Pate's statements to Watson about the earlier underweight drug shipment.
6
Later that morning, while Watson was on the witness stand, the prosecutor asked about the conversation with Pate. Watson responded, "We was talking about drugs coming through the UPS and that it was hard to trust people that was far away sending you drugs, and he stated that the last package he'd received was short. It was supposed ..." At that point, the trial judge called counsel to the bench. Defense counsel then objected to the testimony as involving "other crimes or wrongs" evidence about which it had received no prior notice from the government.
7
The trial judge reprimanded the Assistant U.S. Attorney for attempting to introduce evidence under Fed.R.Evid. 404(b) without giving advance notice to the court in accordance with local practice. The judge questioned, however, whether defense counsel had properly requested notice as required by the Rule. After making various findings, the trial judge ruled that the evidence was "intrinsically related" to the acts charged in the indictment and also that the evidence was admissible under Rule 404(b), although he was troubled by the government's failure to give notice of its intention to introduce Pate's admission to Watson.
8
Barnes was convicted of possession with intent to distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and of carrying a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). Pate, too, was convicted on the drug charge but was acquitted on the count alleging possession of a firearm during the commission of a drug trafficking offense. However, Pate was convicted on an additional count asserting that he violated 18 U.S.C. Sec. 922(g)(1) (possession of a firearm by a convicted felon).
9
Barnes was sentenced to consecutive sentences aggregating 181 months. Because of his prior conviction for a felony narcotics offense, Pate received the mandatory minimum sentence of 240 months on the drug possession charge. Additionally, Pate received a concurrent sentence of 120 months on the count charging firearm possession by a convicted felon.
10
Both defendants have appealed the trial court's ruling on Watson's testimony. Pate has also appealed his sentence, contending that because the jury acquitted him of possessing a firearm during the commission of the drug offense, he should not have been given a two-level enhancement in calculating his sentence under U.S.S.G. Sec. 2D1.1(b)(1) (1992).I.
11
Federal Rule of Evidence 404(b), with certain exceptions, prohibits the admission of evidence of other crimes or wrongs "to prove the character of a person in order to show action in conformity therewith." In 1991, the Rule was amended to provide that if evidence is admissible for other reasons, such as proof of motive, opportunity, intent, preparation, plan, identity, etc., "upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b).
12
The Advisory Committee explained that the amendment "is intended to reduce surprise and promote early resolution on the issue of admissibility. The notice requirement thus places Rule 404(b) in the mainstream with notice and disclosure provisions in other rules of evidence." Id. Advisory Committee's note (1991 amendment).
13
Although it does not call for any specific form of notice, "[t]he Rule expects that counsel for both the defense and the prosecution will submit the necessary request and information in a reasonable and timely fashion." Id. The court has the discretion to determine reasonableness under the circumstances, but the Committee note cautioned that "[b]ecause the notice requirement serves as [a] condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met." Id.
14
A respected commentary points out that the amendment provides no specific sanction for the failure to give notice, that the notice must be of a "general nature," and that compliance can be delayed until trial if the court finds "good cause." 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure Sec. 5249, at 580 (Supp.1994). "This was apparently as much notice as the Justice Department was willing to tolerate; it remains to be seen if it will be of much use to criminal defendants." Id. The amendment, but another small step toward improving the discovery process in criminal trials, has not been in effect for very long and, understandably, has received little appellate scrutiny.
15
In United States v. Tuesta-Toro, 29 F.3d 771 (1st Cir.1994), the Court of Appeals for the First Circuit concluded that a request for notification "must be sufficiently clear and particular, in an objective sense, fairly to alert the prosecution that the defense is requesting pretrial notification...." Id. at 774. In that case, an omnibus defense motion requesting "confessions, admissions and statements ... that in any way exculpate, inculpate or refer to the defendant" was held to be insufficient to comply with Rule 404(b). Id.
16
In United States v. Matthews, 20 F.3d 538, 551 (2d Cir.1994), the Court of Appeals for the Second Circuit concluded that the government was not required to furnish pretrial notice of its intention to introduce testimony about a defendant's prior assault on one of its witnesses. In that case, the evidence was introduced on re-direct examination by the government to bolster the credibility of a witness whose character had been vigorously attacked during cross-examination. However, it is questionable whether Rule 404(b) even applied in that instance.
17
The Court commented that the witness was a confidential informant and that Rule 404(b) did not require disclosure of her name to the defense. Revealing the "other crimes or wrongs" testimony would have unmistakably identified the witness, and notice before trial, therefore, would have disclosed the name of the informant. In that situation, pretrial disclosure should have been a matter for the trial court's discretion in weighing all the pertinent factors.
18
Probably because the point was not raised, Matthews did not discuss the applicability of the Rule 404(b) notice requirement after the trial had begun and the confidential informant had already taken the stand. Although the opinion on the notice requirement is vague, it would seem that once the identity of the witness had become known, no further reason would exist to excuse the government's obligation to disclose the "other crimes" evidence.
19
Rule 404(b) does not discuss at what point, in ordinary circumstances, notice must be given and a response filed. In United States v. Kern, 12 F.3d 122, 124 (8th Cir.1993), the magistrate judge directed the government at a pretrial conference to furnish Rule 404(b) information at least fourteen days before trial. However, because the government was unable to obtain the necessary records until one week before the trial began, the court found that the notification at that point to the defense was reasonable.
20
In United States v. French, 974 F.2d 687, 694-95 (6th Cir.1992), the government notified the defense one week before trial of its intent to produce "other crimes" evidence. Although the trial apparently had taken place before the adoption of the 1991 amendment to Rule 404(b), we concluded that the district court's approval of a one-week notice to the defense did not amount to an abuse of discretion under the circumstances. See also United States v. Sutton, 41 F.3d 1257, 1258-59 (8th Cir.1994); United States v. Perez-Tosta, 36 F.3d 1552, 1560-63 (11th Cir.1994).
21
Rule 404(b) does not recite whether there is a continuing obligation to disclose "other crimes" evidence that the government discovers after it has initially either provided or denied its intent to use such information. However, Fed.R.Crim.P. 16(c), referring to discovery in criminal cases, has long required a party to disclose additional evidence discovered after a previous request for information has been answered. Although Fed.R.Crim.P. 16(c) refers to evidence or material "subject to discovery or inspection under this rule," we believe that for reasons of efficiency and fairness, a similar continuing obligation to disclose applies to Fed.R.Evid. 404(b).1 A contrary reading would force the defense to make numerous, periodic requests until the trial has been completed--surely a wasteful procedure.
22
In Tuesta-Toro, 29 F.3d at 775 n. 1, the Court speculated in a footnote that Rule 404(b), as drafted, might be read as requiring the government to provide information only as of the time the response was made. The Court, however, expressly did not decide the point.
23
After due consideration, we conclude that Rule 404(b) does place an initial duty on the defense to request the prosecution to furnish "other crimes" evidence. The request need not be in technical terms, but it must be such as to be, in an objective sense, reasonably understandable. Once made, the request imposes a continuing obligation on the government to comply with the notice requirement of Rule 404(b) whenever it discovers information that meets the previous request.
24
The trial court must exercise its discretion in determining whether the government is excused from submitting a timely response or whether the circumstances are such that compliance must await further events. Factors for consideration might include a concern about the identification of a confidential informant or a credible belief that the protection of a witness is required.
25
In the case at hand, we are troubled--as was the trial judge--by the government's failure to disclose the asserted Rule 404(b) evidence before the witness was questioned in front of the jury. Although we credit the government's position that it did not learn of the specific evidence until the trial was already in progress, the defense and the trial court could nevertheless have been notified before Watson took the stand.
26
There is also difficulty with the defense's contention that it submitted a suitable request under Rule 404(b). Although we do not insist on a request that specifically cites Rule 404(b), cf. United States v. Williams, 792 F. Supp. 1120, 1133-34 (S.D.Ind.1992), United States v. Alex, 791 F. Supp. 723, 728-29 (N.D.Ill.1992), we agree with Tuesta-Toro that an overly broad and generalized discovery request does not comply with the Rule.
27
By the same token, however, the government's notice must characterize the prior conduct to a degree that fairly apprises the defendant of its general nature. United States v. Birch, 39 F.3d 1089, 1093-94 (10th Cir.1994); United States v. Jackson, 850 F. Supp. 1481, 1493 (D.Kan.1994). Moreover, the notice given to the defense regarding "other crimes" evidence must be sufficiently clear so as "to permit pretrial resolution of the issue of its admissibility." United States v. Long, 814 F. Supp. 72, 74 (D.Kan.1993). See generally Colleen A. O'Leary et al., Project, Eighth Survey of White Collar Crime: Discovery, 30 Am.Crim.L.Rev. 1049, 1075-78 (1993). The notice requirement is now firmly embedded in Rule 404(b), and courts should rebuff efforts to nullify the Rule's aim of enhancing fairness in criminal trials.
28
In this case, the defense simply asked for a list of witnesses the government intended to call and their anticipated testimony. That request was so broad that it is questionable that it should have fairly alerted the government to supply evidence under Rule 404(b). We do note, however, that the government represented in its pretrial statement that it was "unaware of any specific trial problems which should be anticipated by the Court." Although we might expect Rule 404(b) admissibility to fall into such a category, the lesson that might be gleaned from this case is that it is more prudent for defense counsel to include a reference to Rule 404(b) in the boilerplate request for discovery under Fed.R.Crim.P. 16.
29
Although the defendants have vigorously pressed this case on the basis of the government's failure to supply Rule 404(b) information, we prefer to follow another route--that the disputed testimony was not within the scope of the Rule. In United States v. Torres, 685 F.2d 921, 924 (5th Cir.1982) (per curiam), the Court of Appeals explained that Rule 404(b) does not apply where the challenged evidence is "inextricably intertwined" with evidence of the crime charged in the indictment.
30
When the other crimes or wrongs occurred at different times and under different circumstances from the offense charged, the deeds are termed "extrinsic." "Intrinsic" acts, on the other hand, are those that are part of a single criminal episode. Rule 404(b) is not implicated when the other crimes or wrongs evidence is part of a continuing pattern of illegal activity. When that circumstance applies, the government has no duty to disclose the other crimes or wrongs evidence.
31
The 1991 Advisory Committee note to Rule 404(b) is in agreement: "The amendment does not extend to evidence of acts which are 'intrinsic' to the charged offense, see United States v. Williams, 900 F.2d 823 (5th Cir.1990)...." For similar holdings, see United States v. Dozie, 27 F.3d 95, 97 (4th Cir.1994) (per curiam), United States v. Nicholson, 17 F.3d 1294, 1298 (10th Cir.1994), United States v. Sparks, 2 F.3d 574, 581 (5th Cir.1993), and United States v. Lambert, 995 F.2d 1006, 1007-08 (10th Cir.1993).
32
In this case, there was a direct connection between the earlier "short" drug shipment and the receipt of the one for which defendants were charged. The trial court concluded that the evidence could stand for the proposition that the drugs which were the subject of the indictment were "to make up for a prior shipment which was short." We agree that the challenged testimony was intrinsic to the conduct alleged in the indictment, and consequently, Rule 404(b) was not implicated. We therefore reject the defendants' contention that the introduction of Watson's testimony was erroneous.2
II.
33
Defendant Pate has raised an additional issue, a challenge to his sentence. As noted earlier, Pate was acquitted of the charge of using or carrying a firearm during the commission of a drug trafficking offense, 18 U.S.C. Sec. 924(c), but was found guilty of being a convicted felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1).
34
During the sentencing hearing, the trial judge stated that he intended to apply a two-level increase to the Guideline computation pursuant to U.S.S.G. Sec. 2D1.1(b)(1). The judge pointed out that he was not sentencing under the count on which defendant had been acquitted, but "with the evidence that I have in front of me on this matter, I will find that he did possess this weapon in the commission of this offense ...," and accordingly, the enhancement was proper.
35
Section 2D1.1(b)(1) provides that "[i]f a dangerous weapon (including a firearm) was possessed [during the commission of a drug offense], increase by 2 levels." In United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990), a case similar to the one before us, we held that the sentencing judge properly applied the enhancement notwithstanding the fact that the jury had found the defendant not guilty of the charge of violating 18 U.S.C. Sec. 924(c), the same section pertinent here. Hence, it is clear that Duncan controls, and we must reject Pate's attack on his sentence.
36
Even if we were to conclude that Duncan is not dispositive on this issue, we observe that the district court properly sentenced Pate to 240 months imprisonment. When the maximum Guideline sentence is less than the statutorily required mandatory minimum, the latter is the effective sentence. U.S.S.G. Sec. 5G1.1(b) (1992); see also United States v. Goff, 6 F.3d 363, 366-67 (6th Cir.1993). Because Pate had previously been convicted of a felony drug violation and the current offense involved more than one kilogram of a methamphetamine substance, the district court was required to apply the 20-year mandatory minimum in 21 U.S.C. Sec. 841(b)(1)(A)(viii). Even assuming that the enhancement should not have been applied, the applicable Guideline range would have been less than the mandatory minimum, and consequently, even if considered to be an error, adding the enhancement had no effect on Pate's sentence.
37
Accordingly, the judgments of the district court will be affirmed.
*
The Honorable Joseph F. Weis, Jr., Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation
1
See also Fed.R.Evid. 102 (rules of evidence should be construed to promote fairness and efficiency); Fed.R.Evid. 412(c)(1) (written notice required 15 days in advance of trial); Fed.R.Evid. 609(b) (written notice required to be given to adverse party with a fair opportunity to contest the use of such evidence); Fed.R.Evid. 803(24) (advance notice required to give adverse party a fair opportunity to meet the evidence); Fed.R.Evid. 804(b)(5) (same)
2
We also find no merit in the defendants' contention that Watson's testimony was inadmissible under Fed.R.Evid. 403 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/482941/ | 811 F.2d 586
33 Cont.Cas.Fed. (CCH) 75,065
CONTRACT CLEANING MAINTENANCE, INC., Appellant,v.The UNITED STATES, Appellee.
Appeal No. 86-1123.
United States Court of Appeals,Federal Circuit.
Feb. 12, 1987.
Carole Boltz and Sharon Gisselman, Wausau, Wis., argued for appellant. With them on brief was Gary R. McCartan, S.C.
Stephen J. McHale, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan, Asst. Director.
Before FRIEDMAN and RICH, Circuit Judges, and BALDWIN, Senior Circuit Judge.*
FRIEDMAN, Circuit Judge.
1
This is an appeal from an order of the United States Claims Court dismissing the appellant's complaint seeking the amount allegedly due it under a government contract. The ground of dismissal was that the complaint asserted a claim of more than $50,000 that was not certified, as section 6(c)(1) of the Contract Disputes Act of 1978, 41 U.S.C. Sec. 605(c)(1), required. We reverse.
2
* The undisputed facts are as follows:
3
A. The General Services Administration (GSA) awarded the appellant a one-year contract to provide cleaning services for a federal office building. The appellant began performance of the contract in July 1974, and GSA exercised an option to extend the contract for one year. The contract expired at the end of July 1976.
4
Under the contract, the appellant was to be reimbursed for its actual costs up to a specified ceiling. The appellant submitted monthly invoices to GSA for the costs it incurred. Each of these invoices included a "certif[ication] that the amounts invoiced herein do not exceed the lower of (i) the contract price, or (ii) the maximum levels established in accordance with Executive Order 11695, January 11, 1973."
5
In a letter dated August 12, 1975, GSA informed the appellant that GSA's audit of the first year of performance of the contract determined that the appellant's "accounting system is quite unsatisfactory for use under our contract." The letter stated that "[i]mmediate action must be taken" and required a response by August 25. In a letter dated April 27, 1976, GSA notified the appellant that, as a result of this audit, "adjustments" of $17,240 would be made. The GSA official concluded:
6
I concur in the auditor's proposed adjustments and will appreciate a reply by May 3, 1976, advising me when a credit will be reflected on your billing.
7
In a May 12, 1976 response, the appellant excepted to some of the findings, requested more detailed information, and
8
suggest[ed] that I sit down with whomever prepared this summary along with the auditors report and we may be able to determine a final result.
9
(All of appellant's letters were written in the first person singular and signed by its president, Howard Boltz.)
10
On June 4, 1976, GSA acknowledged the appellant's letters
11
concerning your claim for compensation of $8,700 ... and the exceptions you take on some of the findings arising from the last audit of your company records.
12
Your claim for compensation of $8,700 has neither been denied or allowed, but is still under consideration, together with the other costs questioned by our auditors.
13
The letter referred to "our meeting on May 11, 1976," and requested "additional information to substantiate your claims."
14
As noted, the contract terminated at the end of July 1976. The appellant wrote to GSA again on October 15, 1976:
15
In further response to your letter of April 27, 1976, and the final financial adjustments to contract No. 65-05BB-41700 (Neg).
16
Your letter suggest an audit adjustment of $17,240. After the items that make up that amount are resolved, there are additional funds I am entitled too and I have outlined them here.
17
.... [The letter then described these "additional funds," which totalled $23,232.98.]
18
I am troubled that your offices have held up payment of billing # 12 of my second year of this contract. I'm informed that the action is a result of our mutual inability to satisfactorily conclude the first years final billing.
19
I am anxious to remedy any cause of these delays and fully prepared to act promptly with you and your staff to finalize and conclude this matter.
20
In a letter dated February 7, 1977, GSA reported to the appellant the results of its final audit of the appellant's performance of the contract:
21
The number and amounts of the cost adjustments are sizable, covering not only the final period adjustments but also those unresolved from the prior year audit. I concur with the results of the audit and wish to arrive at a settlement as soon as possible so final payment can be made. I note that our negotiations to settle the first year audit findings date back to April 27, 1976, and adjustments totalling $42,007 are still outstanding.
22
The final audit concluded that additional "adjustments" for the second year of $35,787 were required, bringing the overall total adjustments to $77,794. In its response on February 15, 1977, the appellant requested that "a preliminary meeting be arranged ... to ascertain what exactly should be resolved and how to achieve satisfaction without a lot of lost time."
23
The appellant wrote again to GSA on March 15, 1979, concerning "the monies my company still has coming":
24
My contention is that I am owed my 12th and 13th bill of the second year totaling $66,605.45, plus additional sums not previously billed that I wrote your office about October 15, 1976; this is an additional $23,232.98 and reflects a credit for some figures that were in error previously. I was not aware until our last meeting with your auditor that I was entitled to bonding costs which amounted to $9,427.00. Now these four items mentioned total $99,609.69.
25
....
26
There have been inconsistencies that have greatly contributed to the resulting delay in settling the financial conclusions of this contract and I suggest we resolve this matter with negotiation as opposed to further bookkeeping and auditor effort.
27
In a letter dated April 11, 1980, GSA "acknowledge[d the appellant's] March 10, 1980 letter concerning settlement," and stated that the appellant "must provide evidence to substantiate the unpaid claims that have not been resolved."
28
B. On September 23, 1983, GSA sent a certified letter to the appellant which read in full:
29
This is in regard to our expired contract GS-05B-41770 [sic] which was for cleaning services at the Federal Building, 1819 Pershing Road, Chicago, Illinois.
30
In 1977 our auditors advised that under the above contract there was $77,794.00 adjustments outstanding in the above contract. Numerous efforts have been made by GSA to resolve this amount disputed by your firm.
31
Please be advised that should you have any documentation pertaining to this amount you should present it to the undersigned no later than October 17, 1983. No further delays will be accepted in resolving this and closing out this contract.
32
The appellant responded on October 17, 1983, with a letter that substantially duplicated its letter of March 15, 1979.
33
GSA issued a "final decision of the Contracting Officer" on October 25, 1983, which stated that the appellant had "failed to provide any documentation to refute the GSA claim of $77,794.00 costs questioned in the GSA audit report." The contracting officer ruled, however, that the appellant was entitled to a credit of $9,427.00 for bonding costs, which reduced the amount due GSA to $68,367.00. Since GSA had withheld $66,605.45 by not paying two of the appellant's invoices, GSA concluded that the appellant owed it $1,762.55.
34
C. The appellant filed a timely suit in the Claims Court under the Contracts Dispute Act, 41 U.S.C. Secs. 601-13 (1978) (Disputes Act), seeking $99,265.43 under the contract. The Claims Court granted the government's motion to dismiss. It held that the appellant's letter of March 15, 1979, constituted a "claim" for more than $50,000 which, under the Disputes Act (which had become effective on March 1, 1979), was required to be certified, and that because of this noncertification, the court had no jurisdiction over the suit. The court stated that prior to the March 15, 1979 "claim," the appellant "had submitted a claim to GSA dated October 15, 1976, in the amount of $23,232.96 [sic]" which the "March 15, 1979 claim included...." The court rejected the government's contention that the appellant's submissions prior to March 1, 1979, were not "claims,"
35
since each of the mentioned submissions was, in fact, a "written demand or assertion by one of the parties, seeking, as a matter of right, the payment of money, adjustment, or interpretation of contract terms, or other relief arising under or relating to this contract." Z.A.N. Co. v. United States, 6 Cl.Ct. [298,] 304 [ (1984) ].
II
36
A. Section 6(a) of the Disputes Act provides in relevant part:
37
All claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.
38
41 U.S.C. Sec. 605(a). For claims of more than $50,000, the contractor must
39
certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable.
40
41 U.S.C. Sec. 605(c)(1). If such a claim has not been certified, the Claims Court lacks jurisdiction over an appeal from the decision of the contracting officer denying the claim. See W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338-39 (Fed.Cir.1983).
41
"[W]hen[, however,] a contracting officer renders a decision after the effective date of the Act on an uncertified claim submitted prior to that date, the contractor may proceed under the Act and appeal to this court." Folk Constr. Co., 226 Ct. Cl. 602, 605 (1981). Since none of the appellant's invoices or letters included this certification, the "seminal issue in this action is," as the Claims Court stated, "whether plaintiff's claims were submitted to the contracting officer prior or subsequent to March 1, 1979, the effective date of the CDA."
42
The Claims Court found that, in its October 15, 1976 letter, the appellant "had submitted a claim to GSA" for $23,232.98. It held, however, that the submission of this claim before the effective date of the Disputes Act did not bring this case within the Folk rule. Stating that the March 15, 1979 "claim" for $99,609.69 "included the $23,232.96 [sic] claim amount," the court concluded:
43
Under the requirements of section 6(c)(1) of the CDA, plaintiff's claim dated March 15, 1979 had to certify that the claim was made in good faith, that the supporting data are accurate and complete to the best of the contractor's knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable. Because plaintiff's March 15, 1979 claim included both prior outstanding claim amounts, demonstrating that over $50,000 was at issue, and since the post-CDA claim was submitted after March 1, 1979 without certification, plaintiff has not satisfied the requisite steps to satisfy the statutory jurisdictional requirements set forth in the CDA.
44
The rationale upon which the Claims Court dismissed the suit is unclear. The court may have concluded that the first time the appellant filed a claim for more than $50,000 was in its March 15, 1979 letter and that under the Disputes Act that "claim" was required to be certified. Alternatively, the court may have concluded that that letter superseded and took the place of all claims the applicant had filed previously, and that because that superseding claim was more than $50,000, it was required to be certified. Whatever may have been the basis of the Claims Court's decision, however, that decision cannot stand.
45
This court dealt with a similar issue in Tecom, Inc. v. United States, 732 F.2d 935 (Fed.Cir.1984). There the contractor originally filed with the contracting officer in 1980 a claim for slightly more than $11,000 which, because it was for less than $50,000, was not required to be certified. The contracting officer denied the claim. The contractor appealed to the board of contract appeals, and in its complaint to the Board sought more than $72,000. The increase in the claim reflected the government's extension of the term of the contract. The Board upheld the contracting officer, and the contractor appealed to this court.
46
The government contended that, because the claim before the Board was for more than $50,000 and was not certified, we had no jurisdiction over the appeal. We rejected that contention, pointing out that
47
[b]y the statutory terms, the certification requirement applies to submission of claims to the contracting officer; certification at that time, if required, is all-important. See W.M. Schlosser Co., supra, at 1338. In this instance, the contracting officer had full jurisdiction over the claim which was for far less than $50,000, his decision on the claim was well within his authority, and the ASBCA had full jurisdiction over Tecom's appeal from that decision. When the company later came to file its final complaint before the ASBCA, the Air Force had exercised its option to extend the contract for one more year. The increased reimbursement sought in that complaint was explained (at the Board hearing) as representing (a) an improved reevaluation of the original estimate ($11,000.04) on the basis of the first year's actual experience, and (b) a projection of that increased sum for the expected full three-year term of the contract. There is no contest of that explanation, and on its face it is reasonable and adequate.
48
In those circumstances, we think the Government wrong in demanding certification at the Board level. Where no certification of the claim was earlier compelled because the amount asked was properly less than $50,000 at that time, the contractor could legally increase its monetary demand before the ASBCA in view of the intervening prolongation of the contract and the experience of actual operation. There is no violation of either the letter or the purpose of the certification requirement of the Contract Disputes Act, i.e., to push contractors into being careful and reasonably precise in the submission of claims to the contracting officer.
49
732 F.2d at 937 (footnote omitted). The court referred to
50
the general principle that a monetary claim properly considered by the contracting officer (here, because it was less than $50,000 and covered only one year) need not be certified or recertified if that very same claim (but in an increased amount reasonably based on further information) comes before a board of contract appeals or a court.
51
Id. at 938 (footnote omitted).
52
Tecom recognized that "[w]here no certification of the claim was earlier compelled because the amount asked was properly less than $50,000 at that time, the contractor could legally increase its monetary demand ... in view of the intervening prolongation of the contract and the experience of actual operation." Here, the initial claim for $23,232.98 was not required to be certified. The increase of the claim to $99,265.43 did not change the fundamental character of the claim, which was based upon the invoices the appellant had submitted but the government had refused to pay. The amount of the claim increased because the appellant had not originally included the nonpayment of the final invoice and the government's audit of the second year of the contract had resulted in the disallowance of additional amounts for which the appellant had submitted invoices. The increase in the claim, like the increase in Tecom, thus was "reasonably based on further information."Although the letter of March 15, 1979, was the first occasion on which the appellant stated in writing that it was seeking $99,609.69, that fact did not convert that letter into a superseding "claim" that eliminated or took the place of the earlier claim. The $23,232.98 claim had been presented in detail in the October 15, 1976 letter. The March 15, 1979 letter stated that the appellant was
53
owed my 12th and 13th bill of the second year totaling $66,605.45, plus additional sums not previously billed that I wrote your office about October 15, 1976; this is an additional $23,232.98 and reflects a credit for some figures that were in error previously. I was not aware until our last meeting with your auditor that I was entitled to bonding costs which amounted to $9,427.00. Now these four items mentioned total $99,609.69.
54
The March 15, 1979 letter also stated that "[t]o my cost $1,027,137, I must add the additional charge of $23,232.98 itemized in our October 15, 1976 letter and the bonding cost of $9427.00 for a two year total cost run of $1,059.796.98 [sic]."
55
In view of the continuing correspondence concerning the amount due the appellant for almost three years before the effective date of the Act and the detailed specification of the $23,232.98 claim in the October 15, 1976 letter (almost two-and-a-half years before the Disputes Act became effective), the authority of the Claims Court to consider the claim should not be controlled by the fact that the appellant's letter summarizing its claims was submitted on March 15, 1979, rather than at the end of February.
56
This is not a case in which the parties were negotiating whether the contractor was entitled to any additional payment for changes in the contract, so that the amount of the claim could not be determined until the contractor made a formal written demand. See, e.g., Paragon Energy Corp. v. United States, 227 Ct. Cl. 176, 645 F.2d 966, 976 (1981). Here the only issue in dispute was whether the appellant adequately had documented its entitlement to the amount it was seeking; the government knew what that amount was.
57
B. The government contends, however, that none of the letters the appellant wrote prior to March 15, 1979, or the invoices it submitted, constituted a "claim" under the Disputes Act because a "legitimate CDA claim" must "contain the requisite demand for payment as a matter of right." The Claims Court held that the appellant's letters submitted prior to March 1, 1979, met that standard. See supra, p. 6. We agree with that conclusion and therefore need not consider whether that is the correct standard.
58
The appellant's letter of May 12, 1976, specified various items that the GSA audit of the first year of performance of the contract had disallowed but to which the appellant claimed entitlement. The October 15, 1976 letter gave a detailed breakdown of the "additional funds I am entitled too," and also referred to "[m]y previous request for funding of the back-wage demand." Indeed, GSA itself viewed the May 12, 1976 letter as a "claim," since in its reply of June 4, 1976, it stated that the "claim is still under consideration and final decision has not been made."
59
We know of no requirement in the Disputes Act that a "claim" must be submitted in any particular form or use any particular wording. All that is required is that the contractor submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim. See, e.g., Tecom, 732 F.2d at 936-37; Metric Constr. Co. v. United States, 1 Cl.Ct. 383, 392 (1983). The letters the appellant wrote to the government satisfied that standard and constituted a claim under the Disputes Act--as the GSA itself explicitly recognized with respect to at least one of those letters. The fact that in those letters the appellant frequently expressed the hope that the dispute could be settled and suggested meeting to accomplish that result does not mean that those letters did not constitute "claims."Since we conclude that the appellant's letters constituted "claims" under the Disputes Act, it is unnecessary to consider the government's contention that the invoices were not "claims" under the Act.
60
C. Finally, the government contends that the appellant's "delay in pursuing its remedy bars it from relying upon those letters as the jurisdictional basis for a complaint filed more than seven years after those letters were submitted." It was not until October 25, 1983, however, that the contracting officer rendered his "final decision." The appellant filed its suit in the Claims Court on May 11, 1984, within the 12-month limitation period for bringing such action under section 10(a)(3) of the Disputes Act, 41 U.S.C. Sec. 609(a)(3).
61
The fact that the appellant and the government exchanged a number of communications and held discussions for a substantial period between 1976 and the contracting officer's decision in 1983 does not make the appellant's suit untimely or preclude it from relying upon the pre-March 1, 1979 correspondence to show that it filed claims before that date. Indeed, the government recognized the propriety of deferring the filing of suit until the contracting officer rendered his final decision. In the letter of June 4, 1976, informing the appellant that its "claim" was under consideration and had not been finally decided, the GSA official also told the appellant that for that reason the appellant's letter to the GSA Administrator appealing "an alleged decision made by me" had not been forwarded to the Administrator. The letter then stated: "This action on my part does not compromise or jeopordize [sic] your appeal rights since the Disputes Clause is available to you for a period of 30 days after receipt of my final decision."
62
The appellant met the time requirement of the Disputes Act, and its suit was timely filed.
CONCLUSION
63
The judgment of the Claims Court, dismissing the complaint, is reversed, and the case is remanded to that court for further proceedings on the merits of the complaint.
64
REVERSED and REMANDED.
*
Judge Baldwin assumed senior status November 25, 1986 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/518805/ | 868 F.2d 348
James WEST, Plaintiff-Appellant,v.STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee.
No. 87-2986.
United States Court of Appeals,Ninth Circuit.
Submitted Dec. 15, 1988*.Memorandum Dec. 20, 1988.Decided Feb. 22, 1989.
Robin W. Allen, Allen Law Corporation, Sacramento, Cal., for plaintiff-appellant.
William O. Morris and Gregory R. Madsen, McDonald, Saeltzer, Morris, Creeggan, and Waddock, Sacramento, Cal., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before CHOY, CANBY and NORRIS, Circuit Judges.
PER CURIAM:
NATURE OF THE CASE
1
James West ("West") appeals from the district court's grant of summary judgment to his insurer, State Farm Fire and Casualty Co. ("State Farm"). West sued State Farm in state court for breach of contract, violation of Cal.Ins.Code Sec. 790.03, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. All of these claims arose from State Farm's refusal to pay West's residential theft loss claim because West failed to submit to an examination under oath as required by the insurance policy.
2
State Farm removed the case to federal court under 28 U.S.C. Sec. 1441, basing jurisdiction on diversity of citizenship. 28 U.S.C. Sec. 1332(a). The district court granted summary judgment after determining that West's insurance policy contained, as a condition precedent to the duty of State Farm to pay any claim and to West's ability to bring this lawsuit, a requirement that West, his spouse, and members of his household submit to examinations under oath upon reasonable request by defendant.
3
On appeal, West argues that whether or not State Farm's request was reasonable is a triable issue of fact and that, therefore, the district court's decision granting summary judgment was error. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.
FACTUAL BACKGROUND
4
On January 2, 1986, an unknown person allegedly burglarized West's home and took items worth approximately $10,000. West filed a police report, and submitted a claim to State Farm. The claim was referred to State Farm claim representative Larry Stone ("Stone") for handling.
5
On March 12, 1986, Stone conducted a preliminary interview of West. During this interview, West stated that he would submit documentation to substantiate the loss. He did not do so. Therefore, State Farm requested that West submit to an examination under oath, as provided for in the policy.
6
On August 14, 1986, an attorney for State Farm interviewed West in the presence of a court reporter. West was accompanied by his attorney. During the interview on August 14, West refused to answer any question that he had been asked during the interview on March 12 because he claimed the March 12 interview had been a statement under oath. West based his claim that the March 12 interview was a statement under oath on a question that Stone asked West at the end of the interview, namely, whether West had answered Stone's questions truthfully.
7
After the interview with West, State Farm sought to interview Mrs. West who also was a named insured under the policy. In addition, State Farm attempted to interview West's two teenaged daughters. The three women failed to appear for the scheduled interviews.
8
Subsequently, on October 20, 1986, State Farm sent West a letter stating that State Farm would not pay the claim until West complied with the terms of the policy. The letter further stated that satisfaction of these terms was a prerequisite to any lawsuit against State Farm. State Farm indicated that it would be willing to review the claim if further information was provided.
9
West did not provide any further information. Instead, on December 15, 1986, he filed suit against State Farm in Sacramento County Superior Court alleging breach of contract, violation of Cal.Ins.Code Sec. 790.03, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, and negligent infliction of emotional distress. On February 11, 1987, State Farm filed a petition for removal based on diversity of citizenship. 28 U.S.C. Sec. 1441. On June 5, 1987, State Farm moved to have portions of the complaint dismissed for failure to state a claim. The district court dismissed the breach of fiduciary duty claim and the negligent infliction of emotional distress claim.
10
On August 4, 1987, State Farm moved for summary judgment on the remaining claims. On September 25, the motion for summary judgment was heard. The district court found that (1) the insurance policy contained the requirement that West, Mrs. West, and members of their household submit to examinations under oath upon reasonable request by State Farm; (2) Mrs. West and the daughters refused to submit to such examinations after reasonable requests; (3) West refused to answer questions at the only examination of West which was conducted under oath; (4) even if the March 14 interview was under oath, State Farm's request for another interview was reasonable; (5) the requirement that West and his family submit to statements under oath was a condition precedent to State Farm's duty to pay and, therefore, State Farm breached no duty to West by its refusal to pay his claim.
11
On the basis of these findings, the district court granted summary judgment, stating that no material issue of triable fact existed. West appealed, contending that reasonableness is always a question of fact, and therefore, the question of whether State Farm's requests were reasonable could not be decided on a motion for summary judgment.
STANDARD OF REVIEW
12
California's substantive insurance law governs in this diversity case. James B. Lansing Sound Inc. v. National Union Fire Ins. Co., 801 F.2d 1560, 1561 (9th Cir.1986). However, the proper standard of review is a question of federal procedure and is governed by federal law. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). This court reviews a grant of summary judgment de novo. Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir.1988). The district court's interpretation of state law is also reviewed de novo. State Farm Fire and Casualty Co. v. Estate of Jenner, 856 F.2d 1359, 1362 (9th Cir.1988).
13
Summary judgment is only appropriate if, viewing the evidence in the light most favorable to the party opposing the motion, there is no genuine issue of material fact. Lundy v. Union Carbide Corp., 695 F.2d 394, 396 (9th Cir.1982), cert. denied 474 U.S. 848, 106 S.Ct. 143, 88 L.Ed.2d 118 (1985). There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
ANALYSIS
14
West's only contention on appeal is that reasonableness is always a question of fact which precludes summary judgment. This argument is meritless. West cites no cases to support his position and both California and federal courts have held that in certain circumstances reasonableness may be decided as a matter of law. Terry v. Atlantic Richfield Co., 72 Cal.App.3d 962, 140 Cal.Rptr. 510, 512 (1977); McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984).
15
In Terry, the court decided that it was proper to determine the reasonableness of the defendant's gasoline allocation system as a matter of law since the facts regarding the allocation system were undisputed. The court found that while reasonableness is generally a question of fact for the jury, it becomes a question of law and loses its triable character if the undisputed facts leave no room for a reasonable difference of opinion. Terry, 140 Cal.Rptr. at 512.
16
Similarly, in Goodall's Charter Bus Serv. v. San Diego, 125 Cal.App.3d 194, 178 Cal.Rptr. 21 (1981), the trial court made a determination of reasonableness in ruling on a motion for summary judgment in an action alleging unlawful interception of radio communications. The appellate court affirmed, holding that summary judgment was proper because the defendant's affidavits established that there was no reasonable expectation of privacy since the communication was on an open radio line. The court found that the reasonableness of a person's expectation of privacy could be decided as a matter of law when the facts giving rise to his expectation were uncontroverted. Id. 178 Cal.Rptr. at 23. See also McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984) (In a Sec. 1983 action, the determination of what constitutes reasonable police behavior is generally a question of fact for the jury; however, summary judgment is proper if no reasonable jury could differ.); Kramas v. Security Gas & Oil Co., 672 F.2d 766, 770 (9th Cir.1982) (When the running of a statute of limitation period depends upon a showing of reasonable diligence, there are generally issues of fact; however, if uncontroverted evidence shows that the plaintiff was not reasonably diligent, summary judgment is proper.); Getty Refining and Marketing Co. v. Zwiebel, 604 F.Supp. 774, 778 (D.Conn.1985) (In determining whether a contract provision is satisfied, reasonableness is generally a question of fact for the jury; however, the question need not be submitted to the trier of fact if there is only one conclusion reasonably possible.).
17
Thus, the cases show that reasonableness becomes a question of law appropriate for determination on motion for summary judgment when only one conclusion about the conduct's reasonableness is possible. In the instant case, the district court determined that State Farm's actions were reasonable as a matter of law. That determination is amply supported by the record.
18
West made a claim to State Farm for over $10,000. It is undisputed that West submitted no cancelled checks, receipts, or other documentation proving the existence or value of the items he alleged were stolen. The only substantiation State Farm was given to verify West's claim was West's statement to Stone of what disappeared and how much the missing items were worth. This statement did not constitute a statement under oath under California law. Cal.Code Civ.Proc. Secs. 2093-2097. Since West indicated to Stone that he would try to provide documentation but failed to do so, and because State Farm felt that some of the information given to Stone was inconsistent, an examination under oath was scheduled.
19
For West to claim that the scheduled examination under oath was unreasonable is tantamount to a claim that insurance companies are always required to pay claims at their face value on the basis of a preliminary interview. Besides being patently illogical, this argument is controverted by the insurance policy1 and by California law. Hickman v. London Assurance Corp., 184 Cal. 524, 195 P. 45 (1920). In Hickman, the California Supreme Court expressly approved the reasonableness of an examination under oath as a means of "cross-examining" other statements of the insured. Id. at 529, 195 P. 45.
20
Thus, in view of the fact that West had not yet submitted to any statement under oath, and had not submitted any documentation, State Farm's request that West submit to a sworn examination was entirely reasonable. Given the lack of information provided by West at this examination, it was also reasonable for State Farm to request statements from Mrs. West and from their daughters. State Farm had the right under the policy to seek substantiation of West's claim. Since no information was forthcoming from him, under the terms of the policy State Farm legitimately could request substantiation from other members of his household.
CONCLUSION
21
The district court was correct in determining that State Farm's requests were reasonable as a matter of law. No reasonable jury could find that State Farm's requests for statements under oath were unreasonable. Thus, summary judgment was properly granted.
22
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Cir.R. 34-4
1
Pertinent provisions of West's policy are as follows:
"Conditions:
2
Your Duties After Loss. After a loss to which this insurance may apply, you shall see that the following duties are performed:
d. as often as we reasonably require: ...
(2) provide us with records and documents we request and permit us to make copies;
(3) submit to examinations under oath and subscribe the same;
(4) produce employees, members of the insured's household or others for examination under oath to the extent it is within the insured's power to do so; ..." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/787926/ | 384 F.3d 1288
Robert G. SMITH, Plaintiff-Appellant,v.SECRETARY OF THE ARMY, and Army Board for Correction of Military Records, Defendants-Appellees.
No. 03-1623.
United States Court of Appeals, Federal Circuit.
DECIDED: September 17, 2004.
Appeal from the United States District Court for the Western District of Wisconsin, John C. Shabaz, J.
Victoria J. Franklin-Sisson, Emond, Vines, Gorham & Waldrep, P.C., of Birmingham, AL, argued for plaintiff-appellant. On the brief was Victor Kelley.
Robert E. Kirschman, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General and David M. Cohen, Director. Of counsel on the brief were Lieutenant Colonel Vanessa Crockford and Major Gary P. Corn, Attorneys, United States Army, Army Litigation Division, of Arlington, VA.
Before LOURIE, RADER, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
1
Robert G. Smith, a former officer in the United States Army, filed this action in the United States District Court for the Western District of Wisconsin, challenging the Army's decision not to promote him to the rank of colonel. The district court ruled that it lacked jurisdiction over Dr. Smith's claim under the Administrative Procedure Act and that Dr. Smith could have brought his action in the United States Court of Federal Claims under the Tucker Act. Accordingly, the district court transferred the case to the Court of Federal Claims pursuant to the federal transfer statute. Because we conclude that it is unclear from the record whether this action could have been brought in the Court of Federal Claims under the Tucker Act, we remand this case to the district court for further factual development.
2
* Dr. Smith is an ophthalmologist who served for more than 20 years in the United States Army. In 1972, he accepted a commission in the Army's Medical Corps and began attending graduate school, where he studied anatomy. He earned a masters degree in anatomy in 1976. In 1974, two years after beginning his graduate program in anatomy, he entered medical school. Following graduation from medical school in 1978, he was awarded the rank of captain in the Army Reserve based on the four years of constructive credit he received for medical school. He continued to be a member of the Army Reserve until 1982 when he became an officer in the regular Army.
3
Dr. Smith was promoted to the rank of major in 1983 and to the rank of lieutenant colonel in 1990. Beginning in 1995 he was considered for promotion to colonel. The colonel selection board declined to promote him at that time, and he failed selection before each succeeding board until his retirement in 1999.
4
In 1992, Dr. Smith concluded that the Army had failed to award him constructive service credit for his post-graduate studies. As a result, he petitioned the Total Army Personnel Command to grant him additional constructive credit. Subsequently, in 1993, Dr. Smith's record was amended to adjust the date of his promotion to captain from 1978 to 1976. A constructive 1982 board then considered whether to constructively promote him to major as of 1982, but the board declined to do so. As a result, Dr. Smith's date of promotion to lieutenant colonel was also not adjusted. Dr. Smith sought review of that decision through the Army Board for the Correction of Military Records ("ABCMR"). The ABCMR denied his request for relief. In addition, the ABCMR determined that he had improperly been granted constructive credit for his post-graduate studies and revised his captain date of rank to the original date in 1978.
5
Dr. Smith retired from the Army in 1999. In April 2003, he filed an action in the United States District Court for the Western District of Wisconsin, in which he named the ABCMR and the Secretary of the Army as defendants. In his complaint, Dr. Smith alleged that the Army and the ABCMR had acted arbitrarily and capriciously in refusing to correct his military records. If he had been given timely and proper credit for his masters degree studies, he claimed, he would have been promoted to major and lieutenant colonel in 1980 and 1987, respectively. In that event, Dr. Smith alleged, he would have been considered for promotion to colonel in 1992, three years before his first actual consideration. He argued that the delay prejudiced his chances for promotion to colonel because in 1992 the selection rate for colonel was much higher than it was in 1995.
6
As a remedy, Dr. Smith asked the court to order that he be promoted to the rank of colonel, that the date of rank for his promotions to major and lieutenant colonel be corrected, that he be granted back pay and allowances as appropriate, and that he be transferred to the retired list at the rank of colonel. In the alternative, he asked the court to order that he be retroactively considered for promotion to colonel by a remedial selection board, that upon selection he be given back pay and allowances as appropriate, and that his transfer to the retired list be at the rank of colonel.
7
The government moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that, in light of Dr. Smith's request for monetary damages, the Court of Federal Claims had exclusive jurisdiction over the case. The government also contended that the Administrative Procedure Act ("APA") did not waive sovereign immunity because Dr. Smith was seeking back pay, for which the Court of Federal Claims could provide an adequate remedy.
8
The district court agreed with the government that it lacked jurisdiction over the case, but instead of dismissing, the court transferred the case to the Court of Federal Claims pursuant to 28 U.S.C. § 1631. Smith v. Sec'y of the Army, No. 03-C-200-S (W.D.Wis. Aug. 7, 2003). The court ruled that "monetary relief is [Dr. Smith's] sole object," because in his retired status, "the only benefit a retroactive promotion offers him is an opportunity to claim back pay." Because the district court concluded that the amount of back pay at issue was approximately $140,000, the court held that the case could be brought only in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491, and not in the district court under the APA, 5 U.S.C. § 702.
II
9
* The federal transfer statute, 28 U.S.C. § 1631, permits a court to transfer an action to another court if the transferor court lacks jurisdiction to hear the case and the transferee court would have jurisdiction over the action. Dr. Smith contends that neither requirement of the transfer statute is met in this case. He argues that the relief he was seeking was primarily equitable in nature, and that for that reason the district court had jurisdiction over his action and the Court of Federal Claims did not. We have jurisdiction to review a district court's decision to transfer a case to the Court of Federal Claims pursuant to 28 U.S.C. § 1292(d)(4)(A).
10
Section 10(a) of the APA, 5 U.S.C. § 702, provides that a person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" is entitled to judicial review of such a claim. The statute also waives sovereign immunity for an action "seeking relief other than money damages." In the absence of special statutory review proceedings, see 5 U.S.C. § 703, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction to conduct the judicial review described in section 10(a) of the APA. See Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA's waiver of sovereign immunity is limited, however, by section 10(c) of the APA, 5 U.S.C. § 704, which provides that judicial review is available only in the case of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." See Mitchell v. United States, 930 F.2d 893, 895 (Fed.Cir.1991).
11
The Tucker Act, 28 U.S.C. § 1491, grants the Court of Federal Claims jurisdiction to render judgment against the United States for damages on various types of claims, including any non-tort claim founded on the Constitution, a statute, or an executive department regulation. Id. § 1491(a)(1). That portion of the Tucker Act has been construed to require that the source of substantive law on which the plaintiff relies be money-mandating, i.e., it must "fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003), quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The Tucker Act further states that in order to provide "an entire remedy and to complete the relief afforded by the judgment, the court may, as incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records." 28 U.S.C. § 1491(a)(2). The Act gives the district courts and the Court of Federal Claims concurrent jurisdiction over any action falling within its terms in which the claim does not exceed $10,000 in amount; claims in excess of $10,000 may be brought only in the Court of Federal Claims. 28 U.S.C. § 1346(a)(2).
B
12
Dr. Smith contends that the APA entitles him to judicial review in the district court because his action arises under the laws of the United States; because he is seeking "relief other than money damages," namely, a promotion or consideration for a promotion; and because no other court can provide an adequate remedy for the claims set forth in his complaint. The government responds that the APA does not entitle Dr. Smith to judicial review in the district court because his complaint seeks money damages and ancillary equitable relief, and that an action in the Court of Federal Claims under the Tucker Act would provide an adequate remedy for his claims.
13
If an action under the Tucker Act in the Court of Federal Claims would provide an adequate remedy for Dr. Smith's claims, the district court would be barred by 5 U.S.C. § 704 from entertaining his action under the APA, and the transfer order would be proper. We therefore turn to the question whether the Court of Federal Claims would be able to supply the relief that Dr. Smith seeks if he could establish his entitlement to it.
14
Because the Tucker Act authorizes the Court of Federal Claims to grant ancillary equitable relief, including "placement in appropriate duty or retirement status, and correction of applicable records," the Court of Federal Claims can provide Dr. Smith all the equitable relief he requests in the event he has a right to money damages under a money-mandating statute or regulation. That point is illustrated by this court's decision in Mitchell v. United States, 930 F.2d 893 (Fed.Cir.1991). In Mitchell, a serviceman sought an extension of his term of active duty so that he could qualify for retirement with 20 years of service. Following his discharge, the serviceman sought correction of his records by the Air Force Board for the Correction of Military Records. After his request was denied, he filed suit in a federal district court seeking active duty credit, back pay, and reinstatement to active duty status until he was eligible for retirement.
15
On appeal, this court addressed the question whether section 10(c) of the APA barred the case from being brought as an APA nonstatutory review action in district court. Drawing on the Supreme Court's decision in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), this court held that because a Tucker Act action in the Claims Court would provide the serviceman with an adequate judicial remedy, his APA action in the district court was barred. Mitchell, 930 F.2d at 896-97. In Bowen, the Supreme Court reasoned that the Back Pay Act, 5 U.S.C. § 5596(b), was a money-mandating statute and that the Tucker Act provided an adequate judicial remedy for claimants seeking back pay under that Act. Bowen, 487 U.S. at 905-06, 108 S.Ct. 2722. By analogy, the Mitchell court held that the Tucker Act provides an adequate remedy to claimants such as Mitchell who were seeking back pay under the Military Pay Act, 37 U.S.C. § 204. The court explained that the availability of ancillary equitable remedies under the Tucker Act meant that the Court of Federal Claims could provide Mitchell with the adjustment in military status that he sought ancillary to his pay claim and that 5 U.S.C. § 704 therefore deprived the district court of jurisdiction. Mitchell, 930 F.2d at 896-97. Mitchell thus stands for the proposition that the Court of Federal Claims can offer a service member such as Dr. Smith an adequate remedy for a claim relating to military status (and thus deprive the district court of jurisdiction over the claim) if the service member's claim constitutes a request for money (together with a request for ancillary equitable relief) and if the request is based on a money-mandating statute, such as the Military Pay Act. We therefore turn to the question whether Dr. Smith's claim satisfies those two requirements.
16
1. Request for money.
17
In his initial complaint, Dr. Smith sought to have the date of his promotions to major and lieutenant colonel corrected and the decision not to consider him for promotion to colonel in 1992 set aside. In addition, he requested "that he be granted back pay and allowances as appropriate to include restoration of the corrected date of rank for promotion to major and to lieutenant colonel, and that his transfer to the retired list be at the rank of colonel (O-6), plus such other and further relief this Court deems just and proper." In the alternative, Dr. Smith requested that the court order that he be retroactively considered for promotion to colonel by a remedial selection board, "that upon selection he be granted back pay and allowances as appropriate," and that his transfer to the retired list be at the rank of colonel.
18
After the government filed its motion to dismiss Dr. Smith's complaint on jurisdictional grounds, Dr. Smith filed his first amended complaint. The only difference between the original complaint and the first amended complaint was the omission of the words "plus such other and further relief this Court deems just and proper" in the final two paragraphs of the complaint. Thus, contrary to Dr. Smith's contention in his brief on appeal, both his original complaint and his first amended complaint plainly requested money damages in the form of back pay and allowances as relief for the denial of constructive service credit of which he complains.
19
Dr. Smith contends that his complaint does not include a request for monetary damages because he is not exclusively, or even principally, concerned with monetary relief. Instead, he contends, his interest is in the pride and satisfaction associated with promotion to the rank of colonel. The subjective motivations underlying his action, however, do not govern the issue of jurisdiction. In Holley v. United States, 124 F.3d 1462 (Fed.Cir.1997), this court rejected the argument that the Court of Federal Claims lacked jurisdiction over a military discipline case because the plaintiff's primary motivation was to clear his name. The court explained that regardless of the plaintiff's motivation for filing the action, the plaintiff had pleaded a monetary claim that satisfied the jurisdictional requirements of the Tucker Act, and the Court of Federal Claims therefore had jurisdiction over his claim. 124 F.3d at 1466. Similarly, in this case despite Dr. Smith's assertion that he is not motivated by the prospect of reaping financial benefits from a retroactive promotion, both his initial complaint and his first amended complaint include a request for monetary damages.1
20
2. Money-mandating statute.
21
The next question is whether Dr. Smith's monetary claim is supported by a money-mandating statute. The government argues that Dr. Smith's request for back pay based on a failure to promote him suffices to provide Tucker Act jurisdiction. In its brief before the district court, the government specifically pointed to the Military Pay Act, 37 U.S.C. § 204, as the applicable money-mandating statute. It is well established that the Military Pay Act is a money-mandating statute. See Dysart v. United States, 369 F.3d 1303, 1315 (Fed.Cir.2004). The question remains, however, whether the Military Pay Act could provide a monetary remedy under the circumstances of this case.
22
As a general matter, a service member is entitled only to the salary of the rank to which he is appointed and in which he serves. See James v. Caldera, 159 F.3d 573, 582 (Fed.Cir.1998); Dodson v. United States, 988 F.2d 1199, 1208 (Fed.Cir.1993); Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824, 830 (1979). For that reason, in a challenge to a decision not to promote, the Military Pay Act ordinarily does not give rise to a right to the pay of the higher rank for which the plaintiff was not selected. See Law v. United States, 11 F.3d 1061, 1064 (Fed.Cir.1993); Howell v. United States, 230 Ct.Cl. 816, 817 (1982); Knightly v. United States, 227 Ct.Cl. 767, 769 (1981) ("We do not have jurisdiction of a back pay claim predicated on a promotion not received.").
23
There are two recognized exceptions to that general rule. Under the first exception, an action for money arises under the Military Pay Act in the unusual case in which, on the plaintiff's legal theory, "there is a clear-cut legal entitlement" to the promotion in question, Skinner, 594 F.2d at 830, i.e., he has satisfied all the legal requirements for promotion, but the military has refused to recognize his status. See Dysart, 369 F.3d at 1315-16; James, 159 F.3d at 582; Law, 11 F.3d at 1065 ("Law is not asking the Claims Court to order his promotion but to recognize that it had occurred."). Under the second exception, an action for money arises under the Military Pay Act when the decision not to promote the service member leads to the service member's compelled discharge. If, in such a case, the effect of an order voiding the nonpromotion decision would be to give the service member a right to continue in the service at his previous rank, he would have a claim for the pay lost because of his improper separation. In that instance, the Military Pay Act would give the service member a right to back pay, because the Act "confers on an officer the right to pay of the rank he was appointed to up until he is properly separated from the service." Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 810 (1979); see also Roth v. United States, 378 F.3d 1371, 1375, slip op. at 20-21 (Fed.Cir.2004); Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (en banc).
24
The first exception does not apply in this case, because there is no suggestion that Dr. Smith enjoyed a clear-cut legal right to promotion to the rank of colonel; rather, his claim is that if he had been given the constructive credit to which he was entitled he would have been considered for promotion to colonel earlier, when his chance for promotion would have been greater.2 Therefore, in order to determine whether the Tucker Act would provide an adequate remedy for Dr. Smith's claims, it is necessary to determine whether the second exception applies in this case.
25
For the second exception to apply, a service member's discharge must be involuntary. That is because if the service member's separation from the service is voluntary, such as pursuant to a voluntary retirement, the Military Pay Act does not impose on the government any continuing obligation to pay the service member. For that reason, this court has repeatedly held that relief under the Tucker Act is not available in the typical military promotion case if the service member voluntarily left the service. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Tippett v. United States, 185 F.3d 1250, 1255 (Fed.Cir.1999); Holley, 124 F.3d at 1465; Adkins v. United States, 68 F.3d 1317, 1321 (Fed.Cir.1995); Sammt v. United States, 780 F.2d 31, 32-33 (Fed.Cir.1985); Austin v. United States, 206 Ct.Cl. 719, 723 (1975). Cf. McHenry v. United States, 367 F.3d 1370, 1376-77 (Fed.Cir.2004) (holding that some claims, such as claims to disability benefits, may survive a voluntary retirement). Moreover, in order for the second exception to apply, the relief that is sought and that the court is empowered to grant — such as vacating a non-promotion decision that was compromised by legal error — must result in rendering the service member's discharge improper, thus entitling the service member to a monetary remedy. James, 159 F.3d at 580-82.
26
Unfortunately, the record in this case is unclear with respect to both of those questions. First, the record does not reflect whether Dr. Smith's retirement was voluntary, and the parties have not addressed that question either in this court or in the district court. The district court will therefore need to determine whether Dr. Smith's retirement was voluntary or involuntary in order to determine whether this action was properly transferred to the Court of Federal Claims.3
27
It is likewise unclear whether, even assuming Dr. Smith was involuntarily discharged, an order granting Dr. Smith additional constructive service credit for his post-graduate studies would render his discharge improper. Unlike in many cases involving "double passover" statutes that require lower-ranking officers to be discharged if they are twice passed over for promotion, see 10 U.S.C. §§ 631-632, lieutenant colonels such as Dr. Smith are subject to a different regime. The statute governing the retirement of lieutenant colonels contains no "double passover" provision, but instead requires any lieutenant colonel "who is not on a list of officers recommended for promotion to the regular grade of colonel" to be retired "on the first day of the month after the month in which he completes 28 years of active commissioned service." 10 U.S.C. § 633. Similar statutes govern the retirement of Army colonels and general officers, as well as officers of equivalent rank in the other services. 10 U.S.C. §§ 634-636.
28
Because those statutes make the time of compulsory retirement turn on the number of years an officer has been in active commissioned service, rather than on the number of times the officer has been passed over for promotion, a successful challenge to a promotion passover decision will not necessarily entitle the officer to reinstatement and back pay. That is, if the officer had completed the maximum period of service for an officer of his rank, an order by the court voiding a passover decision would not have the effect of allowing the officer to continue in rank for a period longer than is permitted by statute. In such a case, the officer would not have a Tucker Act claim for money under the Military Pay Act, because no order that the court could lawfully enter would entitle the officer to back pay.
29
The Court of Claims drew that distinction in Koster v. United States, 231 Ct.Cl. 301, 685 F.2d 407 (1982). The plaintiff, a brigadier general in the Army, claimed that he was passed over for promotion to major general because of objectionable material in his officer efficiency reports. Following the passovers, General Koster was required to retire when he reached the statutory limit of five years of service as a brigadier general. The court noted that because it could not lawfully order his promotion, the most it could do by way of relief was to require reconsideration of the nonpromotion decision based on newly constituted officer efficiency reports. Because of the five-year statutory limit on the period that General Koster could serve as a brigadier general, however, the relief the court was empowered to grant "would not bring money with it." Id. at 413. Accordingly, the court concluded that it lacked jurisdiction over General Koster's claim. The court explained the difference between the case before it and the more common "double passover" cases involving lower ranking officers:
30
We note that this case is not like our cases that have found jurisdiction when a serviceman has been mandatorily terminated after two passovers.... In those cases, the voiding of a passover vitiates the ground on which termination was forced, allowing reinstatement and a resultant money claim for lost active pay. Here, however, plaintiff has served his 5 years, and voiding a passover would not change that.
31
685 F.2d at 413.
32
In this case, as in Koster, the service member's eligibility to continue in service was based on the length of his service, not the number of times he had been passed over for promotion. Accordingly, if Dr. Smith was required to retire because he had reached the end of the 28 years of active commissioned service, the Court of Federal Claims would not be able to offer him relief that would have monetary consequences. In that event, he would not have an adequate remedy for his claims in the Court of Federal Claims.
33
Again, however, the record does not make clear whether Dr. Smith's retirement was compelled by the statutory 28-year period. If he was required to retire early, or if he was forced to retire involuntarily for some reason other than the expiration of the statutory period for his service in the rank of lieutenant colonel, he would still have a claim for money that could be brought before the Court of Federal Claims. See Adkins, 68 F.3d at 1321. That issue, too, involves factual matters that are not addressed in the record before us and should be addressed by the district court on remand.
III
34
Accordingly, we remand this case to the district court to determine whether Dr. Smith's retirement was voluntary and whether an order granting Dr. Smith the additional constructive service credit he seeks would raise a monetary claim under the Military Pay Act. That determination, in turn, will likely dictate whether a transfer to the Court of Federal Claims is permitted in this case, or whether the case will remain in the district court, although in that event Dr. Smith will be limited, in light of 5 U.S.C. § 702, to his claims for equitable relief.4
35
Each party shall bear its own costs for this appeal.
36
REMANDED.
Notes:
1
Dr. Smith requests that this court permit him to amend his complaint a second time to omit the request for money damages from his claim. He had an opportunity to make such an amendment in the district court, however, and he failed to do so. That by itself is a sufficient reason not to permit him to amend his complaint on appealSee Mills v. Maine, 118 F.3d 37, 53 (1st Cir.1997). Whether the district court will permit him to amend his complaint a second time on remand is for that court to determine.
2
The same is true of Dr. Smith's request for adjustment in the date of rank for his promotions to major and lieutenant colonel. The claim that he should have been given earlier consideration for those promotions does not carry with it an entitlement to retroactive pay at the pay level for those ranks before he was actually promotedSee, e.g., Roseman, 207 Ct.Cl. 998, 521 F.2d 1406 (1975).
3
Our case law addresses in some detail what constitutes an involuntary dischargeSee, e.g., Moyer, 190 F.3d at 1318; Ricks v. United States, 278 F.3d 1360, 1363-64 (Fed.Cir.2002); Rigsbee v. United States, 226 F.3d 1376, 1378 (Fed.Cir.2000); Sammt, 780 F.2d at 32.
4
Dr. Smith argues that in the event it is determined that the Tucker Act applies to the monetary claim in this case, his request for equitable relief should be severed and remain in the district court. We agree with the government that it would be improper to divide this case into two parts based on the character of the remedies sought. Dr. Smith has a single claim for constructive service credit and the benefits flowing from it; the fact that a plaintiff seeks different kinds of remedies does not justify allowing him to litigate the same claim in multiple forums. That is particularly true in this setting because if the Court of Federal Claims can grant relief on his monetary claims, it can grant appropriate equitable relief as well; on the other hand, if the Court of Federal Claims is not authorized to grant monetary relief, there is no other waiver of sovereign immunity available to Dr. Smith with respect to a claim for money damages | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/722542/ | 90 F.3d 737
1996-2 Trade Cases P 71,495, RICO Bus.Disp.Guide 9080
IDEAL DAIRY FARMS, INC., Appellant,v.JOHN LABATT, LTD.; John Labatt, Inc.; Tuscan Dairy Farms,Inc.; Johanna Dairies Incorporated; Robert Facchina; ABCCompanies, 1 Through X (Fictitious Names of LabattAffiliates That Actively Participated In The MonopolisticPractices Described Below, But Whose Identities arePresently Unknown); John Does, 1 Through X (FictitiousNames of Officers and/or Directors of The CorporateDefendants Who Actively Participated In The Decision-MakingRegarding The Monopolistic Practices Described Below, ButWhose Identities Are Presently Unknown); Elmhurst Milk &Cream Company, Inc.; Local 584, International BrotherhoodOf Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica, AFL-CIO; Honeywell Farms, Inc., t/a Elmhurst Dairy.TUSCAN DAIRY FARMS, INC., Defendant/Third-Party Plaintiff,v.IDEAL DAIRY FARMS, INC.; Gilbert Levine; Mark Greenberg,Third-Party Defendants.
No. 95-5435.
United States Court of Appeals,Third Circuit.
Argued May 3, 1996.Decided July 24, 1996.
Sheldon A. Weiss (argued), Millburn, NJ, Steven Pasternak, Pasternak, Feldman & Plutnick, Livingston, NJ, for Appellant.
Thomas H. Moreland (argued), Lawrence E. Jacobs, Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, New York City, for Appellee Tuscan Dairy Farms.
Frederick L. Whitmer, Pitney, Hardin, Kipp & Szuch, Morristown, NJ, for Appellees John Labatt, Ltd.; John Labatt, Inc.; Johanna Dairies, Incorporated and Robert Facchina.
Before: SCIRICA and ROTH, Circuit Judges and GODBOLD1, Circuit Judge.
OPINION OF THE COURT
ROTH, Circuit Judge:
1
The litigation giving rise to this appeal began when a locally owned dairy in Northern New Jersey sued a large Canadian corporation, its affiliates, and several New Jersey dairies purchased by the corporation in the 1980s. The plaintiff, Ideal Dairy Farms, Inc. ("Ideal"), filed a complaint that raised breach of contract, tort, fraud, RICO, and antitrust claims. One of the defendants, Tuscan Dairy Farms ("Tuscan"), filed a counterclaim against Ideal seeking payment of unpaid invoices totalling over $2 million.
2
After extensive discovery proceedings, defendants moved for summary judgment on their counterclaim and on all of Ideal's twenty-five claims. The district court granted summary judgment dismissing the claims against the defendants on the basis of its finding that Ideal failed to raise a genuine issue of material fact. It also granted summary judgment in favor of defendants on their counterclaim and awarded Tuscan $2,264,333.71. Ideal appealed the district court's summary judgment order.
3
With regard to Ideal's claims involving the 1985 supply contract between Tuscan and Ideal, we believe that Ideal has sufficiently demonstrated that genuine issues of material fact exist that preclude summary judgment. As a result, we will reverse and remand the following claims:
4
(1) Breach of Contract (Eleventh Count);
5
(2) Breach of Implied Covenant of Good Faith (Twelfth Count); and
6
(3) Tortious Interference with Contract (Fourteenth Count).
7
With regard to all other remaining claims, we find that summary judgment was properly granted against Ideal. We will therefore affirm the district court's order dismissing all of the antitrust claims, the common law fraud and RICO claims, and the tort claims not involving the 1985 supply contract.
I.
8
The appellant, Ideal, is a New Jersey corporation owned by Mark Greenberg and Gil Levine. Ideal distributes processed dairy products to retail customers and to customers in the food service industry. In the mid-1980s, the Labatt corporation, a Canadian entity with major interests in the beer and dairy industries, began acquiring dairies in the United States. For example, in Northern New Jersey, Labatt acquired Tuscan and Johanna Dairy Farms ("Johanna"). Labatt also purchased smaller dairy plants in Northern New Jersey, which it either consolidated with other more efficient plants or shut down.
9
In 1985, Ideal found itself in need of a new processed milk supplier and entered into negotiations with Tuscan. Tuscan purchases raw dairy products from farmers and processes them for sale to retail and industrial customers, as well as to distributors like Ideal. At that time, Tuscan was owned by Lou Caiola. Mr. Caiola submitted a proposed supply contract to Ideal for its consideration. Joint App. 316-23 ("1985 contract"). Ideal had no part in the preparation of the contract and signed the contract without making any changes to the text. The contract covered pricing and payment requirements but contained no clause providing for a term after which the contract would expire, nor did it discuss how the contract could be terminated. Mark Greenberg admitted at his deposition that, when they signed the contract, he and Mr. Levine were aware that the contract had "no length" and that they were "satisfied with no period of time." Joint App. 527 & 529.
10
The 1985 contract provided that "[a]ll milk and milk product prices [would be] based upon [the February 1985] Federal Milk Marketing Order." See Joint App. 317 (1985 contract, paragraph 2). The Federal Milk Marketing Order sets the minimum "Class I" price that a processor must pay to a farmer.2 The contract further provided that future prices could be adjusted whenever the Department of Agriculture changed Class I prices and also when "documentable or industrywide cost[s]" increased or decreased. Id. Such price adjustments were to be "consistent with generally accepted industry practice." Id. In addition to those adjustments, the contract also allowed Tuscan to add "an additional amount equal to 10% of [any] increase or decrease" after April 1, 1986. Id.
11
Labatt purchased Tuscan Dairy in December 1986. Lou Caiola continued to manage Tuscan's business, however, until October 1987. At that time, Herbert England, a Labatt employee, was appointed to replace Mr. Caiola. England was in charge at Tuscan until 1988, when he was replaced by Robert Facchina who ran the business for the remainder of Tuscan's relationship with Ideal.
12
Every day, Ideal ordered products from Tuscan. Every night, Tuscan loaded the order onto Ideal's trucks so that Ideal could deliver its cargo to customers the following morning. Every week, Tuscan sent Ideal an invoice of its purchases. Ideal responded by paying the invoices, meticulously subtracting for any product not received, or received but substandard. Every month, for nearly seven years, Tuscan sent Ideal notice of any upcoming price changes. Often these notices included a statement explaining the price changes and a newly revised price list of Tuscan's offerings.
13
Soon after it began doing business with Tuscan, Ideal realized that Tuscan was charging prices well above expected contract prices. Beginning in 1987, Tuscan began steadily increasing prices, usually blaming the increases on various premiums charged by farmers, cooperatives, and state governments. For example, Tuscan increased Ideal's prices in 1987 claiming that RCMA, a dairy farmers' cooperative, had increased the premium that it charged in addition to the Class I price. Later, when RCMA reduced its premium, Ideal never received the benefit of the cost decrease. Ideal discovered this overcharging by reading certain industry bulletins that publish actual changes in premiums charged by various raw milk suppliers.
14
Ideal first complained to Lou Caiola in 1987 that these price increases violated the terms of the 1985 contract, and for the next five years, Ideal continued to complain about the overcharges to Mr. Caiola's successors. At times, management at Tuscan promised that, if Ideal was patient, it would get the decrease that was due. At other times, Tuscan's management refused to discuss the issue.
15
At a meeting held on March 2, 1990, Tuscan's management attempted to rationalize its prices by comparing them, on a blackboard, to price increases authorized under the 1985 contract. In the end, Tuscan was unable to show on the blackboard that it had been increasing prices in compliance with the contract's pricing formula. Instead, the blackboard calculations highlighted the extent of Tuscan's overcharging. Mr. Facchina terminated the meeting and refused to discuss prices further.
16
Because Labatt owned all of the dairies capable of handling Ideal's supply needs, Mr. Greenberg and Mr. Levine believed that they were stuck with Tuscan. They doubted that they could obtain a better price elsewhere. Therefore, they concluded that they had no choice but to pay the overcharges. In addition, a New Jersey regulation hampered Ideal's ability to shop freely for a milk supplier who might offer a lower price. Section 2:52-3.1 of the New Jersey Administrative Code requires that milk dealers give milk suppliers two weeks notice before changing their source of supply. N.J.Admin.Code, tit. 2, § 52-3.1 (1996). This regulation combined with Labatt's control of several local dairies deterred Ideal from taking its business elsewhere, and Ideal's management begrudgingly continued to pay the price increases.
17
In late 1990, Tuscan began pressuring Ideal to enter a new contract with a five or six year term. Tuscan informed Ideal that, under a new policy implemented at all Labatt-owned dairies, all customers would be required to enter new contracts. Ideal successfully delayed signing a new agreement and secretly began looking for a new supply arrangement.
18
In May 1992, Ideal began to negotiate with Cumberland Farms dairy ("Cumberland"). Initially, Ideal sought only to acquire a certain size container, which Tuscan had discontinued. Cumberland, however, refused to supply just the one item but offered to supply Ideal with all of its product needs. Once they entered negotiations, Ideal also began building its own depot in Newark, where it could refrigerate products after hauling them from Cumberland's South Jersey premises.
19
On June 12, 1992, Ideal opened its own depot and began receiving supplies from Cumberland. It abruptly severed its relationship with Tuscan, leaving 15 invoices unpaid. Also in June 1992, Ideal commenced this lawsuit against Labatt, its affiliates, and the Labatt-owned dairies, alleging violations of antitrust, contract, fraud, and tort law. The district court granted the defendants motion for summary judgment and ordered Ideal to pay the unpaid invoices, thereby awarding Tuscan a total of $2,264,333.71. Ideal appeals the district court's summary judgment orders.
II.
20
The standard of review applied to the appeal of an order granting summary judgment is firmly established. "An appellate court reviews the district court's grant of summary judgment de novo, applying the same standard as the district court. This requires that [the court] view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995) (citation omitted; emphasis added); see also Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995); Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 200 (3d Cir.1995); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
21
Summary judgment should be granted only if a court concludes 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." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 1355 n. 10, 89 L.Ed.2d 538 (1986). Once the movant has carried its initial burden, the nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for trial.' " Id. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.Proc. 56(e)) (emphasis added in Matsushita ). The non-movant must present concrete evidence supporting each essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
22
The question for this court, then, is whether Ideal presented sufficient evidence to create a dispute regarding a genuine issue of material fact, viewing the evidence in the light most favorable to Ideal. Gottshall v. Consolidated Rail Corp., 56 F.3d 530 (3d Cir.1995); Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1381 (3d Cir.1991). "Facts that could alter the outcome are 'material', and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (citations omitted).
23
The district court had subject matter jurisdiction over the plaintiff's complaint in this case pursuant to 28 U.S.C. § 1331, 15 U.S.C. § 1 et seq., 28 U.S.C. § 1367, and 18 U.S.C. § 1965. It had pendent jurisdiction over the plaintiff's state law claims. This court has jurisdiction to review the district court's final order granting summary judgment under 28 U.S.C. § 1291.
III.
24
The district court properly granted summary judgment dismissing Ideal's fraud and RICO claims, as well as its antitrust claims. There is simply not enough concrete evidence in the record supporting these claims. However, the district court improperly granted summary judgment dismissing Ideal's contract claims because genuine issues of material fact do exist.
A.
25
In its second amended complaint, Ideal argued that Tuscan breached the 1985 supply contract by increasing prices in a manner not consistent with the pricing formula established by the contract. The district court found that the following facts were undisputed:
26
(1) A contract was formed between the parties in 1985, and it contained a price formula; (2) Beginning in 1987, the invoices Tuscan sent to Ideal did not follow the price formula in the contract; (3) Ideal complained about this failure to comply with [the] contract price formula numerous times; (4) Tuscan told Ideal that the invoice prices were the prices it was charging, and that Ideal could take its business elsewhere if it wanted; and (5) Ideal continued to order products from Tuscan at the invoice prices, not contract prices, for a period of five years.
27
Slip Op. at 19. The court found that there were three possible ways to construe these facts:
28
(1) the contract was intact from its formation until June of 1992 and Tuscan continually breached the contract from 1987 on; (2) the contract was intact from its formation until June of 1992, but the price term was modified by the invoices and Ideal's payment on them; or (3) the original signed contract was terminated in 1987, and from the point of termination on the parties formed a new contract each time Ideal ordered goods, Tuscan sent them an invoice, and Ideal made a payment based on that invoice.
29
Id. at 20.
30
"Summary judgment may not be granted ... if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Nathanson, 926 F.2d at 1380 (citing Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985)). In addition, "[a]ny 'unexplained gaps' in materials submitted by the moving party ..., if pertinent to material issues of fact, justify denial of a motion for summary judgment." Ingersoll-Rand Financial Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir.1990) (quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir.1989)). Finding three possible constructions of the facts suggests that there is a genuine issue of material fact about which a jury could reasonably disagree. The court's finding of factual ambiguity should have ensured that the contract claim proceed to trial.
31
It is well-established that "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587-88, 106 S.Ct. at 1356 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). In this case, however, instead of allowing a jury to decide which interpretation of the facts was correct, the district court chose a favored interpretation. Moreover, it chose an interpretation that favors the movant over the non-movant.
32
The district court immediately rejected the idea that the 1985 supply contract had been modified by the regular submission and payment of invoices. It based its rejection on a provision of the contract that explicitly prohibits modification by a course of conduct without a signed writing. Joint App. 321-322 (1985 Contract, para. 14). Between the two remaining constructions, the district court held that the third option was "the correct one." Id.
33
The court held that "as a matter of law, the 1985 Contract was terminated by the departure in 1987 from the pricing terms set forth in that contract." Slip Op. at 23 (emphasis added). In support of its holding, the court pointed out that the agreement was an at-will contract because it provided for no term. The court concluded that, by overcharging, Tuscan "did seemingly indicate [its] termination of the agreement by [its] actions." Id. Thus, the district court held that the at-will contract was terminated in 1987, and from 1987 until 1992, the parties re-contracted each time Tuscan offered a new invoice and Ideal accepted by payment. Id. The court held therefore that, even if Ideal had a claim for breach of contract by termination without reasonable notice, that claim was barred under the four-year statute of limitations for contract claims.
34
We find that the district court improperly resolved a genuine issue of material fact. The district court's finding that the contract was terminated by implication in 1987 is not the only inference that could reasonably be drawn from the facts. Viewing the facts in a light most favorable to Ideal, Tuscan's management did not indicate that the contract was "meaningless" or "not valid" until late 1990. At that time, Labatt implemented a policy that required Tuscan to enter new supply contracts with all buyers. According to the record, Tuscan began to press Ideal to sign a new agreement in late 1990 or early 1991. See Joint App. 576-88 & 1061.
35
Until late 1990, Tuscan's management did its best to justify the price increases in a manner that was consistent with the 1985 contract pricing provisions. For instance, at the March 2, 1990, meeting, Mr. Facchina attempted to show on a blackboard that its prices complied with the terms of the 1985 contract. This conduct is not consistent with the district court's finding that the contract was terminated prior to 1990. Rather, by using the 1985 contract as a guide to proper pricing, Tuscan expressed its belief that the contract was operative at the time of the March 2, 1990, meeting.
36
By 1991, it is logical to conclude that Tuscan had indicated its unilateral termination of the 1985 contract. Ideal filed this suit in June 1992. Ideal may therefore have a valid contract claim that is not time-barred by the statute of limitations applied to contract claims. Because a reasonable jury could find that the termination occurred in 1990 or 1991, rather than in 1987, summary judgment should not have been granted.3
37
In sum, we find that the district court did not view the facts in a light most favorable to Ideal, the non-movant, when it concluded that the contract was unilaterally terminated by conduct in 1987.4 The court's order granting summary judgment against Ideal on its breach of contract claim will therefore be reversed and remanded.
B.
38
In a single sentence, the district court explained its dismissal of Ideal's claim alleging breach of the contract's implied covenant of good faith. The court said, "It is obvious that defendants cannot have violated good faith by their 'denial of the existence of the Contract,' when the contract was terminated prior to their denial by the change in the prices charged by defendants." Slip Op. at 27-28. The court therefore granted the defendants' motion for summary judgment.
39
As discussed above, a reasonable jury could find that the supply contract was terminated, not by the prices charged in Tuscan's invoices, but by Tuscan's more explicit repudiation of the contract in late 1990. If the contract was not terminated by its conduct prior to Tuscan's express denial, but rather was terminated by the express denial itself, Ideal may indeed have a claim for breach of the good faith covenant. At any rate, there is a fundamental chronological dispute which presents a genuine issue of material fact relevant to Ideal's claim that Tuscan breached the contract's implied covenant of good faith.
40
This factual discrepancy was improperly resolved by the district court on summary judgment and should have been preserved for resolution by a jury. Therefore, the court's dismissal of Ideal's claim that Tuscan breached the 1985 contract's covenant of good faith will also be reversed and remanded.
C.
41
The same temporal dispute requires reversal of the district court's order granting summary judgment on Ideal's tortious interference with contract claim. The district court held that "[b]ecause Ideal brought its tortious interference with contract claim more than two years after the contract was terminated without reasonable notice," its claim was barred by a two-year statute of limitations. Slip Op. at 31.
42
The court's conclusion was based on its finding that the contract was terminated in 1987. As we previously concluded, the facts may be reasonably interpreted to support a finding that the contract was not terminated until late 1990 or early 1991. If a jury found that the contract was not terminated until late 1990, the statute of limitations may not bar Ideal's tortious interference claim. Therefore, summary judgment was improperly granted, and the court's order will be reversed and remanded.
IV.
43
The district court properly granted summary judgment dismissing the balance of Ideal's claims.
A.
44
The district court did not err in dismissing Ideal's claim that Tuscan committed fraud by departing upward from the 1985 contract's pricing scheme. Under New Jersey law, a plaintiff claiming fraud must prove that it detrimentally relied on an intentionally misleading statement made by the defendant. See, e.g., John Hancock Mutual Life Ins. Co. v. Cronin, 139 N.J. Eq. 392, 51 A.2d 2 (1947). Ideal admitted however that, early in its relationship with Tuscan, it became aware that the invoice prices were higher than the prices envisioned in the contract. Ideal cannot now claim that it detrimentally relied on Tuscan's intentional misrepresentation because Ideal knew it was being overcharged for purchases almost from the start. Therefore, the district court properly found that Ideal had no cause of action in fraud.
B.
45
For very similar reasons, Ideal cannot make out a claim for violation of the federal RICO statute, 18 U.S.C. § 1961 et seq., nor for violation of New Jersey's RICO Act. N.J. Stat. Ann. 2C:41-1 et seq. As the fraudulent predicate acts required by both state and federal RICO statutes, Ideal argued that Tuscan committed mail and wire fraud. However, the district court found that there could be no finding of fraud in light of Ideal's admission that, early in the relationship, it knew that Tuscan was not complying with the contract. Therefore, the district court held that Ideal could "not rely on fraud as a predicate act for purposes of Federal RICO," nor for purposes of New Jersey RICO. Slip Op. at 18-19.
46
We agree that Ideal cannot make out a claim for mail or wire fraud. Indeed, no fraudulent act occurred in this case. Without a predicate act, Ideal cannot possibly succeed on its federal and state RICO claims. These claims were therefore properly dismissed.
C.
47
The district court also dismissed Ideal's claim that Tuscan tortiously interfered with its prospective economic advantage. In support of its claim, Ideal alleged that Tuscan undermined its relationships with customers by offering them extremely low prices and that Tuscan told Ideal to stay away from certain new retailers.
48
The district court found that Ideal failed to present evidence of each essential element of its interference claim. With regard to Ideal's allegation that Tuscan undermined its relationship with a customer, the court found that
49
Tuscan entered into an agreement with Ideal to return the customer and to make supplemental payments to Ideal. This in effect eliminated any claim for tortious interference, substituting a contractual obligation.
50
Joint App. 462 (Dist.Ct.Op.29). With regard to the allegations that Tuscan employees interfered by warning Ideal to stay away from certain prospective customers, the court found no evidence of injury because "Ideal ... failed to put forward evidence that it was even interested in any of [those] accounts...." Id.
51
To establish a claim of tortious interference with prospective economic advantage, Ideal must present concrete evidence that Tuscan intentionally and maliciously interfered with a "protectable right," and that Tuscan's interference caused injury. Printing Mart--Morristown v. Sharp Electronics Corp., 116 N.J. 739, 563 A.2d 31, 37 (1987). "A complaint must demonstrate that a plaintiff was in 'pursuit' of business." Id. First, Ideal has not shown that it was in serious pursuit of the new accounts targeted by Tuscan. Second, the allegations made by Ideal fail to reach the necessary level of maliciousness. Id. ("[M]alice is defined to mean that the harm was inflicted intentionally and without justification or excuse."). Tuscan admitted that it was wrong to solicit Ideal's customer and voluntarily gave the account back to Ideal. Third, Ideal has not shown that " 'if there had been no interference[,] there was a reasonable probability that [it] would have received the anticipated economic benefits.' " Id. (quoting Leslie Blau Co. v. Alfieri, 157 N.J.Super. 173, 384 A.2d 859 (App.Div.), certif. denied, 77 N.J. 510, 391 A.2d 523 (1978)).
52
Thus, we agree with the district court's conclusion that Ideal failed to establish a claim for tortious interference with prospective economic advantage. Summary judgment dismissing this claim was properly granted.
D.
53
We also agree with the district court's finding that Ideal failed to present sufficient evidence to support its antitrust claims. At one time, the Supreme Court endorsed a slightly stricter standard of review when a summary judgment order was challenged in an antitrust case. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Harold Friedman, Inc. v. Kroger Co., 581 F.2d 1068, 1080 (3d Cir.1978). However, that "special standard" was abandoned in Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468-69, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992); see also Town Sound, 959 F.2d at 481 ("It may be that because antitrust cases are so factually intensive that summary judgment occurs proportionately less frequently there than in other types of litigation, but the standard of F.R.C.P. 56 remains the same."). Therefore, the ordinary standard applies. Eastman Kodak, 504 U.S. at 468-69, 112 S.Ct. at 2083. In order to survive a summary judgment challenge, a plaintiff must prove that a genuine issue of material fact could be presented at trial, such that a reasonable jury could return a verdict for the plaintiff on that issue.
1.
54
The district court did not err in dismissing Ideal's essential facilities claim. To establish the necessary elements of this claim, Ideal was required to show:
55
(1) control of the essential facility by a monopolist; (2) the competitor's inability practically or reasonably to duplicate the essential facility; (3) denial of the use of the facility to a competitor; and (4) the feasibility of providing the facility.
56
Delaware Health Care, Inc. v. MCD Holding Co., 893 F.Supp. 1279 (D.Del.1995) (citing among others Monarch Entertainment Bureau, Inc. v. New Jersey Highway Auth., 715 F.Supp. 1290, 1300 (D.N.J.) (citations omitted), aff'd 893 F.2d 1331 (3d Cir.1989)).
57
The district court properly applied this test and concluded:
58
Even if Ideal could demonstrate that defendants monopolized the market, that it was unable to duplicate an essential facility, and that it was feasible for defendants to make the essential facility available to Ideal, Ideal cannot contradict one important fact: defendants did not deny Ideal use of its facility, the third factor.
59
Slip Op. at 32. The district court is correct. Almost five years after realizing that Tuscan was overcharging it, Ideal's business was still located on the premises of Tuscan Dairy Farms. The facts in the record show that Ideal was not denied use of Tuscan's facilities.
60
Thus, the district court's ruling in favor of defendants' motion for summary judgment was proper. Because the New Jersey Antitrust Act provides that it should be construed in a manner consistent with federal antitrust law, Ideal's parallel New Jersey claim was also properly dismissed. See N.J.Stat.Ann. § 56:9-18.
2.
61
Ideal claims that the defendants conspired with Elmhurst Dairy to monopolize milk production in New Jersey, in violation of § 1 of the Sherman Act. 15 U.S.C. § 1. The court dismissed this claim, finding that Ideal failed to submit any evidence supporting its assertion that defendants conspired with Elmhurst. Slip Op. at 36. It also found that Ideal failed to present any evidence proving the four essential elements of a § 1 claim set forth in J.F. Feeser, Inc. v. Serv-A-Portion Inc., 909 F.2d 1524, 1541 (3d Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991).5
62
A plaintiff alleging a § 1 violation has a heavy burden when opposing a summary judgment motion on that claim. In Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715 (3d Cir.1991), cert. denied, 505 U.S. 1221, 112 S.Ct. 3034, 120 L.Ed.2d 903 (1992), this court explained: "[W]hen an antitrust defendant's conduct is consistent with both permissible competition and illegal conspiracy, a plaintiff 'must present evidence "that tends to exclude the possibility " that the alleged conspirators acted independently' in order to survive a motion for summary judgment." Id. at 720 (quoting Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356-57 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1470-71, 79 L.Ed.2d 775 (1984))) (emphasis added).
63
Ideal has not excluded the possibility that the agreement between Elmhurst and Tuscan was completely legal. Although Ideal claimed that the conspiracy was finalized by a written agreement between Tuscan and Elmhurst, no such document was presented to the court. In fact, the record was so vague that the district court could not determine how the alleged agreement might restrain trade in violation of the Sherman Act. Slip Op. at 36.
64
The district court was correct to conclude that if the evidentiary record were reduced to admissible evidence, the plaintiff could not carry its burden of proof at trial. Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir.1993) (holding that when opposing summary judgment motion, "plaintiff ... must point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law"). Summary judgment was therefore properly granted on Ideal's § 1 Sherman Act claim and on its parallel state law claim.
3.
65
To survive a summary judgment motion on its Sherman Act § 2 monopolization claim, Ideal had to show that (1) Labatt possessed monopoly power in the relevant market, and that (2) Labatt willfully acquired and maintained monopoly power and did not acquire its monopoly share due to "growth or development as a consequence of a superior product, business acumen, or historical accident." Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802, 808 (3d Cir.1984), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986).
66
The district court held that Ideal had not presented sufficient evidence of these essential elements, and it therefore granted the defendants' summary judgment motion. The court gave two reasons in support of its ruling. First, it held that Ideal failed to establish that the relevant geographic market was Northern New Jersey. Slip Op. at 41; see also id. at 46. And second, it concluded that a showing that Labatt held a market share of 47% in New Jersey did not prove the existence of a monopoly in Northern New Jersey. Id. at 42.
67
Until the late 1980s, milk dealers faced significant regulatory barriers inhibiting free competition between New York City and New Jersey. New York enforced regulations which, for practical purposes, excluded New Jersey dealers from the City. N.Y. Agric. & Mkts. Law § 258-c. And New Jersey enforced similar regulations protecting its dealers from New York competitors. N.J.Admin.Code, tit. 2, § 52-6.1 & -6.2. By the 1990s, however, both of these regulatory schemes had been challenged in federal courts and repealed. Thus, when Ideal filed its monopolization claim, these barriers no longer limited its potential market to New Jersey.
68
We agree that Ideal's relevant market and market share calculations are dubious. Ideal bore the burden of establishing the relevant market for purposes of proving its actual monopoly claim. Tunis Bros., 952 F.2d at 726. Ideal argued that the relevant market was Northern New Jersey or, in the alternative, the state of New Jersey. Like the district court, we are not convinced that either is the relevant market for milk. Ideal has failed to clearly establish the relevant product and geographic market necessary to make this claim.
69
Nor has Ideal persuaded this court that Labatt controls a monopoly share of either proposed relevant market. Ideal estimated that Labatt held 47% of the New Jersey market and then extrapolated from that figure an estimate that Labatt controlled a larger share of the market in Northern New Jersey. It is equally possible that Labatt might hold a smaller share of the market in Northern New Jersey. Ideal offered nothing further to support its speculations. Even if Ideal had shown that Labatt controlled 47% of the New Jersey market, without concrete evidence of anticompetitive behavior, this percentage does not prove Labatt to be a monopolist in New Jersey, nor in Northern New Jersey. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 201 (3d Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 677 (1993) ("As a matter of law, absent other relevant factors, a 55 percent market share will not prove the existence of monopoly power."). We therefore agree with the district court's conclusion that "Ideal fail[ed] to prove that defendants possessed monopoly power in any market." Slip Op. at 42. The district court properly granted summary judgment.
4.
70
To prove the essential elements of its attempted monopolization claim, Ideal was required to present concrete evidence that (1) Labatt had engaged in predatory or anticompetitive conduct with (2) specific intent to monopolize and with (3) a dangerous probability of achieving monopoly power. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454-58, 113 S.Ct. 884, 890-91, 122 L.Ed.2d 247 (1993). It is clear that, when considering the "dangerous probability" prong of an attempted monopolization claim, a court must "inquir[e] into the relevant product and geographic market and the defendant's economic power in that market." Id. at 459, 113 S.Ct. at 892.
71
Whether a party violates § 2 of the Sherman Act by "attempt[ing] to monopolize" is "a question of proximity and degree." Swift and Co. v. United States, 196 U.S. 375, 402, 25 S.Ct. 276, 281, 49 L.Ed. 518 (1905). Further, "the conduct of a single firm, governed by § 2, 'is unlawful only when it threatens actual monopolization.' " Spectrum Sports, 506 U.S. at 456, 113 S.Ct. at 890 (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)). As the Supreme Court explained:
72
The purpose of the Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.
73
Spectrum Sports, 506 U.S. at 458, 113 S.Ct. at 891-92.
74
Even assuming that the relevant market was Northern New Jersey, we do not believe that Ideal presented sufficient evidence that Labatt posed a dangerous threat of destroying competition in the milk industry. We conclude that a higher degree and proximity to actual monopolization must be demonstrated before an award of treble damages can be seriously pursued. Without proving a dangerous probability threatening destruction of competition in a clearly defined relevant market, the plaintiff may not proceed beyond summary judgment. Therefore, we find that the district court properly granted summary judgment dismissing Ideal's attempted monopolization claim.
5.
75
To prove the essential elements of a claim brought under § 7 of the Clayton Act, Ideal must prove that it has suffered "injury of the type the antitrust laws were intended to prevent." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). Ideal claims only that competition in the industry has been reduced by Labatt's acquisitions. However, it has not proved that it has been injured by the reduction in competition. Moreover, there is no evidence in the record demonstrating any harm incurred by Ideal. As the district court held, such conclusory assertions alone will not support a Clayton Act claim. The district court properly granted summary judgment on that claim and on Ideal's parallel state law claim.
V.
76
Finally, Ideal's civil conspiracy claim was also properly dismissed. As discussed above, Ideal failed to present sufficient evidence of any conspiracy that allegedly occurred between the Labatt-owned dairies and Elmhurst Dairy. Ideal additionally claims, however, that the Labatt-owned dairies conspired among themselves to obtain a monopoly in the industry. It is well-established that subsidiaries cannot illegally conspire with a corporate parent under § 1 of the Sherman Act. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 777, 104 S.Ct. 2731, 2745, 81 L.Ed.2d 628 (1984) (holding that a corporate parent and its wholly owned subsidiary "are incapable of conspiring with each other"). Therefore, the district court properly held that the civil conspiracy claim should also be summarily dismissed.VI.
77
We will reverse and remand the district court's order granting summary judgment on the following three claims brought against the defendants by Ideal: (1) the breach of contract claim; (2) the breach of the contract's covenant of good faith claim; and (3) the tortious interference with contract claim. We will affirm the district court's order granting summary judgment in favor of defendants on all of the remaining claims.
78
SCIRICA, Circuit Judge, concurring in part and dissenting in part.
79
I respectfully dissent from part III of the majority opinion because I believe the district court correctly entered summary judgment on Ideal's contract, implied covenant of good faith, and tortious interference with contract claims.
I.
80
The Ideal-Tuscan relationship spanned seven years from 1985 to 1992. Its terms were memorialized in a written contract (the "1985 Contract") that did not specify a term of duration and did not provide for notice of termination or any other termination procedure. From almost the beginning of the relationship, Tuscan did not comply with the pricing provisions of the 1985 Contract. From 1987 onwards, Ideal repeatedly complained to Tuscan about price increases and asserted that Tuscan's prices were not in accordance with the 1985 Contract. But Tuscan's management consistently refused to adjust invoice prices in response to Ideal's complaints, and Tuscan told Ideal it could take its business elsewhere if it wanted. Nevertheless, Ideal continued to order products from Tuscan at invoice prices for five more years.
81
On the basis of these undisputed facts, the district court granted summary judgment to the defendants. Opinion, Ideal Dairy Farms, Inc. v. John Labatt Ltd. et al., No. 92-2469 (D.N.J. May 11, 1995). It held that the 1985 Contract was an at-will contract governed by the New Jersey Uniform Commercial Code, and, because the contract was at-will, "[it] was terminated [as a matter of law] by the departure in 1987 from the pricing terms set forth [therein]" Id. at 23. The majority disagrees with the district court's legal analysis. It concludes that factual issues remain as to when Tuscan terminated the 1985 Contract, and believes that Tuscan may have breached the 1985 Contract continuously over a three to five year period.
II.
82
The 1985 Contract specified no term. Under the New Jersey Uniform Commercial Code, a contract of indefinite duration "is valid for a reasonable time," but "may be terminated at any time by either party." N.J. Stat. Ann. § 12A:2-309(2). "Termination of a contract by one party ... requires that reasonable notification be received by the other party." N.J. Stat. Ann. § 12A:2-309(3).1
83
The majority concludes that Tuscan may not have terminated the 1985 Contract until late 1990, when members of Tuscan management informed Ideal that the contract was "meaningless" and "not valid." See Majority Opinion at 745. Under this interpretation, it would appear that an at-will contract cannot be terminated under § 12A:2-309(3) unless notification is express. I disagree. A party's conduct may also terminate an at-will contract. See Lumber Enterprises, Inc. v. Hansen, 257 Mont. 11, 846 P.2d 1046, 1049-50 (1993) ("when [the seller] unilaterally raised its prices, it ... put an end to the previous contract between the parties"); Michael Halebian N.J., Inc. v. Roppe Rubber Corp., 718 F.Supp. 348, 365 (D.N.J.1989) (under U.C.C. § 2-309, refusal to continue to supply goods in accordance with the terms of an at-will contract terminates the contract, not breaches it). Termination through conduct may not provide the reasonable notice required by § 12A:2-309(3), but failure to give reasonable notice does not mean the contract continues ad infinitum. Rather the aggrieved party is entitled to damages arising from the failure to give reasonable notice. See Ronald A. Anderson, Uniform Commercial Code § 2-309:27 at 555 (1982) ("When a contract is terminable at any time on notice and it is terminated without notice, the damages which the aggrieved party may recover are limited to those sustained during the notice period.").
84
In this case, Tuscan's pricing diverged from the contractual provision in 1987 at the latest. Ideal knew it was being charged a greater amount than that called for by the contract and repeatedly complained. In response, Tuscan clearly demonstrated--both by refusing to change its pricing and through specific statements--that it would not comply with the 1985 Contract. Therefore the contract was terminated at that time. While Tuscan failed to provide Ideal with reasonable notification of termination, its consistent refusal to abide by the terms of the contract terminated the contract. Cf. Agway v. Ernst, 394 A.2d 774 (Maine 1978) (where buyer was unaware of changes in price made by seller, at-will contract was breached and not terminated). Ideal could have recovered damages for Tuscan's failure to provide reasonable notification, but it filed suit after the statute of limitations had run. I would affirm the district court's entry of summary judgment on Ideal's claim for breach of contract.
III.
85
Because Ideal's implied covenant of good faith and tortious interference with contract claims derive from its contract claim, I would grant summary judgment on those claims as well.
IV.
86
For the foregoing reasons, I respectfully dissent.
1
Honorable John C. Godbold, United States Circuit Judge for the Eleventh Circuit, sitting by designation
2
The federal "Class I" price is set monthly by a regional "Market Administrator" in the Department of Agriculture. Under federal regulations, Northern New Jersey is grouped in a region with New York known as "Order No. 2", 7 C.F.R. § 1002.3 (1995); Southern New Jersey is grouped with Eastern Pennsylvania in "Order No. 4," 7 C.F.R. § 1004.2 (1995)
3
In addition, we believe that the district court may have improperly imposed its preferred reading of paragraph 14 without a thorough consideration of alternative readings or of the parties' intent. In relevant part, paragraph 14 of the 1985 Supply Contract provides:
This instrument is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of its terms. No course of dealings between the parties ... shall be relevant or admissible to supplement, explain, or vary any of the terms of this agreement.... Acceptance of, or acquiescence in, a course of performance ... shall not be relevant or admissible to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. ... This agreement can only be modified by a writing signed by both parties or their duly authorized agents.
Joint App. 321-322 (1985 Contract, para. 14) (emphasis added).
It is possible that a reasonable jury could have interpreted the contract, which prohibited unilateral modification or variance in the absence of a writing, to also prohibit unilateral termination of the contract without a writing. On the other hand, because paragraph 14 does not expressly prohibit unilateral termination and because the contract does not provide for a specific term, the parties may have intended to allow for unilateral termination by conduct. The district court's resolution of this ambiguity without citation or support also causes us some concern.
4
Contrary to the dissent's suggestion, we do not believe that it is necessary for us to decide in this case whether an at-will contract can be terminated only by express notification. See Dissenting Opinion at 751-52. That is not the issue before this court. Rather, we decide only that there remains an issue of fact regarding (1) what conduct by defendants, verbal or otherwise, resulted in termination of the 1985 contract and (2) when that conduct occurred for statute of limitation purposes. Because these factual ambiguities remain, summary judgment was improperly granted
5
Plaintiff must prove that:
(1) the defendants contracted, combined or conspired among each other; (2) the combination or conspiracy produced anti-competitive effects within the relevant product and geographic markets; (3) the objects of the conduct pursuant to that contract or conspiracy were illegal; and (4) the plaintiffs were injured as a proximate result of that conspiracy.
J.F. Feeser, 909 F.2d at 1541 (quoting Tunis Bros., 763 F.2d at 1489).
1
In relevant part, § 12A:2-309 provides:
12A:2-309. Absence of Specific Time Provisions; Notice of Termination
...
(2) Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1605553/ | 416 So.2d 970 (1982)
Marion J. JONES, Jr.
v.
Elsie Jo Anthony McGUIRT, et al.
80-727, 80-727A.
Supreme Court of Alabama.
May 28, 1982.
Rehearing Denied July 9, 1982.
*971 E. H. Graves, Jr., Eufaula, for appellant.
Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellees.
ALMON, Justice.
By the terms of his last will and testament, Glenn W. Anthony appointed Marion J. Jones, Jr., as the executor of his estate and also trustee of a trust created by his will. Upon the granting of letters testamentary to Jones by the Probate Court of Russell County, the heirs of Glenn W. Anthony filed a petition for appointment of an administrator cum testamento annexo and requested that Jones be removed as executor of the Anthony estate and as trustee. The heirs alleged that Jones was unfit to serve as executor or trustee because he had been convicted of an infamous crime; he was incompetent; and had been imprisoned or sentenced to hard labor for a term of 12 months or more. After a hearing the probate court entered an order revoking the letters testamentary issued to Jones and removing him as executor. The court specifically found Jones was not a suitable person to serve as executor under Code 1975, § 43-2-290(1). The heirs appealed the order granting letters testamentary to Jones to the Russell County Circuit Court, but the circuit court found their appeal was moot due to the prior revocation of the letters testamentary. Jones appealed the order of the probate court removing him as executor to the circuit court. The circuit court affirmed the removal of Jones as executor. The heirs subsequently petitioned the circuit court to have Jones removed as trustee pursuant to Code 1975, § 19-3-211. The circuit court issued an order on March 16, 1981, removing Jones as trustee and appointing a successor trustee. Jones filed an application for reconsideration of the orders removing him as executor and trustee. The circuit court denied the application and Jones appealed to this Court.
Jones alleges the probate court erred in removing him as executor of the last will and testament of Glenn W. Anthony. The probate court based its decision on § 43-2-290(1), which reads:
"An administrator may be removed, and his letters revoked for his removal from the state; and an administrator or executor may be removed and his letters revoked for any of the following causes:
"(1) Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to beleive that he is not a suitable person to have the charge and control of the estate." *972 Jones claims the court abused its discretion when it declared he was not a suitable person to serve as executor of the Anthony estate.
Among the evidence presented to the probate court was the following:
1) Conviction of Jones for violation of Code of Alabama 1940, Title 26, Section 336. He was sentenced to pay a fine of $200 plus court costs and also six months hard labor for Russell County. The hard labor was suspended on good behavior. The fine and costs had not been paid.
2) Conviction of Jones for violation of the Code of Alabama of 1940, Title 14, Section 428. He was sentenced to pay a $500 fine plus court costs and six months hard labor for Russell County. The hard labor was suspended on good behavior. The fine and costs had not been paid.
3) Conviction of Jones for violation of the Code of Alabama of 1940, Title 14, § 428. He was found guilty by a jury and sentenced to twelve months hard labor for Russell County. Date of the sentence was November 30, 1970. The case was appealed and affirmed.
4) A judgment was taken against Jones by Lawyers Cooperative Publishing Company for $780 on May 21, 1979. The judgment did not appear to have been paid.
5) An order signed April 28, 1972, by the Circuit Judge of Russell County in which the Judge said he was familiar with the general reputation of Jones in the community in which he lived and had further formed an opinion equally adverse as to his truth and veracity, under oath, which arose out of his knowledge acquired in prior cases in which Jones had been a party or a witness. The Judge went on to say that should Jones be a witness in his own behalf in any of the cases pending in the Circuit Court of Russell County, he would not be able to give Jones a fair and impartial trial and would be unable to believe Jones under oath. The Judge then recused himself from all hearings involving Jones and notified the Chief Justice of the Alabama Supreme Court to this effect.
In addition, at the circuit court hearing there was testimony by the Clerk of the Circuit Court of Russell County, that Jones owed court costs in the amount of $789.15 involving 32 cases.
Based on this evidence, we cannot say that the court abused its discretion in removing Jones as executor. There was sufficient evidence to support the court's finding that based on Jones's conduct or character, he was not a suitable person to have in charge and control of the estate.
Jones also claims error in his removal as trustee by the circuit court. The circuit court stated in its order that:
"The Petitioners averred in their Petition that Marion J. Jones, Jr. was not a fit and proper person to serve as Trustee under the Last Will and Testament because of the provisions of Title 43, Chapter 2, Section 291, and Title 19, Chapter 3, Section 211, all of the Code of Alabama of 1975. They averred that the said Marion J. Jones, Jr. had been held in contempt of court by the Judge of Superior Court of Muscogee County, Georgia, and that he had received a sentence of twelve months hard labor for Russell County and in addition thereto had received fines in two other criminal cases in the Russell County Circuit Court. They averred that he had many law suits filed against him on the civil side of the Circuit Court of Russell County and that Judgments had been taken and filed for record in the Office of the Judge of Probate of Russell County, Alabama, and that only a few of these judgments had been paid. The Court finds that there was no testimony to the contrary regarding the payment of these judgments and further that court costs had not been paid in any of the cases filed by Mr. Jones in the Circuit Court of Russell County, except for one filed by him in 1978 against the Russell County District Attorney.
*973 "The Court also found that Marion J. Jones, Jr. had been found guilty of three criminal violations and that in one of these cases he had received a sentence of twelve months hard labor for Russell County.
"The Court, having considered the oral testimony, and the exhibits submitted, is of the opinion and finds that the Court has jurisdiction over the parties and of the cause of action and that the Petitioners are entitled to relief prayed for in their Petition."
The removal of a trustee is a matter which rests in the discretion of the trial court and on appeal our scope of review is limited to determining whether the court has abused its discretion. In re Estate of Amason, 369 So.2d 786 (Ala.1979). Jones cites Amason for the proposition that the removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. From an examination of the record and the order of the circuit court, we cannot say that the court abused its discretion. Based on the evidence before it, the court could reasonably have determined that Jones was an unsuitable person to execute the trust, that the estate was in danger, and that intervention was necessary to save the trust property.
Accordingly, the orders of the Probate and Circuit Courts of Russell County, removing Marion J. Jones, Jr., as the executor and trustee of the Estate of Glenn W. Anthony, are hereby affirmed.
AFFIRMED.
MADDOX, FAULKNER, EMBRY and ADAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604218/ | 810 So.2d 1118 (2002)
Eva PARTIN
v.
MERCHANTS & FARMERS BANK.
No. 2001-C-1560.
Supreme Court of Louisiana.
March 11, 2002.
*1119 Bradley J. Gadel, Counsel for Applicant.
KIMBALL, Judge.
In this case, Claimant, Eva Marie Partin, alleged that she suffered a compensable mental injury when her employer, Merchants and Farmers Bank, demoted her for lack of managerial skills after eighteen years of employment. The Office of Workers' Compensation (OWC) awarded compensation benefits to Claimant and the bank appealed. We granted certiorari to determine whether Claimant's mental condition is compensable under the Workers' Compensation Act. For the following reasons, we conclude that the bank's demotion of Claimant produced stress that was not unexpected or extraordinary as required by the Act, and we therefore reverse the order awarding benefits to Claimant.
FACTS AND PROCEDURAL HISTORY
The record indicates that Claimant gave the following testimony at the compensation hearing. She began work with the bank in 1978 as a bookkeeper, after which she worked as a teller. Thereafter, she received a raise with a promotion to vault teller, and then a raise with a promotion to teller supervisor. She worked next as vault teller supervisor, and then received a raise and promotion to acting branch manager, followed by a promotion to branch officer. She requested a raise when she became a branch officer in 1994, but she did not receive it. When she asked if there were any improvements she could make in order to get the raise, her supervisor, Kay Wilbanks, did not give her any suggestions, but told her that not every promotion came with a raise. Claimant testified that, before the demotion in question, she had never been demoted, received a pay cut, punished for any misconduct, told that she did not have satisfactory management skills, or received written reprimands. She was comfortable with her status at the bank and had no idea there was a problem or a question about her job.
She further testified that she conducted a surprise audit of a teller, Helen Childers, on June 4, 1996. During the audit, she learned that Ms. Childers' drawer was over balance by five dollars, and that Andrea Howard, the vault teller, was under balance by five dollars. They investigated the problem and found a ticket showing that Ms. Childers had earlier bought change from Ms. Howard, and Ms. Childers had accidentally recorded on the ticket five dollars more than she should have. Claimant informed Ms. Childers that it was against bank policy to simply swap the five dollars in cash. Therefore, because Ms. Childers had already closed out her drawer, Claimant instructed Ms. Childers to make a handwritten "cash-in" ticket in the amount of five dollars, and she respectively instructed Ms. Howard to make a handwritten "cash-out" ticket in the amount of five dollars. Claimant made a corresponding notation on her cash audit sheet that Ms. Childers' drawer had an additional five dollars. Claimant explained that this was the legal way to correct the error and make the two tellers balance without exchanging cash. She knew that the bank had a policy against forced-balancing[1], and that it carried a penalty of termination, but she explained that this was not forced-balancing.
After settling the matter, Claimant left the two tellers and attended to other work. While Claimant was gone and without her knowledge, Ms. Childers failed to credit *1120 the cash-in ticket to her drawer. Ms. Childers then gave Ms. Howard the five dollars, which put them in balance, and they tore up their cash-in and cash-out tickets. This resulted in a five-dollar discrepancy between Ms. Childers' balance sheet and Claimant's audit sheet, because Claimants' audit sheet still indicated that Ms. Childers had five extra dollars.
The bank's internal auditor, Gene Tate, noticed the discrepancy in mid-July, 1996. Ms. Wilbanks questioned Claimant, Ms. Childers, and Ms. Howard about the discrepancy, and they each wrote a separate statement regarding their version of what had happened. Claimant testified that Ms. Wilbanks never said anything to her about forced-balancing the drawer, and that nothing at all was said about the incident after they turned in their statements. Claimant therefore assumed that the bank had found their explanations to be acceptable.
Toward the end of the working day on August 19, 1996, Ms. Wilbanks informed Claimant that she should report to the main office at 8:00 the next morning for a meeting. At the meeting, Ms. Wilbanks and Mr. Ron Steed, the president of the bank, told Claimant that she was being demoted because she lacked managerial skills, but that she could return to work at a different branch as a teller. Claimant testified that they never mentioned the incident involving the five dollars, and that the first time they mentioned it was during the first workers' compensation meeting in April or May of 1997. Although no one raised his or her voice and no one used profanity or vulgarity during the August 20 meeting, Claimant found the news of her demotion shocking. She became very upset, and was shaking and crying. She stated that she did not understand why she was being demoted after having been in a supervisory position at the bank for thirteen years, she did not know the bank was dissatisfied with her performance, and she did not think that this severe action might be pending against her.
Claimant never returned to work after the August 20 meeting. She went immediately to her doctor, who later referred her to a psychiatrist, Dr. Walker Goodin. She described her symptoms as sleeplessness, crying, pacing, anxiety, and panic attacks. She went to the emergency room several times because she could not function. In January, she went to the unemployment office, but was unable to find a job that would suit her.
The record also indicates that Ms. Wilbanks gave the following testimony at the compensation hearing. Based on the five-dollar discrepancy between Claimant's audit sheet and Ms. Childers' teller sheet, Mr. Tate told Ms. Wilbanks that Ms. Childers' had forced-balanced her window and that Claimant assisted in it by not reporting the error to the bank. Ms. Wilbanks brought the matter to the attention of Mr. Steed and Mr. Ken Hughes, the bank's executive vice president. Mr. Tate wanted to terminate both Ms. Childers and Claimant on the spot, but Mr. Steed and Ms. Wilbanks decided to hear their explanations, so Ms. Wilbanks instructed Claimant and Ms. Childers to submit written statements. Thereafter, Ms. Wilbanks left on her required vacation and returned on August 19, 1996.
Upon her return, Ms. Wilbanks reviewed everything and determined that the incident was not accidental. Rather, she determined that Ms. Childers lowered her fives to make herself in balance, and Claimant counted the extra five, but Claimant merely sent her audit sheet to Mr. Tate instead of reporting that Ms. Childers had five extra dollars. She explained that there is a difference between helping a teller to balance and conducting a surprise audit. A surprise audit has *1121 specific instructions, and its purpose is to discover whether a teller is out of balance and to report the results, not to correct the error for the teller. She emphasized that the surprise audit procedure is required by the FDIC because the bank is entrusted with the public's money. Because the auditing process is all about comparing cash amounts, Ms. Wilbanks' assessment was that a person who conducts an audit as Claimant did has either very poor managerial skills or none at all. Mr. Steed and Ms. Wilbanks agreed that Ms. Childers should be terminated and Claimant should be demoted to the position of "teller two," which Ms. Wilbanks described as the highest non-managerial position at the bank. The bank was unable to terminate Ms. Childers, however, because Ms. Childers had already left the bank due to her husband's military transfer. Ms. Wilbanks' account of the August 20 meeting was consistent with that of Claimant, except that Ms. Wilbanks claimed that Mr. Steed did mention the incident regarding the five dollars, and that he also mentioned Claimant's previous failure to ensure that there was a blank tape in one of the bank's security cameras during a robbery in 1994.
Ms. Wilbanks further testified regarding previous times the bank indicated its dissatisfaction with Claimant's managerial skills. She stated that, in December of 1994, when Claimant expressed that she was disappointed in the amount of her raise, she explained that Claimant received the same raise as most everyone, and that the bank was not real happy with her performance at the branch because of the incident with the security camera tapes and because the bank received more customer complaints from Claimant's branch than any other. Also, on January 6, 1995, when Claimant expressed to Ms. Wilbanks and Mr. Steed that she was unhappy about her raise, they discussed their dissatisfaction with her performance and told her she needed to do a better job of managing the branch. Lastly, on January 20, 1995, Ms. Wilbanks reprimanded Claimant for complaining to a co-worker about her salary.
Dr. Goodin diagnosed Claimant with a major depressive disorder, which was triggered by her demotion. Dr. Goodin also acknowledged that Claimant had prior emotional traumas, such as several molestations in childhood and adolescence, and other instances of rejection, which may have contributed to the impact of the emotion. At the time of his deposition, he believed that long-term treatment with medication had stabilized Claimant's condition, but he stated that her symptoms were not in remission. He testified that further progress was necessary before she could return to any work environment.
Dr. Paul Ware, a psychiatrist who examined Claimant at the bank's request, agreed that Claimant suffered a major depressive disorder, although he believed that Claimant had a tendency to portray herself as more impaired than she actually was, and that her passive dependent personality contributed to her continuing disability.
At the conclusion of the hearing, the hearing officer found that Claimant was credible and that it was not seriously disputed that Claimant became hysterical at the August 20 meeting. He also found that a demotion being handled in a professional, private, and calm manner does not necessarily mean that it could not have caused the average, reasonable employee mental injury. Lastly, regarding Claimant's past emotional rejections, he reasoned that the decision is not about the average person but about Claimant, and that the bank must take her as it finds her. As a result, the hearing officer concluded that Claimant demonstrated by clear and convincing evidence that she sustained mental injury caused by extraordinary *1122 stress related to her employment, and that she therefore suffered a compensable work-related accident and was entitled to benefits.
The bank appealed to the third circuit court of appeal, which affirmed the ruling of the OWC. The court of appeal reasoned that an objective standard should be used to determine whether the nature of the stress suffered by Claimant was extraordinary. It concluded that an ordinary reasonable person of usual sensibilities would find that, under these facts, the stress brought on by the demotion was extraordinary. The court recognized that employees are expected to follow the workplace rules, but that discipline should be commensurate with the infraction. It concluded that Claimant's demotion and significant salary reduction was sudden, unexpected, and extraordinary as required by the controlling statute, and that Claimant had established by clear and convincing evidence that she is temporarily and totally disabled and entitled to benefits and medical expenses.
We granted certiorari to consider whether Claimant's mental condition is compensable under the Workers' Compensation Act. Partin v. Merchants & Farmers Bank, 01 C 1560 (La.9/21/01), 797 So.2d 55.
LAW AND ANALYSIS
The bank contends that the court of appeal erred in affirming this award of benefits because an employer's decision to demote an employee is merely a "general condition of employment," which is not compensable. The bank urges that an employer's failure to handle a demotion or a termination properly is a matter for tort law. In contrast, Claimant contends that this award of benefits was proper and is supported by the jurisprudence.
Prior to 1989, Louisiana courts were split on whether mental injuries caused solely by mental stress (known as "mental/mental" claims) were compensable under the Workers' Compensation Act. At that time, the term "injury" was defined in subsection 1021(7) of the Act, which stated:
"Injury" and "personal injuries" include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
La. R.S. 23:1021(7) (1989). To remedy this split in the courts, a bill was proposed in the state legislature that eliminated the compensability of mental/mental claims. Minutes of Meeting, House Committee on Labor and Industrial Relations 15 16, May 26, 1989, Reg. Sess. 1989. It retained the text of subsection 1021(7) but redesignated it as 1021(7)(a), and then added subsection 1021(7)(b), which stated:
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter.
H.B. No. 1431, Reg. Sess. 1989 (original version). This amendment was proposed along with many other amendments to the Workers' Compensation Act, which were presented together as House Bill No. 1431. The stated purpose of HB 1431 was to address the problem of employers' increased liability in many areas, including mental injury claims. House Minutes, supra at 15. The bill's author explained that the bill addressed the "crisis" in Louisiana regarding workers' compensation insurance: Louisiana had the sixth highest workers' compensation insurance rate in the United States, which prevented new businesses from being able to obtain the *1123 insurance. Minutes of Meeting, Senate Committee on Labor and Industrial Relations 4, June 7, 1989, Reg. Sess. 1989 A proponent of the bill explained that the bill addressed the fact that Louisiana courts had been ignoring much of the language in the Workers' Compensation Act, and that if the laws had been interpreted as they were written, constant changes would not be necessary. House Minutes, supra at 18. He stated that the bill was meant to statutorily override cases that had liberalized the workers' compensation law regarding mental stress and heart attacks, and to impose more difficult tests in order to recover. Senate Minutes, supra at 5.
The proposed language in subsection 1021(7)(b) regarding mental/mental claims passed the house on June 1, 1989. Official Journal of the House of Representatives of the State of Louisiana, Twenty-Ninth Day's Proceedings 30, Reg. Sess. 1989, June 1, 1989. Twelve days later, however, the Senate adopted an amendment which added a clause to subsection 1021(7)(b) that made mental/mental claims compensable in certain circumstances. Official Journal of the Senate of the State of Louisiana, Twenty-Ninth Day's Proceedings 14, Reg. Sess. 1989, June 13, 1989. The added clause is indicated below with underlined text:
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
Id. This amendment was adopted by the house on June 21, 1989, and the bill passed the legislature with the added language that mental/mental claims were not compensable except under those limited circumstances. House Journal, supra, Forty-Third Day's Proceedings at 30, June 21, 1989. The governor signed HB 1431 on June 30, 1989, and it became effective as Act 454 of 1989 on January 1, 1990. 1989 La. Acts 434.
During the window of time between the enactment of HB 1431 and its effective date, this court held that a mental/mental claim was compensable as an "injury" under the pre-amendment version of La. R.S.23:1021(7) in Sparks v. Tulane Med. Center Hosp. & Clinic, 546 So.2d 138 (La. 1989) (decided on September 11, 1989). Our decision today, though, is governed by the new, amended version of the law governing mental/mental claims found at La. R.S. 23:1021(7)(b), as quoted above. Subsection 1021(7)(a) (which was previously designated as subsection 1021(7)) is no longer at issue because the new law specifically provides for mental/mental claims in subsection 1021(7)(b).
In a mental/mental claim, a claimant must not only satisfy subsection 1021(7)(b), but also the general requirements for recovery under the Workers' Compensation Act, found in La. R.S. 23:1031. Section 1031 limits recovery under the Act to situations where "an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031 (emphasis added). We note that subsection 1021(7)(b) incorporates this entire emphasized phrase into its definition of mental injury, stating that a mental injury or illness resulting from work-related stress shall not be considered a "personal injury by accident arising out of and in the course of his employment" and is not compensable unless the mental injury resulted from a sudden, unexpected, and extraordinary stress related to the employment. In contrast, subsection *1124 1021(7)(a) does not contain this language, but simply defines "injury" and "personal injuries" as injuries by violence to the physical structure of the body and their naturally-resulting diseases or infections. La. R.S. 23:1021(7)(a). Yet, by incorporating the language from section 1031 into subsection 1021(7)(b), we do not think that the legislature intended the requirement of "sudden, unexpected, and extraordinary stress related to the employment" to satisfy the whole of "personal injury by accident arising out of and in the course of employment." Our conclusion is supported by the legislative history of subsection 1021(7)(b). As discussed above, the house originally intended for subsection 1021(7)(b) to preclude the compensability of all mental/mental claims. It accomplished this by referring to the basic requirements of compensability under section 1031 in a peremptory statement that "a mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter." H.B. No. 1431, Reg. Sess. 1989 (original version) (emphasis added). However, when the senate later chose to amend that subsection and make mental/mental claims compensable in certain limited circumstances, it merely tacked on an "unless" clause to the end of the original language, rather than redrafting the entire subsection. Senate Journal, supra, Twenty Ninth Day's Proceedings at 14, June 13, 1989. The logical deduction is that the legislature did not intend to displace the basic requirements of accident, arising out of employment, and in the course of employment in mental/mental claims. Rather, the legislature intended to provide narrow circumstances under which mental/mental claims would be compensable, assuming that the requirements of accident, arising out of employment, and in the course of employment were also satisfied. Therefore, a mental/mental claimant must fulfill both the requirements in section 1031 and those in subsection 1021(7)(b) in order to recover.
For the reasons below, we conclude that Claimant's injury fails to meet the requirements of subsection 1021(7)(b). Because her failure to meet the requirements of subsection 1021(7)(b) precludes Claimant's recovery for her mental/mental claim, it is not necessary to also discuss whether the requirements of section 1031 are met.
In analyzing Claimant's injury under subsection 1021(7)(b), we first note that this subsection states in part that a mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence. Claimant contends that the stress brought on by her demotion was unexpected and extraordinary because Claimant's career at the bank was well-established and successful, Claimant was close to reaching retirement, and the demotion was not a known, scheduled event. Claimant testified that she in no way expected this demotion because she assumed the bank was satisfied with her written explanation of the incident involving the five dollars, and because she had no prior indications that the bank was dissatisfied with her performance as a manager. Nevertheless, we find that, even under the facts as presented by Claimant, this demotion does not fit the meaning of unexpected and extraordinary stress under subsection (7)(b).
Although subsection (7)(b) falls under the "definitions" subpart of the Workers' Compensation Act, it reads more like a declaration of the conditions under which *1125 a mental injury will be compensable. In this way, it is not so much a definition of mental injury as it is a definition of compensable mental injury. Under the statute, a mental injury is compensable depending upon the type of stress which triggers that injury. The legislative history of subsection (7)(b), outlined above, reveals an active decision on the part of the legislature to so condition compensability in order to tighten the reigns of recovery for mental/mental claims. The desire for more difficult tests and restricted recovery indicates that the legislature intended that the nature of the stress itself be evaluated, rather than the stress being evaluated from the employee's perspective. This of course differs from the determination of whether an "event" was unexpected or unforseen under the accident requirement of subsection 1021(1), which is made by viewing the event from the employee's perspective. See Williams, 546 So.2d at 156; Parks v. Insurance Co. of N. Am., 340 So.2d 276, 281 (La.1976); Ferguson v. HDE, Inc., 270 So.2d 867, 870 (La.1972). Yet we find that this different evaluation of the "stress" under subsection 1021(7)(b) is mandated by the legislative intent. If the stress were evaluated from the employee's perspective, much wider recovery would result under subsection (7)(b) because nearly every employee would consider extraordinary a stress that caused him mental injury. Although Louisiana courts have construed the terms of the Workers' Compensation Act liberally in light of its "beneficient purpose of relieving workmen of the economic burden of work-connected injuries by diffusing the costs in channels of commerce," there is a legislative intent to the contrary in subsection (7)(b). Sparks, 546 So.2d at 146 (quoting Parks v. Insurance Co. of N. Am., 340 So.2d 276, 281 (La.1976)). The most likely inference is that the legislature intended to restrict recovery under subsection (7)(b) to those mental injuries that result from stresses which, by their nature, are sudden, unexpected, and extraordinary in the usual course of employment in that working environment.
Given its proper and necessary interpretation, it is evident that the new law under subsection 1021(7)(b) addresses the concerns previously expressed by this and other Louisiana courts. Before subsection 1021(7)(b) took effect and provided an express statutory basis for mental/mental claims, courts struggled to find a place for such claims under what was then subsection 1021(7), which basically restricted "injuries" to those caused by violence to the physical structure of the body. See, e.g., Sparks v. Tulane Med. Center Hosp. & Clinic, 546 So.2d 138 (La.1989); Jones v. City of New Orleans, 514 So.2d 611 (La. App. 4 Cir.1987); Guillot v. Sentry Ins. Co., 472 So.2d 197 (La.App. 5 Cir.1985); Taquino v. Sears, Roebuck and Co., 438 So.2d 625 (La.App. 4 Cir.1983). Sparks reasoned that mental/mental claims were compensable under the old law because there was violence in the form of a harmful effect on the physical structure of the body, which includes the complex of integrated and interdependent bones, tissues and organs that function together by means of electrical, chemical and mechanical processes. Sparks, 546 So.2d at 145-46 (quoting Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318 (1955)). In doing so, the Sparks court was also aware of the potential problems that could result if every claim of mental injury were compensable. While the strict language in subsection 1021(7) did not appear to lend itself to a limitation on the compensability of mental/mental claims, the "accident" requirement did. The court stated:
[A] mere showing that a mental injury was related to the general conditions of employment, or to incidents occurring over an extended period of time, is not *1126 enough to entitle the claimant to compensation. The mental injury must be precipitated by an accident, i.e., an unexpected and unforeseen event that occurs suddenly or violently.
Sparks, 546 So.2d at 147 (emphasis in original). Under the new law, it is not necessary to limit mental/mental claims through the accident requirement as was appropriately done under the old law in Sparks. The new law provided in subsection 1021(7)(b) supplies its own limitation by disallowing compensation for mental injuries unless they result from stress that, by its nature, is sudden, unexpected, and extraordinary in the usual course of employment in that working environment. Although the accident requirement must still be fulfilled as explained above, the limitation on claims should now be found in subsection 1021(7)(b).
In this case, Claimant personally found her demotion to be extraordinary and unexpected because she did not know that the bank was displeased with her management skills and she was quite settled in her career. Yet by its nature, a demotion for failing to satisfactorily perform one's job creates stress that is neither unexpected nor extraordinary in the usual course of employment at a bank. That is not to say that a demotion could not be handled in such a way that would make it unexpected or extraordinary. For example, if an employer used violence in demoting an employee, it would perhaps cause stress that is unexpected and extraordinary. In addition, an event such as a robbery would perhaps cause stress that is unexpected and extraordinary at a bank, regardless of how it is conducted. In this case, however, the bank explained to Claimant that it was demoting her to teller because she lacked managerial skills, and it is undisputed that the bank did so in a calm and professional manner. Such a situation does not create stress that is unexpected or extraordinary in the usual course of employment at a bank.
The court of appeal properly rejected a subjective test for evaluating subsection 1021(7)(b), but it concluded that the stress in this case was "sudden, unexpected, and extraordinary." The court considered the nature of Claimant's infraction (which the court characterized as a "mere[] attempt[] to correct a $5.00 error between two tellers") in light of the positive tenor of Claimant's personnel file and Claimant's thirteen years as a supervisor, and concluded that the demotion and salary cut was "far beyond what a reasonable person would expect as appropriate company discipline." Partin v. Merchants & Farmers Bank, 00-1113, p. 7 (La.App. 3 Cir. 5/9/01), 783 So.2d 652, 657. The court of appeal's analysis went beyond evaluating the nature of the stress into evaluating the wrongfulness or unfairness of the bank's personnel action, which is properly the subject of an action at tort law rather than a workers' compensation claim. A personnel action is not necessarily extraordinary because it is unfair from the employee's point of view. Although the court of appeal adopted an objective standard regarding subsection (7)(b), it nevertheless assessed the effect of the demotion from the Claimant's perspective when it considered her prior performance and her view of the five-dollar incident. Considering simply the nature of the stress itself in this case, we find that a demotion for lack of managerial skills creates stress that is neither unexpected nor extraordinary in the usual course of employment at a bank. We conclude, therefore, that Claimant's mental injury is not compensable under La. R.S. 23:1021(7)(b).
*1127 DECREE
For the foregoing reasons, the award in favor of Claimant is reversed.
REVERSED.
JOHNSON, J., concurs.
NOTES
[1] At the hearing, Claimant's supervisor, Kay Wilbanks, explained that forced-balancing means that the cash in a teller's drawer is intentionally manipulated in order to conceal the fact that the drawer is either short cash or over cash. In other words, a forced-balancing shows a false balance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604223/ | 8 So.3d 780 (2009)
Helen BABIN
v.
PLANET BEACH TANNING SALONS, INCORPORATED.
No. 2008-CA-1350.
Court of Appeal of Louisiana, Fourth Circuit.
March 25, 2009.
*781 James E. Moore, Jr., Carlton, Dunlap, Olinde, Moore & Bohman, LLC, Baton Rouge, LA, for Sybaritic, Inc.
Stephen N. Elliott, Caroline D. Elliott, Jeanne M. Mauldin, David M. McDonald, Bernard Cassisa Elliott & Davis, PLC, Metairie, LA, for Defendant/Appellant.
(Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
MAX N. TOBIAS, JR., Judge.
The defendant/appellant, Planet Beach Tanning Salons, Inc. ("Planet Beach"), appeals from a judgment granting an exception of prescription filed by third-party defendant/appellee, Sybaritic, Inc. ("Sybaritic"). After reviewing the record and applicable *782 law, we reverse the judgment and remand the matter to the trial court for further proceedings.
On 26 January 2007, the plaintiff, Helen Babin, was injured while entering a piece of equipment called a "hydration station" at the Planet Beach salon in uptown New Orleans.[1] She filed suit against Planet Beach on 26 February 2007, which was served with the pleading on 2 March 2007; its answer was filed on 2 May 2007.
Babin was deposed on 30 August 2007, in which she claimed that she fell out of the hydration station because the surface of the bed was wet and slippery due to one of the employees allegedly spraying it with a substance without wiping it up. She also testified that the station's canopy hood was harder to pull down than it had been a week earlier.
On 12 March 2008, the plaintiff's expert was deposed. He stated that the accident could only have happened if the bed surface of the hydration station was wet in combination with the canopy hood having too much resistance when Babin tried to pull the hood down.
On 26 March 2008, Planet Beach filed a third-party demand against Sybaritic seeking indemnification and/or contribution. In response, Sybaritic filed several exceptions, including an exception of prescription. On 6 August 2008, the trial court granted the exception of prescription. This timely appeal followed.
While this matter was pending on appeal, the main demand was tried.[2] The jury found that Planet Beach was negligent in preparing the equipment for Babin and negligent in the training of its employees to prepare the machine. Planet Beach alleges that it prepared the hydration station and trained its employees to prepare the machine in accordance with the instructions and procedures provided by Sybaritic. Planet Beach contends that its fault is the direct result of Sybaritic failing to warn it that (1) the use of the hydration station bed when wet increases the risk of a person slipping out of the bed; (2) a possibility exists of an ejection of a user by pulling the canopy down that may have more resistance than usual when the surface is moist; and (3) potential problems exist that the user may encounter under conditions similar to the plaintiff's accident. Planet Beach also argues that Sybaritic, or companies representing Sybaritic, performed all repairs on the hydration station.
The sole issue for our consideration is whether the third-party demand filed by Planet Beach against Sybaritic has prescribed. Planet Beach contends that it has not because a claim for indemnification does not accrue until the party seeking indemnity is cast in judgment. In response, Sybaritic argues that, at the very latest, Planet Beach had notice of a potential defense of product defect or failure to warn when it was served with Babin's petition on 2 March 2007. Thus, the third-party demand filed 26 March 2008, more than a year later, was prescribed.
"The standard of review of a trial court's finding of facts supporting prescription *783 is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong." Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 148. Similarly, the trial court's fact finding regarding prescription should not be reversed without a finding of manifest error because the issue before the appellate court is not whether the fact finder is right or wrong, but whether the fact finder reached a reasonable conclusion. Id., 757 So.2d at 149.
In general,
[i]ndemnity is due when fairness requires that one person bear the total responsibility for an injury. The basis for indemnity in the civil law, as in the common law, is restitution, the indemnitor having been unjustly enriched when the person seeking indemnity has discharged liability that was his responsibility. A solidary debtor who pays a debt that "concern[s] only" a co-debtor is, therefore, entitled to indemnity from the debtor in whose behalf the debt arose. Thus a person who is held liable vicariously or passively for the tort of another is due indemnity from the culpable tortfeasor. One who is himself at fault, however, is not due indemnity because liability for indemnity exists only when the party seeking indemnity, the indemnitee, is free of fault and has discharged a debt that should be paid wholly by the indemnitor. The Louisiana Supreme Court has summed up the principle this way: indemnity shifts the entire loss from a tortfeasor only technically or constructively at fault to the person primarily responsible, while contribution apportions the loss among those jointly responsible.
Diggs v. Hood, 772 F.2d 190, 193 (5th Cir.1985) (citations omitted).
In the recent case of Orlando v. E.T.I., 07-1433 (La.12/12/08), ___ So.2d ___, 2008 WL 5194398, the Supreme Court was presented with an analogous issue.[3] The facts and procedural history were explained by the Court as follows:
This matter arrived in this Court in a pre-trial posture; therefore, the facts have been extrapolated from the various pleadings. On June 6, 2001, Exceptional Temporaries Inc., [sic] ("ETI") entered into a contract with the City of New Orleans Aviation Board ("NOAB") to provide sound-deadening insulation to residences in close proximity to Louis Armstrong Airport as part of the Airport Capital Improvements Program. On October 8, 2001, plaintiffs, Frances Orlando and Nicholas Reggio, contracted with NOAB to have their Kenner residence insulated. The work actually began on or about March 23, 2002. In the process of renovating the house, ETI allegedly broke a window's glass, then failed to remove some pieces of the broken glass. Frances Orlando alleged that she stepped on the glass and cut her foot on April 21, 2002, causing severe bodily injuries. On March 7, 2003, she and her husband filed suit against ETI and NOAB alleging negligence on the part of NOAB in contracting with ETI to perform the repairs, and negligence on the part of ETI in performing "shoddy work in violation of LSA-C.C. art [sic] 2762." NOAB was served with the petition on March 26, 2003. ETI *784 was never served with the original petition.
On February 27, 2006, NOAB filed a Third Party Demand against ETI, seeking contribution and/or indemnity for damages arising out of the plaintiffs' tort claim. Particularly, NOAB argued that it "is entitled to complete indemnity and/or contribution from ... ETI to the degree that the accident sued upon was caused ... by the negligence and/or strict liability of ETI." ETI filed an exception of prescription based on LSA-C.C. art. 1067, which the trial court maintained, dismissing NOAB's third party demand.
The trial court noted that NOAB filed its third party demand almost three years after the main demand was filed and served. Although NOAB alleged a cause of action in contract, pursuant to an indemnity provision, the trial court determined that the contract between ETI and NOAB contains no such provision. The court held that NOAB's cause of action sounded in tort, and concluded that because NOAB brought suit against ETI more than 90 days after service of the main demand, pursuant to LSA-C.C. art. 1067, NOAB's third party demand was prescribed.
In affirming the trial court's ruling, the court of appeal found that the main demand clearly alleged a claim in tort, with a one year prescriptive period, although NOAB argued that a quasi contract existed between the parties. Reggio v. E.T.I., 07-0049 (La.App. 4 Cir. 6/13/07), 961 So.2d 1269. The court of appeal also concluded that there was no specific indemnity provision included in the contract between the NOAB and ETI; therefore, the NOAB's only redress was in tort, and the cause of action was prescribed pursuant to LSA-C.C. art. 3492. In finding no contract of indemnity, the court noted:
"A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms." Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986); Polozola v. Garlock, 343 So.2d 1000 (La.1977); Berry v. Orleans Parish School Bd., XXXX-XXXX (La.5/21/02), 830 So.2d 283.
The court of appeal held, as well, that the NOAB had ninety (90) days from service of the main demand to seek indemnification, and failed to do so; thus, NOAB's third party demand was prescribed. NOAB applied for a writ of certiorari, alleging error in the lower courts' application of LSA-C.C. art. 1067 to an incidental demand for indemnification, and this Court granted NOAB's writ of certiorari. Reggio v. E.T.I., 07-1433 (La.10/12/07), 966 So.2d 536.
Id. at pp. 1-2, ___ So.2d at ___.
The Court agreed that the contract in question did not include express language to support contractual indemnity between the parties. Instead, it found that NOAB's third-party demand asserted a negligence (tortious) cause of action, which had a one year prescriptive period. Id. at 5, ___ So.2d at ___. Thereafter, it stated:
Louisiana courts have found that in a claim for indemnification based on a tortious act, prescription begins to run when the indemnity claimant suffers the loss or damage, at the time of the payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity, i.e., when the judgment has been cast. Wiggins v. State Through *785 Dept. Of Transportation and Development, 97-0432 (La.App. 1 Cir. 5/15/98), 712 So.2d 1006, 1011, writ not considered, 98-1652 (La.9/25/98), 726 So.2d 6; Carpenter v. Lafayette Woodworks, Inc., 504 So.2d 179 (La.App. 3rd Cir.1987).
Id.
The Court found that the action for indemnity did not accrue until the City of New Orleans was responsible for a judgment or actually discharged a liability for which NOAB was responsible. Thus, it found that NOAB's action against E.T.I. was neither premature nor prescribed, and that the trial court and court of appeal had erred in granting the exception. Id. at pp. 6-7, ___ So.2d at ___.
In the instant matter, the third-party demand filed by Planet Beach against Sybaritic alleges that the plaintiff's injuries were caused solely by the negligence of Sybaritic and seeks indemnification for all damages and costs Planet Beach may later have to pay. The underlying action was tried on or about 8 December 2008, wherein Planet Beach was found at fault for the plaintiff's injuries. Therefore, its cause of action for indemnity did not begin to run until the judgment was entered against it. Therefore, the trial court erred in granting Sybaritic's exception of prescription on the issue of indemnity.[4]
Based on the foregoing, we reverse and set aside the judgment entered by the trial court sustaining the exception of prescription and remand the matter to the trial court for further proceedings.
REVERSED; REMANDED.
NOTES
[1] Babin alleged in her petition that "when she attempted to pull down the cover, she either ejected [sic] and/or was pulled partially out of the hydration station, and then was thrown completely out by a sudden, jerking motion that threw her to the floor, head first."
[2] Because the record was lodged before the underlying action was tried, the appellate record does not reflect the actual date of the trial. However, the trial of the plaintiff's claims was set for 8 December 2008. In its reply brief dated 20 January 2009, Planet Beach indicated that the trial was held, as reflected above.
[3] We note that the trial court judge in the instant matter also sat on the Orlando case. After granting the exception of prescription herein and while this appeal was pending in this court, the Supreme Court rendered its opinion in Orlando, reversing the trial court on the identical issue. Thus, the trial court did not have the benefit of Orlando when considering the exception of prescription filed by Sybaritic.
[4] To the extent that Planet Beach seeks contribution from Sybaritic, that claim is prescribed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/200395/ | 324 F.3d 12
In re COLONIAL MORTGAGE BANKERS CORP., Debtor.Banco Santander De Puerto Rico, Plaintiff, Appellant,v.Hans LOPEZ-STUBBE, Trustee, and Washington Mutual Bank, Defendants, Appellees.
No. 02-9008.
United States Court of Appeals, First Circuit.
Heard March 5, 2003.
Decided March 26, 2003.
COPYRIGHT MATERIAL OMITTED Wanda Luna Martinez, with whom Montañez & Alicea Law Offices was on brief, for appellant.
Iván R. Fernández-Vallejo, with whom Goldman Antonetti & Cordova, P.S.C., Jorge Souss, and Rodriguez & Fernández were on brief, for appellees.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.
SELYA, Circuit Judge.
1
This is the latest chapter in a seemingly endless bankruptcy litigation. We previously adjudicated the underlying dispute, involving rights to a substantial bank account standing in the name of the debtor, in favor of the trustee in bankruptcy. See Crefisa Inc. v. Washington Mut. Bank, 186 F.3d 46 (1st Cir.1999). The appellant attempts an end run around that ruling. Because our prior adjudication precludes the appellant's claim, we affirm the dismissal of its complaint.
I.
Background
2
Our earlier decision limns the full historical relationship, both procedural and factual, that is needed to put this proceeding into perspective. See id. at 47-49. Rather than retrace our steps, we include here only the bare minimum that is necessary to frame the issues on appeal. We draw our account from the brute facts that appear on the face of the complaint, the supporting documentation referenced therein, and matters susceptible to judicial notice.
3
On April 4, 2000, Banco Santander de Puerto Rico (Santander) filed a complaint in the federal district court requesting the court to order Washington Mutual Bank to turn over funds deposited in a certain "Golden Passbook" account. The complaint alleged that, on November 26, 1986, Caguas Federal Savings Bank loaned Milton Rua, president of Colonial Mortgage Bankers Corp., $500,000; that Rua signed a promissory note (the Note) in that amount and simultaneously pledged the Golden Passbook account to secure payment of the Note; and that Rua used the loan proceeds to fund the Golden Passbook account. The complaint then cited, and incorporated by reference, earlier litigation involving these funds, namely, Civil Action No. 87 1874, in the United States District Court for the District of Puerto Rico.
4
In that regard, the complaint alleged that Bowery Savings Bank (predecessor in interest to Washington Mutual) sued Rua, Colonial, and Caguas Federal in the same month that Colonial sought the protection of the bankruptcy court, alleging various defalcations in connection with a mortgage loan servicing agreement. The complaint proceeded to cite, and incorporated by reference, a bankruptcy case (Bankr.No. 87-03026) in which the bankruptcy court had ordered Caguas Federal to turn over the funds held in the Golden Passbook account to the trustee in bankruptcy (Hans López-Stubbe). Caguas Federal had complied with the turnover order, delivering a check for $557,720.86 (principal plus accrued interest) to the trustee on or about November 1, 1989.
5
The Resolution Trust Corporation (RTC) was appointed as the receiver of Caguas Federal in August of 1999. According to the complaint in the instant case, the RTC thereafter "sold and assigned to [Santander] the assets that it acquired from Caguas ..., which included Rua's loan with its collateral," and Santander then sold to Crefisa "all the assets that it acquired from RTC, including the loan granted to ... Rua with its collateral." Crefisa proceeded to bring an action to recover the monies on deposit in the Golden Passbook account, but lost because, in the words of the complaint, "[i]t was determined that the collateral was not transferred with the loan, and that Crefisa did not have standing to claim the monies." The complaint alleges that Crefisa thereupon transferred the loan back to Santander, "which has the collateral, so that Santander may claim the monies."
6
The defendants, López-Stubbe and Washington Mutual, asked the bankruptcy court to take judicial notice of the prior proceedings involving the Golden Passbook account, see Fed.R.Evid. 201, and simultaneously moved for dismissal of the complaint on res judicata grounds. They argued that the earlier proceeding brought by Crefisa precluded Santander's current claim. The bankruptcy court agreed and granted the motion. Banco Santander de P.R. v. López-Stubbe (In re Colonial Mtge. Bankers Corp.), Ch. 7 Case No. B87-03026(ESL), Adv. No. 00-0026, slip op. at 6 (Bankr.D.P.R. July 10, 2001). Santander appealed. The Bankruptcy Appellate Panel rejected the appeal. Banco Santander de P.R. v. López-Stubbe (In re Colonial Mtge. Bankers Corp.), No. 01-073, slip op. at 26-27 (B.A.P. 1st Cir. Aug. 16, 2002). Santander now appeals to this court.
II.
Analysis
A.
Legal Principles Governing Appellate Review
7
The jurisprudence of Rule 12(b)(6) is applicable to motions to dismiss in bankruptcy cases. See Fed. R. Bankr.P. 7012(b) (incorporating by reference Fed.R.Civ.P. 12(b)(6)); see also Lawrence Nat'l Bank v. Edmonds, 924 F.2d 176, 180 (10th Cir.1991); In re Metrobility Optical Sys., Inc., 279 B.R. 37, 40 (Bankr.D.N.H. June 5, 2002). Thus, we review a dismissal of an action for failure to state a claim de novo, adhering to the same criteria that bound the lower courts. See Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir.2002); Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.2002). In that process, we assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiff's stated theory of liability. Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). We are not bound, however, to credit "bald assertions, unsupportable conclusions, and opprobrious epithets" woven into the fabric of the complaint. Chongris v. Bd. of Appeals, 811 F.2d 36, 37 (1st Cir.1987) (citation and internal quotation marks omitted). We can affirm the allowance of a motion to dismiss only if the plaintiff's factual averments hold out no hope of recovery on any theory adumbrated in its complaint. Rogan, 175 F.3d at 77.
8
These principles require us to consider not only the complaint but also matters fairly incorporated within it and matters susceptible to judicial notice. Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir.2000); Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16-17 (1st Cir.1998); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir.1996). The first part of this rule is consistent with the axiom that a writing is the best evidence of its contents. See, e.g., Beddall, 137 F.3d at 16-17. The second part of this rule is consistent with the hoary tenet that a court "may look to matters of public record in deciding a Rule 12(b)(6) motion." Boateng v. InterAmerican Univ., 210 F.3d 56, 60 (1st Cir.2000).
9
Despite these familiar principles, the appellant challenges the bankruptcy court's decision to go outside the margins of the complaint proper in weighing the res judicata defense. That is an affirmative defense, the appellant says, and should be left to proof at summary judgment or at trial. As a theoretical matter, this challenge is baseless. In an appropriate case, an affirmative defense may be adjudicated on a motion to dismiss for failure to state a claim. See, e.g., Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir.2001); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.1998); Kale v. Combined Ins. Co., 924 F.2d 1161, 1165 (1st Cir.1991). The affirmative defense of res judicata is no exception. See, e.g., Boateng, 210 F.3d at 60; Kale, 924 F.2d at 1165. Even without a motion, "a court on notice that it has previously decided an issue may dismiss the action sua sponte, consistent with the res judicata policy of avoiding judicial waste." Bezanson v. Bayside Enterps., Inc., 922 F.2d 895, 904 (1st Cir.1990).
10
The conclusion that an action can be dismissed on the basis of an affirmative defense, such as res judicata, does not end our inquiry. Such a dismissal only can occur in an appropriate case. Two conditions must be met. The first condition is that the facts that establish the defense must be definitively ascertainable from the allegations of the complaint, the documents (if any) incorporated therein, matters of public record, and other matters of which the court may take judicial notice. The second condition is that the facts so gleaned must conclusively establish the affirmative defense. See Blackstone Realty, 244 F.3d at 197; LaChapelle, 142 F.3d at 509.
B.
Applying the Principles
11
Against this backdrop, we turn to the validity of the affirmative defense in this case. The question we must answer is whether, applying the rules enumerated above, Santander's claim is barred by the doctrine of res judicata.
12
Federal law determines whether an earlier judgment, rendered in a federal court, bars the maintenance of a subsequent federal court action. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 37 (1st Cir.1998). Under federal law, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Thus, the elements of a res judicata defense are (1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two actions. Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755 (1st Cir.1994).
13
In this instance, the face of the complaint acknowledges the existence of an earlier adversary proceeding. That proceeding resulted in a judgment on the merits in favor of the defendants (appellees here). See Crefisa, 186 F.3d at 48-49. This court ultimately affirmed the bankruptcy court's disposition. Id. at 52. Since that decision constitutes a final judgment for purposes of res judicata, see Perez v. Volvo Car Corp., 247 F.3d 303, 309 n. 4 (1st Cir.2001) (regarding judgment from appellate court as "final for res judicata purposes," notwithstanding ongoing proceedings); R.I. Hosp. Trust Nat'l Bank v. Bogosian, 11 F.3d 1092, 1095-96 (1st Cir.1993) (similar), the first element of the res judicata defense is satisfied.
14
The identicality of the claims asserted in the two actions cannot seriously be questioned. We described the cause of action proffered in Crefisa in the following terms:
15
On October 6, 1991, Crefisa brought an adversary proceeding in the Colonial bankruptcy case asserting a security interest in the Golden Passbook account; the claim was based on the pledge of the Golden Passbook account that Rua had made to Caguas on November 28, 1986, to secure his promissory note. Since the funds in the Golden Passbook account had been turned over to the trustee pursuant to the bankruptcy court's earlier order, the relief sought by Crefisa was an order from the bankruptcy court requiring the trustee to transfer the proceeds to Crefisa.
16
186 F.3d at 48. The substance of the cause of action that Santander asserts is materially identical. The only difference is the identity of the party seeking relief. Thus, the second element of the res judicata defense is satisfied.
17
We now turn to the third element of the defense. The defendants are the same in both cases. The plaintiffs, however, are nominally different. The question thus reduces to whether the plaintiffs, though not identical, are sufficiently in privity to satisfy this element. Gonzalez, 27 F.3d at 757-58.
18
The historical record strongly suggests that this query should be answered in the affirmative. Crefisa and Santander were treated as a single entity throughout the earlier litigation, and neither of them disputed that characterization. See Crefisa, 186 F.3d at 48 (concluding from the record that Crefisa "is apparently a wholly owned subsidiary of Banco Santander"); see also In re Colonial Mtge. Bankers Corp., Civ. No. 95-1614, 1998 WL 638341, at *6-*7 (D.P.R. Sept.11, 1998) (using the party designations "Santander/Crefisa," "Crefisa," and "Santander" interchangeably and pervasively). We have heretofore considered such imbricated corporate relationships sufficient to establish privity for purposes of claim preclusion. See Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 7 (1st Cir.1992). Thus, the third element of the res judicata defense is satisfied.
19
From what we already have written, it appears as if all three elements of the res judicata defense are extant here (and therefore, that the bankruptcy court appropriately dismissed the complaint under Rule 12(b)(6)). In an effort to convince us otherwise, Santander makes five counter-arguments. None of them need occupy us for long.
20
First, Santander maintains that the Crefisa decision did not reach the merits, but, rather, turned on an issue of standing. Although Santander makes this assertion in its complaint, we are not bound by it. After all, this characterization is not a factual allegation deserving of indulgence under Rule 12(b)(6). See Chongris, 811 F.2d at 37. Instead, it is a legal conclusion — and one that has no basis in the law. We explain briefly.
21
In Crefisa, we summarized the bankruptcy court's rationale, noting that the court applied the substantive law of Puerto Rico in its disposition of the case. 186 F.3d at 48-49. We then examined the district court's reasons for reversing the bankruptcy court's holding. Id. at 49. Having set the stage, we proceeded to analyze Puerto Rico law and apply it to the discerned facts. That exercise resulted in a reversal of the district court's ruling and the concomitant reinstatement of the bankruptcy court's judgment. Id. at 52. At each and every step of this pavane, the relevant judicial rulings were merits-based. A conclusory allegation that the rulings implicated standing does not change their fundamental character any more than calling a sow's ear a silk purse makes a credible fashion statement. A party cannot misconstrue legal precedent and then allege that misconstruction as a "fact" in order to deflect the preclusive effect of a prior adjudication. Cf. Kale, 924 F.2d at 1168 ("Whenever a litigant decides to enter the court system to seek justice, he must play by the rules.").
22
Santander's next challenge also is built upon a porous foundation. It interprets our opinion in Crefisa as turning on which party held the rights to the collateral that had been tendered to secure the Note. On that reading, it posits that its reacquisition of the Note alters the nature of the claim asserted here (and, therefore, renders the claims asserted in the two actions different).
23
This is little more than wishful thinking. Our earlier decision did not turn on the passing of the rights to the collateral from party to party but on the effect of an attempted assertion of those rights as against third parties. Crefisa, 186 F.3d at 51. Cognizant that the Note had been endorsed by RTC to Santander and then to Crefisa, we assumed that those endorsements automatically transferred the security interest in the collateral. Id. at 51-52. We nonetheless determined that, under the law of Puerto Rico, such transfers had no effect against a third party (such as the trustee in bankruptcy) unless and until certain formalities had been accomplished. Id. at 51. "So far as the record show[ed], this ha[d] never occurred." Id. (emphasis supplied). We made no distinction between the transfer from RTC to Santander and the subsequent transfer from Santander to its corporate relative (Crefisa). Consequently, the new fact alleged in Santander's complaint does not meaningfully differentiate its present claim from the one previously adjudicated in Crefisa.
24
Santander also maintains that the "identicality of parties" element is not satisfied here. In this regard, it asseverates that the bankruptcy court's determination that Santander and Crefisa were in privity was no more than an unsubstantiated ipse dixit. It says now — although it did not allege in its complaint — that Crefisa is not a subsidiary of Banco Santander de Puerto Rico, but, rather, a subsidiary of that company's parent corporation, Banco Santander de España. This asseveration lacks force.
25
As a procedural matter, Santander and Crefisa were treated as peas in a pod throughout the earlier litigation. See, e.g., In re Colonial Mtge. Bankers Corp., supra, 1998 WL 638341, at *6-*7 (treating Santander and Crefisa as one party without eliciting any objection). Inasmuch as that position was taken the first time around, Santander cannot disown Crefisa at this late date. Beddall, 137 F.3d at 23 ("We generally will not permit litigants to assert contradictory positions at different stages of a lawsuit in order to advance their interests."); Patriot Cinemas, Inc. v. Gen. Cinema Corp., 834 F.2d 208, 212 (1st Cir.1987) (adopting the view that "[j]udicial estoppel should be employed when a litigant is playing fast and loose with the courts, and when intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice") (internal citations and quotation marks omitted).1
26
If more were needed — and we doubt that it is — the distinction that Santander tries to draw makes no substantive difference for purposes of this appeal. The district court adjudicating the earlier claims specifically observed that the Note "was endorsed to the order of Banco Santander P.R. by RTC as Caguas' receiver and delivered to said bank as a result of the ... Agreement between RTC and Santander/Crefisa." In re Colonial Mtge. Bankers Corp., supra, 1998 WL 638341, at *6 (emphasis supplied). Thus, we can only conclude that Banco Santander de Puerto Rico was a party to the specific transaction at issue in our earlier Crefisa decision.
27
In all events, Santander and Crefisa, even on Santander's current version of the corporate interrelationship, are sister corporations under the control of a common parent. On any view of the record, these sister corporations share a common economic interest in attempting to satisfy a single debt, represented by the Note, by establishing a security interest in the Golden Passbook account and wresting the funds from the steely grip of the trustee in bankruptcy. Within this context, the corporate interrelationship among the parties gave Crefisa adequate incentive to litigate this common interest. No more is exigible to establish privity for purposes of the res judicata defense. See Aunyx Corp., 978 F.2d at 4, 7 (finding party identicality of technically separate but related corporations when they shared a common interest); see also Iannochino v. Rodolakis, 242 F.3d 36, 45-46 (1st Cir.2001) (finding privity when one former law partner was the "de facto representative" of the other anent a common economic interest). Any other result would invite endless varieties of manipulation and reward "tactical maneuvering designed unfairly to exploit technical nonparty status." Gonzalez, 27 F.3d at 761.
28
Fourth, Santander charges that the bankruptcy court erred in failing to convert the appellees' motion to dismiss into a motion for summary judgment. Had the court done so, Santander suggests, it could have introduced the RTC Santander asset purchase agreement to support its claim.
29
This argument is flawed in at least two respects. For one thing, matters of public record are fair game in adjudicating Rule 12(b)(6) motions, and a court's reference to such matters does not convert a motion to dismiss into a motion for summary judgment. Boateng, 210 F.3d at 60. For another thing, any attempt to introduce the asset purchase agreement would have been futile. After a party has litigated and lost, the doctrine of res judicata precludes any attempt on its part, the second time around, to supplement the evidentiary record. See McCurry, 449 U.S. at 94; Mass. Sch. of Law, 142 F.3d at 39.
30
Finally, Santander — grasping at straws — cites dictum in Crefisa outlining a theory under which that case's holding might not apply to a bankruptcy trustee. See Crefisa, 186 F.3d at 52. Santander takes that language as an invitation for it to relitigate the result of the earlier case. No such invitation was extended.
31
We specifically noted in the earlier case that Crefisa failed to make the argument that we called a possible "escape hatch." Id. Crefisa thus forfeited the right to press that argument. See Teamsters, Chauffeurs, Warehousemen, and Helpers Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). Because res judicata bars not only those theories that were actually litigated in the earlier action but also those theories that could have been litigated therein, see McCurry, 449 U.S. at 94, 101 S.Ct. 411; Mass. Sch. of Law, 142 F.3d at 39, the invitation to bring this argument before us in a future case clearly was not intended for any party in privity with Crefisa. Santander is such a party.
III.
Conclusion
32
We need go no further. Motions to dismiss are in order when a plaintiff has failed to state a claim upon which relief can be granted. This vehicle may be employed when the complaint, the documents incorporated by reference in it, matters of public record, and other matters susceptible to judicial notice coalesce to show beyond doubt that an action is barred, under the doctrine of res judicata, by a prior adjudication.
33
This is such a case. The complaint makes it abundantly clear that Santander, acting through its privy and corporate relative, had a full and fair opportunity to litigate its claim. It did so and lost. Having had one bite of the cherry, Santander is not entitled to another. As the lower courts properly held, its action is easy prey for the res judicata defense.
34
Affirmed.
Notes:
1
In an effort to turn the tables, Santander invokes the judicial estoppel doctrine offensively (rather than defensively). In this regard, it argues that the appellees should be estopped from disputing that standing was the pivotal issue inCrefisa because, in that case, the same parties filed a "Motion to Dismiss and/or for Summary Judgment based on lack of standing." In re Colonial Mtge. Bankers Corp., supra, 1998 WL 638341, at *1. This argument gains no ground. As we have explained, Santander's complaint puts courts on notice of prior proceedings relevant to the issues therein. We have determined, apart from any arguments made by the appellees, that those proceedings bar Santander's present action. Thus, whether the appellees should be barred from asserting the res judicata defense makes no difference in this appeal. See Bezanson, 922 F.2d at 904. | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1604618/ | 25 Wis.2d 128 (1964)
STATE EX REL. SACHTJEN, County Judge, Plaintiff,
v.
FESTGE, County Clerk, Defendant.
Supreme Court of Wisconsin.
August 31, 1964.
October 6, 1964.
*131 For the plaintiff there were briefs by La Follette, Sinykin, Doyle & Anderson, attorneys, and Gordon Sinykin and Shirley S. Abrahamson of counsel, all of Madison, and oral argument by Gordon Sinykin.
*132 For the defendant there was a brief by Michael B. Torphy, Jr., district attorney of Dane county, William F. Lorenz, Jr., deputy district attorney, and William C. Lengacher, assistant district attorney, and oral argument by Mr. Lorenz.
Briefs amici curiae were filed by H. E. Koehler, Frederic C. Eberlein, Lloyd G. Andrews, and Steve Aschenbrener, all of Shawano, for the Shawano County Bar Association, and by E. L. Wingert of Madison, for the Board of Circuit Court Judges.
FAIRCHILD, J.
The legislature has, effective with court reorganization, fixed a uniform basic salary for every county judge in the state.[3] Sec. 253.07 (2), Stats., permits each county to supplement the uniform salary as follows:
"The county may pay each county judge compensation in addition to that specified in s. 20.930 but such additional compensation shall be the same for each such judge and the total salary of the county judge cannot be more than the total salary of the highest paid circuit judge for the county."
The county board of Dane county, in voting the $100 per month here involved, was acting pursuant to the statute just quoted. It contains nothing to require that increases shall await new terms of office.
Another statute, sec. 59.15 (1), Stats., provides that the county board shall establish, prior to the earliest date for filing nomination papers, the total compensation for elective officers paid in whole or in part from the county treasury, and that such compensation shall not be increased or diminished during the officer's term. This statute, however, (if applicable to county judges) was superseded, for a period beginning February 27, 1951, and extended from time to time to December 31, 1963, by the Emergency Salary Adjustment Act.[4]
*133 Thus the county board of Dane county had statutory authority to grant the $100 monthly increase to relator during his current term unless sec. 26, art. IV of the constitution prevented.
The first sentence of sec. 26, art. IV, Wis. Const., provides:
"The legislature shall never grant any extra compensation to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract entered into; nor shall the compensation of any public officer be increased or diminished during his term of office...."
We are concerned in this case with the portion which we have italicized above.
The primary question posed in this case is whether a judge of a county court, with the powers and attributes enjoyed since court reorganization, is the type of "public officer" to which sec. 26, art. IV, Wis. Const., applies. If he be such type, the question would follow whether the section applies to his compensation out of county funds as well as state funds.
It is clear that in many contexts "public officer" would include a judge of a county court as well as a justice of the supreme court, a judge of a circuit court, or a justice of the peace. Any one of them would fulfil the broad definition of "public officer" approved by this court in a different context.[5] So would a number of county and municipal officers.
It will be seen, however, that the term "public officer" as used in sec. 26, art. IV, Wis. Const., has not been deemed to *134 include every officer who fulfils the broad definition of the term, and that by consistent exclusion of officers of primarily local responsibility, "public officer" in sec. 26 has been interpreted virtually as if it read "state public officer." Indeed this court has, in three decisions on the subject, used the term "state officer."[6]
1. Proposed exclusion of all judges from sec. 26, art. IV, Wis. Const. As previously stated, our question is whether a judge of a present-day county court is the type of "public officer" to which sec. 26, art. IV, applies. Relator has urged us to answer the question by deciding that "public officer" in that section was not meant to refer to any justice or judge.
Relator concedes that in order to adopt his position it would be necessary to modify or overrule prior decisions.[7] He argues, however, that the restraint of sec. 26, art. IV, Wis. Const., has in significant instances become an impediment to good government; that change via the amending process is an uphill struggle because of the difficulty of discussing the merits with the public; that this court has found no violation of sec. 26, art. IV, in the legislature abolishing statutory state offices, re-creating them for new terms, and providing a higher salary for the new terms;[8] that the term "public officer" is of vague and variant import, depending upon the connection in which it is used;[9] that this court has declared that judicially adopted doctrines may be changed by the judicial process which created them; that justices and judges have ten and six-year terms, and the trend of the *135 cost of living has made fixed salaries a severe economic hardship; that sec. 26 is in art. IV, dealing with the legislature rather than in art. VII, dealing with the judiciary.
Nine months ago, we had before us the Sullivan Case, involving the validity of a midterm increase paid out of county funds to a judge of a circuit court.[10] Although both parties there had assumed the proposition that a judge of a circuit court was the type of "public officer" to which sec. 26, art. IV, Wis. Const., applies, we considered whether he was or not, and decided that he was. We said, with one justice dissenting and two not participating, that, "If there could have been any question whether the term `public officer' in sec. 26, art. IV, includes a justice or a circuit judge, almost universal practical construction has settled it."[11] We have reviewed the question.
Turning to the constitution as adopted in 1848, it seems to us that the most natural construction of the term "public officer" as used in sec. 26 of art. IV, Wis. Const., would include judges. The office of judge meets almost any pertinent definition of a public office, and in order to hold that "public officer" did not mean judge, it would seem necessary to find some provision within the document, or some circumstances at the time of adoption which would lead to that conclusion.
This court, in 1867, found in the customary practice of remuneration of local officers on a fee basis a reason for limiting the meaning of "public officer" in sec. 26, art. IV, Wis. Const., to "those salaried officers paid by the state."[12] The fact that there was a basis in those years shortly after adoption of the constitution, for a judicial interpretation narrowing the meaning of "public officer" by excluding local *136 officers by no means demonstrates that there were circumstances in the light of which we could, in 1964, exclude justices and judges of circuit courts. Incidentally, the author of the 1867 opinion was Mr. Chief Justice DIXON. In the same year he resigned and was reappointed, and the next year faced bitter criticism in a campaign for election, all in order to enjoy a salary increase (from $2,500 to $3,500) for which he would otherwise have had to wait two years.[13] His actions indicate that the thought that a justice of the supreme court was not a "public officer" never crossed his mind.
We find nothing within the constitution to suggest that justices and circuit judges were excluded from "public officers." Leaving aside the local officers mentioned in the constitution, there remain only the following, to whom it could have had application:
1. The secretary of state, treasurer, and attorney general, they enjoying two-year terms under art. VI, Wis. Const.
2. The judges of the circuit and supreme courts, enjoying six-year terms under art. VII. Initially the judges of the circuit courts were also judges of the supreme court, with power in the legislature later to organize a separate supreme court. (The constitution, art. VII, also provided for judges of probate and justices of the peace and authorized the establishment of municipal courts and inferior courts. All these latter have been treated before 1962 as not being state public officers under sec. 26.)
3. The state superintendent of public instruction, enjoying a four-year term under art. X, Wis. Const.
4. "Officers whose offices may hereafter be created by law, ..." Sec. 9, art. XIII, Wis. Const.
We find nothing within the document on the basis of which to exclude the judges from the term "public officer." The location of sec. 26 in art. IV, Wis. Const., does not *137 suggest such exclusion. Sec. 26 is in terms a limitation upon the power of the legislature over the compensation to be paid to the various public officers and applied to public officers provided for in other articles. Sec. 26 originally had no possible effect on the compensation of the members of the legislature, the governor, and the lieutenant governor in his capacity as president of the senate. Their compensation was expressly fixed, changeable only by amendment.[14] When the constitution was ultimately amended in 1929, so that it no longer prescribed the compensation of members of the legislature, the question arose whether members of the legislature were "public officers" under sec. 26. This court held that they were, and in reasoning the matter left no doubt that this court considered justices and circuit judges to be such "public officers."[15] Reference was made to the separation of powers in the three primary branches of government and the preservation of each by a system of checks and balances. "That the term public officers was at the time of the adoption of the constitution generally understood to include members of the legislature as well as members of other coordinate branches of the government can scarcely be doubted."[16]
In considering the meaning of "public officer" in sec. 26, art. IV, Wis. Const., we also note that the section prohibits diminution as well as increase of compensation. It was doubtless intended to protect public officers from reprisals as well as to prevent improper rewards. Its purposes would be considered important with respect to judges as well as others. It is true that the rising price level has usually made sec. 26 a burden to public officers, and more so to justices and judges, but we think the construction must be made in the *138 light of the intended purpose. So viewed, the longer terms of the judges provide no basis for concluding that the constitution makers did not intend sec. 26 to apply to them.
In the Sullivan Case we cited opinions of this court which have stated in passing or have implied that justices and judges of the circuit courts are "public officers" under sec. 26, art. IV, Wis. Const. The fact that this question has never really been in issue in any case is doubtless an indication that no interested person ever thought there was any question about it.
Justices and circuit judges appear to have accepted the proposition that they were "public officers" and to have lived by it for one hundred years. Reference has been made to the resignation and reappointment in 1867 of Mr. Chief Justice DIXON in order to avoid the restriction of sec. 26 of art. IV, Wis. Const., and begin immediately to receive an increase from $2,500 to $3,500. Mr. Chief Justice WINSLOW became a member of this court in 1891, being appointed to fill a vacancy. He was elected to full terms, beginning in 1896, 1906, and 1916. He died in 1920. His initial salary was $5,000 per year. An increase of $1,000, enacted in 1901, did not reach him until 1906. An increase of $1,500 was enacted in 1911, but he did not receive it until 1916. An increase of $1,000 was enacted in 1919, but he never received it. He published his "Story of a Great Court" in 1912. and in relating the Dixon incident, said: "Under the constitutional provision forbidding any increase or diminution of the compensation of any public officer `during his term of office' the act [increasing the salary of a justice] could not have been made applicable to persons holding office at the time of its passage during their existing terms." In a footnote he cited sec. 26 of art. IV. He was chief justice when the court decided State ex rel. Bashford v. Frear,[17] Milwaukee *139 County v. Halsey,[18] and State ex rel. Wickham v. Nygaard[19] in each of which the opinion either assumed or stated that justices or circuit judges are "public officers" under sec. 26.
The salary provided for justices of the supreme court when the separate supreme court was established was $2,000 per year.[20] The legislature has enacted 12 increases in that salary, the first having occurred in 1857.[21] The salary for judges of the circuit court originally provided was $1,500 per year and the legislature has enacted 13 increases in that state salary.[22] Ch. 102, Laws of 1857, which enacted the first increases for both, provided:
"The salaries of the Judges of the Supreme and Circuit Courts in this State, who shall be hereafter elected or appointed, and whose term of office shall commence after the passage of this act, shall be two thousand five hundred dollars each; such salaries shall be payable quarterly in the same manner that the salaries of Judges of the Circuit Court are now payable; Provided, That this act shall not be construed to apply to nor to increase the compensation of the Judge of any Circuit now in office during his term of office.
"All acts and parts of acts conflicting with this act, except so far as the same may be applicable to the salaries of such Judges as are now in office, are hereby repealed."
*140 Every later statute providing for increase expressly provided that it would affect only the terms beginning after the date of passage or after some date specified by the legislature approximately at the time of passage.
In 1957 an effort was made to amend sec. 26 of art. IV, Wis. Const., so that whenever an increase in salary became effective as to one justice of the supreme court, judge of a circuit court, or member of a commission, it could go into effect as to all other justices, judges, or members of the commission.[23] This proposal was approved by only one house but those who supported it undoubtedly believed that sec. 26 was applicable to justices and judges. In 1961 after approval by two legislatures, an amendment was submitted to the people which would have permitted midterm increases for all officers whose term was four years or more except for members of the senate. This amendment was rejected by the people.[24] While it did not in terms refer to justices and judges, it is reasonable to believe that it was proposed with them in mind as well as the superintendent of public instruction and statutory officers whose terms are four years or more. In 1963 after approval by two legislatures, an amendment was submitted to the people which would have permitted the legislature to increase the compensation of justices of the supreme court and judges of other courts. It also was rejected.[25] Those who supported it, however, evidently felt that sec. 26 applies to justices and judges and that its prohibition against diminishing compensation during a term would remain in effect as to justices and judges if the amendment were to pass.
Counsel has laid stress upon the changing circumstances in our society, economic situation, and government since 1848. Sec. 26 of art. IV, Wis. Const., as applied to justices *141 of the supreme court has been made more onerous than it was originally by the increase in the length of terms of justices from six years to ten. The amendment so providing, however, was adopted in 1877, at a time when the legislature and the justices had apparently been assuming for at least twenty years that sec. 26 applied to justices and after there had been considerable public debate about the maneuver executed by Mr. Chief Justice DIXON.
The fact that a rising price level (and recently a rapidly rising one) has made sec. 26, art. IV, Wis. Const., a type of burden that was not originally intended, and particularly onerous to those with long terms, is certainly an argument for change by amendment, but we find it no argument at all for saying that the words "public officer" in the constitution, either in 1848 or in 1877, did not include justices of the supreme court and judges of the circuit courts.
We recognize, of course, that many provisions in a constitution must be interpreted in the light of changing social conditions and circumstances and the emergence of new problems. Illustrations are readily found in the broad concepts which are put into words as "due process of law," "equal protection of the laws," and "power ... to regulate commerce with foreign nations and among the several states" found in the federal constitution. This court has recently devised a remedy within the judicial power in order to redistrict the legislature notwithstanding the earlier thinking that unless the express formula in the constitution produced redistricting, no remedy existed.[26]
Nevertheless, we are dealing in the present case with the meaning of a term, "public officer," which seems clearly intended to have a definite meaning with respect to the types of officers provided for elsewhere in the constitution. The office of judge of the circuit court was expressly established *142 by the constitution and the office of justice of a separate supreme court was expressly provided for although the establishment of the separate supreme court by the legislature was to be delayed for five years. It does not seem to us that this is a proper area in which to consider changing circumstances and other matters which may well bear upon the desirability of the particular provision. We are not persuaded by the argument that the relationship between the term "public officer" in sec. 26 of art. IV, Wis. Const., and the office of circuit judge and the office of justice of the supreme court dealt with in art. VII can change with the times.
In our view the evidence is overwhelming that in 1848 "public officer" in sec. 26 of art. IV, Wis. Const., meant a judge of the circuit court and also meant a justice of the supreme court whenever such separate court might be established and that the meaning includes the same officers today.
Accordingly we are unable to reach the answer that a county judge is exempt from sec. 26 of art. IV, Wis. Const., on the theory that all judges are exempt.
2. Has court reorganization brought county judges under sec. 26, art. IV, Wis. Const.? In 1880 this court decided in State ex rel. Martin v. Kalb[27] that sec. 26, art. IV, did not apply to the judge of a county court. The statute then being considered by the court reduced the compensation of a county judge during his term. It was held to be constitutional. Although the court took notice that the general statute authorizing county boards to fix the salaries of county officers, including county judges, provided that such salaries not be increased or diminished during a term of office, the court deemed this a choice made by the legislature, which the constitution did not require.
This decision was reached notwithstanding counsel's argument that county courts are courts of record, with jurisdiction *143 coextensive with the state; their services are as much for the benefit of the public as are those of the supreme or circuit courts; and the three courts are part of a single system constituting the judicial department of the state.
In Martin, the court relied on Board of Supervisors v. Hackett,[28] which it summarized as "limiting the constitutional restriction as to the compensation of public officers to such officers as receive their compensation out of the state treasury." Portions of the Hackett opinion quoted with emphasis were "such officers as receive a fixed salary payable out of the public treasury of the state" and "those salaried officers paid by the state." Thus Martin, taken literally, does not wholly settle our present case because, since court reorganization, relator and all other county judges outside Milwaukee county do receive a fixed salary payable initially out of the state treasury, although a portion is ultimately borne by the counties. County judges in Milwaukee county receive their salary directly from the county treasury, but a portion is ultimately borne by the state.
The question presented is whether the changes in the county courts wrought by court reorganization, either in the courts themselves or in the arrangements for compensation, have now brought county judges into the class of public officers whose salaries are governed by sec. 26, art. IV, Wis. Const.
It is appropriate to consider the status of the county courts in the constitutional framework, and, in general terms, the changes effected by court reorganization.
County courts are statutory courts. The constitution did not create them nor require the legislature to do so. Sec. 2 of art. VII, Wis. Const., empowered the legislature "to establish inferior courts in the several counties, with limited civil and criminal jurisdiction." This is the general authority *144 for the creation of the county courts, as well as for numerous other inferior courts, with varying names and powers, created from time to time before court reorganization. The legislature may alter or abolish such courts, as well as create them.[28a]
Sec. 14 of art. VII, Wis. Const., required the election of a judge of probate in each county, but empowered the legislature to abolish that office in any county and confer probate powers upon such inferior courts as might be established in that county. The legislature promptly exercised this option. It established a county court in every county on January 1, 1850, abolished the office of probate judge, and conferred probate powers on the county courts.[29]
Up to the time of court reorganization, effective January 2, 1962, statutes were enacted from time to time not only modifying the jurisdiction conferred generally upon county courts, but altering the jurisdiction of county courts in particular counties. Other inferior courts were created from time to time with wide variations in jurisdiction and procedure. The resulting lack of uniformity in a complicated court system provided the impetus for court reorganization.[30]
County judges, at first, were allowed specified fees for services, some to be paid by litigants and some by the county.[31]*145 Later, salaries were authorized, generally to be fixed by the county board[32] and, at times, fixed by the legislature.[33] The amounts were not uniform, but before court reorganization, all were paid out of county funds. The situation was similar with respect to the various other inferior courts.
Court reorganization produced a system in which there are but two trial courts of record, circuit courts and county courts. It was deemed necessary to retain at least one type of inferior court on which to confer probate powers under sec. 14 of art. VII, Wis. Const. A substantial degree of uniformity was achieved with respect to county court jurisdiction and a basic salary was set, the same for every county judge. It was set substantially above the figure formerly paid in many counties,[34] and the county judge was prohibited from practicing law.[35]
There is a separate county court in every county, except that Shawano and Menominee counties are joined in a single district, with one county court.[36] Florence and Forest counties are combined for the purpose of electing one judge to *146 serve the county courts of both counties.[37] The county courts have limited civil and criminal jurisdiction, and, although they are more nearly uniform throughout the state than before court reorganization, they plainly remain, in constitutional terms, "inferior courts in the several counties, with limited civil and criminal jurisdiction" and with probate powers.
County court jurisdiction is uniform in every county except Milwaukee county. The criminal jurisdiction, outside Milwaukee, is concurrent with that of the circuit courts, except for treason. In Milwaukee county, the county court has trial jurisdiction over misdemeanors and offenses where the punishment does not exceed one year's imprisonment or a fine not exceeding $1,000, or both.[38] The county court of Milwaukee county does not have jurisdiction of actions affecting marriage. With that exception in Milwaukee, every county court has jurisdiction in civil matters concurrent with the circuit court except actions for damages in which more than $100,000 is demanded.[39]
In some counties, the present county courts have greater jurisdiction than the county courts or other inferior courts had before court reorganization. In other counties the present county courts have less.
Before court reorganization a county judge could upon request, preside over the county court of another county.[40] Since court reorganization, he may, upon request, and shall, upon assignment by the chief justice, preside temporarily over a circuit court as well as another county court. We have held that a county judge may, under the statute, validly *147 act as a temporary circuit judge if he meets the constitutional qualifications of a circuit judge.[41]
The county judges still have, after court reorganization, a number of administrative powers and duties. Presumably the legislature gave those powers to county judges because in almost all counties there is at least one county judge. Illustrations are: He may order a child sent to a school or class for the visually handicapped or deaf.[42] He may act on the board of county canvassers if the county clerk is unable to act or if his office is vacant.[43] He acts upon applications for treatment at certain public hospitals.[44] In certain counties he may continue to administer public assistance programs.[45]
Although court reorganization has achieved a high degree of uniformity, in county court jurisdiction, statewide, county courts remain, as before "inferior courts in the several counties," created by statute, and subject to change or abolition by the legislature at will.
Under court reorganization as originally enacted, the legislature set a basic annual salary for every county judge of $12,000,[46] and authorized each county board to supplement it.[47] In counties outside Milwaukee the judge received his $12,000 basic salary from the state and the counties were required to reimburse the state for one half. Milwaukee county was required to pay the basic salary to the judges of its county court, and the state was to reimburse it for one half.[48] In 1963, the legislature increased the basic salary *148 for every county judge to $13,500, adjusting the reimbursement procedure so that out of this amount each county ultimately bears $6,000 and the state $7,500.[49] As before, each county may pay a supplemental amount, determined by the county board.
It is clear that the legislature did not intend, by court reorganization, to bring county judges within the type of public officer to which sec. 26, art. IV, Wis. Const., is applicable. Sec. 253.07 (2), Stats., authorizing counties to pay supplemental compensation to county judges, contains no restriction against increasing or decreasing the compensation during the term. Sec. 256.02 (4) prohibits the county board from reducing the salary of a county judge during his term, but does not prohibit increases. Sec. 253.15 (1), Stats. 1959, prohibiting increases or decreases in the salary of a county judge during his term, was repealed.[50] The restrictions of sec. 59.15 (1) (a), if applicable, were suspended by sec. 66.195. In addition, sec. 253.07 (2) authorizing the supplemental salary from the county provides that it "shall be the same for each such judge, ..." This requirement would often be frustrated if changes in salary could not become effective for every county judge in one county at the same time.
It is true that this court, in State ex rel. Martin v. Kalb,[51] in holding that the county judge was not a (state) public officer subject to sec. 26 of art. IV, Wis. Const., laid stress upon the fact that the county judge then drew his salary from the county and not the state. Under court reorganization, the payment of the basic salary of the county judge is shared by state and county. We do not view this change in the source of compensation as controlling. The fact that in 1880, and up to court reorganization, the salary of a *149 county judge came from the county treasury demonstrated conclusively that he was primarily a local rather than a state officer. His status remains very much the same, although some of his compensation now originates with the state.
Had the legislature set the basic salary as it did and required every county to pay it out of county funds, sec. 26 of art. IV, Wis. Const., would have been clearly inapplicable under the Martin decision. Three of the guideposts set by the legislature for the benefit of the judicial council in formulating a plan of court reorganization were: "To have judicial salaries set by the legislature.... To eliminate part-time judges and judges on a fee basis.... To give each county a full time resident judge."[52] It may be inferred that it was thought necessary to provide a $12,000 basic salary in order to make it feasible to prohibit county judges from outside law practice, but politically impossible to enact court reorganization if all counties were compelled to pay that much. Many counties paid considerably less for part-time service.
The legislature accordingly provided for salaries to be shared by state and county treasuries.[53] This aspect is emphasized by the characterization of the state's payment as "aids." In the 1961 state budget, the appropriation for the salaries and expenses of judges, reporters and assistant reporters of the county courts was referred to as "County courts, state aid"[54] and in the 1963 state budget as "County courts... Aids to localities."[55]
*150 It would seem most illogical to say that by enacting the salary arrangement, the legislature had destroyed its own power to change it at any time in the future it saw fit. Relator, like many other judges, had begun a term of office before court reorganization. His term continued, though his court was converted into a branch of the county court, with different powers and compensation. The legislature similarly increased the salary of many judges of county and other inferior courts during their terms. Surely the legislature retained its power to modify or destroy the county courts, or to convert them back to the attributes they had before. Can it be said, nevertheless, that because of the method of compensation chosen, the legislature imposed the restriction of sec. 26, art. IV, Wis. Const., upon its power to alter compensation?
As shown above, the legislature intended that the county boards be free to increase the compensation of county judges without waiting for the beginning of a new term. We are to presume that all legislative acts are constitutional unless it appears that they are unconstitutional beyond a reasonable doubt.[56]
We conclude that notwithstanding the contribution by the state of a share of the basic salary of county judges, their office has not sufficiently changed in character from a local to a state office to bring county judges within the class of public officer to which sec. 26 of art. IV, Wis. Const., applies. It follows that the legislature is free to raise or lower the salary of county judges during their terms and to authorize the county boards to raise or lower, midterm, the supplemental salary paid by the county. To hold otherwise would be to apply a constitutional restriction on legislative power in a doubtful case.
*151 By the Court.It is ordered, that a peremptory writ of mandamus issue commanding the county clerk of Dane county to approve and authorize payment to relator of the $100 monthly increase involved in this action.
HALLOWS, J. (concurring in the result).
I concur in the result that sec. 26, art. IV of the Wisconsin constitution does not prohibit a county from granting an increase in compensation to a county judge during his term of office payable out of the county treasury pursuant to secs. 253.07 (2) and 66.195, Stats. But, I arrive at this conclusion not on the broad ground that county judges are not public officers within the meaning of sec. 26 but on the narrower ground the increase in their compensation was neither determined by the legislature nor paid out of the state treasury. I believe county judges are public officers and to the extent their basic salary is fixed by the legislature and paid out of the state treasury, either directly or indirectly, such salary is subject to the constitutional restriction of sec. 26.
I agree with the majority opinion in its re-examination of the question whether the compensation of circuit judges and justices of this court come within the ambit of sec. 26, art. IV, and with its conclusion. In reaffirming State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 126 N. W. (2d) 579, this court correctly decided the issue presented. Although this court is committed to the proposition it has the power under the doctrine of stare decisis to modify and even overrule a court-made doctrine, Bielski v. Schulze (1962), 16 Wis. (2d) 1, 114 N. W. (2d) 105, that power should not be exercised unless there exists a more compelling reason than that the end justifies the means.
Desirable as equal salaries for equal work and midterm increases are for the judiciary, this court should not by judicial *152 interpretation to attain such result overthrow the time-accepted precedents construing the constitution. Twice an appeal has been made to the people of this state to amend the constitution to eliminate the cause of the inequality of compensation within the same classification of judicial officers and unfortunately on both occasions the proposals were rejected. It would ill behoove this court by judicial construction now to reach a result which the people of this state have expressed a desire should continue. The solution lies in another appeal to the voters to change the constitution, not in a changed construction of it by this court.
Prior to court reorganization the compensation of county judges was not subject to sec. 26 because in some cases their compensation consisted of fees and not of a fixed salary and came under the rule of the Hackett Case,[1] or if a fixed salary it was not paid out of the state treasury as required by the Kalb[2] and the Rooney Cases.[3] However, as part of and since court reorganization the basic salaries of judges outside of Milwaukee county have been determined and been paid by the state with a part thereof charged back to the county. In Milwaukee county the same result is reached indirectly by having Milwaukee county pay the salaries with a partial reimbursement by the state. The reason for this difference was to make it possible for the county judges in Milwaukee county to continue to qualify under the Milwaukee county pension system.
To my mind there is no question a county judge is a public officer. In State ex rel. Zimmerman v. Dammann (1930), 201 Wis. 84, 228 N. W. 593, the term "public officer" as used in sec. 26, art. IV, was defined as having attributes of continuous and permanent duties, a definite term, an oath *153 of office, the exercise of some portion of the sovereign power of the state in which the public has a concern. The office of county judge fulfils these requirements. Under court reorganization, county judges (outside Milwaukee county) have for all practical purposes the same jurisdiction as circuit judges with the exception of treason in the criminal field and cases involving over $100,000 in the civil field. This court has held county judges may sit under some circumstances as circuit judges. State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 118 N. W. (2d) 211. The salary of county judges is determined by the legislature and the employer's cost of their pension on their basic salary is paid by the state, sec. 66.89, Stats. I cannot agree with the majority that county judges are by the nature of their office not to be considered public officers under sec. 26 because they are not state officers.
It is true in several opinions[4] of this court the term "public officer" in reference to sec. 26 was used interchangeably with "state officer" but it was not held virtually or otherwise in those cases that a public officer meant only a state officer. The term "public officers" is used in sec. 26 without qualification or restriction. Sec. 26, art. IV, providing "the legislature... nor shall the compensation of any public officer be increased or diminished during his term of office" was a restriction on the legislature in its custodianship of state funds and includes within its benefits and disadvantages all public officers who receive their compensation from the state's purse. By reason of the court reorganization county judges come under sec. 26, art. IV, the same as the legislators did when the constitution was amended to grant the legislature the power to fix the compensation of its members. State ex rel. Zimmerman v. Dammann, supra.
*154 The public policy of sec. 26, as stated in the Dammann Case, i.e., to protect the public against the evil of letting a public official use his official power and influence to augment his own salary; to protect individual officers against legislative oppression; and to prevent persons from using the prestige and power which they possess by virtue of their public office from using same to their personal advantage, applies equally well to county judges as to circuit judges and justices of this court.
The reasoning of State ex rel. Sullivan v. Boos does not apply to the instant facts because the salary of circuit judges can only be fixed by the legislature under sec. 10, art. VII of the constitution. When additional compensation is authorized by statute to be paid to a circuit judge by a county, such payment to be valid must be pursuant to a valid delegation to the county of legislative authority, the exercise of which is subject to sec. 26, art. IV. The compensation is in legal effect fixed and determined by the legislature even though not paid out of the state treasury and this is sufficient to make sec. 26, art. IV, applicable. However, there is no requirement in the constitution that the legislature must determine the compensation of county judges.
Although the same public policy which inspired sec. 26, art. IV, has been applied by the legislature by statute to county judges in many instances over the years, at the present time no statute exists prohibiting county boards from granting an increase in compensation in midterm to county judges. Sec. 59.15 (1), Stats., has been suspended temporarily by sec. 66.195. Thus to the extent the legislature has authorized but not directed the county to pay additional compensation to county judges under sec. 253.07 over that determined by the legislature and because such compensation is neither definitely fixed by the legislature nor paid out of the state treasury, sec. 26 does not apply.
For the foregoing reasons I concur in the result.
*155 GORDON, J. (concurring).
I support the exclusion of county judges from the restrictions of sec. 26, art. IV of the Wisconsin constitution, but in reaffirming State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 126 N. W. (2d) 579, the majority opinion perpetuates and, indeed, aggravates the serious error of that decision.
This court has the awesome responsibility of superintending Wisconsin's judicial system. Yet it is difficult to conceive of a more self-defeating decision than that reached here by the majority. The problem of providing an evenhanded method of compensating judges must be viewed as part of the total picture of improving the administration of justice.
As a result of the majority's decision in the instant case, we will now have the absurd circumstance of circuit judges being denied interim salary increases, but county judges not being so restricted even though this court has held that county judges may constitutionally sit as circuit judges. State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 118 N. W. (2d) 211.
In my opinion, this court should disavow the concept that sec. 26, art. IV, applies to the judiciary. As noted in the dissent in the Sullivan Case, the prohibitions of sec. 26 are not contained in those portions of the constitution which relate to the judiciary. They are found instead in the legislative section, and this supports the interpretation herein proposed.
In some 30 other states where a regulation on judges' pay is expressed in a state's constitution, it is found in the section thereof concerning the judiciary. The names of those states and the citations to their respective constitutions are annexed as an appendix to this concurring opinion.
In discussing the location of the restrictions on judicial pay, Mr. Justice MARSHALL stated in State ex rel. Bashford v. Frear (1909), 138 Wis. 536, 556, 120 N. W. 216:
*156 "We should say, in passing, that amendments were proposed in the constitutional convention placing the usual restrictions upon changing the salary of a justice of this court, in an appropriate section in the article on the judiciary, but it was not done, as we have seen."
Since the restriction was excluded from the judicial section in the Wisconsin constitution, the court has before it a means of extricating itself from the inequitable and in some instances ridiculous results of previous interpretations relating to judicial salaries. It is especially ironic that the crazy quilt which covers judicial salaries was put together by judges themselves.
When the question of salary adjustment for statutory officers of the executive branch was presented to this court, we upheld as constitutional the patently evasive technique described in State ex rel. Reuss v. Giessel (1952), 260 Wis. 524, 51 N. W. (2d) 547. However, when given the occasion to set our judicial house in order, we cling to an antiquated interpretation which guarantees an unthinkably confounded salary pattern for the judiciary.
The majority opinion asserts that the meaning of "public officer," as contained in sec. 26, art. IV, cannot "change with the times." However, in my opinion, it is not really "the times" that have changed; rather, it is our comprehension that has grown. To illustrate: When the United States supreme court decided Betts v. Brady (1942), 316 U. S. 455, 62 Sup. Ct. 1252, 86 L. Ed. 1595, an indigent prisoner needed legal counsel just as much as he does today. Times have not changed so much as our understanding; as a result it is now held that constitutional due process requires the appointment of counsel for an indigent accused. Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799.
The majority opinion points out that such respected jurists as Mr. Chief Justice DIXON and Mr. Chief Justice WINSLOW *157 were of the opinion that judges were within the definition of "public officer." So, too, however, when Plessy v. Ferguson (1896), 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256, was decided, such respected justices as Messrs. FULLER, FIELD, and WHITE were of the firm opinion that the use of separate but equal facilities did not deny equal protection of the laws to Negroes. When this view was rejected in Brown v. Board of Education (1954), 347 U. S. 483, 74 Sup. Ct. 686, 98 L. Ed. 873, it was not so much that times had changed but rather that our general awareness had matured.
It is this kind of comprehension and enlightenment that the Kentucky court recently evidenced in rejecting a preexisting, narrow interpretation as to which public officers were included within its constitutional limitation regarding salary increases. Board of Education of Graves County v. De Weese (Ky. 1960), 343 S. W. (2d) 598. Said the Kentucky court, at page 606:
"Where it is possible, the constitution should be construed liberally, that it may continue as a useful instrument in the life of our society. Doubtful questions ought to be resolved in favor of the freedom of the living generation to govern its own affairs in the light of modern circumstances."
The mere fact that judges have heretofore been included within sec. 26, art. IV, does not make that interpretation immortal or imperishable. When the application of stare decisis permits the disparities which are here involved, judges should not blindly follow the outmoded precedents. In Washington v. Dawson & Co. (1924), 264 U. S. 219, 238, 44 Sup. Ct. 302, 68 L. Ed. 646, Mr. Justice BRANDEIS stated:
"Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. The instances in which the Court has disregarded its admonition are many."
*158 Mr. Justice HOLMES expressed a similar point of view in Bain Peanut Co. v. Pinson (1931), 282 U. S. 499, 501, 51 Sup. Ct. 228, 75 L. Ed. 482:
"The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints."
In Milwaukee v. Milwaukee E. R. & L. Co. (1921), 173 Wis. 400, 406, 180 N. W. 339, 181 N. W. 821, this court said:
"Law is the rule of reason applied to existing conditions. Obviously, when conditions change there must be a corresponding change in the law, else it would cease to be a rule of reason and would become a mere arbitrary static rule. ... To do justice, then, under existing conditions, is its paramount officeall else, even the most venerable precedents, must yield to that office." (Emphasis added.)
Blackstone in his Commentaries (Vol. 1, p. 70), put the matter in these words: "Precedents and rules must be followed, unless flatly absurd or unjust." For one circuit judge to earn thousands of dollars per year more than another circuit judge in the same circuit is "absurd or unjust." For one justice of the supreme court to earn as much as $10,000 per year more than another justice for the same services is "absurd or unjust." For circuit judges to be barred from interim salary adjustments while county judges (who may sit as circuit judges) are permitted to receive them is "absurd or unjust."
APPENDIX.
States with an explicit mandate regarding changes in judges' pay found in the judiciary section of their respective constitutions:
*159
State Citation Source
Alabama sec. 150, art. 6 Code of Alabama, 1958
Alaska sec. 13, art. IV Alaska Stats. 1962
Arizona sec. 24, art. 6 Arizona Revised Stats.
1956
Arkansas sec. 10, art. 7 Arkansas Stats. 1947
California sec. 17, art. VI Mason's California
Constitution, 1953
(this section was repealed
in 1956)
Colorado sec. 18, art. VI Colorado Revised Stats.
1953
Hawaii sec. 3, art. V 1963 Supp. to the Revised
Laws of Hawaii,
1955
Illinois sec. 17, art. 6 Smith-Hurd Illinois
Annotated Stats. 1964
Indiana sec. 13, art. 7 Burns' Indiana Stats.
1955
Iowa sec. 9, art. 5 Iowa Code Annotated,
1949 (this section was
repealed in 1962)
Louisiana sec. 40, art. 7 West's Louisiana Stats.
Annotated, 1955
Maine sec. 2, art. VI Revised Stats. of
Maine, 1954
Maryland sec. 24, art. IV Annotated Code of
Maryland, 1957
Minnesota sec. 6, art. 6 Minnesota Stats. Annotated,
1946 (amended,
1956) (this section
renumbered, sec. 7, art.
VI)
*160
Mississippi sec. 166, art. 6 Mississippi Code Annotated,
1942 (recompiled,
1956)
Missouri sec. 24, art. 5 Vernon's Annotated
Missouri Stats. 1951
Montana sec. 29, art. VIII Revised Code of Montana
Annotated, 1947
Nevada sec. 15, art. 6 Nevada Revised Stats.
1963
New Jersey sec. 6, art. 6 New Jersey Statutes
Annotated, 1954
New York sec. 25, art. 6 Neweffective Sept. 1,
1962. McKinney's Consolidated
Laws of New
York Annotated, 1954
(1964 pocket part)
North Carolina sec. 18, art. IV Now sec. 19, art. IV,
General Stats. of North
Carolina, 1955 (1963
pocket part)
Ohio sec. 14, art. IV Page's Ohio Revised
Code Annotated, 1955
Oregon sec. 1, art. VII Oregon Revised Stats.
1963
Rhode Island sec. 6, art. 10 General Laws of Rhode
Island, 1956
South Carolina sec. 9, art. 5 Code of Laws of South
Carolina, 1962
Tennessee sec. 7, art. 6 Tennessee Code Annotated,
1956
Utah sec. 12, art. VIII Utah Code Annotated,
1953
Virginia sec. 102, art. VI Code of Virginia, 1950
*161
Washington secs. 13, 14, art. IV Revised Code of Washington,
1963 Supp.
Wyoming sec. 17, art. 5 Wyoming Stats. 1957
NOTES
[3] Sec. 20.930, Stats.
[4] Sec. 66.195, Stats. 1961.
[5] Martin v. Smith (1941), 239 Wis. 314, 332, 1 N. W. (2d) 163. See also State ex rel. Zimmerman v. Dammann (1930), 201 Wis. 84, 98, 228 N. W. 593; 35 Words & Phrases (perm. ed.), p. 354. See also United States ex rel. Boyd v. Lockwood (1843), 1 Pin. (Wis.) 359, 363, in which the territorial supreme court held that the office of judge of probate was an office "where, for the time being, a portion of the sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit."
[6] Rooney v. Supervisors of Milwaukee County (1876), 40 Wis. 23, 26; Petition of Breidenbach (1934), 214 Wis. 54, 58, 252 N. W. 366; State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 112, 126 N. W. (2d) 579.
[7] State ex rel. Sullivan v. Boos, supra, footnote 6, and several decisions therein cited.
[8] State ex rel. Reuss v. Giessel (1952), 260 Wis. 524, 51 N. W. (2d) 547.
[9] 42 Am. Jur., Public Officers, p. 879, sec. 2.
[10] State ex rel. Sullivan v. Boos, supra, footnote 6.
[11] Id., p. 106.
[12] Board of Supervisors v. Hackett (1867), 21 Wis. 620. 625 (*613, *618).
[13] Winslow, Story of a Great Court. p. 250.
[14] Sec. 21, art. IV, sec. 5, art. V, and sec. 9, art. V, Wis. Const.
[15] State ex rel. Zimmerman v. Dammann, supra, footnote 5.
[16] Id., p. 97.
[17] (1909). 138 Wis. 536, 120 N. W. 216.
[18] (1912), 149 Wis. 82. 136 N. W. 139.
[19] (1915), 159 Wis. 396, 150 N. W. 513.
[20] Ch. 395, sec. 6, Laws of 1852.
[21] Ch. 102, Laws of 1857; ch. 33, Laws of 1867; ch. 145, Laws of 1868; ch. 293, Laws of 1873; ch. 138, Laws of 1901; ch. 508, Laws of 1911; ch. 422, Laws of 1919; ch. 161, Laws of 1927; ch. 405, Laws of 1949; ch. 418, Laws of 1955; ch. 633, Laws of 1957; ch. 225, sec. 30, Laws of 1963.
[22] P. 265, Laws of 1848; ch. 102, Laws of 1957; ch. 65, Laws of 1873; ch. 246, Laws of 1885; ch. 138, Laws of 1901; ch. 520, Laws of 1905; ch. 592, sec. 21, Laws of 1913; ch. 238, Laws of 1919; ch. 440, Laws of 1927; ch. 186, Laws of 1947; ch. 97, sec. 27, Laws of 1951; ch. 418, Laws of 1955; ch. 557. Laws of 1959; ch. 225, sec. 30, Laws of 1963.
[23] Jt. Res. 30, A., 1957 session.
[24] Jt. Res. 11, 1961 session.
[25] Jt. Res. No. 7, 1963 session.
[26] State ex rel. Reynolds v. Zimmerman (1964), 22 Wis. (2d) 544, particularly at pages 563, 564, 126 N. W. (2d) 551.
[27] (1880), 50 Wis. 178, 6 N. W. 557.
[28] Supra, footnote 12.
[28a] State ex rel. Martin v. Kalb, supra, footnote 27, p. 188. See also State ex rel. Smith v. Outagamie County (1921), 175 Wis. 253, 263, 185 N. W. 184, and State ex rel. Reuss v. Giessel, supra, footnote 8, p. 529.
[29] Ch. 86, R. S. 1849.
[30] For a discussion of the history of the county courts and special courts, see Estate of George (1937), 225 Wis. 251, 259-261, 270 N. W. 538, 274 N. W. 294; 1906 Op. Atty. Gen. (1905), 527; 1937 Blue Book, pp. 677-679; 1946 Blue Book, pp. 399-401; 1950 Blue Book, pp. 423-427; 1960 Blue Book, pp. 478-483; 1962 Blue Book, pp. 550, 551; Karlen and Martinson, Statutory Courts in Wisconsin, 1949 Wisconsin Law Review, 207; Karlen. Constitutional and Statutory Courts, 1949 Wisconsin Law Review, 706: and Hallows and De Witt, The Need for Court Organization. 1954 Wisconsin Law Review, 376.
[31] Ch. 131, secs. 5, 6, and 7, R. S. 1849.
[32] Ch. 121, Laws of 1868.
[33] E.g., ch. 98, Laws of 1877.
[34] The salary of the county judges of every county having a population of less than 40,000 was increased by the establishment of the basic salary by court reorganization. The same is true of the salaries of county judges in 13 counties with populations in excess of 40,000. The basic salary was the same as the salaries of county judges in four counties and was less than the salaries paid to county judges in five counties, but each of the latter counties have voted additional compensation to their county judges so that the total compensation received by those judges is equal to or greater than the compensation received before court reorganization. See 1961 Report of the Judicial Council, pp. G-18-G 20; statistics of Judicial Council as to 1962 salaries of county judges.
[35] Ch. 495, sec. 116, Laws 1961; sec. 256.22, Stats.
[36] Sec. 253.015, Stats.
[37] Sec. 253.05, Stats.
[38] Sec. 253.12, Stats.
[39] Sec. 253.11, Stats.; the amount was raised from $25,000 by ch. 88, Laws of 1963.
[40] Sec. 253.11, Stats. 1959.
[41] State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 281, 118 N. W. (2d) 211.
[42] Sec. 41.74, Stats.
[43] Sec. 6.61, Stats.
[44] Sec. 142.03, Stats.
[45] Sec. 46.22 (1), Stats.
[46] Sec. 20.930 (1) (a), Stats. 1961.
[47] Sec. 253.07 (2), Stats.
[48] Sec. 253.07 (1), Stats.
[49] Ch. 225, Laws of 1963.
[50] Ch. 315, sec. 13, Laws of 1959.
[51] Supra, footnote 27.
[52] Jt. Res. 112, A., 1957 session.
[53] The notes of the Judicial Council with respect to the court reorganization act provide: "Because the judges will be on call throughout the state, one-half of their salary will be paid by the state. The other half will be charged back to the county." See notes appended to Bill No. 282, S. (1959), p. 24, as reprinted in 29 W. S. A., ch. 253 (1964 pocket part, p. 55).
[54] Sec. 20.005 (2) (a), line 99, Stats. 1961.
[55] Sec. 20.005 (2) (a), lines 105 and 106, Stats. 1963.
[56] State ex rel. McCormack v. Foley, supra, footnote 41, p. 279.
[1] Board of Supervisors v. Hackett (1867), 21 Wis. 620 (*613).
[2] State ex rel. Martin v. Kalb (1880), 50 Wis. 178, 6 N. W. 557.
[3] Rooney v. Supervisors of Milwaukee County (1876), 40 Wis. 23.
[4] Rooney v. Supervisors of Milwaukee County, supra; Petition of Breidenbach (1934), 214 Wis. 54, 252 N. W. 366; State ex rel. Sullivan v. Boos, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3036489/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2666
___________
Franklin Hiestand, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: November 30, 2004
Filed: December 9, 2004
___________
Before MORRIS SHEPPARD ARNOLD, MURPHY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Missouri inmate Franklin Hiestand appeals the dismissal without prejudice of
his 42 U.S.C. § 1983 action for nonpayment of the filing fee, after the district court
determined he was ineligible under 28 U.S.C. § 1915(g) to bring his action in forma
pauperis (IFP). Hiestand also moves for leave to proceed IFP on appeal. Because we
find he had not yet accumulated “three strikes” when the district court ruled, we grant
Hiestand leave to appeal IFP, assess the filing fee according to the provisions of the
Prison Litigation Reform Act, and leave the collection details to the district court.
We also find that Hiestand’s section 1983 action was subject to dismissal, but
on the ground that the complaint was frivolous. See Neitzke v. Williams, 490 U.S.
319, 325 (1989) (defining frivolous); Saulsberry v. St. Mary’s Univ. of Minn., 318
F.3d 862, 866 (8th Cir. 2003) (appellate court may affirm district court’s order on any
basis supported by record). Counting this dismissal, Hiestand now has three strikes
and will be barred from proceeding IFP in future actions or appeals, unless he meets
the imminent-danger exception noted in section 1915(g).
Accordingly, we affirm. See 8th Cir. R. 47A(a).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1604156/ | 25 Wis. 2d 443 (1964)
TIEDEMAN and others, Appellants,
v.
VILLAGE OF MIDDLETON, Respondent.
Supreme Court of Wisconsin.
October 2, 1964.
October 27, 1964.
*448 For the appellants there were briefs by Aberg, Bell, Blake & Metzner of Madison, and oral argument by Robert K. Aberg.
For the respondent there was a brief by Warren D. Lucas, attorney, and Harold E. Hanson of counsel, both of Madison, and oral argument by Mr. Lucas.
WILKIE, J.
Three issues are presented on this appeal:
1. Does the city of Middleton have the right to discharge surface water from the drainage area onto appellants' land?
2. Did appellants acquire a prescriptive right to the diversion of the surface water by the railroad embankment?
3. Are appellants entitled to injunctive relief in this situation?
First: Does the city of Middleton have the right to discharge surface water from the drainage area onto appellants' land? There are two possible theories under which the city *449 could drain water on appellants' land: (1) Allowing the water to continue the direction of its natural flow, and (2) the power of a municipality to divert water incidental to construction of sewers or streets.
(1) Direction of Natural Flow.
Municipal corporations have the same rights in regard to surface waters as have individuals.[1] A municipality may, therefore, channel surface water in its natural direction via conduits rather than over the surface or by percolation if no new watershed is tapped and the volume of water is not increased.[2]
The trial court found that with a minor exception, all the surface water from the whole drainage area (58 acres) would have drained naturally into the pond were it not for the railroad embankment. The exception was a half-acre tract lying north of the tracks between Park and Maple streets. The court found that this small area would not have drained into the pond had it not been for the Middleton storm-sewer system, but that the amount of water it contributed to the pond was negligible. Appellants assail these findings as being contrary to the evidence.
The trial court's findings of fact will not be disturbed unless they are against the great weight and clear preponderance of the evidence.[3] If upon consideration of all the evidence, this court could reasonably arrive at the same conclusion, the finding below will not be upset. Appellants contend, and it is undisputed, that there are several depressions within the drainage area in which surface waters accumulate. *450 All the water, then, does not ultimately end up in the pond. However, this literal construction of the finding flies in the face of common sense. The trial court certainly was aware that not only does water evaporate into the air and percolate into the ground, but that it ponds in low spots. The sum and substance of the finding is that all of the water in the drainage area which does drain, would find its way naturally to the pond if it were not for the railroad embankment. The finding cannot be disturbed because there were a few ponding areas.
Appellants argue that the record is void of evidence proving that water from the drainage area would have reached the pond prior to the time the railroad embankment was laid. It is not surprising that neither side could produce a witness with firsthand knowledge of the water flow one hundred years ago. Witnesses on both sides testified in essence that water in any part of the drainage area, with the one exception, would flow southerly toward the pond. Appellants' expert, Meklin, presented corroborating evidence in the form of land elevation readings. The elevation of the pond hovered around 910. The elevation of the swale, which lies between the tracks and the pond is 924.20. The elevations of various streets and corners within the drainage area are greater than those of the pond and the swale by the indicated amounts, respectively: Middleton and Hubbard (20 and 6 feet), Hubbard and Park (30 and 16 feet), Henry and South (21 and 8 feet), Park and South (25 and 11 feet), Mayflower and South (32 and 18 feet), Maple and South (30 and 16 feet), Elmwood (32 and 18 feet), Hubbard (28 and 14 feet), and South (20 and 6 feet). Would appellants have this court overrule the law of gravity and decide that water does not run down hill? It is true that these are 1960 readings. But due to the significant differences in elevation, the trial court could have reasonably relied *451 on the readings in conjunction with the testimony to conclude that had the tracks not been there, the water would have flowed to the pond. The finding is not against the great weight and clear preponderance of the evidence.
Appellants also contend that a new watershedthe Anderson and Meadows developmentswas tapped by the drainage system. The testimony and the elevation readings indicate that except for the small area, which was correctly determined to be of no import, the water from these developments always would have drained into the pond had it not been for the embankment.
Furthermore, the volume of water routed to appellants' land by the drainage system was not increased. The best evidence of this are the readings showing that the level of the pond did not rise significantly after the installation of the new culvert system. The elevation of the pond on August 22, 1960, was 909.66. After a 3.74-inch rainfall on September 18th, a 910.57 reading was taken. Readings on November 17th, January 17, 1961, and June 27, 1963, were 910.35, 910.08, and 908.96, respectively. The last water level reading was actually lower and the intervening levels not appreciably higher, than the first reading. Appellant Lemcke testified that the pond overflowed Park street about 40 years ago. The elevation of Park street, without the present grading, is nearly two and a half feet higher than the pond. Thus the depth of the pond was considerably higher before any draining system was established than it is now.
Appellants contend that the water north of the tracks is discharged from a "natural reservoir" contrary to Pettigrew v. Evansville.[4] The case is distinguishable. In Pettigrew a landowner complained that the city threatened to drain a large body of standing water, created by the active participation of the city, onto his land. The court stated, at page 230:
*452 "... we know of no adjudged case where it has been held that the waters of a natural pond or reservoir upon the land of one person may be drained by him directly upon the land of another, greatly to his injury; nor where one owner has been allowed, by means of a ditch, trench, sewer or the like, to gather the surface water from his own land and throw it upon the land of another, so as materially to lessen its value and produce injury to the owner."
The important distinctions between Pettigrew and the case at bar are: (1) The water here would flow naturally to the adjoining land; (2) the water here was not in any standing or permanent body of water.
The facts of Pettigrew have been held to be "exceptional."[5] The facts in the instant situation are also clearly different from those in Pettigrew.
We conclude that under the facts presented here the city may divert the surface water under the "natural flow" theory.
(2) Diversion Incidental to Construction.
Assuming that the 58-acre area would not have drained naturally into the pond, what authority did Middleton have to divert surface water in conjunction with its program of street construction? It is undisputed that streets act as conduits in the Middleton drainage system. By constructing streets and gutters within its limits, a city may change the natural watercourse so as to increase the flow of water upon private land.[6] But a city may not collect water in a body and then cast it on the land in a large volume.[7] Appellants *453 have no quarrel with the statement of the law, but argue that it is inapplicable here because none of their properties adjoin any of the streets or ditches utilized in the drainage system. Although appellant Voss' property abuts Middleton street, it is not adjacent to any of the streets employed as part of the drainage system. No water may be channeled to this land. However, Park street cuts through the property of appellants Tiedeman and Lemcke. As this street is a part of the system, water may be run off on their land.
We conclude, therefore, that incidental to its street construction, the city had additional authority to divert surface water to the land of appellants Tiedeman and Lemcke.
Second: Did appellants acquire a prescriptive right to the diversion of the surface water by the railroad embankment? Regardless of the city's right to establish its drainage system, appellants contend that because Middleton acquiesced when the railroad constructed its embankment back around 1855, which blocked off the natural flow of water from the 58-acre tract to the Tiedeman pond, the city is bound by that change and appellants acquired a prescriptive right in the maintenance of that embankment and that such right was violated by the piercing of the embankment by the culvert.[8]
If an artificial body of water is created, landowners incidentally benefited are entitled to injunctive relief to prevent disturbance of the new state of the water.[9] Wisconsin *454 prescriptive-rights cases involve proprietors of lands which border bodies of water, who in some way relied on the new water level which was maintained by another's dam.[10] These cases hold that when the artificial level of the water is continued for a considerable period of time, usually twenty years, it becomes a natural condition. These cases do not control the present case. Appellants call the railroad grade, which blocked up the surface water, the "artificial condition." In the Wisconsin prescriptive-rights cases, the body of water affectednot the damconstituted the "artificial condition." Also in these cases the landowners had made expenditures, constructed buildings, or in other ways relied on the new state of the water. In the instant case there is no evidence that appellants relied on the embankment in making any particular use of the land. They had always farmed their lands, a use perfectly consistent with the presence of water, and in acquiescence of the continued existence of the 22-acre pond which was largely fed by the area surrounding appellants' land.
In an Iowa case,[11] a culvert, which was laid under a railroad embankment, allowed water to follow its natural course upon the plaintiff's land. The embankment had shielded the land from water flow for over fifty years. The court found that there was no prescriptive right. The court said (at p. 1349):
"It is true defendants' land has for many years been shielded by the railroad embankment from surface water from the dominant land west of it. But it has acquired no prescriptive *455 right to such protection. Bones v. Chicago, R. I. & P. Ry. Co., 145 Iowa 222, 229, 120 N.W. 717; Hinkle v. Chicago, R. I. & P. Ry. Co., 208 Iowa 1366, 227 N.W. 419; King v. Chicago, B. & Q. Ry. Co., 71 Iowa 696, 698, 29 N.W. 406, 407."
The appellants have not acquired prescriptive rights. There is lacking that degree of reliance upon the embankment which is necessary in order to invoke the equitable doctrine of prescription.
Third: Are appellants entitled to injunctive relief in this situation? Even assuming that the city had violated its authority in putting through the new drainage system or even assuming that appellants had prescriptive rights that had been breached by installing the disputed culvert,[12] injunctive relief should be granted only where there is irreparable injury.[13] Acts which destroy or cause serious change to property constitute irreparable injury.[14]
The record shows no irreparable injury caused to any of the appellants by the outpouring of water through the 30-inch culvert that runs through the embankment, under the tracks and Park street and out onto the street right-of-way *456 just adjacent to the pond. Appellant Voss was unaware of any damage to his land. Appellant Lemcke admits that his property had suffered no physical damage. Appellant Tiedeman had no damage to any buildings, but felt that the value of his property was being lessened. Appellants' real-estate expert was unaware of whether the pond level had risen.
As previously discussed, the evidence supports the trial court's finding that the water level in the pond has not increased after the construction. The drainage area of 58 acres contributes only 25 percent of the runoff to the pond (there were another 158 acres). Inasmuch as the 22-acre pond on Tiedeman's property has been fed by an area three times as large as the Middleton area, it is doubtful that the small increase, if any, in the water volume that could possibly be due to the Middleton drainage system appreciably affects the value of his land. It is questionable whether any of the appellants demonstrated enough harm to be entitled to injunctive relief.
By the Court.Judgment affirmed. Costs on this appeal, including costs for printing pages of its brief in excess of forty, awarded to respondent.
NOTES
[1] Bratonja v. Milwaukee (1958), 3 Wis. (2d) 120, 87 N. W. (2d) 775; Freeman v. Lake Mills (1943), 243 Wis. 537, 11 N. W. (2d) 181; Hoyt v. Hudson (1871), 27 Wis. 656.
[2] Freeman, supra, footnote 1; Manteufel v. Wetzel (1907), 133 Wis. 619, 114 N.W. 91.
[3] Clark v. Moru (1963), 19 Wis. (2d) 503, 120 N. W. (2d) 888; State ex rel. Isham v. Mullally (1961), 15 Wis. (2d) 249, 112 N. W. (2d) 701.
[4] (1869), 25 Wis. 223.
[5] Heth v. Fond du Lac (1885), 63 Wis. 228, 23 N.W. 495.
[6] Peck v. Baraboo (1909), 141 Wis. 48, 122 N.W. 740; Harp v. Baraboo (1898), 101 Wis. 368, 77 N.W. 744; Champion v. Crandon (1893), 84 Wis. 405, 54 N.W. 775.
[7] Champion v. Crandon, supra, footnote 6; Pettigrew v. Evansville, supra, footnote 4.
[8] Relying on 56 Am. Jur., Waters, p. 569, sec. 82. and p. 626, sec. 159.
[9] Anno. 88 A. L. R. 130; Harnsberger, Prescriptive Water Rights in Wisconsin, 1961 Wisconsin Law Review, 47. The rationale must be based more on equitable consideration than on the law of prescriptive rights because there is no adverse claim involved. The landowners make no hostile use of the water and the party creating the condition acquiesces in the former's use.
[10] See for example Minehan v. Murphy (1912), 149 Wis. 14, 134 N.W. 1130; Johnson v. Eimerman (1909), 140 Wis. 327, 122 N.W. 775; Pewaukee v. Savoy (1899), 103 Wis. 271, 79 N.W. 436; Smith v. Youmans (1897), 96 Wis. 103, 70 N.W. 1115.
[11] Stouder v. Dashner (1951), 242 Iowa 1340, 49 N. W. (2d) 859.
[12] Even if there were a prescriptive right that could be urged against the railroad, such a right cannot be urged against the public. See Stouder v. Dashner, supra, footnote 11; see also Stuart v. Gilbert (1934), 215 Wis. 546, 255 N.W. 142; and Klinkert v. Racine (1922), 177 Wis. 200, 188 N.W. 72, which held that adverse possession will not run against the city. As discussed in footnote 9, supra, there is no element of hostility in a prescriptive right while there is in adverse possession. These doctrines, however, are grounded on similar notions, and support the proposition that prescriptive rights cannot be asserted against the city.
[13] Hartung v. Milwaukee County (1957), 2 Wis. (2d) 269, 86 N. W. (2d) 475, 87 N. W. (2d) 799; Maitland v. Twin City Aviation Corp. (1949), 254 Wis. 541, 37 N. W. (2d) 74.
[14] Ferguson v. Kenosha (1958), 5 Wis. (2d) 556, 93 N. W. (2d) 460. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604275/ | 130 N.W.2d 683 (1964)
Ruby B. FRANCIS, Appellee,
v.
Joseph W. BARNES, Appellant.
Fern E. FRANCIS, Appellee,
v.
Joseph W. BARNES, Appellant.
No. 51455.
Supreme Court of Iowa.
October 20, 1964.
*684 Joseph L. Phelan, Fort Madison, for appellant.
Harlan W. Bainter and Thomas F. Bell, Mt. Pleasant, for appellees.
THORNTON, Justice.
This is an intersection collision case. Plaintiffs are husband and wife. They started separate actions which were consolidated for trial and are presented together here.
The collision occurred June 23, 1961, about 2:30 p. m. at the intersection of United States Highway No. 218 and Iowa Highway No. 16 in Lee County. Highway No. 218 runs north and south, Highway No. 16 runs east and west. There is a stop sign on Highway No. 16 stopping westbound traffic before it enters Highway No. 218, a through highway. Plaintiff husband was driving his 1951 Chevrolet pickup truck north on Highway 218, plaintiff wife was seated at his right. Defendant was driving his automobile in a westerly direction on Highway No. 16 to the east of Highway No. 218.
The cases were tried to a jury resulting in a verdict for plaintiff husband for $2,500 and a verdict for plaintiff wife for $22,500.
Defendant appeals urging plaintiff husband did not prove his freedom from contributory negligence, and the verdicts are excessive.
I. Defendant urges plaintiff husband has failed to prove his freedom from contributory negligence in that he did not diminish his speed and the collision occurred on the wrong side of the highway.
There was ample evidence the collision occurred on the west or "wrong" side of Highway No. 218. All witnesses so testified except defendant who stated it was on the east side. Plaintiff husband testified:
"I remember crossing the bridge south of the intersection and I was traveling about 35 miles an hour at that time. When I first saw the automobile I was about 110 feet from the intersection. I was on the east side of the highway and driving around 25 miles per hour. The Barnes car was coming out of the intersection on the highway and was coming southwest and the Barnes car was going between 25 and 30 miles per hour. * * * The Barnes car was moving when I first saw it. I sounded my horn, I seen him coming and I started pulling to the left trying to dodge him. * * * At the time of the impact my truck was on the west side of the highway. It was kind of *685 headed a little bit to the northwest trying to dodge him. The Barnes car was headed right at me going southwest. The point of impact on my truck was on the right-hand side toward the front. The point of impact of the Barnes car was on the front of his car. I didn't see the Barnes car stop at any time previous to this accident. * * * Just previous to the accident I touched my brakes on lightly. I didn't put them on tight."
Plaintiff wife testified, "My husband was driving about 45 but when he started to come down that little slope before he went through the bridge it was about 25 to 30. * * * Defendant's car was not quite to the stop sign when I saw it. * * * It was kind of hard to tell how fast the defendant's car was going but I thought it was going about 25 to 30 miles an hour. Defendant did not stop at the stop sign, he slowed up and then he came right straight on out. * * * My husband honked his horn and he stepped on the brakes a little. And I said `Well he's going to run into us.' My husband didn't change his direction of travel because just after I said that I was throwed against the windshield. He hit us right away."
Defendant testified, "I came to the stop sign on 218, and I stopped, and some traffic went by, and then I started up again, and then I seen this truck coming, and I stopped again. I might have been 18 inches or so over the line headed west, over the east edge of the pavement, * * *. Mr. Francis was going pretty fastabout 50. I wouldn't say how fast. * * * When I saw that there was going to be a collision, I just sat there with my foot on the brake, I just froze. I couldn't move either way. I think if Mr. Francis would have turned to his left, because there was no traffic coming south, and if he would have turned to his left, he would have avoided the accident."
Defendant's grandson testified, "When we came to the intersection and stopped at the stop sign and then proceeded into the intersection and the collision occurred. * * * Mr. Francis' truck was in the wrong lane of traffic when he hit us."
The foregoing is substantial evidence the plaintiff was in the exercise of due care. The duty cast on plaintiff driver even though he is on a through highway and may assume others will obey the law is to have his truck under control and reduce the speed to a reasonable and proper rate when approaching and traversing an intersection. Section 321.288, Code of Iowa 1962, I.C.A. And to maintain a proper lookout. Perry v. Eblen, 250 Iowa 1338, 98 N.W.2d 832. If he is traveling at a reasonable and proper rate of speed he need not reduce it still more. Miller v. Stender, 251 Iowa 123, 131, 98 N.W.2d 338; and Rogers v. Jefferson, 224 Iowa 324, 330, 275 N.W. 874. It is a jury question.
The duty of a traveler on a through highway is stated in Paulsen v. Haker, 250 Iowa 532, 537, 95 N.W.2d 47, 50, as follows:
"The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others. Likewise, in connection with the duty to keep a proper lookout, we think it is his duty to make reasonable observation of all surrounding circumstances, including intersections and other traffic which may be in fair view on intersecting roads, and to use such care as an ordinarily prudent man would do in the light of everything disclosed by such observations."
See also Brown v. Guiter, Iowa, 128 N.W.2d 896; and Beezley v. Kleinholtz, 251 Iowa 133, 100 N.W.2d 105.
Section 321.304, Code of Iowa 1962, I.C.A., provides, "No vehicle shall, in overtaking and passing another vehicle or at any other time, be driven to the left side of the roadway under the following conditions: * * * 2. When * * * approaching within one hundred feet of or traversing any intersection * * *."
*686 We do not find defendant specifically urged the above statute in the trial court. He does not point it out here. No other statute requires plaintiff to drive on the right-hand side of the roadway outside of cities and towns. See sections 321.297 and 321.298, Code of Iowa 1962, I.C.A.; and State v. Lura, Iowa, 128 N.W.2d 276. In any event the facts are such that a legal excuse for the failure to observe the statute is shown. The third legal excuse stated in Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, is, "3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute."
In this case the jury could properly find the act of defendant in pulling across the east or plaintiff's right side of Highway 218 in front of plaintiff furnished a legal excuse not of plaintiff's making to justify plaintiff's pulling to the left. In effect defendant so testified. Paulsen v. Mitchell, 252 Iowa 65, 73, 105 N.W.2d 603, 608; and Harris v. Clark, 251 Iowa 807, 810, 103 N.W.2d 215, 217.
This is not the exceptional case in which the contributory negligence of plaintiff is so palpable that reasonable minds may fairly reach no other conclusion.
Ordinarily contributory negligence is a jury question. No citation of authority is necessary. See rule 344(f) 10, Rules of Civil Procedure, 58 I.C.A.
Here the jury could properly find either plaintiff did slow down as he approached the intersection or he was proceeding at a reasonable rate and need not slow down, and that plaintiff pulled to the left in an attempt to avoid defendant. The record would sustain a contrary finding, it is clearly a jury question.
II. Defendant urges the verdicts to both husband and wife were excessive because not supported by the evidence. He cites Miller v. Town of Ankeny, 253 Iowa 1055, 114 N.W.2d 910; Ferris v. Riley, 251 Iowa 400, 101 N.W.2d 176; Heerde v. Kinkade, 249 Iowa 85, 85 N.W.2d 908; and Jurgens v. Davenport, Rock Island and Northwestern Railway Company, 249 Iowa 711, 88 N.W.2d 797, for the proposition a verdict may be excessive because it is not supported by the evidence in the absence of passion and prejudice and that justice may be effectuated by a remittitur. To these might be added Engman v. City of Des Moines, Iowa, 125 N.W.2d 235.
In the Engman, Ferris and Jurgens cases there is one factor not present in the wife's case here. In each of those cases the plaintiff had either not been off work as in Jurgens or had returned to work.
From the evidence the jury could properly find plaintiff wife is presently suffering from an unstable lumbosacral joint with possible disk involvement and with nerve root impingement causing pain to radiate into her right leg. In addition to the injury to her back plaintiff suffered abrasions and contusions of the right arm and both knees and contusions of the right forehead in the collision. She had no prior back trouble except soreness of the shoulder muscles. Prior to the accident she helped her husband with all the farm work both in the field and doing chores as well as the housework, garden and yard work. Since the accident she has been unable to do any of this work. She was hospitalized from the date of the accident for ten days. During that time a back brace was prescribed and she has worn that brace ever since except for three or four weeks. She was wearing it at the time of trial. She was again hospitalized in September of 1962 for 23 days, in November, 1962, for 14 days at which time she was placed in traction as a part of her treatment, in December, 1962, plaintiff was again hospitalized for ten days. At the time of trial, October 1, 1963, plaintiff was still suffering from the same back condition, she has been in constant pain all of the time and currently under the care of her physician.
From the medical evidence the jury could properly find plaintiff may have to undergo *687 a fusion operation of the injured area of the spine to stabilize her back. That the present condition is permanent. Plaintiff will continue to wear the brace and have further treatment. That she will have at least 10% loss of functional use of her back. That she will not again be able to do the heavy farm work she had been doing before the injury without aggravating the condition of her back. Also plaintiff's doctor testified there is now present in plaintiff's back indication of an early development of traumatic or degenerative arthritis. Plaintiff was 59 years of age at the time of her injury. Her medical and hospital bills to the time of trial were $2,011.95, with a minimum of $500 for future medical services. For past and future pain and suffering plaintiff asked $8,000, for permanent disability plaintiff asked $50,000. For all of these items the jury returned a verdict of $22,500. Under the record it seems likely the jury allowed plaintiff her past and future medical expenses thus leaving a recovery of $20,000 for pain and suffering and permanent disability. All the jury had to consider was the testimony of plaintiff's doctors, defendant did not call one.
We have repeatedly stated pain and suffering and permanent injury are peculiarly for the jury. And we should substitute our judgment for that of the jury with extreme caution. Mazur v. Grantham, Iowa, 125 N.W.2d 807; and Fredrickson v. Heline, 252 Iowa 92, 106 N.W.2d 74. The verdict is within the fair range of the testimony. The results of plaintiff's injury here are quite comparable to those suffered by plaintiff in Fredrickson v. Heline, supra, where we sustained a similar verdict. The verdict for plaintiff wife is sustained by the evidence and we will not disturb it.
III. The verdict in favor of plaintiff husband is $2,500. The evidence shows his car was damaged to the point where repair would exceed its value. The jury could properly find damages of $500 for the loss of the car. This leaves $2,000 awarded for loss of consortium. This is also peculiarly a question for the jury. The jury is better able to determine the loss to a husband who has a sick or disabled wife than we are. See Mazur v. Grantham, Iowa, 125 N.W.2d 807, 813. The verdict here is not excessive.
IV. In this record the entire testimony of four witnesses is set out in question and answer form. This has increased the size of the record by at least 75 pages. It serves no purpose. When there is no issue raised as to a medical expert's qualifications, certainly no benefit accrues from setting out such in question and answer form. Nor is it necessary to set out such expert's name and address.
The defendant-appellant states this came about because plaintiffs-appellees insisted upon so presenting this evidence. Plaintiffs explain this by saying appellant did not set out a concise statement of the points on which he would rely on the appeal and they wished the record to be complete to answer any matters urged by appellant. The parties stipulated to the record and the trial court approved it.
Attention is directed to rule 340(d), Rules of Civil Procedure:
"If a party to the appeal shows the trial court a good reason for setting out part of the testimony in question and answer form, such part may appear by questions and answers. If this is not done, testimony of witnesses shall be abstracted in condensed or narrative form."
This rule was not followed, it should have been. At the insistence of plaintiffs without following the rule, at least 75 additional pages have been added to the record. No good reason appears. To correct a typewritten abstract, if it needs correcting, it is not necessary to do so in question and answer form. It may be corrected in narrative form.
*688 Therefore $75 of the costs in this court are taxed to plaintiffs, the balance to defendant.
Affirmed.
All Justices concur, except HAYS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604289/ | 130 N.W.2d 92 (1964)
A. C. GRUWELL and Anna Marjorie Gruwell, Plaintiffs and Appellants,
v.
Oscar HINDS, also known as Clarence Oscar Hinds, Defendant and Respondent.
No. 10138.
Supreme Court of South Dakota.
August 24, 1964.
Rehearing Denied October 16, 1964.
Hayes & Richards, Deadwood, for plaintiffs and appellants.
Overpeck, Hamblin & Mueller, Belle Fourche, for defendant and respondent.
HANSON, Judge.
In this action to cancel and set aside certain conveyances of real and personal property *93 defendant appeared specially and moved to quash service of process as the same was not served on him within the State of South Dakota and the court therefore lacked jurisdiction. The summons and complaint and a subsequent summons and amended complaint were all personally served on defendant in Arapahoe County, Colorado. Defendant's motion was granted and service of process quashed. Plaintiffs' appeal concerns the jurisdiction of the court to hear and determine this matter.
The test for determining jurisdiction is ordinarily the nature of the case, as made by the complaint, and the relief sought. Mellette County v. Arnold, 76 S.D. 210, 75 N.W.2d 641. So tested this is primarily an action to cancel and set aside certain conveyances from plaintiffs to defendant of real and personal property located in Butte County, South Dakota. The property is specifically described in the amended complaint and plaintiffs, A. C. Gruwell and Anna Marjorie Gruwell, allege they have exclusive possession of the same consisting of a ranch, livestock, farm machinery and equipment. The basis for cancellation alleged in the first cause of action is fraud and misrepresentation of the defendant Oscar Hinds. The basis for cancellation alleged in the second cause of action is that the conveyances were made as part of a business venture in the nature of security for money and funds to be advanced by defendant which he failed to pay. The amended complaint contains the following prayer for relief:
"1. That the deed and bills of sale and all other instruments for the transfer of plaintiffs' property to defendant heretofore mentioned be avoided, discharged, nullified and set aside, and that the title to said real and personal property be restored to plaintiffs and quieted in them, free and clear of any claim by defendant or persons claiming under him, and that the defendant be excluded and enjoined from asserting any further right, claim, lien or interest in and to said property.
"2. That the defendant be required to account to the plaintiffs for all of the plaintiffs' funds and property received by him and for his use of such property from and after the date of September 12, 1962, and for judgment against the defendant ordering the return of such property or for its value in cash in case it cannot be returned and for the reasonable value of the use of plaintiffs' money and property wrongfully detained from them.
"3. For the plaintiffs' costs and disbursements herein.
"4. For such other and further relief as to the Court may seem proper."
Defendant maintains this is an action in personam and the trial court properly quashed the constructive service of process upon him. It may be conceded that the original equitable remedies of reformation and cancellation operated in personam upon persons and not in rem against the res. Its decrees could not operate to transfer title. Transfers had to be executed by the parties and obedience compelled by contempt proceedings, injunction, attachment, or like process. However, the equitable power of our courts has been extended by statute making the same operative in rem or quasi in rem. According to 4 Pomeroy's Equity Jurisprudence § 1317, p. 897 "This legislation may be reduced to two general types: 1. That by which the decree itself, without any act of the defendant or of an officer on his behalf, becomes title, and vests a legal estate in the subject matter in the plaintiff; 2. That by which a commissioner, master, or other officer of the court executes the decree, and through his conveyance or other official act transfers the legal estate from the defendant to the plaintiff, or otherwise vests the plaintiff with title."
*94 Our statute comprehensively authorizes both procedures. SDC 1960 Supp. 37.1509 provides that "In all actions arising under this chapter (37.15 for determining adverse claims to real estate), in actions brought for the satisfaction of record of mortgages and other liens upon real property, and in actions for the specific performance of contracts relating to real property, whenever the defendant is not found within the jurisdiction of the Court and service of summons therein is made by publication or personally without the state, or whenever any defendant refuses or neglects to make a conveyance or cancel an incumbrance pursuant to the judgment of the Court, the Court may, by its judgment, determine and establish the title to the property, remove all clouds therefrom, or appoint a commissioner to convey the property on behalf of such defendant." This statutory change in the fundamental character of such actions sustains jurisdiction of our courts over property situated in this state on constructive service of process against nonresidents. LeRoy Sargent & Co. v. McHarg, 42 S.D. 307, 174 N.W. 742. "A suit is considered to be a suit in rem or quasi in rem where it has relation to a status, thing, or property in the state, or is one in which property in the state is sought to be reached in satisfaction of the personal obligation of its owner, or is one in which is sought an adjudication of the title to or interest in the property in the state of its alleged owner or claimant. In this regard the state has the same jurisdiction over chattels as over real property; as to chattels within the state, the courts of the state have power to proceed in rem or quasi in rem in actions in which nonresident defendants are brought in by service of process by publication only. Suits quasi in rem are personal in form in that the owner's personal rights in the property are affected by the decree, but since the judgment operates on the property itself, and merely incidentally affects the personal rights of the owner, such suits are regarded in effect as in rem, and are frequently designated as quaisi in rem. Almost any kind of action may be instituted and maintained against nonresidents to the extent of any interest in property they may have in the state, and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication." 42 Am.Jur., Process, § 83, p. 72. Also see Annotation 126 A.L.R. 664, 2 L. Ed. 2d 223, 51 A.L.R. 754, and 30 A.L.R. 2d 208.
In Bunting v. Creglow et al., 40 N.D. 98, 168 N.W. 727, plaintiff brought an action to rescind a contract and cancel a conveyance of property situated in Bowman County, North Dakota. Three of the defendants appeared and answered. Another defendant, The Upper Michigan Land Company, a foreign corporation, was served with process by publication. Defendants contended the foreign corporation was an indispensable party and the court lacked jurisdiction because of constructive service of process on such defendant. The North Dakota court disposed of such contention by stating that, if correct, "the state courts would be powerless to grant relief in any case where the defendant is a nonresident, even if there were but two parties to the transaction, one of which is a nonresident. The contention altogether overlooks the fact that the powers of the courts of equity are now generally coextensive with the subject-matter of the litigation, and that their judgments and decrees may be given full effect by direct action upon any subject-matter that is within their jurisdiction. Equity jurisdiction can no longer be said to be exercised strictly in personam." The court concluded by saying that "In the case at bar, all of the parties to the contract have been made defendants, and all are either actually or constructively before the court. Not being concerned in this proceeding with any question as to the plaintiff's ability to make the decree wholly effective in so far as it may be favorable to him, it is clear that the court had jurisdiction of the subject-matter of the action and sufficient jurisdiction over all of *95 the parties to enter an appropriate judgment".
Whatever else plaintiffs' complaint may contain it alleges an action in rem or quasi in rem to cancel conveyances and quiet title to real and personal property situated in South Dakota sufficient to sustain constructive service of process upon a nonresident defendant. SDC 1960 Supp. 33.0812 specifically provides that "A summons * * * may be served by publication * * * (5) Where the subject of the action is property in this state and the defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest in or lien thereon", and SDC 1960 Supp. 33.0814 further authorizes personal service of the summons upon any person without the state in lieu of service by publication. Froelich v. Swafford, 35 S.D. 35, 150 N.W. 476. The statute does not require the prior seizure or attachment of the property. Wagner v. Wagner, 110 U.S.App.D.C. 345, 293 F.2d 533. Also the mere fact that in personam relief is also sought by plaintiffs does not defeat the operation of such statutes. See Anno. in 30 A.L.R.2d at p. 220. If defendant appears, the action will become a suit in personam and the court will have jurisdiction over both defendant and the property. If defendant does not appear it will essentially be an action in rem, Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, and the operation of its judgment confined to the res. It would indeed be an anomalous situation if plaintiff could not have his claim of ownership to real and personal property situated in this state adjudicated here merely because of the nonresidency of another claimant. Sullivan v. Albuquerque Nat. Trust & Savings Bank, 51 N.M. 456, 188 P.2d 169.
Reversed and remanded with instructions to vacate the order quashing service of process.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604266/ | 810 So. 2d 1283 (2002)
Carolyn McGRATH, As Legal Tutrix of Their Minor Child, Lindsey Nicole Palmour,
v.
EXCEL HOME CARE, INC.
Nos. 01-CA-1270, 01-CA-1271.
Court of Appeal of Louisiana, Fifth Circuit.
March 26, 2002.
Rehearing Denied April 15, 2002.
*1285 Jacqueline G. Griffith, Glen Patrick McGrath, Griffith Battard and Johnson, New Orleans, Louisiana, for Appellants Louisiana Patients' Compensation Fund and Oversight Board, and Excel Home Care, Inc.
S. Daniel Meeks, Patrice W. Oppenheim, Metairie, Louisiana, for Appellee National Union Fire Insurance Company of Pittsburgh, PA.
Michael D. Riley, New Orleans, Louisiana, for Appellee Carolyn Mcgrath, As Legal Tutrix for the Minor Child, Lindsey Nicole Palmour.
Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
JAMES L. CANNELLA, Judge.
In this medical malpractice action filed against Excel Home Care, Inc. (Excel) and its insurer, St. Paul Fire & Marine Insurance Company (St.Paul), the Louisiana Patients' Compensation Fund and Oversight Board (the PCF), appeals from a jury verdict and judgment in favor of Plaintiffs, Carolyn McGrath (McGrath), as legal tutrix of the minor child, Lindsey Palmour, and National Union Fire Insurance Company of Pittsburgh, PA (National).[1] McGrath and National answered the appeal relative to the amount of damages. We affirm.
On March 27, 1996, Lindsey Palmour's father, Matthew Palmour (Palmour), suffered severe crushing injuries in a workplace accident while operating a crane for his employer, Pool Company (Pool). National insured Pool for workers' compensation claims. As a result of the accident, Palmour, who was 29 years old, was rushed to West Jefferson General Hospital, where physicians had to amputate his entire body below the navel in order to save his life.[2] His treating physician was Dr. Clifford Ameduri, who led a team of physicians and therapists, including a plastic and reconstructive surgeon, Dr. Jonathan Boraski, who performed the skin grafts.
During 13 months in the hospital, the doctors reconstructed Palmour's bowel and bladder functions, redirecting them into bags and performed skin grafts on the site of the amputation. He was discharged on April 25, 1997, with the concurrence of all of his physicians. Although he had suffered infections during his hospitalization, his physicians found him to be free from infection at that time. His skin graft was expanding over the distal wound, and was thus healing. Dr. Boraski did not foresee any further surgery. However, because his distal wounds were still open and because of the potential for infections due to the open wound and the urine and bowel disposal system, strict cleanliness procedures were critical to prevent cross-contamination. Nevertheless, the physicians determined that he was able to go home, a decision about which Palmour was understandably excited. He looked forward to being home with his five-year-old daughter, Lindsey.
Because Palmour required nursing around the clock, National hired Excel to manage Palmour's home care. Excel provided two certified nursing assistants (NA) to stay with Palmour 14 hours per day, and one NA to be with him ten hours each night. A skilled nurse examined Palmour every day.
On May 2, 1997, Palmour contracted a urinary infection that was successfully treated and resolved. A second one occurred on May 27, 1997. Dr. Ameduri felt *1286 that this time he had no choice but to readmit Palmour to the hospital to treat his infection and also because his surgical site had become necrotic and the skin grafts had to be redone. Palmour was depressed and anxious about his condition and hospitalization. The evidence was uncontradicted that both infections and the resulting problems with the surgical site were the direct result of the negligence of the Excel personnel.
During Excel's care of Palmour in which the nursing staff allowed Palmour's trunk and surgical site to rest on urine soaked towels, the surgical site became contaminated, resulting in the break down of the skin grafts. The negligence of the staff further compromised the "closed system" of urine disposal and caused the urinary infection by frequently placing his urostomy (urine) bags on the dirty floor and allowing a leak at the urostomy site to go untreated and unreported to the doctors. According to the testimony of Dr. Ameduri and Joy Budwine, a registered nurse (RN) who served on the medical review panel, a closed system of urine containment is critical because urine is sterile in the body, but breaks down into urea/ammonia once exposed to air. Since ammonia burns, it caused the tissue to break down. Furthermore, the nurse assistants were aware that Palmour was suffering from phantom pain, a sign of infection, which would have been evident because phantom pain causes jerking or spasms. They also knew that his urostomy site was leaking into the open wound at his sacrum. Furthermore, Palmour complained of headaches and had profuse sweating, both of which are indications of infection. Yet, no one bothered to contact Palmour's treating physician, Dr. Ameduri, about the urostomy leak or the phantom pain and the visiting nurse, whose reports show she knew of the unsanitary conditions, failed to report them to the doctor.
For the next five months, from May of 1997 until October of 1997, Palmour remained in the hospital where he underwent further skin grafts and his urinary infection was treated successfully. His infection was resolved on June 11, 1997, but it took several months to bring his skin grafts back to where they were when he went home in April of 1997. On October 17, 1997, Palmour was again discharged from the hospital. His home care was assumed by another company.
One year later, in November of 1998, Palmour returned to the hospital. He died while there on May 22, 1999.
On May 7, 1998, National filed a lawsuit to recover medical expenses which it had paid due to Excel's malpractice. On June 10, 1998, National filed a Complaint with the PCF requesting a medical review panel. On August 13, 1998, National dismissed its district court petition without prejudice because of prematurity.
Following the medical review panel's consideration of the allegations, the members issued a unanimous ruling in favor of Palmour and National and against Excel. On September 2, 1999, McGrath filed a Petition of Intervention with the PCF seeking to intervene in National's complaint against Excel. On October 14, 1999, she filed a district court petition for damages on behalf of Lindsey Palmour. On November 15, 1999, National filed a petition for its damages. McGrath's petition of intervention in the medical review panel proceedings was rejected on November 16, 1999 because it duplicated National's complaint. The two lawsuits against the Defendants were consolidated on May 12, 2000.
A jury trial was held on March 12, 13, and 14, 2001, after which the jury found that Excel's negligence caused injuries to Palmour, his daughter, and National. The jury awarded $90,000 to Palmour for his *1287 pain and suffering, $150,000 to Lindsey Palmour for her past and future loss of love, affection, and society, and $60,000 to National for medical expenses it had paid on Palmour's behalf. The verdict of the jury was made a judgment after the trial court on March 19, 2001.
Following the trial, the Defendants, Excel, and St. Paul, paid to Lindsey Palmour, $88,791.68. On April 26, 2001, a Satisfaction of Judgment was executed reciting that this payment is the limitation of liability owed to her by law by the Defendants, with a reservation of her right to claim the remainder of the judgment damages from the PCF.
On appeal, the PCF asserts that the medical malpractice action was prescribed, that there is no right of action for the death claim, that the action was premature that causation was not established, and the trial judge failed to determine the degree and percentage of fault as to all parties and non-parties.
In brief, National claims that it was paid more than $20,000 in settlement of its claims and that the PCF acknowledged that this. Also, together with the payment made to Lindsey Palmour, this satisfied the $100,000 limitation of liability owed by the Defendants. However, the document in support of that assertion is not in the record, but is attached to the brief. We cannot consider any evidence not filed properly into the record. Nonetheless, a review of the Plaintiffs' Satisfaction of Judgment states that the payment to her "constitutes Excel Home Care, Inc's limits of liability by law. The balance of the judgment is due from the Louisiana Patients' Compensation Fund." We find that this sufficiently proves that the legal limitation of liability owed by the Defendants of $100,000 was paid to the Plaintiffs.
La.R.S. 40:1299.44(C)(5) provides in part:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars. [Emphasis added.]
The Medical Malpractice Act constitutes a special legislative provision in derogation of the general rights available to tort victims and must be strictly construed. Galloway v. Baton Rouge General Hosp., 602 So. 2d 1003, 1005 (La.1992); McCrory v. Jefferson Parish Hosp. Service Dist. No. 2, 96-624 (La.App. 5th Cir.12/30/96), 686 So. 2d 1060, 1063. Once the qualified health care provider (or its insurer) pays $100,000 to a medical malpractice victim, the admission of liability provision of R.S. 40:1299.44(C)(5) is triggered and the only contested issue remaining between the victim and the Patient's Compensation Fund is the amount of the victim's damages in excess of the amount already paid. Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So. 2d 365, 372; Stuka v. Fleming, 561 So. 2d 1371 (La.1990), cert. den., 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525; McCrory, 686 So.2d at 1063.
In Stuka, the Louisiana Supreme Court stated that, "A suit under the Medical Malpractice Act is against the health care provider only and not against the Fund, because the health care provider is the only party defendant contemplated by the Act." Stuka, 561 So.2d at 1374. See also: McCrory, 686 So.2d at 1063. The status of the PCF after a settlement of $100,000 is "more in the nature of a statutory intervenor than a party defendant," so that the Fund "may put on evidence and *1288 unite with the defendant in resisting the victim's demands, and may appeal a judgment, but may not object to the form of the action." Stuka, 561 So.2d at 1374. See also: McCrory, 686 So.2d at 1063. In Thomas v. Insurance Corp., 93-1856 (La.2/28/94), 633 So. 2d 136, 139, the Louisiana Supreme Court stated that the Fund in not a negligent party or a C.C. art. 2315 Defendant. Rather, it is "simply a third party with an interest in the proceedings when the damages exceed $100,000." See also: McCrory, 686 So.2d at 1063-64. See also: McCrory, 686 So.2d at 1064. Thus, after the $100,000 has been paid, the PFC cannot raise comparative fault or causation, which is an element of liability. Id.
Since Excel's insurer paid the $100,000 limits of liability for the malpractice of Excel, the PFC here challenge the excess amount of damages awarded by the jury.
EXCEPTIONS:
A medical malpractice action must be filed within one year from the date of the alleged act, omission, or neglect, or within one year of the date of discovery, but in all instances such claims shall at the latest be filed within a period of three years from the date of the alleged act, omission or neglect. La. R.S. 9:5628; Tuazon v. Eisenhardt, 98-666 (La.App. 5th Cir.12/16/98), 725 So. 2d 553, 555.
The Louisiana Supreme Court has not yet addressed the issue of whether the settlement precludes the PFC from raising exceptions. However, the Fourth Circuit has held that, once the insurer has paid its policy limits, statutory liability is admitted and the Fund has no standing to raise the issue of prescription. Miller v. Southern Baptist Hosp., 00-1352 (La.App. 4th Cir.11/21/01), 806 So. 2d 10; Rey v. St. Paul Fire and Marine Ins. Co., 95-0661 (La.App. 4th Cir.11/16/95), 665 So. 2d 109, 111, writ denied, 95-3033 (La.3/22/96), 669 So. 2d 1223. "Rather, it is for the Legislature to determine whether additional rights should be given the Fund in order to provide it with greater protection against questionable claims." Rey, 665 So.2d at 111. Conversely, if the settlement is for less than the $100,000 limit of liability, the PFC has standing to raise the exception of prescription. See: St. Romain v. Luker, 00-1366, (La.App. 1st Cir. 11/9/01), 804 So. 2d 85.[3]
We agree with the Fourth Circuit decisions in Rey and Miller, and find that the PFC does not have the right to raise the exception of prescription, and further is not entitled to raise any exceptions after the limitation of liability has been satisfied. The statutes and jurisprudence are clear that such payment is an admission of liability. The PCF does not stand in the shoes of the Defendant. It is a creature of the legislature created solely to pay the excess damages to an injured plaintiff who can prove that his excess damages were caused by the health care provider's malpractice. To allow it to raise exceptions after the payment would be to permit it to raise defenses only given to a Defendant, which it is not. See: McCrory, 686 So.2d at 1064. Thus, we find that the PCF cannot raise the exceptions at this time.
Furthermore, we note that the PFC has failed to present its exceptions in a formal pleading, but raised them in its brief. Thus, they are not properly before this Court. In Hyde v. Hibernia National Bank in Jefferson Parish, 584 So. 2d 1181, 1184 (La.App. 5th Cir.1991), we held that "Regardless of where it is filed, it must be presented in a formal pleading and cannot be merely argued in brief." See also: Anderson v. May, 01-1031 at p. 1 (La.App. *1289 5th Cir.2/13/02), 812 So. 2d 81, 83. In Hyde and Anderson we refused to consider the exception presented solely in the brief. However, we address the issue nonetheless to preclude the PCF from filing the formal exception subsequent to this decision and in the interest of judicial economy.
EXCESS DAMAGES
The appellate court may not set aside the factual findings made by the trier of fact in the absence of manifest error. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So. 2d 216. The manifest error rule applies in appeals of medical malpractice actions. Rebstock v. Hospital Service Dist. No. 1, 01-659 (La.App. 5th Cir.11/27/01), 800 So. 2d 435, 437. Causation in medical malpractice cases is subject to the manifest error standard of review. Rebstock, 800 So.2d at 437.
In regard to the excess damages, the jury was presented with substantial evidence of Excel's negligence which caused Palmour's extraordinary problems. However, the jury interrogatories only asked if the negligence of Excel caused damages to Palmour, Lindsey Palmour and National. All were answered affirmatively and the awards were handwritten in the blanks reserved for each of the Plaintiffs. There is no way for this Court to determine if the jury awarded the damages from April 25, 1997 through and including his death in 1999, or if the awards were for the negligent care of Palmour during the month he was under their care and the resulting second five months of hospitalization. In any case, the evidence was overwhelming that the second hospitalization was necessitated by the conduct of Excel's personnel. All of the doctors who treated Palmour concurred that he was able to go home after the first 13 months in the hospital. All of the doctors agreed that any infections that he had were resolved. He did not have any active infection and his torso surgical wounds were healing. Thus, we find no manifest error in the jury's award of damages in excess of $100,000.
PLAINTIFFS' APPEAL OF DAMAGE AWARDS
Both Plaintiffs appealed the award of damages, asserting that the awards were inadequate when you consider how Palmour's condition deteriorated from the time that Excel cared for him until his death. The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. Stevenson v. Louisiana Patient's Compensation Fund, 97-709 (La.App. 5th Cir.4/9/98), 710 So. 2d 1178, 1181. The discretion vested in the trier of fact is great, "even vast," so that an appellate court should rarely disturb an award of general damages. Id. In this case, while we find the award for Palmour's pain and suffering to be low, we cannot say that it or the other awards are so low as to constitute an abuse of the jury's vast discretion.
Accordingly, the judgment of the trial court is hereby affirmed. Costs of appeal are assessed against Defendants.
AFFIRMED.
NOTES
[1] McGrath is the child's paternal grandmother.
[2] The procedure is a hemicorpectomy (i.e., trans-lumbar amputation.)
[3] In Higgins v. Pitard, 99-1053 (La.6/18/99), 734 So. 2d 1213, the Louisiana Supreme Court declined to address the issue of whether the PFC is entitled to raise the peremptory exception of prescription. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604281/ | 810 So. 2d 566 (2002)
SOUTHERN WALLS, INC., etc., Appellant,
v.
STILWELL CORPORATION and Andrew O. Stilwell, Appellees.
No. 5D01-1705.
District Court of Appeal of Florida, Fifth District.
March 8, 2002.
*568 Thomas H. Rydberg of The Rydberg Law Firm, P.A., Tampa, for Appellant.
Michael J. Appleton of Marlowe, Appleton & Weatherford, P.A., Winter Park, for Appellees.
SAWAYA, J.
Southern Walls, Inc. (Southern), the plaintiff below, appeals from the partial summary judgment in favor of Andrew Stilwell (Stilwell). The judgment holds that Stilwell's cooperative apartment (coop) is exempt from forced sale to satisfy a judgment obtained by Southern because the co-op qualifies for the homestead exemption provided in article X, section 4(a)(1) of the Florida Constitution.
The issue we must resolve is whether a co-op constitutes a homestead under Florida law so as to render it exempt from forced sale under article X, section 4(a)(1). Our research indicates that neither the Florida Supreme Court nor the District Courts of Appeal have resolved this specific issue. In order for this court to do so, we will discuss 1) the factual background of the instant case; 2) the homestead exemption, including the general provisions thereof, the ownership interest (the nature of the title and estate) necessary for an individual to claim the exemption, and the nature of the residence; 3) the ownership interest an individual acquires in a co-op; and 4) how the legal principles we distill from our discussion apply to the facts of the instant case.
I. Factual Background
It is not necessary to fully discuss the procedural course this case has taken to bring this issue before us. Suffice it to say that Southern initiated a breach of contract action against Stilwell and his former company, Stilwell Corporation, and ultimately obtained a judgment in its favor. With the judgment unsatisfied, Southern attempted to collect the money owed it by Stilwell. As part of that endeavor, Southern filed a motion requesting proceedings supplementary wherein it sought to have the unsatisfied execution against Stilwell's co-op enforced. The trial court allowed the proceedings supplementary. Thereafter, Stilwell filed his motion for partial summary judgment, contending that the co-op constituted his homestead and that it was exempt from forced sale. After conducting a hearing on the motions, the trial court ruled in Stilwell's favor.
Southern argues that a co-op is not homestead property that qualifies for protection under article X, section 4(a)(1) because of the rather unique way in which title to the property is held and the ownership interest an individual has in a co-op. In order to determine whether Southern is correct, we will next discuss the general provisions of the homestead exemption.
II. The Homestead Exemption
A. In General
We begin our analysis by noting that the concept of homestead will be given different meanings depending on the *569 context in which it is used. Homestead has significance in the law relating to devise and descent, taxation, and exemption from forced sale. See Snyder v. Davis, 699 So. 2d 999, 1001 (Fla.1997) ("Our constitution protects Florida homesteads in three distinct ways."). For example, in Bowers v. Mozingo, 399 So. 2d 492, 493 (Fla. 3d DCA 1981), the court stated:
This case is governed by Article X, Section 1, Constitution of the State of Florida (1885), which exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon. Clearly, this is a different thing than homestead exemption, as defined for tax purposes. Doing v. Riley, 176 F.2d 449 (5th Cir.1949). Therefore, the appellee's reliance on Article X, Section 7, Constitution of the State of Florida (1885) is misplaced.
In In Re Estate of Wartels, 357 So. 2d 708 (Fla.1978), the court held that a co-op is not homestead for purposes of the laws relating to devise and descent. However, in Ammerman v. Markham, 222 So. 2d 423 (Fla.1969), the court held that a co-op may qualify as homestead for purposes of taxation. This dichotomy reveals that there is no definition of homestead that may be used with precision in all cases and that Wartels and Ammerman are not necessarily controlling regarding the issue of whether a co-op qualifies as homestead for purposes of exemption from forced sale under article X, section 4(a)(1). See, e.g., In re Dean, 177 B.R. 727 (Bankr.S.D.Fla. 1995) (holding that Wartels is limited to cases involving devise and descent and that it is clearly distinguishable from cases involving homestead exemption from forced sale).
In the instant case, we are concerned with the concept of homestead under the provisions of article X, section 4(a)(1), which exempts homestead property from forced sale with limited exceptions not applicable here. See Smith v. Smith, 761 So. 2d 370 (Fla. 5th DCA 2000); see also Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018 (Fla.2001); Butterworth v. Caggiano, 605 So. 2d 56 (Fla.1992); Dyer v. Beverly & Tittle, P.A., 777 So. 2d 1055 (Fla. 4th DCA 2001). Thus, our focus will be limited to the homestead exemption within this context.
"[T]he purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law." Snyder, 699 So.2d at 1002 (citation omitted). "Homestead" is broadly defined by the Florida Constitution as
[P]roperty owned by a natural person... to the extent of one hundred sixty acres of contiguous land and improvements thereon ...; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family.
Art. X, § 4(a)(1), Fla. Const. (emphasis supplied); see also Gold v. Schwartz, 774 So. 2d 879 (Fla. 4th DCA 2001).
Although this definition quantifies the amount of real property that may encompass a homestead, it does not define "owned." In other words, it does not designate how title to the property is to be held and it does not limit the estate that must be owned, i.e., fee simple, life estate, or some lesser interest. Moreover, it does not define the nature of the dwelling that may constitute a "residence." This court must now interpret these terms. We undertake this task mindful that, as a matter of policy as well as construction, the Florida *570 courts have consistently held that the exemption should be liberally construed in favor of protecting the family home and those whom it was designed to protect. See Hill, 790 So.2d at 1020 (citing Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912)); see also Snyder, 699 So. at 1002 (citations omitted). We begin with the concept of ownership.
B. Ownership: Title And Estate
In ascertaining the ownership interest (the nature of the title and the estate) that is necessary to claim the homestead exemption, we find guidance in decisions of rather ancient vintage which adopted the general rule that the individual claiming homestead exemption need not hold fee simple title to the property. See Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946). In Coleman v. Williams, 146 Fla. 45, 200 So. 207 (1941), the court provided:
"The Constitution limits the homestead land area that may be exempted, but it does not define or limit the estates in land to which homestead exemption may apply; therefore, in the absence of controlling provisions or principles of law to the contrary, the exemptions allowed by section 1, article 10, may attach to any estate in land owned by the head of a family residing in this state, whether it is a freehold or less estate, if the land does not exceed the designated area and it is in fact the family home place."
Id. at 207 (quoting Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932) (Whitfield, J., concurring)).[1]
Thus "a one-half interest, the right of possession, or any beneficial interest in land gave the claimant a right to exempt it as his homestead" and "[i]t was not essential that he hold the legal title to the land." Bessemer Props., 27 So.2d at 833 (citing Morgan v. Bailey, 90 Fla. 47, 105 So. 143 (1925); Hill v. First Nat'l Bank, 73 Fla. 1092, 75 So. 614 (1917) (holding that a life estate interest is sufficient beneficial interest in property to qualify for homestead exemption)); see also Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. 2d DCA 1959).
We note that for purposes of taxation of homestead property, article VII, section 6(a) of the Florida Constitution, which designates the cooperative form of ownership as homestead, provides that
[t]he real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by stock ownership or membership representing the owner's or member's proprietary interest in a corporation owning a fee or leasehold initially in excess of ninety-eight years.
The Legislature codified these constitutional provisions in sections 196.031(1) and (2), Florida Statutes, which specifically recognize that a co-op may qualify as a homestead for purposes of taxation. See also § 196.041, Fla. Stat. (2001). Although, as we have previously indicated, homestead provisions relating to taxation do not necessarily control the determination of homestead status as it relates to the exemption from forced sale, we do find this provision of the Constitution and these *571 statutes persuasive. As the court noted in Dean:
Although the status of property as "homestead" for tax exemption purposes is not controlling, the Court finds it persuasive that the State of Florida has expressly defined co-operative apartments as homestead for ad valorem purposes.
* * *
It is inconceivable that the owner of a co-operative apartment can receive the relatively nominal benefit of the exemption for tax purposes while facting [sic] the seizure of the property by creditors. The public policy underlying the homestead exemption from forced sale is clearly more compelling than the public policy underlying the tax exemption. The homestead exemption should ensure more protection from forced sale than it receives from the tax exemption, not less as the Trustee contends.
177 B.R. at 729-30.
We conclude that a fee simple estate evidenced by a warranty deed is not essential for a co-op owner to claim the exemption. A life estate interest, for example, that gives the owner the right to use and possess a co-op as his or her residence may be sufficient. See King v. King, 652 So. 2d 1199 (Fla. 4th DCA 1995) (holding that a life estate interest in a condominium qualifies for the homestead exemption from forced sale). The nature of the residence must next be determined.
C. Nature Of The Residence
The nature of the residence may take many forms. In Miami Country Day School v. Bakst, 641 So. 2d 467 (Fla. 3d DCA 1994), the court noted that a dwelling for purposes of the homestead exemption may be a mobile home, modular home, a travel trailer, and even a houseboat. Florida courts have also held that a condominium qualifies as a homestead. See King.
Underlying the policy considerations embodied within the provisions of article X, section 4(a)(1), is the adage that "a man's home is his castle." Although a castle to one person may be a shanty to another, the law does not so discriminate. Thus, regardless of whether one's castle is a traditional family home or a modest cottage, whether it is a rural farmhouse or a villa by the sea, whether it floats or sits on wheels, whether it is a condominium or a co-op, it should receive the same protection under Florida law.
Therefore, in order to constitute a residence for purposes of claiming the exemption, a co-op must be a dwelling that an individual has an ownership interest in that gives him or her the right to use and occupy it as his or her place of abode. With these general principles in mind, we next must determine whether the ownership interest an individual acquires in a co-op and the nature of the dwelling qualifies it for the exemption.
III. Ownership Interest In A Co-op
Co-ops are generally governed by the Cooperative Act (Act) found in chapter 719, Florida Statutes, which contains the following definition of a co-op:
"Cooperative" means that form of ownership of real property wherein legal title is vested in a corporation or other entity and the beneficial use is evidenced by an ownership interest in the association and a lease or other muniment of title or possession granted by the association as the owner of all the cooperative property.
§ 719.103(12), Fla. Stat. (2001). Generally, when an individual purchases a co-op, he or she purchases shares in a corporation which owns the property in which the co-op *572 is situated. § 719.103, Fla. Stat. (2001); see also Wartels. Pursuant to the Act, the shares collectively constitute "[t]he document evidencing a unit owner's membership or share in the association." § 719.103(13)(b), Fla. Stat. (2001). The corporation conveys a lease to the purchaser as part of the consideration of the purchase of the shares. § 719.103(12), Fla. Stat. (2001); Wartels. This lease agreement typically gives the purchaser title and the right to exclusively possess and occupy the apartment for the life of the purchaser. § 719.103(13)(c), Fla. Stat. (2001).
A "unit" (the co-op) is defined as "a part of the cooperative property which is subject to exclusive use and possession." § 719.103(24), Fla. Stat. (2001). A "unit owner" or "owner of a unit" is defined as "the person holding a share in the cooperative association and a lease or other muniment of title or possession of a unit that is granted by the association as the owner of the cooperative property." § 719.103(25), Fla. Stat. (2001). The provisions of the Act we have cited comport with the stated purpose of the Act, which "is to give statutory recognition to the cooperative form of ownership of real property." § 719.102, Fla. Stat. (2001) (emphasis supplied).
Having discussed the general provisions of the homestead exemption and the cooperative form of ownership, we next analyze them to draw the necessary conclusions to resolve the issue before us.
IV. Analysis
Under the cooperative form of ownership, the owner receives shares in the cooperation and a long term lease as evidence of his or her title rather than a deed of conveyance. For purposes of the homestead exemption, we find that this is a distinction without a difference. What is significant is that a co-op owner owns the unit, pays valuable consideration for it, and has the right to the exclusive use and possession of it for the duration of the lease. Thus, if a life estate interest qualifies for the exemption, King; Hill, and ownership of a condominium qualifies for the exemption, King, so too should a co-op.
In sum, our analysis of the general principles embodied in the homestead exemption and the Act relating to ownership interest (title and estate) and nature of the residence, lead us to conclude that an owner of a co-op may qualify as an "owner" of a "residence" under article X, section 4(a)(1) of the Florida Constitution. In addition, consideration must be given to the co-op owner's intention to make the co-op his or her homestead and the actual use of the property as the principle residence. See Dean; Edward Leasing Corp. v. Uhlig, 652 F. Supp. 1409, 1412 (S.D.Fla.1987) (stating, "Actual `family' occupancy and the intention to continue occupying the home have been held to be the key qualifications for homestead status and the protections deriving from that status under the Florida Constitution."); see also State, Dep't of Revenue ex rel. Vickers v. Pelsey, 779 So. 2d 629 (Fla. 1st DCA 2001).
In the instant case, the record reveals that when Stilwell purchased his co-op, he received a lease for life. Stilwell has continuously lived in the co-op since he purchased it in 1979 as his sole and exclusive residence and testified that he intends to remain there for the rest of his life. We, therefore, conclude that Stilwell is entitled to the protections of the homestead exemption. We find support for our decision in Dean wherein the court held that, under facts strikingly similar to the instant case, a co-op may qualify for homestead exemption pursuant to article X, section 4(a)(1). We also find support for our conclusion in the laws of myriad other states that specifically *573 include co-ops in their homestead exemption statutes.[2]
Moreover, we find in certain provisions of the Act tacit recognition by the Legislature that a co-op that is used as a residence may indeed qualify as a homestead. Section 719.103(21), Florida Statutes (2001), provides that a co-op is a "residential cooperative," as distinguished from a commercial co-op, if it is "intended for use as a private residence," and it retains its status as a residential cooperative "with respect to those units intended for use as a private residence, domicile, or homestead...," even if certain other units are intended for commercial use. (Emphasis supplied).
Accordingly, the trial court correctly ruled that Stilwell's co-op constitutes his homestead which is exempt from forced sale to satisfy Southern's judgment. There are no genuine issues of material fact, and Stilwell is entitled to a judgment as a matter of law. See Krol v. City of Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001).
AFFIRMED.
THOMPSON, C.J., and PALMER, J., concur.
NOTES
[1] Until 1985, the homestead exemption was limited to individuals who qualified as "head of a family." See Art. X, § 4, Fla. Const. (1983). However, in 1984, an amendment to this section of the constitution was approved which changed the term "head of a family" to "a natural person," thereby expanding the class of persons who can take advantage of the homestead provision and its protections. Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla.1988); see also Myers v. Lehrer, 671 So. 2d 864 (Fla. 4th DCA 1996); Cain v. Cain, 549 So. 2d 1161 (Fla. 4th DCA 1989).
[2] See Ariz.Rev.Stat. Ann. § 33-1101A.2. (2001); Cal. Civ. Pro.Code § 704.710(a)(6) (West 2001); 735 Ill. Comp. Stat. Ann. § 5/12-901 (West 2001); Me.Rev.Stat. Ann. tit. 14, § 4422 (West 2001); Nev.Rev.Stat. Ann. 115.005 (Michie 2001); N.C. Gen.Stat. § 1C-1601(a)(1) (2001); N.Y. Civ. Prac. Law § 5206(a)2. (McKinney 2001); S.C.Code. Ann. § 15-41-30(1) (Law.Co-op.2001); Wis. Stat. Ann. § 990.01(14) (West 2001); see also 11 U.S.C.A. § 522(d)(1) (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604655/ | 130 N.W.2d 503 (1964)
MINNEAPOLIS-SAINT PAUL METROPOLITAN AIRPORTS COMMISSION, Respondent,
v.
Edward J. STAWICKI et al., Respondents-below.
Andrew Horkey and Alice Horkey, Appellants.
No. 39311.
Supreme Court of Minnesota.
September 4, 1964.
Andrew Horkey, Earl Isensee, Minneapolis, for appellants.
Richard H. Murray, Oppenheimer, Hodgson, Brown, Wolff & Leach, St. Paul, for respondent.
OTIS, Justice.
This is an appeal from a judgment of the district court in condemnation proceedings instituted by Minneapolis-Saint Paul Metropolitan Airports Commission (hereinafter *504 referred to as MAC) for the enlargement of an airport in the village of Crystal. The only issue for review is whether it was proper for the trial court to exclude from evidence the amount of the assessments previously levied against the property for sewer lines installed by the village of Crystal.
At the time of the taking, appellants owned two parcels of land adjacent to the Crystal Airport, one being designated 9A, containing approximately 1¼ acres, and one designated 10A, consisting of approximately 3½ acres. The jury awarded a verdict of $1,300 with respect to tract 9A, against which there were sewer assessments paid and unpaid of $777.13. There was a verdict of $2,000 for taking tract 10A, against which there were assessments paid and unpaid of $2,270.87. The net effect was to take all of the 3½-acre tract without according the owners any compensation.
1. Respondent takes the position that appellants have neglected to present a record on which an appeal may be predicated because of their failure to make an offer of proof or otherwise submit evidence in a manner which squarely raised the issue in the trial court. We agree that the matter was obliquely presented but believe it is nevertheless properly before us. In chambers and out of the hearing of the jury, the matter was fully discussed, appellant asserting that the cost of the assessment was the best evidence of value, and respondent's counsel unequivocally objecting to its introduction. After this discussion the court stated:
"* * * I suppose they [the appraisers] could testify not as to the cost of the sewer, but that they took into consideration the cost, but they cannot give the cost itself as I understand it. That is my theory of the law."
We hold that in the context of the previous discussion this statement may fairly be construed as an adverse ruling sufficient to preserve the question for appeal.
2. The sewer lines giving rise to these assessments were located some 600 feet from appellants' property and neither connected with nor serviced the property at the time of the condemnation. Appellants were permitted to show what the improvements were, but not the amount of the assessment.
MAC argues that the assessment was levied arbitrarily and without regard to whether any actual benefit accrued to the property. It further asserts that since the evidence consists of the work product of municipal employees not before the court it is hearsay. MAC contends that if the assessments were in fact inequitably levied, the property owners should have rectified the situation by appropriate appeal proceedings which the condemning authority is not now in a position to pursue. Finally, it is insisted that to put the assessment figure before a jury would simply invite it to add that amount to the actual value of the property in order to make the owners whole.
Although there is force to these arguments, we cannot escape the conclusion that the property owners are unjustly caught between the upper and the nether millstones of two unrelated arms of government which have converged to divest them of a substantial piece of real estate without compensation.
Unlike a mortgage, mechanics lien, or judgment stemming from a transaction for which the owner presumably receives quid pro quo, the sewer installation conferred no immediate benefit on appellants and they now find themselves deprived of whatever opportunity they might ultimately have had to recoup the economic loss they sustained as a result of the assessment. In this posture it is not enough to reprove the owners for not having pursued the remedies available to them by appeal to the district court. They were neither obliged to anticipate an involuntary conversion of this kind nor take steps to protect unforeseen condemnors from an improvident improvement, but were *505 entitled to hold the property for potential gain without appealing the assessments.
In any case, we hold that the amount of the assessments had probative value by virtue of the presumption of correctness it enjoyed. Until otherwise rebutted it may be assumed a property owner is not burdened beyond the benefits he realizes from such a public improvement. In re Assessment for Widening E. Fourth St. St. Paul, 173 Minn. 67, 70, 216 N.W. 607, 608; Village of Edina v. Joseph, 264 Minn. 84, 92, 119 N.W.2d 809, 815. It is true that Minn. St. 429.051 authorizes an assessment even if the improvement does not abut the property, and the statute does not require that there be a mathematically correct formula for determining a particular benefit to a particular tract. However, we believe the amount of the assessment should have been received in evidence for whatever it was worth, without its being conclusive on the jury. Of course the condemning authority has a right to introduce impeaching evidence if, in fact, the assessment does not accurately reflect benefits in proportion to the cost.
In so holding we do not suggest that the burden of proof shifts from the property owner to the condemning authority, nor do we intend that the amount of the assessments shall enjoy any preferential status as evidence. It is not prima facie evidence that there is an increment in value, nor does any other presumption attach to it. In our opinion we are dealing with an encumbrance which is sui generis in the field of eminent domain.
There is considerable authority for admitting into evidence the actual cost of improvements as a factor to be presented to the jury in arriving at market value.[1] Nevertheless, we confine our ruling to situations where one branch of government has assessed property in an amount which a different subdivision of government denies is an accurate reflection of the benefits realized by the improvement.
We have considered the other contentions advanced by MAC but believe they do not require extended discussion. Accordingly we hold the amounts should have been received in evidence.
Reversed and remanded for a new trial.
ROGOSHESKE, J., took no part in the consideration or decision of this case.
NOTES
[1] 5 Nichols, Eminent Domain (3 ed.) § 20.1, p. 368; 4 Nichols, Eminent Domain (3 ed.) § 12.313, p. 138; United States v. Wise (4 Cir.) 131 F.2d 851; Annotation, 172 A.L.R. 236, 242; In re Primary Road No. Iowa 141, Iowa, 127 N.W.2d 566, 570. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604603/ | 373 Mich. 477 (1964)
130 N.W.2d 30
SAGINAW COUNTY TOWNSHIP OFFICERS ASSOCIATION, INC.,
v.
CITY OF SAGINAW.
Calendar No. 62, Docket No. 50,252.
Supreme Court of Michigan.
Decided September 2, 1964.
*479 Floyd T. Fuss, for plaintiffs.
W. Vincent Nash, City Attorney, for defendants.
SMITH, J.
Plaintiffs seek through this declaratory judgment suit to reduce the number of representatives on the Saginaw county board of supervisors from the city of Saginaw from 24 to 12. Primarily involved is an interpretation of the home-rule cities act, PA 1909, No 279, specifically section 27 as amended.[*] A second question is whether the Saginaw city council may appoint city representatives, including temporary substitutes, to the board of supervisors to serve at the pleasure of the council. The constitutional question of apportionment of supervisors is not presented in this case.
The body corporate known as the city of Saginaw was originally chartered by the legislature in Act No 455 of the Local Acts of 1889. This act was amended by Act No 257 of the Local Acts of 1891, which provided, among other things, for 24 city representatives on said county board. Ever since 1891, the city has had the same number of representatives on the board through various changes in State and local law, as hereinafter appears.
The city was operating under revised legislative charter, mentioned above, when the Constitution of 1908 was adopted. The Constitution required the legislature to provide by general law for incorporation of cities. Const 1908, art 8, § 20. It is further set forth (section 21) that "Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, *480 and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State." (Emphasis supplied.) In the same article 8, at section 7, the Constitution directs that "Cities shall have such representation in the boards of supervisors of the counties in which they are situated as may be provided by law." The legislature did enact a general law for incorporation of cities, and, insofar as this case is concerned, the statute so provided is the home-rule cities act as amended. PA 1909, No 279, supra. The act, of course, provides for city representation on county boards. Such provisions are contained in section 27 of said act.
Section 27 of the home-rule cities act as enacted in its original form provided as follows:
"Each city, except as is otherwise provided by law, shall have at least 1 representative on the board of supervisors of the county. The present representation of cities now organized on such boards of supervisors shall remain as now fixed, until changed according to law, but no city shall have the power to increase its representation on such board of supervisors." (Emphasis supplied.)
It is not disputed that under the home-rule cities act, and specifically section 27 quoted above, the city of Saginaw, which was already organized and had its representation on the county board fixed, retained such representation under the plain wording of the section. Neither is it in dispute that such representation was retained when electors of the city adopted Saginaw's first home-rule charter in 1913.
What is in serious dispute, though, is the effect of a 1919 amendment to said section 27. By the *481 amendment, representation by population was provided for home-rule cities already organized or to be organized. Of special significance is the proviso which is italicized for emphasis. Section 27, as amended by PA 1919, No 84, read as follows:
"Any city now organized or which may hereafter be organized, may, by its charter, to be adopted or amended in accordance with the provisions of this act, provide for the selection by appointment or election of representatives on the board of supervisors of the county; the number of such representatives on said board of supervisors shall be determined by the population of such cities as shown by the last census * * * [population formula] Provided, That wherever the representation of cities upon the board of supervisors of the county has been fixed by law it shall remain as now fixed until changed by charter provision, and no city shall have power to increase its representation on such board of supervisors beyond the number provided for in this section." (Emphasis supplied.)
The following was added to this by PA 1923, No 170:
"nor shall the representation of any city on the board of supervisors be decreased by revision of its charter unless so expressly provided for in such revised charter."
Plaintiffs contend that by this 1919 amendment, the Saginaw city charter was "automatically amended" according to the population formula which at that time would have reduced the number of representatives from 24 to 8. The number would now be 12 under the formula, based upon the city's present population.
Defendants argue that the proviso which immediately follows the population formula in the 1919 amendment quoted above permits cities under the *482 act to retain representation previously "fixed by law" until changed by charter provision. They point out that in Saginaw's present home-rule charter, adopted in 1935, the number of representatives is unchanged. That the 1935 charter did not, itself, reduce the number of representatives is also not in dispute.
The first question is did the 1919 revision of section 27, containing its population schedule, as construed with its proviso, alter the city's representation on the board. Dispute persists as to the effect of the proviso upon the population formula which precedes it in revised section 27. Plaintiffs' ultimate argument, on this point, is that "had the proviso been intended to permit cities to violate the formula by previous adoption of a different representation, it * * * would have used an `exception,'" not a proviso. No authority is cited. Defendants, on the other hand, allude to the language in question as an exception in the form of a proviso. The distinction between a proviso and an exception has been referred to as academic. N. & M. Friedman Co. v. Atlas Assurance Co., 133 Mich. 212, 221. However, it would add nothing to the discussion of this case to draw the fine distinctions between a proviso and an exception. This is adequately pursued in the law dictionaries. See Black's Law Dictionary (3d ed), p 1456, and 3 Bouvier's Law Dictionary (Rawle's 3d Rev), p 2761. A proviso is used to limit, modify or explain the main part of the section to which it is appended. Luce v. State Highway Commissioner, 181 Mich. 599; Ford Motor Company v. Village of Wayne, 358 Mich. 653. And, a proviso is to be accepted according to its natural, common and obvious meaning. Township of Clearwater v. Kalkaska County Supervisors, 187 Mich. 516. From the language of the 1919 revision of section 27, supra, which appears after the word "provided," it seems clear *483 that this is a proviso, and is plainly used to qualify what immediately precedes it in the section.
It is our opinion that it was the intention of the legislature in attaching said proviso to qualify the population formula set out in the section immediately before the proviso by excepting or rendering the formula inapplicable to cities whose representation on boards of supervisors had at the time of the 1919 revision, already been "fixed by law." Such cities were permitted to retain their representation "until changed by charter," but no increase was permissible beyond the population formula provided in the section. Later, in 1923, the section was amended, as shown above, to permit no decrease in representation by charter revision unless expressly so provided in the charter.
We think legislative intent is clear, particularly as applied to the facts in this case. The city of Saginaw is a city organized under the act. Its charter was adopted under the act in 1913, and was revised and amended pursuant to the act in 1935. Further, its representation on the county board was fixed and continued by the law of the legislature in local acts prior to passage of the home-rule cities act. Upon passage of the act, the language of section 27 of the act provided that "present representation of cities now organized on such boards of supervisors shall remain as now fixed, until changed according to law." Although the law was changed in the 1919 amendment to provide representation by population in certain situations therein described, the proviso did except from the population formula cities in the position of Saginaw in the following manner:
"Provided, that wherever the representation of cities upon the board of supervisors of the county has been fixed by law, it shall remain as now fixed until changed by charter provision."
*484 As we construe this proviso, it could only mean that the city of Saginaw which, concededly, had its representation previously "fixed by law," that is, prior to this 1919 amendment (including proviso), was permitted to retain its representation "until changed by charter provision." That it neither attempted to increase nor decrease its representation by its 1935 charter is not in question. We conclude, therefore, that the city of Saginaw legally retained its representation of 24 on the county board of supervisors.
The second question is whether or not the Saginaw city council may appoint city representatives, including temporary substitutes, to the board of supervisors to serve at the pleasure of the council. Section 27, supra, permits cities under the home-rule cities act to provide by city charters "for the selection by appointment or election of representatives on the board of supervisors." The Saginaw city charter provides for appointment of representatives to serve at the pleasure of the city council. Plainly there is no prohibition either in the act or in the charter against appointment of representatives to serve at the pleasure of the city council. Nor are we directed to any authority suggesting same.
However, plaintiffs place substantial reliance upon Myers v. Post, 256 Mich. 156. In that case, all city representatives on the county board of supervisors voted to reject an offer to lease certain county property for $3,000 annually, and instead voted to lease the property to 1 of the cities whom they represented for $501 annually. In restraining supervisors from entering into such an onerous transaction, this Court said that the board of supervisors stands in a fiduciary relationship to the entire county and that the proposed transaction was a constructive fraud upon the rights of taxpayers of the county. Plaintiffs herein neither alleged nor proved anything *485 faintly resembling constructive fraud. They simply point to a number of possible defalcations which could develop from the method of selecting representatives by the city council. Obviously, this can form no basis for declaring the method illegal.
The judgment is affirmed. No costs, this being a matter of statutory construction.
KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, O'HARA, and ADAMS, JJ., concurred.
NOTES
[*] CLS 1961, § 117.27 (Stat Ann 1963 Cum Supp § 5.2106). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604633/ | 268 Minn. 461 (1964)
130 N.W. (2d) 113
BRUCE DIKER, A MINOR, BY LOUIS DIKER, HIS FATHER AND NATURAL GUARDIAN, AND ANOTHER
v.
CITY OF ST. LOUIS PARK.
No. 38,977.
Supreme Court of Minnesota.
July 17, 1964.
*462 Cragg & Barnett, for appellant.
Dorfman, Rudquist, Jones & Ramstead, for respondents.
SHERAN, JUSTICE.
The appeal is from an order of the district court denying defendant's alternative motion for judgment notwithstanding the verdict or a new trial.
On February 6, 1959, Bruce Diker, then 10 years of age, sustained serious personal injury when hit near the eye by a puck while playing *463 hockey at a public skating rink maintained by defendant. A verdict of $17,000 was returned in his favor and his father, Louis Diker, was awarded $2,000 for medical and hospital expenses made necessary by the accident. Reversal is urged on the following grounds:
(1) That the notice of claim required by Minn. St. 465.09 was not filed within 30 days as specified by statute.
(2) That the maintenance of the skating rink here involved by the city of St. Louis Park was a governmental function and that this defense was not waived by defendant.
(3) That the evidence fails to support a finding of negligence on the part of the city proximately causing damage to plaintiffs.
(4) That contributory negligence or assumption of risk on the part of Bruce Diker appears from the evidence as a matter of law.
(5) That the trial court erred in refusing to submit the issue of contributory negligence on the part of Louis Diker, the father, to the jury.
1. A person claiming damage from any city upon the grounds of negligence is required by Minn. St. 465.09 to "cause to be presented to the common council or other governing body within 30 days after the alleged loss or injury, a written notice." This accident occurred on February 6, 1959. The statutory notice was filed 31 days later, on March 9. The preceding day was Sunday, March 8.
Minn. St. 645.15 provides that where the performance of any act is directed, and the period of time for the doing thereof is prescribed by law, the last day shall be omitted from the computation if it falls on Sunday. Rule 6.01 of Rules of Civil Procedure also provides that where the last day of a prescribed period falls on a Sunday the period runs until the end of the next day. It is unnecessary for us to determine whether our Rule 6.01 should be given the same construction accorded the comparable Federal rule in Joint Council, etc. v. Delaware, L. & W. R. Co. (2 Cir.) 157 F. (2d) 417, where it was held that Rule 6a of Federal Rules of Civil Procedure does not apply until an action is first commenced. While in Minnesota the Rules of Civil Procedure supersede statutes which are "inconsistent or in conflict," Rule 81.01(3), *464 there is no inconsistency or conflict between § 645.15 and Rule 6.01 in so far as computation of time in this particular case is concerned.[1]
2. It is conceded that the purchase of liability insurance by the city brings this case within the scope of Minn. St. 1961, § 465.62, which applied in 1959 before it was repealed by L. 1963, c. 798, § 6. That statute required the insurer for liability, arising from a city's governmental function, to waive the defense of governmental immunity "unless the city * * * consents to the assertion of that defense." In 1958 the members of the council of defendant city discussed the matter with its attorney and instructed him informally without motion or vote to authorize assertion of the defense in all cases except those deserving special consideration. Such special cases were, in the discretion of the city attorney, to be referred to the city council for decision. He so informed the insurer. When the instant case was filed, the council referred it to the city attorney for advice and recommendation. It took no further action until after the trial. The defense was in fact asserted by the attorneys designated to defend by the insurer acting on instructions received from the city attorney.
The charter of defendant city places its discretionary power in the council. By the terms of the charter, the council is required to act by ordinance, resolution, or motion, with a recorded vote. No such formal action was ever taken prior to trial specifically directing the assertion of the defense of governmental immunity in this case. Under these circumstances, we agree with the trial court that the required consent to the assertion of the defense of governmental immunity was not established.
The complaint was served in February 1960. The action was tried and verdict returned in April 1962. On August 23, 1962, the council formally ratified the action of the city attorney in permitting the assertion of the governmental immunity defense. But this was too late. The *465 litigation based on lack of the defense had already been submitted to the jury. The attempted ratification of the city council did not constitute newly discovered evidence. It was an attempt by the defendant city to take action, with the formality required by its charter, which should have been taken before the trial was commenced if it was to be of any effect.
3. The evidence offered at trial does not sustain a finding of negligence. Over objection by defendant, the trial court gave the following instructions particularly relevant to this issue:
"A municipality such as the defendant under the circumstances of this case, operating a skating rink or other recreational facilities maintained by it, is required to exercise reasonable care for the safety and protection of children and others who are invited expressly or impliedly to use such facilities. This includes reasonable supervision and the furnishing of equipment that is reasonably safe, where equipment is supplied as part of the city's activities.
* * * * *
"* * * The defendant was under no duty to warn the plaintiff of dangers which were known to the plaintiff or which he should have known in the exercise of reasonable care, and you may not find that the defendant was negligent merely because its employee allowed plaintiff, Bruce Diker, to engage in the game of hockey on the city rink."
The rule is well established in Minnesota that a private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons,[2] and that the obligation of due care includes supervision and control of others on the premises whose actions may cause injury,[3] at least where the defendant has actual or constructive knowledge of the activities involved.[4]
*466 A number of cases from other jurisdictions have been noted which apply these general principles to skating rinks.[5]
In Minnesota the municipal operation of a recreational area open to the public without charge has been held to be a governmental function. Nissen v. Redelack, 246 Minn. 83, 74 N.W. (2d) 300, 55 A.L.R. (2d) 1428. In Howard v. Village of Chisholm, 191 Minn. 245, 253 N.W. 766, the plaintiff was injured while playing hockey as a result of being struck by spectators who were catapulted from a balcony to the ice below by a surging crowd. Although the defense of governmental immunity was available in 1934 when that case was decided, the village did not assert it because of an inhibiting provision that appeared in its policy of liability insurance. Counsel for the parties tried the case on the theory that the village should be held liable if the evidence justified recovery against a private person owning and using the building. It was held that the claimed negligence of the village was a jury question but, as noted, the law of the case was adopted by mutual agreement of the parties.
There is a difference between that relationship which exists between a municipal corporation and a person making use of a park or playground provided without charge on the one hand, and that which exists between the owner of a private enterprise conducted for profit and its patrons on the other. The person who pays for admission has *467 more reason to expect that supervision will be maintained and adequate equipment provided as partial consideration for the admission charged. Proprietors can adjust such charges to spread the cost of protection among those benefited by it. A municipality, in contrast, provides recreational facilities to people generally, and if no admission charge is made, the cost of measures to prevent possible injury must be carried by the public in the form of taxes. If the identical precautions are required in this situation as are to be expected from a private owner operating for profit, the result may be that public funds will be spent for protection from remote hazards easily avoided by the users which could be spent with greater overall benefit to make healthful recreation more widely available. The general requirement is the same in the one case as in the other; that is, due care under the circumstances. But the fact that the responsible authorities in allocating available public funds must balance the need for extending and maintaining recreational facilities against the need of guarding against foreseeable dangers to those using certain of them is a circumstance which must be considered in determining the acts or omissions which do or do not meet the prescribed standard. Therefore, a precedent which controls in testing facts by the standard of care owed to a business invitee, while helpful, is not necessarily controlling.
It is our opinion that a municipality making a skating rink available to the general public without charge has no duty to provide supervision of those participating in the games being played on the ice and no duty to provide equipment for such games. If it assumes such a duty, however, it must apply reasonable care to perform it adequately. Fjellman v. Weller, 213 Minn. 457, 7 N.W. (2d) 521; Prosser, Torts, § 38, p. 185. There is no evidence that defendant assumed supervision over persons skating and playing on the ice at the time and place in question. The supervision which had been afforded was limited to that provided by referees and voluntary coaches while games were in actual progress. A "warming house attendant" was stationed at the rink, but his responsibility was the supervision of activities occurring in the warming house. The city had not assumed the responsibility of supervising "practice sessions" such as the one in which Bruce *468 Diker was participating when hurt, and in our judgment a finding of negligence cannot be based on its failure to do so.
But, the city did assume the duty of furnishing equipment to the boys who played hockey at the rink. Face masks were not provided. If at the time of the accident (February 6, 1959) masks were available which could have prevented the occurrence of this injury, the jury could have found that the failure on the part of the city to include a face mask in the equipment provided by it constituted negligence proximately causing the injury sustained by Bruce Diker.
Mr. LeRoy Theis, employed by the defendant as warming house attendant, was on duty the evening of the accident. He had some acquaintance with Bruce Diker, having observed him at the community center on a number of occasions. He was charged with knowledge that Bruce was immature and probably not skilled as a hockey player. Mr. Theis knew that Bruce intended to play goalie with the other boys on the ice, ranging in age from 10 to 18 years, and of the hazards involved. He testified, "I told him that I wouldn't advise him to go out into the goal, to act as a goal tender, because he was not a regular goal tender; and he told me well, I can't repeat the words, but he just told me to give it [the goal tender's equipment] to him, so I gave it to him." And again, "I advise all boys that are not regular goalies not to go in the goal. They have no business in there." He gave such advice, he said, because he knew "that it is a dangerous thing to do." (Italics supplied.) Nevertheless, he gave him the equipment then on hand, including a chest protector, shin guards, and gloves. Following this occurrence, a face mask was added to the equipment made available by the city, but we cannot tell from the record whether a protective mask adequate to prevent injury of the type here involved was reasonably obtainable by the city at the time of the accident. The burden of presenting this evidence was on the plaintiffs. The record indicates the possibility that facts relevant to this question could be produced in the event of a new trial. It is our conclusion, therefore, that the matter should be retried and plaintiffs permitted to show, if they can, that the defendant city was negligent in the performance of its assumed duty of providing equipment to those using its skating rink for the purpose *469 of playing hockey and that this failure, if there was one, was a proximate cause of the harm.
4. Generally speaking, one who participates in a game assumes the inherent risks of the contest.[6] If plaintiff is to be held to the same standard of care of risk comprehension as an adult, it is clear that a verdict should have been directed for the defendant. In Minnesota the hazard of being struck by a flying puck is held to be of the same nature as the danger of being hit by a baseball in so far as spectators at games are concerned. In the words of Mr. Justice Olson in Modec v. City of Eveleth, 224 Minn. 556, 560, 29 N.W. (2d) 453, 455:
"* * * Since the puck is round with a flat bottom and top, it is not always possible for a particular player to determine the direction the puck will take when in flight, nor how high it will rise. Any person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike."
In that decision the dangers from a flying puck are analogized to the dangers of being hit by a baseball. The court said (224 Minn. 563, 29 N.W. [2d] 456):
"* * * Hockey is played to such an extent in this region and its risks are so well known to the general public that as to the question before us there is no difference in fact between the two games so far as liability for flying baseballs and pucks is involved."
We are dealing here, however, with a boy only 10 years of age. In Heitman v. City of Lake City, 225 Minn. 117, 123, 30 N.W. (2d) 18, 23, where the plaintiff's decedent in a wrongful death action was drowned at the age of 7 after falling into the boat harbor at Lake City, decision turned in part on this observation:
"* * * Children, through childish inattention, may fail to observe conditions which an adult might reasonably be expected to discover. Even if they know of the condition, there may be risks which it is not reasonable to assume that children will appreciate."
*470 The close line of demarcation which separates contributory negligence or assumption of risk as a matter of law from an evidentiary situation which is for determination by the jury is illustrated by two recent cases from the State of Massachusetts. In Pouliot v. Black, 341 Mass. 531, 170 N.E. (2d) 709, it was held as a matter of law that a 10-year-old plaintiff hit by a golf ball while "shagging" on a driving range was contributorily negligent in light of his testimony indicating that he knew the danger of being hit. On the other hand, in Farinelli v. Laventure, 342 Mass. 157, 160, 172 N.E. (2d) 825, 827, a 10-year-old plaintiff at a roller skating rink was held not to be contributorily negligent as a matter of law when knocked down by other skaters whom she had previously observed "doing the whip." The court there said that under the circumstances of that case the "plaintiff's conduct must be judged in the light of her `immaturity * * * [and] the lack of the caution and judgment natural to youth.'"
In Aldes v. St. Paul Ball Club, Inc. 251 Minn. 440, 88 N.W. (2d) 94, the plaintiff, a 12-year-old, was struck by a flying baseball at the St. Paul baseball park. The minor had been induced to leave the seat assigned to him and sit in a box seat by an employee of the defendant. The court, after noting that plaintiff was well acquainted with the dangers inherent in open seats and "aware that misdirected balls generally land in the box seats," said (251 Minn. 443, 88 N.W. [2d] 97):
"* * * While it is evident from his own testimony that plaintiff could have appreciated the greater dangers involved in occupying a box seat if he had paused to consider them at the time Lilly suggested he move, it is not clear that he did so, and we see no reason for holding him to the same standard of sober reflection which we would require of an adult. The workings of the mind of a boy of his age are not susceptible of ironclad rules. For this reason the law imposes upon him the duty to act only with the degree of care commensurate with his age, experience, and judgment." (Italics supplied.)
Again in TePoel v. Larson, 236 Minn. 482, 484, 53 N.W. (2d) 468, 469, where the contributory negligence of a minor was being reviewed, the court noted:
*471 "* * * While Russell [the plaintiff] was a boy of at least average intelligence, he only was 9 1/2 years old. He is chargeable only with that degree of care commensurate with his age and intelligence."
From the testimony of the injured plaintiff it appears that the reason he was hit by the flying puck was that he "froze" and was unable to duck to evade it. The shot traveled the distance of 40 feet. If he had not "frozen," it is probable that he would have been able to avoid being hit. There is nothing in the testimony to indicate that he had experienced such difficulty before and nothing to indicate that he had been hit in the face or head on any prior occasion. To a person of mature judgment the possibility or even the probability that an unskilled "goalie" with limited skating ability would "freeze" in the path of a flying puck would seem to be readily anticipated. However, with respect to a plaintiff not yet 11, we feel that the jury could find as it did, apparently, that because of his youth he should not be precluded from recovery as a matter of law.
5. Finally, the defendant assigned as error the refusal of the trial court to let the jury consider the defense of contributory negligence on the part of the father of the injured boy. Such a defense if established would bar recovery of medical expense caused by the accident. The evidence in the record indicates that the father permitted the boy to play hockey at the community rink and provided him with some hockey playing equipment. There is no evidence that he knew that he was playing in a particularly dangerous position as goalie. There is no evidence to indicate that he knew that the equipment provided was inadequate to protect the boy against being hit in the face by a flying puck when stationed in the nets for the purpose of obstructing the flight of these missiles. In the absence of such knowledge there was a failure on the part of the defendant to maintain its burden of proving contributory negligence on the part of the father as a matter of law.
Because the case is an unusual one and the evidence respecting assumption of risk and contributory negligence may be amplified, retrial of all issues is indicated.
Reversed and new trial granted.
*472 THOMAS GALLAGHER, JUSTICE (dissenting).
I am of the opinion that the issues of defendant's negligence and of the contributory negligence or assumption of risk on the part of Bruce Diker were properly submitted to the jury and that the order appealed from should be affirmed
MURPHY, JUSTICE (dissenting).
I join in the dissent of Mr. Justice Thomas Gallagher.
NOTES
[1] As to the rule generally, see 52 Am. Jur., Time, §§ 18, 21; 42 Am. Jur., Process, § 27; 50 Am. Jur., Sundays and Holidays, § 81. The object of the requirement of a 30-day notice is not subverted by the construction we have given the statute and the rule. See, Russell v. City of Minneapolis, 259 Minn. 355, 107 N.W. (2d) 711; Nicol v. City of St. Paul, 80 Minn. 415, 83 N.W. 375.
[2] See, Danielson v. Reeves, 211 Minn. 491, 1 N.W. (2d) 597; Ackerman v. Motor Sales & Service Co. 217 Minn. 309, 14 N.W. (2d) 345; Lindgren v. Voge, 260 Minn. 262, 109 N.W. (2d) 754, 88 A.L.R. (2d) 1080.
[3] See, Johnson v. Amphitheatre Corp. 206 Minn. 282, 288 N.W. 386 (roller skating rink); Christianson v. Hager, 242 Minn. 41, 64 N.W. (2d) 35 (baseball park).
[4] Generally speaking, one who participates in a game assumes the inherent risks of the contest. See, Ruehling v. American Legion Pavilion, Inc. 255 Minn. 391, 96 N.W. (2d) 702.
[5] See, Towery v. Guffey (Okla.) 358 P. (2d) 812, where a 12-year-old plaintiff was injured by a group of boys playing "crack the whip"; Crammer v. Willston Operating Co. 19 N.J. Super. 489, 88 A. (2d) 630, where reckless roller skaters injured the plaintiff; Reay v. Reorganization Inv. Co. (Mo. App.) 224 S.W. (2d) 580, where it was held that an operator of a skating rink could not be found liable for injury to a patron struck by another skater in the absence of evidence showing that the defendant knew or should have known of this reckless conduct. Note, also, Rauch v. Penn. Sports & Enterprises, Inc. 367 Pa. 632, 81 A. (2d) 548, where it was held with three justices dissenting that an adult patron of a skating rink assumed the risk of injury caused when bumped by an unruly and youthful skater whom she had observed shortly before the accident and about whom she had then complained.
[6] See, Annotation, 7 A.L.R. (2d) 704. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922343/ | 254 B.R. 764 (2000)
In re Ronald James MASON, Debtor.
No. 00-20567.
United States Bankruptcy Court, D. Idaho.
October 26, 2000.
*765 *766 Kenneth L. Anderson, Lewiston, Idaho, for Debtor.
Robert L. Brower, Jones, Brower & Callery, P.L.L.C., Lewiston, Idaho, for Washington Mutual Finance.
S. David Swayne, Moscow, Idaho, Chapter 7 Trustee.
Gary L. McClendon, Boise, Idaho, Office of the U.S. Trustee.
MEMORANDUM OF DECISION
TERRY L. MYERS, Bankruptcy Judge.
A chapter 7 debtor seeks to use the power granted by the Code to avoid a creditor's nonpossessory, non-purchase money lien. In doing so, he requires the Court to evaluate whether a gun can be a "household good."
BACKGROUND AND FACTS
On May 15, 2000, Ronald Mason ("Debtor") filed a voluntary petition under chapter 7. The case was noticed out to creditors as a "no asset" bankruptcy.
Debtor claimed among his very limited assets[1] a 12 gauge shotgun worth $200.00 *767 and a Remington 30.06 rifle worth $250.00. See Schedule B, filed May 15, 2000 at item no. 8 ("Firearms and sports, photographic, and other hobby equipment"). Schedule B also alluded to the fact that both firearms had been pawned. It turns out Debtor didn't have possession of either at filing, though he later professed an intent to redeem them from the pawn if he was financially able.[2]
Debtor has consistently claimed both firearms exempt, though there has been an evolving (or, perhaps more accurately, revolving) basis for that claim. He asserted on his original schedule C that both firearms were exempt under Idaho Code § 11-605(1)(a), which provides:
(1) An individual is entitled to exemption of the following property to the extent of a value not exceeding five hundred dollars ($500) on any one (1) item of property and not to exceed a total value of five thousand dollars ($5,000) for all items exempted under this subsection:
(a) Household furnishings, household goods, and appliances held primarily for the personal, family or household use of the individual or a dependent of the individual;
(b) If reasonably held for the personal use of the individual or a dependent, wearing apparel, animals, books, and musical instruments; and
(c) Family portraits and heirlooms of particular sentimental value to the individual.
An amendment to schedule C on July 7 claimed exemption of the Remington under § 11-605(7)[3] and the shotgun under § 11-605(10).[4] Also on July 7, Debtor filed a motion under § 522(f)(1)(B) to avoid the nonpossessory, nonpurchase money security interest in the firearms held by Blaser Finance Company, a predecessor to Washington Mutual Finance ("Creditor").[5]
The next amendment of the schedules occurred on August 17.[6] This amendment moved the firearms from item no. 8 of schedule B to item no. 4 ("Household goods and furnishings, [including] audio, video and computer equipment"). Debtor also returned, in this amended schedule C, to the claim of exemption of both firearms under § 11-605(1)(a).
Creditor opposes the attempt of the Debtor to avoid its lien on the two firearms. Hearing on the motion was held on September 12, and the matter submitted. No evidence was presented. Both litigants have taken the position that solely issues of law are raised, and that the matter can be decided upon the pleadings and briefs.
APPLICABLE LAW
A. The requirements of § 522(f)(1)(B)
Section 522(f)(1)(B) of the Code allows a debtor to avoid certain security interests *768 which impair an otherwise allowable exemption:
(f)(1) Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may 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
. . .
(B) a nonpossessory, nonpurchase-money security interest in any
(i) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or of a dependent of the debtor;
(ii) implements, professional books or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(iii) professionally prescribed health aids for the debtor or a dependent of the debtor.
Three separate conditions are thus prerequisite to a debtor's utilization of § 522(f)(1)(B): first, the subject lien must be a nonpossessory, nonpurchase money security interest; second, the security interest must impair an exemption to which the debtor would be entitled;[7] and third, the property of the debtor subject to the lien must fall within the limiting language of § 522(f)(1)(B)(i) through (iii).
That Creditor's lien is nonpossessory and nonpurchase money in nature is conceded. Debtor thus needs to satisfy the other two conditions: the two firearms must be found to fit within the household goods language of § 522(f)(1)(B)(i), and they must also be properly exempt.
B. The burden of proof, and burden of going forward
In re Conley, 99.1 I.B.C.R. 7 (Bankr.D.Idaho 1999) noted, relying on Morgan v. Federal Deposit Ins. Corp. (In re Morgan), 149 B.R. 147 (9th Cir. BAP 1993):
[A]t a hearing on the motion to avoid a lien under § 522(f), the creditor bears "the burden of proving that the exemptions are not properly claimed. Fed. R.Bankr.P. 4003(c)." Morgan, 149 B.R. at 152, n. 3. "[T]he debtor does not initially bear the burden of proof on this issue. Once the lien creditor has come forward with evidence questioning the validity of the exemption, however, the debtor may need to produce evidence supporting the claim of exemption to persuade the court to allow the lien avoidance." Morgan, 149 B.R. at 152, n. 4.
99.1 I.B.C.R. at 8, n. 7.
C. General rules for considering and resolving claims of exemption
In considering allowance of exemptions, several well-accepted principles guide the Court:
Section 522(b) allows the debtor to exempt property of the estate from administration by the trustee. Idaho has opted out of the federal exemption scheme of § 522. Idaho Code § 11-609. Idaho law therefore controls the validity of the claimed exemption, though this Court interprets and applies the law in bankruptcy proceedings. In re Collins, 97.3 I.B.C.R. 78 (Bankr.D.Idaho 1997). A claim of exemption will be valid unless a party in interest or the trustee objects and that objector satisfies its burden of proving that the exemption is improperly claimed. Rule 4003(c). Exemptions are to be liberally construed in order to *769 protect the Debtor and his fresh start. Still, the statutory language can't be "tortured" in the guise of liberal construction. Collins, 97.3 I.B.C.R. at 79.
In re DeBoer, 99.3 I.B.C.R. 101, 102 (Bankr.D.Idaho 1999). See also, In re Duman, 00.3 I.B.C.R. 135 (Bankr.D.Idaho 2000); In re Powell, 99.2 I.B.C.R. 81, 82 (Bankr.D.Idaho 1999).
D. Creditor not barred from contesting the exemption
No party here objected to any of the exemptions asserted by Debtor, including the last amendment claiming the firearms as household goods. But a failure to timely object to a claim of exemption under Rule 4003(c) does not bar a creditor from assailing the exemption when defending a § 522(f)(1) motion brought by the debtor. Conley, 99.1 I.B.C.R. at 7. Creditor can therefore dispute Debtor's claim that the firearms fall within the exemption provided by § 11-605(1)(a).
DISCUSSION AND DISPOSITION
1. Does prior case law on exemption of firearms provide guidance?
This Court has had several occasions to consider exemption of firearms under Idaho law. The most recent, In re Mansfield, 99.1 I.B.C.R. 20 (Bankr.D.Idaho 1999) considered a prior version of § 11-605(1)(a) which provided:
An individual is entitled to exemption of the following property to the extent of a value not exceeding five hundred dollars ($500) on any one (1) item of property and not to exceed a total value of four thousand dollars ($4,000) per household for all items exempted under this subsection:
(a) furnishings and appliances reasonably necessary for one (1) household, including one (1) firearm[.]
The debtors in Mansfield argued that a rifle was required for hunting and a shotgun for protection. The Court noted that each individual debtor may exempt a firearm under § 11-605(1)(a), but that the statute and decisional law required a showing that the firearms were "reasonably necessary" for the household. While that showing was characterized as "minimal" for the first firearm, it was heightened for the second. An unnecessary firearm would not be exempt. 99.1 I.B.C.R. at 20, citing In re Biancavilla, 173 B.R. 930, 94 I.B.C.R. 150 (Bankr.D.Idaho 1994); In re Leypoldt, 96.2 I.B.C.R. 69 (Bankr.D.Idaho 1996); In re Bond, 96.2 I.B.C.R. 72 (Bankr.D.Idaho 1996). The Court further observed that, while it would allow an exemption where a debtor used the weapon to hunt for food, it would not assume every debtor reasonably required a gun as a matter of personal protection. Id., citing In re Anderson, 97.1 I.B.C.R. 7 (Bankr.D.Idaho 1997).
This statute was amended in 1999, and the Idaho legislature eliminated any reference to firearms within § 11-605(1)(a)'s category of household "appliances" and "furnishings." But it added a separate and specific exemption for one firearm per debtor in § 11-605(7). It also eliminated the "reasonably necessary" test from § 11-605(1)(a), and it added "household goods" to appliances and furnishings, together with language providing that all such assets must be held primarily for personal, family or household use.
The changes in the statutory context make the prior case law something less than controlling. However, the Court's focus on and attention to the precise statutory language, and its liberal but not tortured construction of that language, remains instructive.
2. May § 11-605(1)(a) be used when § 11-605(7) is available?
Because §§ 11-605(7) and 11-605(10) provide a means of exemption, it is evident that Debtor's later use of § 11-605(1)(a) was not driven by a need to find *770 a way to exempt the firearms.[8] Rather, it was motivated by Debtor's belief that he needed to qualify the firearms as household goods so that the avoidance powers of § 522(f)(1)(B) could be used.
The first question presented is whether § 11-605(1)(a) can be used since a specific Idaho statute § 11-605(7) expressly provides for exemption of a firearm.
Duman, 00.3 I.B.C.R. at 137-38, recognized that the goal of statutory construction is to ascertain the "ordinary and commonly understood meaning" by reference to the language used by the legislature. The Court has no guidance from the legislature or the state courts as to whether the creation of a separate statutory exemption for firearms was intended to eliminate the ability of a debtor to claim a gun, shotgun or rifle as a household good under § 11-605(1)(a).
The maxim expressio unius exclusio alterius[9] arguably supports a denial of the exemption in light of the availability of § 11-605(7) but, the Court concludes, it does not mandate such a result. It is nothing more than an aid to construction of the statute, if recourse to such an aid is necessary.[10] I conclude it is not needed.
The Court has little conceptual difficulty in concluding that an item might fall within more than one category of Idaho's statutory exemptions, provided the facts establish any qualifying conditions. For example, an item of jewelry exempt under § 11-605(2) might, on proper proof, also be exempt as an heirloom under § 11-605(1)(c). Similarly, a computer might be a household good under § 11-605(1)(a), as in In re Cox, 98.1 I.B.C.R. 24 (Bankr.D.Idaho 1998), or it might be a tool of a trade or business under § 11-605(3). See, Biancavilla, 173 B.R. at 933, 94 I.B.C.R. at 152. And of course items claimed under the "catch-all" exemption of § 11-605(10) could very conceivably fall within other exemption provisions.
The Court concludes that foreclosing the possibility of exemption of a firearm under § 11-605(1)(a) simply due to the existence of § 11-605(7) is unwarranted. Doing so is not required by the plain language of the statute. Doing so would be contrary to the principle of liberal construction of the exemption statutes. Any abuse can be prevented by requiring the appropriate proof that the firearm qualifies under § 11-605(1)(a), discussed infra, and by way of the value caps on the exemptions singly and in the aggregate.
3. When are firearms "household goods" under § 522(f)(1)(B)(i) and § 11-605(1)(a)?
Since there is no controlling authority on the question of firearms within current Idaho Code § 11-605(1)(a), and since Debtor's compliance with the almost identical limiting language of § 522(f)(1)(B)(i) must be evaluated in any event, the Court will turn next to authorities considering the issue under this section of the Bankruptcy Code.
Hundreds of decisions have been written on the question of whether a given asset is of a kind covered by § 522(f), and enables *771 the debtor to use the power to avoid liens. See generally, Hillinger, How Fresh a Start?: What Are "Household Goods" for Purposes of Section 522(f)(1)(B)(i) Lien Avoidance, 15 Bankr.Dev. J. 1 (1998). That article notes, Id. at 41-47, the development of three approaches. One is an expansive reading of the Code that favors the debtor, and essentially requires only proof that the good is found in or in proximity to the home. A second, stricter rule requires a showing of "necessity" of the property to daily living. The third approach uses an "intermediate" standard.
This intermediate standard is exemplified by In re McGreevy, 955 F.2d 957 (4th Cir.1992) which considered whether firearms qualified for § 522(f)'s special protection. The court stated:
We adopt . . . a definition of "household goods" that explicitly incorporates a requirement of a functional nexus between the good and the household. Such a requirement, we believe, is necessary for the term to have the ordinary, common-sense meaning that was intended by Congress. . . . Any definition that does not include a functional requirement will inevitably suffer from either the underinclusiveness of the necessity definition, because some goods are used to support and facilitate daily life within the home that are not strictly necessary to day-to-day living, or the overinclusiveness of the proximity definition, because some goods are found and used within the home that are not used to support and facilitate home life. Indeed, the absence of such a requirement in the two generally accepted definitions is, we suspect, the cause of the inability of the courts to agree on either definition.
We conclude that the requisite functional nexus exists where and only where the good is used to support and facilitate daily life within the house. It is the household good's use for these purposes that distinguishes it from a good that is merely located and used within the house. Pots and pans are household goods because they are used to support and facilitate daily household living; a model car collection, by contrast, is not a household good because it serves no such purpose. Cf. 20 C.F.R. § 416.1216(a) (for purposes of Social Security Administration regulations, "household goods" defined to include "household furniture, furnishings and equipment which are commonly found in or about a house and are used in connection with the operation, maintenance and occupancy of the home").
We therefore hold that "household goods" under section 522(f)(2)(A) [now § 522(f)(1)(B)(i)] are those items of property that are typically found in or around the home and used by the debtor or his dependents to support and facilitate day-to-day living within the home, including maintenance and upkeep of the home itself.
There are doubtless many goods found and used in the house for which a per se rule will be possible under the definition that we adopt above. For other goods, whether or not they constitute "household goods" will necessarily depend in whole or in part upon the cultural environment of the debtor or the geographic location of the debtor's household. We are not prepared to conclude at this time that firearms per se can never be household goods under our newly-adopted definition, and we need not go so far on the record before us. Even assuming that firearms can be household goods under certain circumstances, it is clear that Mrs. McGreevy's firearms are not household goods.
955 F.2d at 961-62 (footnotes omitted) (emphasis in original).
The ultimate conclusion that the McGreevys' firearms did not qualify comes from the fact that there was no functional nexus. Those debtors lived in a townhouse development. They used the rifle for sport hunting and both the rifle and shotgun for target practice, all well away *772 from the home and its curtilage. 955 F.2d at 962.[11]
Notwithstanding that the "vast majority of bankruptcy courts" flatly refuse to allow firearms as household goods, McGreevy, 955 F.2d at 961, n. 12, several courts have followed McGreevy and considered the possibility that firearms could qualify, provided the debtor established that the weapon was actually used in such a way as to facilitate the daily operation and support of the household. See, In re Rhines, 227 B.R. 308, 310 (Bankr.D.Mont.1998) (rifle and shotgun used solely to feed debtor and his dependents; debtor established functional nexus); Matter of Crawford, 226 B.R. 484, 485 (Bankr.N.D.Ga.1998) (debtors proved rifle was solely for defense, and not used for hunting or otherwise); In re French, 177 B.R. 568, 575 (Bankr. E.D.Tenn.1995) (considered possibility of exemption, but ultimately found functional nexus lacking, noting that one debtor didn't even know how to properly and safely load and use the firearm; court also rejected the proposition that guns are "normally" found in the "average" home); In re Raines, 161 B.R. 548, 551 (Bankr. N.D.Ga.1993), aff'd, 170 B.R. 187, 188 (N.D.Ga.1994) (adopting McGreevy's functional nexus test and finding debtors established adequate factual basis for finding revolver used for household defense).
The Court agrees with the approach reflected by these decisions. Inasmuch as debtors' circumstances vary from case to case, it makes sense to conclude, as McGreevy and the foregoing cases do, that per se rules will not suffice. Debtors should be provided the opportunity to attempt to establish, upon the evidence, that an asset is a household good because there is a functional nexus between that asset and the debtor's household, and it is used to support and facilitate daily life therein.
The question then becomes, in respect to this case, one of the nature and quantity of proof required to establish that a firearm is also a household good. As noted, in McGreevy the debtors fell shy of the mark. An example of a case where the debtors met their burden comes from our neighboring State of Montana. Rhines stated:
This is a case of first impression in this district, on the issue of whether firearms such as the rifle and shotgun may be the subject of lien avoidance under § 522(f)(1)(B). This Court holds that they may be when used as the primary means of providing debtors with meat for food.
There is a split of authority on whether firearms may fall within the definition of "household goods" for purposes of § 522(f)(1)(B). Some courts hold that firearms may be household goods where there is a relationship between the firearm and living in the household, or in other words a "functional nexus" between the good and the household. In re Raines, 170 B.R. 187, 188 (N.D.Ga. 1994), citing In re McGreevy, 955 F.2d 957, 961-62 (4th Cir.1992)[.]
The vast majority of bankruptcy courts have held that firearms can never constitute household goods. See McGreevy, 955 F.2d at 962, n. 12 (listing cases). However, in the instant case the rifle and shotgun are the Debtors' primary means of obtaining meat for food. Chad testified that he uses the rifle to hunt for deer, antelope and elk, and that he uses the shotgun to hunt grouse and turkey. Chad has hunted every year since 1988, and his hunting is the Debtors' primary means of obtaining meat and fowl to feed themselves and their daughter, except for an occasional chicken they buy. He does not use the rifle for target shooting or other purposes. Chad's testimony is uncontroverted and unimpeached.
*773 ...
Based on this record, the Court finds that the rifle and shotgun enable the Debtors to feed themselves, and thus to live in a usual and comfortable manner. Indeed, it is hard to imagine a more "functional nexus" between a good and a household than the nexus between a firearm and the household that depends upon it for food. Raines, 170 B.R. at 188.
227 B.R. at 309-10. While this may not be the only type of evidence which will suffice,[12] it illustrates the degree and nature of the factual proof required for qualification under § 522(f)(1)(B)(i).
The Idaho legislature amended § 11-605(1)(a) in such a fashion that it now mirrors in large degree the language of § 522(f)(1)(B)(i). In light thereof, and in the absence of controlling interpretation of that new section of the Idaho Code, the Court will apply the same test to the question of qualification of an asset as a "household good" under § 11-605(1)(a) as it does to qualification of assets under § 522(f)(1)(B)(i). Such an approach follows, without torturing, the plain language of the statute.[13]
4. Do Debtor's rifle and shotgun qualify under § 522 and § 11-605?
Since firearms are, under the foregoing authorities, neither per se included nor per se excluded from the category of household goods, the resolution of the issue requires proof of the use made of the firearms by this Debtor and the functional nexus between them and Debtor's household.
As noted earlier, neither party presented evidence in this matter, believing that only legal issues were raised. The only potentially relevant fact established by the balance of the record is that Debtor pawned both the rifle and shotgun prior to bankruptcy. This would imply a lack of use of the firearms under a McGreevy-Rhines analysis.
Since there appears to be reason for questioning the validity of the exemption, Debtor faces the burden of supporting the claim and persuading the Court the lien avoidance motion is proper. Morgan, 149 B.R. at 152.
CONCLUSION
Under the circumstances, the Court concludes that the Debtor should be provided an opportunity to support his motion at an evidentiary hearing. Debtor shall, within fifteen (15) days of the date of this decision, file a notice of hearing and serve the same upon Creditor and the Trustee. If he does not so schedule a hearing, his motion under § 522(f) will be denied.
A separate order consistent herewith will be entered.
NOTES
[1] Schedule A indicates that Debtor's residence is worth $65,000 but encumbered with $78,000 of secured debt, and Schedule B discloses only $1,730 of personal property assets.
[2] See Brief in Support of Motion to Avoid Lien, Doc. No. 15, filed August 17, 2000 ("Brief") at 1-2. It's not clear whether the weapons have as yet been retrieved.
[3] Section 11-605(7) provides:
(7) An individual is entitled to exemption of one (1) firearm valued at less than five hundred dollars ($500).
[4] Section 11-605(10) provides an exemption for:
(10) An individual's aggregate interest in any tangible personal property, not to exceed the value of eight hundred dollars ($800). This "catch-all" exemption was amended effective April, 2000 to add the limitation that the claim be made only in "tangible" personal property. See In re Duman, 00.1 I.B.C.R. 135 (Bankr.D.Idaho 2000).
[5] This was actually an amended motion, which specifically referred to the firearms. The original motion simply referred generally to "miscellaneous personal property" as the collateral.
[6] Attached to Debtor's August 17 Brief, Doc. No. 15, are an original and two copies of amended schedules B and C, bearing date of August 16. It appears to the Court that the Debtor intended these to be separately filed. See, e.g., Brief at 2. These amendments to the schedules will be deemed filed on August 17, but they will remain as part of Doc. No. 15.
[7] Some bankruptcy courts sit in states which allow use of the exemptions provided by § 522(b)(1) and (d). The majority of states, including Idaho, have opted-out of the federal exemption scheme and exemptions are provided by state law. See § 522(b)(2)(A); see also Idaho Code § 11-609.
[8] Debtor was free to seek to change the theory of exemption. See In re Arnold, 252 B.R. 778 (9th Cir. BAP 2000) (exemptions may be amended absent bad faith or prejudice). However, Debtor had no legitimate basis, or need, to move the firearms from item no. 8 to item no. 4 of Schedule B.
[9] The phrase is a canon of construction which holds that the expression or inclusion of one thing implies the exclusion of the other or the alternative. See Black's Law Dictionary (7th ed. 1999) at 602.
[10] "Such doctrine is not an unimpeachable rule of law . . . [and its applicability] to any particular statute depends upon whether the legislative intent appears in clear terms in the statute." Noble v. Glenns Ferry Bank, Ltd., 91 Idaho 364, 367, 421 P.2d 444, 447 (Idaho 1966); See also, In re Little Lake Industries, Inc., 158 B.R. 478, 481-482 (9th Cir. BAP 1993).
[11] Only as an "afterthought" did those debtors allege any use of or need for the firearms for personal protection, and the court refused to find this adequately proved the requisite nexus. Id.
[12] For example, the courts in Raines and Crawford were provided competent proof of defensive use.
[13] This evidentiary showing is required for firearms only when claimed exempt under § 11-605(1)(a); no qualifying or limiting condition, other than a maximum value, appears in § 11-605(7). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552663/ | 199 B.R. 74 (1996)
In re Linda J. MARTINEZ-WHITFORD, Debtor.
Bankruptcy No. 95-45333-HJB.
United States Bankruptcy Court, D. Massachusetts.
August 15, 1996.
Joseph B. Collins, Chapter 7 Trustee.
David W. Ostrander, Northampton, MA, for Debtor.
Edward D. Etheredge, Northampton, MA, for Hospital.
MEMORANDUM OF DECISION
HENRY J. BOROFF, Bankruptcy Judge.
The matters before the Court are: (1) a "Motion by Debtor to Avoid Judicial Lien of Cooley Dickinson Hospital Pursuant to § 522(f) of the Bankruptcy Code and for Turnover of Exempt Funds from the Trustee" (the "Motion"), and (2) the "Trustee's Objection to the Debtor's Claim of Exemption." By her Motion, Linda J. Martinez-Whitford (the "Debtor") seeks to avoid a judicial lien of Cooley Dickinson Hospital (the "Hospital") on certain insurance proceeds the Debtor claims as exempt, pursuant to § 522(d)(11) of the Bankruptcy Code. The Chapter 7 Trustee, Joseph B. Collins (the "Trustee"), and the Hospital object to the Debtor's claim of exemption and to the avoidance of the Hospital's judicial lien. All of the parties agreed at the non-evidentiary hearing held on the Motion and the objections *75 that the facts necessary to determine the issues at bar were not in material dispute.
I. FACTS
On July 4, 1993, the Debtor was involved in a serious head-on automobile accident. Following the accident, the Debtor was admitted to and treated at the Hospital for her injuries.
In her affidavit filed in support of her response to the objections to her claim of exemption, the Debtor described her injuries. She recounted that the head-on collision thrust her forward into the windshield. Her head was severely lacerated and she sustained three cracked ribs, seven fractures in her feet and a broken knee cap. At the Hospital, the Debtor underwent two hours of emergency surgery, remained in intensive care for four days and was released only after ten days. From the time of the accident until November, 1995, the Debtor required the use of a wheelchair, a walker, crutches, or a cane in order to move about. She continues to walk with a severe limp, which her doctor has advised her is permanent. In addition, her doctors have also advised the Debtor that the arthritis present in her foot will worsen "to the point that [she] will no longer be able to place weight on [her] foot, thus requiring the use of a brace and a crutch." Debtor's Affidavit at ¶ 12.
The other driver was uninsured. Hospital records reflect that its bill for services rendered to the Debtor total $10,226.70. At the time of her injuries, the Debtor did not have health insurance, but did carry coverage with Plymouth Rock Assurance Corporation ("Plymouth Rock") for, inter alia, "Bodily Injury Caused By An Uninsured Auto" with minimum compulsory limits of $15,000 per person and $30,000 per accident (the "Uninsured Coverage").
The Debtor subsequently retained the law firm of Arvanitis, Phelan & Molta, P.C. ("AP & M") to represent her. At some later time, Plymouth Rock agreed to make full payment under the Uninsured coverage and issued a check in the sum of $15,000 made payable to the Debtor and her attorney.[1] The check reflected the following "Payment Explanation": "FULL AND FINAL SETTLEMENT OF ALL BODILY INJURY CLAIMS THE [sic] RESULTED FROM THE LOSS THE [sic] OCCURRED ON OR NEAR JULY 4, 1993 AS PER THE RELEASE APRIL 21, 1994." From this payment, AP & M received the total sum of $5,055.92 as compensation for its services and reimbursement of its expenses. AP & M deposited the remaining sum of $9,944.08 into an account at AP & M, pending resolution of this dispute.[2]
On or about October 27, 1995, the Hospital filed a complaint in the Commonwealth of Massachusetts District Court Department of the Trial Court, Northampton Division, alleging that the Debtor owed the Hospital $10,226.70 for medical services. The Hospital also sought and obtained an ex parte trustee process attachment which was served on AP & M on October 30, 1995. The Debtor filed her petition on November 21, 1995 and claimed an exemption under § 522(d)(11)(D) in the $9,944.08 balance of the insurance proceeds paid under the Uninsured Coverage.
II. POSITIONS OF THE PARTIES
A. The Objecting Parties
In objecting to the Debtor's claim of exemption, the Trustee and the Hospital raise essentially the same two arguments.[3] First, the Trustee and the Hospital argue that the Debtor did not suffer the type of "personal bodily injury" that would entitle her to claim an exemption under § 522(d)(11)(D). They *76 note that the legislative history of that provision reflects a design to cover payments in compensation of actual bodily injury "such as the loss of a limb."[4] The Trustee and Hospital maintain that the Debtor did not suffer the kind of bodily injury contemplated by that description. Specifically, the Trustee argues that "the phrase `personal bodily injury' should be interpreted to cover only payments in compensation for a loss of a body part or the effective use of a body part as compared to the Debtor's use of that part prior to the injury." The Hospital argues that while "the Debtor may have suffered some long lasting effects of her injury," she did not suffer "as serious an injury" as Congress intended to be within the scope of the section 522(d)(11)(D) exemption.
Second, the Trustee and the Hospital argue that § 522(d)(11)(D) of the Code is intended to provide debtors an exemption only for settlement or judgment proceeds that are paid by a tortfeasor or by the tortfeasor's insurer. The Trustee and the Hospital contend that because the funds the Debtor seeks to exempt came from the Debtor's own insurer they are "on account of a contractual obligation and not on account of personal bodily injury." For this reason, they argue that § 522(d)(11)(D) does not permit the Debtor to exempt those funds. The Hospital finds support for this argument in the nature of a statutory lien provided for hospitals under Massachusetts law. Mass.Gen.L. ch. 111, § 70A grants to medical providers a statutory lien on recoveries from tortfeasors to secure payment for services rendered to their victims. However, the Massachusetts Supreme Judicial Court has held that the statutory lien does not extend to the proceeds of the patient's own automobile insurance policy, because, according to the court, those proceeds arise from a contract and do not constitute "damages" from a tortfeasor.[5] Therefore, reasons the Hospital, consistency would dictate that § 522(d)(11)(D) be construed similarly not to extend to the proceeds of the Debtor's insurance contract.
Finally, the Hospital argues that because the Debtor incurred debt of $12,812 to various providers of medical services, net of $8,000 allegedly received from her PIP coverage[6], it follows that, of the $15,000 received from Plymouth Rock, at least $12,812 should be considered "compensation for actual pecuniary loss" and is therefore outside the scope of the § 522(d)(11)(D) exemption.
B. The Debtor
The Debtor contends that the $9,944.08 balance of the $15,000 payment made by Plymouth Rock to her and AP & M, pursuant to her own insurance policy for coverage for "Bodily Injury Caused By An Uninsured Auto," is wholly exempt under § 522(d)(11)(D) of the Code. With respect to the argument that the Debtor's physical injuries are insufficient to fall within the scope of § 522(d)(11)(D), the Debtor states that her severe personal bodily injury is indisputable. The Debtor also argues that the legislative history of § 522(d)(11)(D) should not be considered because the "plain language" of the statute states clearly that a payment on account of personal bodily injury to the extent of $15,000 is exempt. The Debtor alternatively argues that the legislative history of § 522(d)(11)(D), indicating that the exemption "is designed to cover payments . . . for actual bodily injury, such as the loss of a limb,"[7] was intended only to illustrate one type of bodily injury which would be covered by the exemption. The Debtor maintains that the loss of a limb is not necessary for the § 522(d)(11)(D) exemption to apply.
*77 Although the Debtor agrees that the payment she received under the Uninsured Coverage was received under a contract, she argues that it was made "on account of personal bodily injury." In support of her position, the Debtor cites the terms of her insurance policy as well as the payment explanation on the $15,000 check. She contends that Plymouth Rock would not have made the $15,000 payment absent her personal bodily injury.
III. DISCUSSION
In determining the Debtor's right to exempt the balance of funds received from Plymouth Rock, the Court must begin with the statutory basis for the claimed exemption. The Debtor has claimed her exemptions under the federal scheme set forth in section 522(d) of the Bankruptcy Code. The claimed exemption at issue in this case arises under § 522(d)(11)(D), which provides:
(d) The following property may be exempted under subsection (b)(1) of this section:
. . . (11) The debtor's right to receive, or property that is traceable to
(D) a payment not to exceed $15,000 on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent. . . .
11 U.S.C. § 522(d)(11)(D).
Several courts have struggled to define the scope of the § 522(d)(11)(D) exemption, finding the statutory language problematic. In the case of In re Territo, the court noted that, "[i]f read literally it could be reasonably concluded from the plain language of the statute that there exists no meaningful exemption for personal injuries, because if actual pecuniary loss and pain and suffering are excluded from exempt status, as the statute seems to say, there is really nothing left." 36 B.R. 667, 670 (Bankr.E.D.N.Y.1984). In Matter of Lynn, the court looked to the legislative history for assistance. 13 B.R. 361 (Bankr.W.D.Wis.1981). Regarding § 522(d)(11)(D), House Report 95-595 states the following:
This provision in subparagraph (D)(11) is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payment, pain and suffering, or loss of earnings. Those items are handled separately by the bill.
H.R. 95-595 at 362, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6318. The Lynn court reasoned that
"[t]his legislative history cannot be taken seriously. It specifically excludes all of the types of losses that generally make up a personal injury award. [Footnote omitted.] If the legislative history for 11 U.S.C. § 522(d)(11)(D) is used to interpret this exemption, it has no meaning. The meaning of the exemption must be determined by the words of the statute itself and law interpreting those words."
13 B.R. at 362.
The Trustee and the Hospital argue from the legislative history of § 522(d)(11)(D) that the Debtor did not sustain the magnitude of bodily injury necessary to qualify for this exemption. This Court disagrees. As the Territo and Lynn courts observed, the statute together with its legislative history appear to exclude most common measures of damages for personal injury. It is, however, axiomatic that bankruptcy exemptions should be liberally construed in favor of debtors. In re Link, 172 B.R. 707 (Bankr.D.Mass.1994). This Court will not interpret Bankruptcy Code provisions which afford rights to debtors in a fashion that renders those rights illusory. Cf. In re Witkowski, 176 B.R. 114, 117 (Bankr.D.Mass.1994). Although § 522(d)(11)(D) excludes from the scope of the exemption payment in compensation for pain and suffering and actual pecuniary loss, this Court believes that the statute must provide for a meaningful exemption of a payment made on account of personal bodily injury. See In re Lester, 141 B.R. 157, 163 (S.D.Ohio 1991); Territo, 36 B.R. at 670; Lynn, 13 B.R. at 362. Physical injury is more than pain and financial loss. It also necessarily includes a loss of freedom and function.
*78 It is undisputed in this case that the Debtor has sustained substantial and permanent bodily injury. The Debtor maintains a partial loss of function of her leg as well as a permanent limp. Even if this Court were forced to analogize to the loss of a limb (although the Court does not believe that it need go that far to find an injury to fit within the statutory exemption), the harm suffered by this Debtor is "akin" to the loss of a limb insofar as her loss of strength and mobility, i.e. the loss of function, is a consequence of her injuries. If Congress meant to exempt only payments made on account of the actual loss of limbs, it easily could have done so. No such limitation can be implied from the statutory language. Nor is there any provision in the statute that requires a minimum degree of bodily injury to qualify for the exemption. Our adversary system, insurance coverage limits, and the $15,000 ceiling on the exemption, all operate to prevent abuse of this exemption. For these reasons, the Court rules that the Debtor has sustained "personal bodily injury" within the meaning of § 522(d)(11)(D).
Further, the Court rejects the argument made by both the Trustee and the Hospital that the § 522(d)(11)(D) exemption is intended to apply only to settlement or judgment proceeds paid by a tortfeasor or by the tortfeasor's insurer. The case of Meyers v. Bay State Health Care, Inc., 414 Mass. 727, 610 N.E.2d 303 (1993), cited by the parties, is inapposite to the exemption issue at bar. The Meyers court held that payments made to a person under the underinsurance coverage of the insured's own policy do not constitute "damages," but rather are the proceeds of a contractual obligation of the insurance company.[8] Thus, under Massachusetts law, the payment received by the Debtor in this case was a payment made in fulfillment of her insurer's contractual obligation to her. This fact is, however, no obstacle to the Debtor's claim of exemption in that payment. Whatever the source of payment or legal basis of the underlying obligation, the Court finds that as long as the payment is received "on account of personal bodily injury" it is within the scope of the exemption. Section 522(d)(11)(D) contains no language which limits the applicability of the exemption to payments made by tortfeasors or their insurers. Interpretation of § 522(d)(11)(D) is an issue of federal and not state law.
Finally, the Hospital has suggested that because the Debtor's actual pecuniary loss resulting from the accident exceeded her PIP coverage by $12,812, this Court should consider so much of the $15,000 underinsurance payment to be compensation for that actual pecuniary loss. This Court again disagrees. The facts fail to support a recharacterization of the Debtor's settlement proceeds as compensation for actual pecuniary loss. It is undisputed that the payment the Debtor seeks to exempt was made under the Uninsured Coverage of her insurance policy. The policy states the following: "Under this part, we will pay damages for bodily injury to people injured or killed in certain accidents caused by uninsured or hit and run autos." (Emphasis added.) Personal bodily injury is a necessary condition of payment under the Uninsured Coverage provisions of the debtor's insurance policy. Just because the Debtor had financial losses arising from the same incident, it does not necessarily follow that the payment made to the Debtor under the Uninsured Coverage provisions of her contract with Plymouth Rock was not on account of her bodily injuries.
Bankruptcy Rule 4003(c) places the burden of proving that exemptions are improperly claimed on the objecting party.[9] The Court finds that the Hospital has not proved that the compensation received by the Debtor from her insurer was on account of her actual *79 pecuniary loss, when the relevant clause in the insurance contract specifically provided for compensation for bodily injury.
IV. CONCLUSION
For the foregoing reasons, the Court overrules the Trustee's and the Hospital's objections to the Debtor's claim of exemption and, accordingly, allows the exemption under § 522(d)(11)(D) in the sum of $9,944, plus whatever interest has accrued thereon in the account of AP & M. The Court also grants the Debtor's Motion under § 522(f)(1) to avoid the Hospital's lien. A separate Order shall issue in conformity with this Memorandum.
NOTES
[1] Plymouth Rock also made a payment of $8,000 to the Debtor on account of her "Personal Injury Protection" ("PIP") coverage.
[2] The record is unclear as to whether the funds still reside with AP & M or whether they have been turned over to the Trustee.
[3] In her brief, the Debtor argues that the Hospital failed to file timely its objection to her claim of exemption, and that, therefore, the Court should not consider its objection. Because the Hospital and the Trustee raise the same arguments, the Court need not decide the issue of timeliness.
[4] H.R.Rep. No. 95-595, 95th Cong., 1st Sess. at 362 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6318.
[5] The unavailability of a statutory lien was the reason for the Hospital's resort to a judicial lien to aid in its collection effort from the Debtor.
[6] The Debtor allegedly received the sum of $8,000 under the this coverage with the majority paid on account of medical expenses including those of the Hospital. It appears that the Debtor did not use any of the PIP money to pay medical claims. However, no party argues that the failure to properly use those funds is relevant to any of the issues contained herein.
[7] H.R.Rep. No. 95-595, 95th Cong., 1st Sess. at 362 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6318.
[8] In the Meyers case, this distinction served as the basis of the court's conclusion that the proceeds of the insurance settlement were not subject to the statutory lien codified in Mass.Gen.L. ch. 111, § 70A (1990 ed.).
[9] Bankruptcy Rule 4003(c) provides in relevant part:
(c) Burden of Proof. In any hearing under this rule, the objecting party has the burden of proving that the exemptions are not properly claimed. After hearing on notice, the court shall determine the issue presented by the objections. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552664/ | 199 B.R. 328 (1996)
In re Kevin S. DERBY and Victoria R. Derby, Debtors.
Victoria R. DERBY, Plaintiff,
v.
STUDENT LOAN SERVICES and New York Higher Education Services Corp., Defendants.
Bankruptcy No. 95-11008. Adv. No. 95-1095.
United States Bankruptcy Court, W.D. Pennsylvania.
August 21, 1996.
*329 Stephen H. Hutzelman, Erie, PA, for debtors.
Michael J. Graml, Erie, PA, For New York Higher Education Services Corp.
OPINION[1]
WARREN W. BENTZ, Bankruptcy Judge.
Introduction
This is an action brought by Victoria R. Derby ("Debtor") to determine the dischargeability of her student loan obligation to Student Loan Services and New York State Higher Education Services ("Education Services"). The Debtor seeks a discharge of her student loan obligation based on 11 U.S.C. § 523(a)(8)(B). The Debtor asserts that repayment of the approximately $17,000 obligation would create an "undue hardship." We held an evidentiary hearing on July 30, 1996 and the matter is now ripe for decision.
Facts
Debtor obtained the first in a series of student loans when she began college in 1988. Debtor obtained additional student loans which enabled her to obtain a bachelor of science degree with a double major in elementary education and psychology in May, 1992. Debtor graduated cum laude. Debtor obtained an additional student loan in August, 1992 and began a master's program. Debtor withdrew from the master's program after the completion of two courses in the Fall, 1992 semester.
Following college, Debtor obtained her New York State teaching certification. From January, 1993 until June, 1995, Debtor taught at the Warren County Christian School. Her earnings have never exceeded $8,000 per year. Debtor has also worked as a substitute teacher. Her latest employment is as a part time secretary 15 hours per week at $5 per hour and thus the Debtor has gross earnings of $75 per week. Debtor will soon give birth to a second child and will be off work for three to four weeks. When she resumes her part time work, she will be able to take her children to work with her. To obtain certification to teach in Pennsylvania, Debtor needs additional college courses.
Debtor was married in July, 1993. Debtor has a 1½ year old child and a second child will soon be born. While Debtor was employed full time, she paid $50 per week for babysitting services.
At the time of the bankruptcy filing, Debtor's husband earned $1,600 per month from his employment. He has been diagnosed as having a manic depressive disorder which has forced him to quit his job. He presently earns $200 per month doing odd jobs.
The family receives $280 per month in food stamps and a $250 per month welfare check. The family acquired their residence from parents in Fall, 1994. Its value is $25,000 and is free of liens. The property is in need of repair. The Debtor's husband's grandmother resides with them and shares expenses.
Discussion
Under § 523(a)(8)(B), an educational loan is not discharged in a bankruptcy case unless "excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor's dependents."
The Court of Appeals for the Third Circuit has recently clarified the standard that bankruptcy courts must utilize to determine whether the "undue hardship" exception applies. In re Faish, 72 F.3d 298 (3d Cir.1995) cert. den. Faish v. Pennsylvania Higher Educ. Assistance Agency, ___ U.S. ___, 116 S. Ct. 2532, 135 L. Ed. 2d 1055 (1996). In Faish, *330 the Court adopted the three part test set forth by the Court of Appeals for the Second Circuit in Brunner.
(1) that the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for herself and her dependents if forced to repay the loans;
(2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period for student loans; and (3) that the debtor has made good faith efforts to repay the loans.
Brunner v. New York Higher Education Services Corp., 831 F.2d 395, 396 (2d Cir.1987).
The Faish Court found that:
The Brunner standard meets the practical needs of the debtor by not requiring that he or she live in abject poverty for up to seven years before a student loan may be discharged. On the other hand, the Brunner standard safeguards the financial integrity of the student loan program by not permitting debtors who have obtained the substantial benefits of an education funded by taxpayer dollars to dismiss their obligation merely because repayment of the borrowed funds would require some major personal and financial sacrifices.
Faish, 72 F.3d at 305-306.
The Debtor has established her burden as to the first prong of the Brunner test. The Debtor is presently living in poverty relying upon welfare benefits to sustain the family. She is unable to maintain a minimal standard of living even without repayment of the student loan.
Second, the Debtor must establish "that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period for student loans." This requirement "properly recognizes the potential continuing benefit of an education, and imputes to the meaning of `undue hardship' a requirement that the debtor show his dire financial condition is likely to exist for a significant portion of the repayment period." In re Roberson, 999 F.2d 1132, 1135 (7th Cir.1993).
Unlike the debtor in Faish, this Debtor is not earning $27,000 per year and does not have excess funds above the amount of her expenses to place in a savings account. The Debtor's income has never exceeded $8,000 per year since her graduation in 1992. The Debtor needs additional education before meeting the qualifications necessary to teach in Pennsylvania. The Debtor will have two very small children and the Debtor's husband's illness presently prevents him from making a substantial contribution to the family's finances. The husband's prognosis is unknown and his illness may continue well into the future. The financial straits of this Debtor are far more serious than "any short-term, belt-tightening that may [have been] required of Faish in order to repay her student loan obligation." Faish at 307. We conclude that the Debtor has satisfied the second element of the Brunner test.
Finally, the Debtor must establish that she has made good faith efforts to repay the loans. "The good faith inquiry is to be guided by the understanding that `undue hardship encompasses a notion that the debtor may not willfully or negligently cause his own default, but rather his condition must result from factors beyond his reasonable control.'" Faish at 305 quoting Roberson at 1136.
The Debtor has made numerous applications for work both in Western New York and in the Corry area (the location of her present residence). There is no evidence that the Debtor has lived extravagantly while avoiding payment of her student loan obligation. The Debtor and her husband have accumulated no significant personal property. The Debtor simply has never had any funds with which to make payment on her student loans due to her inability to secure significant employment. We find that the Debtor did not willfully or negligently cause her own default.
Conclusion
We hold that the Debtor has satisfied her burden under the Brunner standard and that her entire student loan obligation is dischargeable pursuant to 11 U.S.C. § 523(a)(8)(B). An appropriate Order will be entered.
*331 ORDER
This 21 day of August, 1996, in accordance with the accompanying Opinion, it shall be and hereby is ORDERED that the student loan obligation of Victoria R. Derby to Student Loan Services and New York State Higher Education Services Corp. is DISCHARGED.
NOTES
[1] This Opinion constitutes this Court's findings of fact and conclusions of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/512884/ | 859 F.2d 266
Elizabeth F. SHUDER and Robert J. Shuderv.McDONALD'S CORPORATION, a corporation, Appellant.
No. 88-3121.
United States Court of Appeals,Third Circuit.
Argued Sept. 1, 1988.Decided Oct. 4, 1988.
Chester S. Fossee (argued), Reale, Fossee and Ferry, Pittsburgh, Pa., for appellant.
Lloyd F. Engle, Jr. (argued), Lyn C. Ackerman, Kuhn, Engle & Stein, Pittsburgh, Pa., for appellees.
Before SLOVITER, GREENBERG and COWEN, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
1
This matter is before the court on appeal from an order of the district court entered on January 22, 1988 denying a motion by defendant McDonald's Corporation for a judgment notwithstanding the verdict in this personal injury action arising from the injury of plaintiff Elizabeth F. Shuder at a McDonald's restaurant on October 17, 1982 in Virginia Beach, Virginia. We will reverse and remand the matter for entry of an order granting the motion.
2
While the circumstances of Mrs. Shuder's accident may not have been unusual, surely the court proceedings which followed were. Mrs. Shuder and Robert J. Shuder, her husband, Pennsylvania citizens, were patrons at the McDonald's on October 17, 1982. After the Shuders left the restaurant she fell on the restaurant parking lot and was injured. Consequently, they filed this diversity of citizenship action on February 28, 1984 in the United States District Court for the Western District of Pennsylvania against McDonald's. Mr. Shuder joining as a plaintiff to assert a loss of consortium. In their complaint, the Shuders recited that Mrs. Shuder stumbled and fell over an abruptly raised portion of the parking lot. They alleged that McDonald's had a duty to maintain the area in a safe condition for travel, but that the place where Mrs. Shuder fell was inadequately lighted and was not marked or painted to distinguish it from other portions of the parking lot. It was further alleged that McDonald's should have had or did have knowledge of this dangerous condition. McDonald's filed an answer denying that it owned, controlled, managed or operated the business.
3
On October 10, 1984 Mrs. Shuder filed a diversity action in the United States District Court for the Eastern District of Virginia against McDonald's Restaurants of Virginia, Inc. (McDonald's Virginia) to recover damages for the same injuries again alleging that she stumbled and fell over an abruptly raised portion of the parking lot. McDonald's Virginia is a franchisee of McDonald's and apparently is owned by McDonald's. She repeated her assertions that the property was inadequately lighted and was not marked or painted to distinguish it from other sections of the parking lot. She alleged, however, that the premises were owned and operated by McDonald's Virginia and were under its care, direction, supervision, control and maintenance. She asserted that McDonald's Virginia should have had or did have knowledge of this dangerous condition. The only material differences between the Pennsylvania and Virginia complaints were that Mr. Shuder was a plaintiff in Pennsylvania and not in Virginia and the defendants were different, though related. McDonald's Virginia filed an answer denying liability. McDonald's subsequently moved to transfer the Pennsylvania action to the United States District Court for the Eastern District of Virginia under 28 U.S.C. Sec. 1404(a) but this motion was opposed by the Shuders and was denied by an order filed January 22, 1985.
4
Though filed after the Pennsylvania case, the Virginia case was the first to reach a jury. In his charge the district judge in Virginia told the jury that Mrs. Shuder was obliged to prove that McDonald's Virginia was negligent and that its negligence was a proximate cause of her injuries. He instructed the jury that McDonald's Virginia had the duty to Mrs. Shuder to use ordinary care to have the premises in a reasonably safe condition for her use and to use ordinary care to warn her of any unsafe condition which it had created or knew about or by the use of ordinary care should have known about. He further explained that a breach of these duties would constitute negligence. He also told the jury that McDonald's Virginia had raised contributory negligence as a defense and that McDonald's Virginia bore the burden of establishing that there had been contributory negligence and that it proximately caused the injury. In this regard, the district judge charged that Mrs. Shuder had a duty to use ordinary care for her own safety as to a dangerous condition or obstruction of the property if she knew of it, or if it was so open and obvious that she was able to see it or should have been able to see it. The judge told the jury that contributory negligence was a complete defense and that it could not apportion or balance the negligence of the parties to determine which one was more at fault. The jury returned a general verdict for McDonald's Virginia.
5
Mrs. Shuder appealed to the United States Court of Appeals for the Fourth Circuit which, in an unpublished per curiam opinion on June 9, 1986, affirmed. In its opinion the Court of Appeals pointed out that there was a sharp controversy as to whether the parking lot was lighted at the time of the accident but that after being carefully instructed by the district judge, the jury apparently accepted the evidence presented by McDonald's Virginia.
6
Thereafter, McDonald's moved for summary judgment in the Pennsylvania action. It recited that McDonald's Virginia operated the Virginia Beach restaurant under a franchise/license agreement and, if anything, owed a greater duty to Mrs. Shuder than McDonald's and yet had prevailed in the Virginia action. Thus, in McDonald's view, the liability issues had been determined adversely to the Shuders, thereby entitling it to a summary judgment.
7
The district judge denied the motion. He held that McDonald's and McDonald's Virginia were not sufficiently in privity for res judicata to apply, as the logical defense for McDonald's Virginia was that the accident was caused by a negligent design of the parking lot by McDonald's. He also held that collateral estoppel could not be applied. He pointed out that he did not have a copy of the jury instructions in the Virginia action and could not ascertain the precise issues resolved in Virginia. He understood that a general verdict had been returned in Virginia and that there was no specific finding that "no negligent condition existed on the property." He indicated that on the record he could not say whether the jury verdict was returned because: (1) the property was not in a negligent condition; (2) McDonald's Virginia was not liable for the condition; or (3) Mrs. Shuder was contributorily negligent. Thus, the district judge could not rule that a finding in Virginia adverse to Mrs. Shuder was preclusive on an identical issue in Pennsylvania and thereby barred the action. The district judge did observe, however, that collateral estoppel might have applied had the jury in Virginia negatively answered an interrogatory asking "was the McDonald's Restaurant property in Virginia Beach in a negligent condition and not reasonably safe for the ordinary use by business invitees." The district judge finally pointed out that McDonald's urged that Virginia law should be applied in the case, but he did not then rule on that point.
8
McDonald's moved for reconsideration of the order and with its motion supplied the jury charge given in the Virginia action. On August 3, 1987 the district judge denied the motion for reconsideration, reciting in his order that "the jury verdict in the Virginia litigation followed a charge by the judge that the issue to be decided is the negligence of the McDonald's Corporation of Virginia, Inc., the franchisee-owner of the premises, not the defendant in the instant case."
9
A pretrial conference was then held on November 16, 1987 at which the district judge ruled, citing Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), that Pennsylvania law would be applied at the trial. The district judge reached that conclusion as Virginia still recognizes contributory negligence as a defense in tort case whereas Pennsylvania has adopted comparative negligence. The district judge explained, "Pennsylvania is concerned, I think, that its citizens receive full compensation when they are traveling interstate and would not permit a minority common law rule to bar recovery for a citizen of its state litigating an issue in this state. Accordingly, we will apply Pennsylvania law, because of the interest at stake and the public policies of this forum."
10
The matter was then bifurcated on liability and damages and was tried first on liability. In his charge the district judge explained that the Shuders contended that the elevated portion of the parking lot was a hazard and that McDonald's should have either corrected the problem or warned the public of it. He further explained that the Shuders asserted that the "negligent construction or design defect, combined with the fact that the area was inadequately illuminated on the night in question" caused the accident. He told the jury that McDonald's as the contractor had a duty to exercise reasonable care in the construction of the parking lot and if it failed to do so it would be liable for the injuries to persons lawfully on the premises. He explained that if the contractor designed the lot and made it dangerous for its intended use the contractor would be subject to liability to others for failure to exercise reasonable care in the adoption of a safe plan or safe design. He also charged that the contractor would be subject to liability by reason of the dangerous character of the structure after the work has been completed and accepted by the owner or possessor of the land. He further indicated that a contractor is required to warn persons lawfully on the property of dangerous conditions if a contractor has reason to know that the conditions will not be discovered by customers using reasonable care. The district judge also gave definitions of negligence and proximate cause.
11
The district judge explained that McDonald's contended that the accident was caused solely by Mrs. Shuder's negligence or alternatively, that regardless of McDonald's negligence, the Shuders were barred by Mrs. Shuder's contributory negligence. He set forth that McDonald's contended that the areas were well-illuminated and Mrs. Shuder failed to look where she was walking for, if she had, she would have observed the condition which she alleged caused the accident. He indicated that Mrs. Shuder was negligent if she, as an ordinary prudent person under the circumstances then present, failed to exercise reasonable care for her own protection and her lack of care was a substantial factor or proximate cause in bringing about her injury. The district judge explained that McDonald's had the burden of proof on the contributory negligence issue. The district judge instructed the jury that if it found both Mrs. Shuder and McDonald's were negligent, it should determine Mrs. Shuder's percentage of the negligence. The jury returned a verdict finding that the parking lot was negligently designed or constructed, thereby proximately causing the accident, but that Mrs. Shuder was 26% negligent. Of course, under Pennsylvania law this verdict meant that the Shuders would make a partial recovery for their damages. Accordingly, immediately after the liability trial the case was tried on damages and verdicts for the Shuders were returned.
12
Subsequently, McDonald's moved for entry of a judgment notwithstanding the verdict on the grounds, insofar as germane to this appeal, that the court erred in not granting a directed verdict on the basis of issue preclusion and in not applying Virginia law so that the finding that Mrs. Shuder was negligent required a verdict for McDonald's as Virginia does not have a comparative negligence doctrine and continues to recognize contributory negligence as a complete defense.1 The judge denied the motion in a memorandum opinion and order on January 22, 1988 and McDonald's has appealed from that order.
13
We first consider whether Pennsylvania or Virginia law should have been applied on the liability issues, our standard of review being plenary. Petrella v. Kashlan, 826 F.2d 1340, 1343 (3d Cir.1987). It is well established that a district court in a diversity action will apply the choice of law rules of the forum state in determining which state's law will be applied to the substantive issues before it. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Accordingly, we examine Pennsylvania law to determine whether the substantive law of Virginia or Pennsylvania should have been applied.
14
In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, cited by the district judge, Pennsylvania abandoned the strict lex loci delicti rule which looked to the place of the wrong in tort cases to determine the substantive rights of the parties "in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court." 416 Pa. at 21, 203 A.2d at 805. Griffith involved an airline crash in Colorado in which a Pennsylvania resident travelling from Philadelphia to Phoenix, Arizona, was killed. The choice between Colorado and Pennsylvania law was critical because of the severe limitation on damages under Colorado but not Pennsylvania law. The court held that Colorado had relatively little interest in the measure of damages because the defendant did not act in reliance on Colorado law, particularly inasmuch as the site of the accident was purely fortuitous. 416 Pa. at 22, 203 A.2d at 806. On the other hand, Pennsylvania's interest in the amount of recovery was great, as the decedent's relationship with the airline was entered into in Pennsylvania where he purchased his ticket, the administration of his estate was in Pennsylvania, and Pennsylvania was concerned with the welfare of his surviving dependents to the end that they obtain full recovery. 416 Pa. at 24, 203 A.2d at 807.
15
In Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970), the Supreme Court of Pennsylvania dealt with a case in which a Pennsylvania resident was injured in Delaware in an automobile accident. The Pennsylvania resident brought an action against his host driver, a Delaware resident driving an automobile registered in Delaware. The issue before the court was whether the legal effect of the guest-host relationship should be determined under Delaware or Pennsylvania law, a crucial matter inasmuch as Delaware but not Pennsylvania had a guest statute barring the action.
16
The court first determined that the choice of laws question did not present a false conflict as the selection of the law of either state would further the policies of that state since Pennsylvania's policy was to protect plaintiffs and Delaware's was to protect defendants in guest-host situations. 439 Pa. at 566, 267 A.2d at 856. The court was thus required to consider whether Delaware or Pennsylvania had the greater interest in the application of its law to determine the consequence of the guest-host relationship. The court pointed out that Pennsylvania had a relevant contact as the plaintiff was a Pennsylvania resident. On the other hand, Delaware had relevant contacts as the defendant was a resident of Delaware, where the automobile was registered, and insurance rates are predicated on the place where a vehicle is housed. Delaware law was applied because, qualitatively, Delaware's contacts outweighed those of Pennsylvania, and Delaware therefore had the greater interest in having its law applied.
17
Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983), also involved a choice of law question arising from an automobile accident in Delaware which implicated the Delaware guest statute. There, however, the plaintiff was a Delaware resident and the defendant was a Pennsylvania resident. The court held that Delaware law should be applied as Delaware residents should not be accorded rights not given them by their home state simply because a visitor from another state is involved in an accident in Delaware. The court also considered that application of Delaware law was consistent with the Pennsylvania No-Fault Motor Vehicle Act which provided that the right of a victim to sue in tort is determined by the law of the state of his domicile. 323 Pa.Super. at 472, 470 A.2d at 1356.
18
In Blakesley v. Wolford, 789 F.2d 236 (3d Cir.1986), we applied Pennsylvania choice of law principles to determine the applicable substantive law in a diversity dental malpractice action in the United States District Court for the Eastern District of Pennsylvania. In Blakesley a Pennsylvania citizen sued a Texas oral surgeon who performed an operation on the plaintiff in Texas. The case was tried under Pennsylvania law and the plaintiff recovered a substantial verdict. The theory of liability was that because of the defendant's failure to disclose its risks, the operation was performed without the plaintiff's informed consent. 789 F.2d at 238. Pennsylvania and Texas have markedly different approaches as to what should be disclosed so that a patient may make an informed decision as Texas focuses on what the surgeon believes should be disclosed so that a reasonable person might decide whether to proceed with the operation and Pennsylvania looks to what the patient might want to know. 789 F.2d at 239-40. Furthermore, Texas but not Pennsylvania had a statutory limit at the time of trial on malpractice recoveries which apparently was exceeded at trial.2 789 F.2d at 240. Pennsylvania thus advances the policies of protecting patients from malpractice and ensuring that malpractice victims are fully compensated. Texas, however, attempts to limit malpractice claims to control health care costs and promote the accessibility of health care in Texas. 789 F.2d at 240. We therefore found that there was a true conflict between Pennsylvania and Texas on the issues of informed consent and damages.
19
We then examined the relevant contacts of the states bearing on the case. We concluded that as the plaintiff was from Pennsylvania and the defendant was from Texas citizenship was a standoff. However, we found that the injury occurred in Texas, the conduct causing the injury occurred in Texas and the plaintiff voluntarily and intentionally went to Texas for the operation. Furthermore, the final consent for the operation was given in Texas and thus the defendant was entitled to rely on the Texas law of informed consent. Accordingly, we held that Texas law should have been applied. 789 F.2d at 241-43. Consequently, we reversed the judgment and remanded the matter for a new trial.
20
In Shields v. Consolidated Rail Corp., 810 F.2d 397 (3d Cir.1987), in a Federal Employers' Liability Act case, we again applied Pennsylvania choice of law rules, this time in considering a third-party complaint for contribution. Shields involved an action against Conrail for an accident in Indiana at a plant owned by the third-party defendant Bethlehem Steel Corporation. The third-party complaint was governed by state rather than federal law. In a choice between Indiana and Pennsylvania law, the district judge selected Pennsylvania law which permitted contribution instead of Indiana law which did not, predicating his decision on the facts that Conrail is incorporated in Pennsylvania and Conrail and Bethlehem have their principal places of business in Pennsylvania. 810 F.2d at 401. The jury returned a verdict against Conrail but also ordered Bethlehem to make a 25% contribution. Bethlehem appealed.
21
We held that Indiana law should have been applied. The plaintiff slipped and fell in Indiana and the accident arose from a relationship between Conrail and Bethlehem in that state. The place of the accident was not fortuitous. Further, the district judge applied Indiana law to determine Bethlehem's liability, i.e., its duties and obligations as a landowner. Thus, applying Pennsylvania law on the claim for contribution created the anomaly of having the law of different states govern related facts of the same case. 810 F.2d at 400-01. After considering these factors, we rejected the district judge's conclusion that Pennsylvania law should be applied, as we regarded that state's interest in applying its law of contribution as insignificant compared to the interest of Indiana as demonstrated by its contacts to the incident. Thus, we reversed and remanded the matter to the district court to enter judgment for Bethlehem. 810 F.2d at 401.
22
We have concluded from our analysis of the foregoing authorities that this case does not involve a false conflict. Virginia has retained the common law rule that a plaintiff's contributory negligence will bar her from recovery so that her negligence will not be compared with that of the defendant. Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337 (1987); Nehi Bottling Co. v. Lambert, 196 Va. 949, 954, 86 S.E.2d 156, 159 (1955). This common law policy protects defendants from claims and encourages persons to exercise care for their own safety. By limiting recovery the common law policy should tend to hold down insurance costs. To the extent it protects defendants it is not unlike the Delaware guest statute, discussed above, which has been recognized by the Pennsylvania courts as furthering Delaware policy.
23
On the other hand, Pennsylvania has adopted comparative negligence and thus follows a plaintiff-protecting policy. 42 Pa.Cons.Stat.Ann. Sec. 7102 (Purdon 1982). Accordingly, applying the law of either Virginia or Pennsylvania will further the policies of that state. Thus, we must determine which state has the greater interest in the application of its law by studying the contacts of each state to the accident relating to the issue before the court and comparing them on a qualitative scale. Cipolla, 439 Pa. at 566, 267 A.2d at 856.
24
We think it is clear that Virginia has by far the more significant contacts. To start with, the accident occurred in Virginia. Further, the Shuders voluntarily went to that state. Surely Virginia has an interest in how persons conduct themselves within the state. The place of the accident was not fortuitous as, unlike in Griffith, this case did not involve a moving instrumentality. Rather, the accident arose from the use of and condition of property, traditionally matters of local control. Indeed, a building permit was obtained for the driveway on which Mrs. Shuder fell. The Shuders, at trial, urged that the property was negligently constructed or designed, again matters of local concern.
25
We also observe that application of Pennsylvania law here, as in Shields, was surely anomalous as the action against McDonald's Virginia was tried under Virginia law, apparently without Mrs. Shuder's objection.3 Thus, different law was applied not just to related facts as in Shields, but to the same facts, the conduct of Mrs. Shuder and whether it constituted contributory negligence barring the action. Further, the only reason different law was applied was that the substantive law of two states was applied in separate forums. While we realize that the different law was applied in separate cases, we think that that distinction from Shields is not material, for certainly these cases could have been consolidated if the Pennsylvania action had been transferred to Virginia or, indeed, one action could have been brought against both defendants. We can hardly conceive that if the entire matter had been tried in Virginia, the district judge would have applied the Virginia law of contributory negligence in the claim against McDonald's Virginia but the Pennsylvania law of comparative negligence in the claim involving McDonald's. We see no reason why the fact that the Shuders chose to splinter their actions should have resulted in different choices of substantive law than would have been made in a single action.
26
In considering the contacts of the states we recognize that McDonald's is a Delaware Corporation and that the plans for the property were apparently approved in Illinois. But these circumstances do not create contacts with Pennsylvania. Thus, they are neutral factors. In sum, the only contacts with Pennsylvania in this case are that the Shuders reside in that state and Mrs. Shuder received medical treatment there.
27
The Shuders contend, as they explain in their brief, that Pennsylvania law was properly applied as it is fairer and "more just" than Virginia law as Pennsylvania recognizes comparative negligence and Virginia retains the common law bar of contributory negligence. Further, the Shuders regard Pennsylvania law as fairer as it "recognizes claims for loss of consortium, which Virginia does not." We, however, cannot regard the alleged justness of Pennsylvania law as a valid reason for applying it. The relative liberality to plaintiffs of Pennsylvania law simply demonstrates that application of Pennsylvania law would further the policies of that state. This is a consideration quite separate from the contacts of Pennsylvania to the accident. Indeed, the Pennsylvania courts have not hesitated to apply foreign over domestic law even though they thereby bar claims by their residents. See, e.g., Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854.
28
Our conclusion that Virginia law is applicable requires that we reverse the order of January 22, 1988 denying McDonald's motion for a judgment notwithstanding the verdict. It is clear that in Virginia, contributory negligence which is a proximate cause of an accident will bar recovery. Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337; Nehi Bottling Co. v. Lambert, 196 Va. 949, 954, 86 S.E.2d 156, 159. While we recognize that the district judge did not intend to charge the Virginia law of contributory negligence, we do not consider that circumstance material inasmuch as the charge which he did give complied with Virginia law. As we have noted, he charged that Mrs. Shuder was contributorily negligent if, as an ordinary prudent person under the circumstances then present, she failed to exercise reasonable care for her own protection and her lack of care was a substantial factor or proximate cause in bringing about her injury. The Shuders have not asserted that this charge imposed a higher duty on Mrs. Shuder than that required under Virginia law, and we are satisfied it did not. See, e.g., Litchford v. Hancock, 232 Va. 496, 497-99, 352 S.E.2d 335, 336-37; Wright v. Tate, 208 Va. 291, 295, 156 S.E.2d 562, 565 (1967). Further, the district judge in Pennsylvania charged, as had the district judge in Virginia, that the burden of proof to establish contributory negligence was on the defendant. Overall, the language in the charge used by the judges in the two states with respect to contributory negligence was quite similar as the district judge in Virginia charged that Mrs. Shuder had to use ordinary care for her own safety. Thus, the jury's verdict bars this action.4
29
There is a second independent reason why the judgment notwithstanding the verdict should have been granted. McDonald's urges that this action is barred by collateral estoppel, a doctrine now referred to as issue preclusion, see Gregory v. Chehi, 843 F.2d 111, 115-16 (3d Cir.1988), by reason of the Virginia proceedings. The parties have treated the issue as governed by Pennsylvania rather than Virginia law and have briefed the matter against the criteria listed in Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975). Thus, we will consider the issue under Pennsylvania law thereby assuming, without deciding, that it is applicable. See Petrella v. Kashlan, 826 F.2d at 1344.5
30
Under Safeguard, 463 Pa. at 574, 345 A.2d at 668, the following conditions must exist before issue preclusion may be invoked:
31
(1) the issue decided in the prior adjudication was identical with the one presented in the later action;
32
(2) there was a final judgment on the merits;
33
(3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and
34
(4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.
35
The Shuders do not urge that the third condition set forth in Safeguard has not been met. Mrs. Shuder was a party in the Virginia action and Mr. Shuder is in privity with her. While McDonald's was not a party in Virginia, mutuality is not required Pennsylvania. See In re Estate of Ellis, 460 Pa. 281, 333 A.2d 728 (1975).
36
The Shuders do assert that the first, second and fourth conditions were not met, reasoning as follows. The Virginia action concerned McDonald's Virginia's duty to keep its premises safe. On the other hand, the issue here involves an allegation of faulty design and construction not raised in Virginia. Thus, the issues are different. Further, inasmuch as the Virginia verdict was general we cannot know what was decided by the jury. Accordingly, Mrs. Shuder may have been barred in Virginia by contributory negligence but that would not necessarily be a bar in Pennsylvania. Finally, the Shuders contend that the issues were different in the two states and thus they did not have a full and fair opportunity to litigate the Pennsylvania issues in the Virginia action.
37
It is undoubtedly true that if we applied Pennsylvania substantive law the action could not be barred by collateral estoppel or claim preclusion. As the Shuders correctly note, the Virginia verdict was general. Under the charge in Virginia Mrs. Shuder could have lost because she did not show that the property was in an unsafe condition or did not show that the condition was a proximate cause of her injuries. Alternatively, she could have lost because the jury found she was contributorily negligent. If the jury found that both she and McDonald's Virginia were negligent its finding, though barring her in Virginia, would have determined no issue fatal to the Shuders in Pennsylvania since Pennsylvania has a comparative negligence statute. Thus, collateral estoppel or issue preclusion could not be successfully asserted. See C.B. Marchant Co. v. Eastern Foods, Inc., 756 F.2d 317, 319 (4th Cir.1985); New Jersey-Philadelphia Presbytery v. New Jersey State Bd., 654 F.2d at 876. But Pennsylvania law does not apply to the substantive issues of this case.
38
In fact, an issue must have been decided in Virginia against Mrs. Shuder identical to an issue which had to have been found in her favor applying Virginia law in the Pennsylvania action if she was to recover against McDonald's. We know that the issues in Virginia were whether the premises were in a reasonably safe condition, whether Mrs. Shuder was guilty of contributory negligence and whether the breach of duty by McDonald's Virginia and the contributory negligence of Mrs. Shuder if established were proximate causes of the accident. While we cannot know which of these questions was answered adversely to Mrs. Shuder, necessarily one was, and under Virginia law a finding adverse to Mrs. Shuder on any of the bases on which the first verdict could have been predicated was fatal to the action against McDonald's.
39
While we are aware that the Shuders have attempted to demonstrate that the issues involved in the two cases were not identical since Mrs. Shuder charged that McDonald's Virginia failed to keep and maintain the premises in a safe condition and the Shuders asserted that McDonald's was negligent by reason of defects in the design and construction of the parking lot, the fact is that if the verdict in Virginia was based on a finding that McDonald's Virginia breached no duty to Mrs. Shuder then the jury necessarily found under the judge's charge that the lot was in a reasonably safe condition. This finding would bar the Shuders from making a claim that McDonald's was liable for design or construction defects which made the property unsafe. Indeed, the district judge in Pennsylvania in denying McDonald's motion for summary judgment came close to recognizing this as he suggested that collateral estoppel might apply if the Virginia jury had found that the parking lot was reasonably safe for ordinary use by business invitees. The artificiality of the distinction drawn by the Shuders of the duties owed by McDonald's and McDonald's Virginia is further demonstrated by the fact that the Pennsylvania district judge pointed out that the Shuders complained about the lighting. Inasmuch as the dispute between the parties on this issue involved whether the lights were on or off this was hardly a design issue. In this regard we observe that the Virginia action generated the same dispute as was recognized by the United States Court of Appeals for the Fourth Circuit which pointed out that there was a sharp controversy over whether the parking lot was lighted.
40
Accordingly, while the Shuders argue that in the two states they advanced different allegations against the defendants, in both they attempted to recover for her injuries and sought to establish that the property was not in a safe condition for their use and in doing so they relied in part on the same evidence. Furthermore, McDonald's and McDonald's Virginia each owed her a duty of reasonable care with respect to their activities regarding the property. Thus, though the Shuders may have had two theories as to why the defendants failed in their duties to Mrs. Shuder the only issue regarding the property was its condition.
41
We recognize, of course, that the Virginia verdict may have been based on contributory negligence. But if so the Shuders are barred by that finding. Thus, in one way or another a finding barring the Pennsylvania action was made in Virginia and the first of the Safeguard criteria has been satisfied.
42
The other Safeguard criteria were met as well. Clearly, there was a final judgment on the merits in Virginia, and Mrs. Shuder had a full and fair opportunity to litigate the issues in that case. She does not argue that the Virginia proceedings denied her due process of law nor can she reasonably contend that she did not have an opportunity to establish the condition of the property in the Virginia case.
43
Thus, while we do not know which finding in the Virginia action estops the Shuders we know that one does. We emphasize that we, unlike the district judge, can reach this conclusion because we are applying Virginia rather than Pennsylvania law so that the Shuders cannot successfully contend that if the Virginia verdict was based on a finding that Mrs. Shuder was contributorily negligent she is nevertheless not necessarily barred in Pennsylvania. Accordingly, the motion for the judgment notwithstanding the verdict should have been granted on the basis of collateral estoppel or issue preclusion.
44
In reaching our result we have not overlooked the realities of this case. Mrs. Shuder brought two separate actions in two jurisdictions against two related entities for one accident. While in the Shuders' brief they assert that the second action was brought in Virginia only because "the statute of limitations [was] fast approaching" and they had not solved the McDonald's corporate structure, the fact remains that they could have brought one action in Virginia against both defendants. Further, they opposed McDonald's motion to transfer under 28 U.S.C. Sec. 1404(a), which, if granted, would have permitted a consolidation and a single trial in Virginia. By their maneuvering the Shuders obtained two opportunities to make one recovery and, after failing in the first, they succeeded in the second. There was, of course, a cost to the court system in this as separate trials and separate appeals were generated. This sort of thing so contrary to a rational policy of attempting to have related matters resolved in a single proceeding, at least in an uncomplicated situation as that here, should not be encouraged, and in the circumstances of this case we see no reason to be grudging in fairly applying the bar of issue preclusion. Our result is consistent with the policy of using issue preclusion to reduce unnecessary litigation and to foster reliance on adjudication. See Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980).
45
The order of January 22, 1988 will be reversed and the matter will be remanded to the district court for entry of a judgment in favor of McDonald's notwithstanding the verdict dismissing this action.
1
McDonald's also unsuccessfully moved for a new trial because of asserted trial errors and has appealed from the denial of that motion. In view of our result we need not set forth the bases for this motion as this aspect of McDonald's appeal is moot
2
The point is not clear because while the verdict was for $800,000 the statute allowed $500,000 plus past and future medical expenses. 789 F.2d at 240
3
In this regard we point out that it may be reasonably inferred that the Shuders accepted Virginia law for their Virginia complaint from the very fact that Mr. Shuder did not join in the Virginia action to assert a loss of consortium as Virginia does not recognize such claims. Further, they do not contend that they objected in Virginia when the judge did not charge comparative negligence. Thus, they treated the Virginia action as governed by Virginia law
4
Of course, the Shuders do not contend that Mr. Shuder is not bound by the finding of contributory negligence. In any event, they stipulate that under Virginia law he could not assert a claim for loss of consortium. See Floyd v. Miller, 190 Va. 303, 57 S.E.2d 114 (1950). We recognize that the jury in the Pennsylvania action was informed of the consequence of an apportionment of negligence, apparently in a preliminary charge at the outset of the case. See Peair v. Home Association of Enola Legion, 287 Pa.Super. 400, 410, 430 A.2d 665, 670-71 (1981). Thus, it should have believed that by reason of its verdict the Shuders would recover. Nevertheless, we cannot treat the verdict on comparative negligence as suspect. We can hardly believe that a jury would return a finding that a plaintiff was negligent if it did not think that she was simply because it had been told that the finding would only reduce her recovery and not bar her entirely. Indeed, the Shuders themselves did not mention this point in their brief and it only surfaced as the court raised it at oral argument. Overall, we have no doubt as to the integrity of the Pennsylvania verdict
5
They are not necessarily correct in this. See Gregory v. Chehi, 843 F.2d 111, 116; New Jersey-Philadelphia Presbytery v. New Jersey State Bd., 654 F.2d 868, 876 (3d Cir.1981). We observe that Virginia, unlike Pennsylvania, requires mutuality before collateral estoppel can be applied. See House v. Kirby, 233 Va. 197, 199, 355 S.E.2d 303, 305 (1987); Greene v. Warrenton Production Credit Ass'n, 223 Va. 462, 466-67, 291 S.E.2d 209, 212 (1982). Therefore, if we considered this case under Virginia law we would be obliged to determine whether McDonald's and McDonald's Virginia are in privity. Under Pennsylvania law mutuality is not required. Of course, the distinction may be immaterial as McDonald's asserts that McDonald's Virginia is its franchisee and wholly owned subsidiary | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/521461/ | 872 F.2d 426
Unpublished Disposition
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.
In re CLUB RENDEZVOUS, INC., Debtor.CLUB RENDEZVOUS, INC., Appellee,v.SOUTH PLAZA ASSOCIATES, dba Desert Fashion Plaza, Appellant.
No. 88-5524.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 7, 1988.Decided March 29, 1989.
Before CYNTHIA HOLCOMB HALL, WIGGINS, DAVID R. THOMPSON, Circuit Judges.
1
MEMORANDUM*
2
South Plaza Associates (Plaza) appeals the bankruptcy appellate panel's affirmance of the bankruptcy court's judgment in favor of Club Rendezvous, Inc. (Club). The bankruptcy court concluded that Plaza breached its lease with Club and wrongfully evicted Club, and awarded Club $252,965.00 in damages plus attorneys fees. Plaza appeals, contending that the bankruptcy court erred in finding that Club had not abandoned the premises. We have jurisdiction pursuant to 28 U.S.C. Sec. 158(d). We affirm the judgment for breach of the lease and wrongful eviction, but reverse and remand the award of damages.
STANDARD OF REVIEW
3
"Because this court is in as good a position as the Bankruptcy Appellate Panel to review the decision of the bankruptcy court, [this court] independently review[s] that decision." In re Probasco, 839 F.2d 1352, 1353 (9th Cir.1988). We review the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. Id. at 1353-54.
DISCUSSION
I. Abandonment of Premises
4
Plaza contends that the bankruptcy court erred in finding that Club had not abandoned the premises because: (1) the bankruptcy court improperly placed the burden of proof on Plaza to provide evidence of Club's intent to abandon the premises; (2) there was substantial evidence to support Plaza's belief that Club intended to abandon the premises; and (3) Club's failure to respond to Plaza's Notice of Belief of Abandonment and Notice to Pay Rent or Surrender Possession relieved Plaza of any wrongdoing in retaking the premises. These contentions lack merit.
5
Under California Civil Code section 1951.3(a), real property is deemed abandoned by the lessee if the lessor gives written notice of his belief of abandonment and the lessee fails to give the lessor written notice that he does not intend to abandon the property. Cal.Civ.Code Sec. 1951.3(a) (West 1985). The lessor may only give such notice, however, where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. Id. Sec. 1951.3(b). Property may not be deemed abandoned if, at the time the notice of belief of abandonment was given, it was unreasonable for the lessor to believe that the lessee had abandoned the property. Id. Sec. 1951.3(e)(2). The lack of reasonable belief by the lessor is tested objectively. The bankruptcy court held that Plaza's notice was inadequate because Plaza could not have reasonably believed that Club had abandoned the premises.
6
(A) Burden of Proof
7
The lessee has the burden of establishing that it was unreasonable for the lessor to believe that the lessee had abandoned the premises. Cal.Civ.Code Sec. 1951.3 (West 1985) (Legislative Committee Comment). Plaza points to the following language in the bankruptcy court's opinion in support of its contention that the bankruptcy court impermissibly shifted the burden of proof to Plaza:
8
The determination of whether acts constituting an abandonment has occurred is a question of fact which involves evaluation of the intent of parties. Martin v. Cassidy, 149 Cal.App.2d 106, 111 (1957). Absent convincing, credible evidence that the property was abandoned, defendant must show that it complied with California's statutory scheme to recover possession of the premises in order to defend against the claim of forcible entry and detainer.
9
As the bankruptcy appellate panel noted, this language does not suggest that the bankruptcy court placed the burden of proof upon Plaza to establish Club's intent to abandon. The bankruptcy court simply indicated that because there was not convincing, credible evidence that Club intended to abandon the premises, Plaza was required to comply with the procedural requirements of section 1951.3. See Cal.Civ.Code Sec. 1951.3 (West 1985) (Legislative Committee Comment) (purpose of section 1951.3 is to establish that leased real property has been abandoned by the lessee); id. Sec. 1951.3(c), (d) (detailing procedural requirements for giving notice under section 1951.3(a)).
10
(B) Intent to Abandon
11
The bankruptcy court found that Club had met its burden to establish that it was unreasonable for Plaza to believe that Club had abandoned the premises based on the following undisputed facts: (1) Club advised Plaza of its intent to reopen after completion of construction; (2) Plaza's agents were aware that Club placed a sign on the premises notifying the public of its intent to reopen in November 1985; and (3) Club left personal property of substantial value on the premises.
12
Based on the undisputed facts in the record, the bankruptcy court did not clearly err in finding that Plaza could not have reasonably believed that Club had abandoned the premises. Plaza's evidence of Club's intent to abandon does not negate the undisputed facts. First, although Club closed its business and vacated the premises in June 1985, such action is consistent with Club's claim that it was unable to operate due to the construction activity. Second, although Plaza's legal counsel may have been unaware that Club had posted a sign indicating that it would reopen, it is undisputed that Plaza's management personnel were aware of the sign. The relevant inquiry is whether the lessor, not the lessor's counsel, reasonably believed that the lessee had abandoned the premises. See Cal.Civ.Code Sec. 1951.3(e)(2) (West 1985) (real property shall not be deemed to be abandoned if "it was not reasonable for the lessor to believe that the lessee had abandoned the real property" (emphasis added)). Finally, although the property Club left on the premises may have been heavily encumbered, the fact that Club left property of substantial value on the premises is itself significant evidence that Club had not abandoned the premises. See Cal.Civ.Code Sec. 1951.3 (West 1985) (Legislative Committee Comment).
13
(C) Club's Failure to Respond to Notices
14
It is undisputed that Club failed to respond to Plaza's Notice of Belief of Abandonment and Notice to Pay Rent or Surrender Possession. Contrary to Plaza's contention however, Club's failure to respond to the notices did not terminate the lease or relieve Plaza of any wrongdoing.
15
First, Club's failure to respond to Plaza's Notice of Belief of Abandonment did not terminate the lease because a failure to respond to such a notice terminates the lease only where the lessor reasonably believed that the lessee had abandoned the premises. See Cal.Civ.Code Sec. 1951.3(b) (West 1985). As previously discussed, the bankruptcy court properly concluded that it was unreasonable for Plaza to believe that Club had abandoned the premises.
16
Nor did Club's failure to respond to Plaza's Notice to Pay Rent or Surrender Possession terminate the lease because the notice did not comply with California's unlawful detainer statute. See Cal.Civ.Proc.Code Secs. 1159-1179a (West 1985 and Supp.1988). The statute permits a lessor, upon compliance with the statutory notice requirements, to declare a forfeiture and terminate a lease for nonpayment of rent. See Lehr v. Crosby, 123 Cal.App.3d Supp. 1, 8, 177 Cal.Rptr. 96, 100 (1981). A notice to pay rent or surrender possession which overstates the amount of rent due is of no legal consequence and will not support an action for unlawful detainer. Ernst Enters. v. Sun Valley Gasoline, 139 Cal.App.3d 355, 358, 188 Cal.Rptr. 641, 644 (1983). Under the terms of the lease, Plaza was required to reduce the rent if Plaza's construction activities materially interfered with Club's access to the premises. The bankruptcy court found that Plaza's construction activities materially interfered with Club's access to the premises, but that Plaza failed to reduce the rent. Therefore, the notice overstated the amount of rent due and was of no legal consequence. Accordingly, Club's failure to respond to the Notice to Pay Rent or Surrender Possession did not relieve Plaza of any wrongdoing.
II. Wrongful Eviction
17
Plaza contends that the bankruptcy court erred by finding that Plaza wrongfully evicted Club because Plaza did not deprive Club of the beneficial enjoyment of the premises. Plaza notes that, at the time Plaza entered the premises and changed the locks, Club had been closed for two months and Club did not intend to reopen until November 1985.
18
Here, it is undisputed that in August 1985, Plaza reentered the premises and changed the locks, preventing Club from entering the premises. It is equally undisputed that Plaza failed to comply with California's unlawful detainer statute in taking possession of the premises. A landlord is allowed to reenter without satisfying the requirements of the unlawful detainer statute "only when the tenant has abandoned the premises and thereby lost his right to possession." Kassan v. Stout, 9 Cal.3d 39, 44, 507 P.2d 87, 90, 106 Cal.Rptr. 783, 786 (1973). As previously discussed, however, Club did not abandon the premises. Accordingly, Plaza is liable to Club for forcible entry and detainer. See Bedi v. McMullan, 160 Cal.App.3d 272, 276, 206 Cal.Rptr. 578, 580-81 (1984) (holding that under California's unlawful detainer statute, a landlord must obtain a valid writ of execution before forcibly evicting a tenant). A landlord's forcible entry gives the tenant a cause of action in tort for wrongful eviction. See 4 B. Witkin, Summary of California Law, Real Property Secs. 732-733 (9th ed. 1987). Accordingly, the bankruptcy court properly granted judgment to Club on its wrongful eviction claim.
III. Calculation of Damages
19
Plaza contends that the bankruptcy court erred by awarding Club damages for the loss of the value of its improvements based on the amount Club spent for improvements because the improvements reverted to Plaza at the end of the lease term. This contention has merit.
20
In support of its contention that the bankruptcy court's calculation of damages was erroneous, Plaza relies on Asell v. Rodrigues, 32 Cal.App.3d 817, 108 Cal.Rptr. 566 (1973). In Asell, the issue before the court was the correct measure of damages on tenants' claim of wrongful eviction from a ranch. Id. at 825, 108 Cal.Rptr. at 571. The appellate court held that the trial court erred by awarding the tenants the value of their labor and costs for improving the ranch because certain improvements were permanent improvements, and the tenants had no right to remove those improvements at the end of the lease term. Id. at 825-26, 108 Cal.Rptr. at 571-72. Thus, the lessor's wrongful eviction only deprived the tenants of the reasonable value of the loss of use of the improvements for the remaining term of the lease. Id. at 826, 108 Cal.Rptr. at 572.
21
Similarly, Plaza contends, and Club does not dispute, that many of Club's improvements were permanent improvements that reverted to Plaza at the end of the lease term. Thus, Plaza's wrongful eviction only deprived Club of the reasonable value of the loss of use of the improvements for the balance of the lease term; Club was not entitled to recoup the cost of its improvements.1 Id. at 825-26, 108 Cal.Rptr. at 571-72. We reverse the award of damages and remand to the bankruptcy court to redetermine Club's damages award based on the loss of the use of its improvements for the remaining term of the lease.2
IV. Damages Beyond the Date of Rejection
22
Plaza contends that the bankruptcy court's order rejecting and terminating the lease as of November 15, 1985, bars damages beyond that date. This contention lacks merit.
23
In its February 5, 1986, order rejecting the lease, the bankruptcy court stated that its order was without res judicata or collateral estoppel effect with respect to state law issues, including damages. The bankruptcy court also stated that Plaza and Club would be permitted to proceed with their state court remedies, including eviction.
24
Damages recoverable for wrongful eviction include those amounts that are necessary to compensate the tenant for the detriment proximately caused by, or likely to result from, the eviction. Castillo v. Friedman, 197 Cal.App.3d Supp. 6, 19, 243 Cal.Rptr. 206, 213 (1987). The measure of damages is normally the value of the term, less the rent reserved. Id. Damages for the loss of use of property may be had to the end of the lease term. Asell, 32 Cal.App.3d at 825-26, 108 Cal.Rptr. at 571-72.
25
Plaza relies on Rosano v. Superior Court, 147 Cal.App.3d 92, 194 Cal.Rptr. 749 (1983), in support of its contention that Club is not entitled to damages for wrongful eviction beyond the date of the bankruptcy court's termination of the lease. In Rosano, the issue before the court was whether a tenant is entitled to damages for lost profits beyond the end of the lease term. Id. at 93-94, 194 Cal.Rptr. at 750. The court held that damages for lost profits are limited to those losses incurred during the unexpired term of the lease, including the period following notice of termination when the tenant is clothed with a legal right to possession. Id. at 96, 194 Cal.Rptr. at 751. Plaza argues that because Club had no legal right to possession following the bankruptcy court's rejection of the lease, Club should be limited to damages for the period between Plaza's eviction of Club in August 1985 and the court's rejection of the lease in November 1985.
26
The relevant inquiry is the extent to which Club had a legal right to possession under the terms of the lease. See id. at 95-97, 194 Cal.Rptr. at 751-52 (determining when tenant's legal right to possession of the leasehold expired based on the terms of the lease); Asell, 32 Cal.App.3d at 826, 108 Cal.Rptr. at 572 (determining damages for wrongful eviction based on remaining term of the lease). Under the terms of the lease, Club had a legal right to possession through November 1988, the end of the five-year lease term.3 Accordingly, the bankruptcy court properly awarded damages to Club through the remaining term of the lease.
V. Attorneys Fees
27
Plaza contends that the bankruptcy court erred in granting attorneys fees to Club because it is unclear whether the court granted attorneys fees in tort or in contract. This contention lacks merit.
28
In California, the prevailing party in a successful tort action is not entitled to attorneys fees. See Englert v. Ivac Corp., 92 Cal.App.3d 178, 191, 154 Cal.Rptr. 804, 811 (1979) (upholding trial court's failure to award appellant attorneys fees because his action was not for breach of contract but "for specific recovery of personal property or conversion or replevin"). Parties to a contract are free, however, to enter into an agreement regarding recovery of attorneys fees in the event of a suit. See Cal.Civ.Proc.Code Sec. 1021 (West Supp.1988); 1 B. Witkin, Summary of California Law, Contracts Sec. 842 (9th ed. 1987).
29
Here, the lease contained a clause awarding attorneys fees to a prevailing party in a dispute arising from the lease. Club's claims of wrongful eviction and breach of the implied covenant of quiet enjoyment arose from the lease. Accordingly, the award of attorneys fees was proper.4
CONCLUSION
30
The bankruptcy court's judgment is AFFIRMED in part, REVERSED in part, and REMANDED for redetermination of damages. Club may recover its costs on appeal.
31
CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting.
32
I dissent.
*
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
1
Club attempts to distinguish Asell on the ground that in Asell the improvements left on the leasehold would be useful to the lessor beyond the term of the lease whereas here Plaza would have no use for Club's improvements beyond the term of the lease. Contrary to Club's contention, however, nowhere in Asell does the court suggest that the tenant's improvements would be of value to the lessor beyond the term of the lease, nor was the court's holding impliedly based on such a finding. See Asell, 32 Cal.App.3d at 825-26, 108 Cal.Rptr. at 571-72
2
Plaza further contends that Club would not even be entitled to damages for the loss of use of the improvements because Club was losing money, and thus any use of the improvements would only result in further loss. This contention lacks merit. As Club notes, the relevant inquiry is the value of the use of the improvements, not the amount of profits stemming from the loss of the use of the improvements. See Asell, 32 Cal.App.3d at 825-26, 108 Cal.Rptr. at 571-72
3
Furthermore, the bankruptcy court determined that the order rejecting the lease was directly attributable to the construction activity preventing Club from staying in business. It would be inequitable to limit Club to damages occurring prior to the order rejecting the lease because the rejection was attributable to Plaza's own conduct
4
Plaza also contends that the amount of attorneys fees awarded to Club was excessive. This court reviews the amount of attorneys fees awarded by the trial court for an abuse of discretion. See General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir.1986). The only fact Plaza advances in support of its argument that the attorneys fee award was excessive is that Club sought six million dollars in damages but only recovered $250,000. Nowhere does Plaza point to specific legal costs Club incurred as being unreasonable. Accordingly, the bankruptcy court did not abuse its discretion in its award of attorneys fees | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/519537/ | 869 F.2d 934
CLOVERDALE EQUIPMENT COMPANY, Plaintiff-Appellant,v.SIMON AERIALS, INC., Defendant-Appellee.
No. 87-2195.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 12, 1988.Decided March 10, 1989.
Michael H. Whiting (argued), Thomas H. Finnerty, Troy, Mich., for plaintiff-appellant.
Gregory G. Wille (argued), Milwaukee, Wis., I. Mark Steckloff, Detroit, Mich., for defendant-appellee.
Before MERRITT and RYAN, Circuit Judges; and POTTER, District Judge.*
RYAN, Circuit Judge.
1
Cloverdale Equipment Company, a Michigan corporation, sued Simon Aerials, Inc., a Wisconsin corporation, in diversity, presenting contract and fraud claims that sought damages resulting from the termination of a sales distributorship agreement. The district court granted summary judgment in favor of the defendant on all counts; plaintiff appealed. Because a careful review of the evidence presented to the district court indicates that the motion was properly granted, we affirm.
I.
2
Cloverdale Equipment Company ("Cloverdale") sells and leases construction and other heavy equipment. Simon Aerials, Inc., ("SAI") manufactures aerial lift equipment used in the construction industry. In a series of meetings commencing in December of 1985, SAI's president, Mr. Terry Smith, and Cloverdale's president, Mr. Tom Moilanen, discussed the possibility of Cloverdale replacing SAI's present Michigan distributor of aerial lift equipment. Cloverdale was not, however, SAI's first choice. SAI had discussed with another Michigan company, Caledonia Tractor and Equipment Company ("Caledonia") the possibility of entering into a master distributorship agreement whereby Caledonia would control distribution for an entire region of the United States. But Caledonia was committed to its aerial lift supplier through 1986. Thus, Caledonia was unable to make any commitments and its discussions with SAI terminated in late 1985.
3
In January 1986, Smith and Moilanen agreed in principle to a distributorship arrangement by which Cloverdale would become an SAI distributor and purchase approximately one million dollars of SAI equipment for sale or lease in Michigan. On February 15, 1986, SAI signed its standard distribution agreement contract and forwarded it to Cloverdale for approval. The standard contract designated Cloverdale as a distributor and permitted Cloverdale to purchase SAI products at discount for subsequent sale, lease, or service anywhere in the United States but with primary responsibility in lower Michigan. Thus, paragraph 1(b) of the standard contract provided:
4
It is expressly understood that this is not an exclusive agreement and SAI reserves the right to appoint other Distributors who may sell, lease and service SAI Products in the Territory. The Distributor is in no way restricted from selling SAI Products outside the Territory, and SAI does not restrict itself or other Distributors from selling SAI Products inside the territory.
5
Recognizing the advantage of reduced competition from other SAI distributors, Cloverdale requested a modification of the standard contract's paragraph on exclusivity. Cloverdale signed the form contract subject to SAI's acceptance of the following letter:
Attn: Mr. Terry Smith, President
Gentlemen:
6
This letter will serve as an addendum to the Simon Aerials, Inc. Distributorship Agreement. The following items shall be revised:
7
Page 1, "Witnesseth" Paragraph II, strike out the word "Non-Exclusive" and insert "Exclusive."
8
Page 1, Paragraph 1b, Delete and replace with the wording "During the term of this agreement and so long as Distributor is in compliance with its obligations hereunder, SAI will not appoint another distributor, dealer, agent or consignee in, or for, the territory, nor will SAI sell on a direct basis in the territory except replacement parts to Cyril J. Burke, Inc. for a period not to exceed twelve months from the distributorship agreement with Cloverdale Equipment Co."
9
Page 2, Paragraph 2C, Delete the words in the last sentence "and file, at its own expense and".
10
Page 4, Paragraph # 9, Delete the last sentence in its entirety.
11
Exhibit A--Add the words "-All" after the words Eagle Series.
12
Please sign and return one executed copy for our files.
13
Very truly yours,
CLOVERDALE EQUIPMENT COMPANY
14
SAI agreed to the proposed changes which effectively replaced SAI's standard paragraph 1(b) referring to nonexclusivity.
15
Significantly, Cloverdale did not request any change in the termination rights provision of the contract. Those rights are set out clearly in paragraph 11 on the fourth page of the six-page contract. Paragraph 11(a) states:
16
11. Termination. (a) This agreement may be terminated at any time by either party hereto upon sixty (60) days' written notice of such termination to the other party.
17
In addition, paragraph 11(b) provides that certain "occurrence[s]" would automatically terminate the relationship without the sixty-day notification unless SAI subsequently consented, in writing, to the occurrences. Those occurrences include Cloverdale's filing for bankruptcy, failing to pay or otherwise breaching the contract, failing to act in good faith in dealing with SAI, or Cloverdale's attempting to assign its distributorship rights.
18
In August 1986, Caledonia resumed discussions with SAI over the previously discussed possibility of a master distributorship and by mid-October the parties agreed to such an arrangement. Because the agreement, scheduled to take effect in 1987, included distribution rights in lower Michigan, SAI sent Cloverdale a written notice of termination pursuant to paragraph 11(a) of their contract on November 3, 1986. Cloverdale received the notice on November 5, 1986, and its distributorship was terminated sixty days later.
19
Cloverdale filed a complaint seeking recovery on four theories, one of which it abandoned prior to this appeal. On appeal Cloverdale challenges the propriety of the district court's summary judgment dismissal of its contract, estoppel, and fraud claims.
II.
20
Federal Rule of Civil Procedure 56(e) requires that the non-moving party confronted with a properly supported Motion for Summary Judgment "set forth specific facts showing that there is a genuine issue for trial." Otherwise, a district court may properly enter judgment before trial. Recent Supreme Court decisions have clarified the standards a court must apply when confronted with a Motion for Summary Judgment. In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Court stated that summary judgment should not be disfavored and may be an appropriate avenue for the "just, speedy and inexpensive determination" of a matter. Id. at 327, 106 S.Ct. at 2555. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court stated:
21
If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's positions will be insufficient; there must be evidence of which the jury could reasonably find for the plaintiff.
22
Id., at 252, 106 S.Ct. at 2512.
23
Clearly, mere allegations of a cause of action may no longer suffice to get a plaintiff's case to the jury. When confronted with a properly supported Motion for Summary Judgment, the party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; Adcock v. Firestone Tire and Rubber Co., 822 F.2d 623, 626 (6th Cir.1987). On this appeal we must determine whether the district court was correct in concluding that Cloverdale presented insufficient evidence to rebut SAI's showing that it had properly terminated Cloverdale's distributorship pursuant to paragraph 11(a) of the parties' written contract.
III.
24
In the first count of its amended complaint, Cloverdale alleged that when SAI terminated the distributorship it breached a contract for "an indefinite term [providing] for termination upon good cause only ..." On appeal Cloverdale advances four arguments for its proposition that despite paragraph 11(a)'s express language indicating that the parties had assented to a contract terminable at will, they were actually bound by a contract terminable only for cause.
25
First, Cloverdale argues that the letter addendum it drafted, referring to "Page 1, Paragraph 1b," expressly changed the contract's termination provisions or at least made the issue ambiguous because the addendum applied "so long as Distributor is in compliance with its obligations hereunder." But the addendum specifically referred to paragraph 1b of the agreement and made no reference to paragraph 11's termination provisions. The addendum expressly limits SAI from dealing with others in Cloverdale's market during the term of its contract with Cloverdale, but does not prevent SAI from exercising its paragraph 11(a) right to terminate its agreement with Cloverdale upon proper notice in order to engage another distributor.
26
Second, Cloverdale asserts that even if the addendum does not explicitly modify the paragraph 11 termination provisions of the contract, or at least render them ambiguous, the provisions themselves are so ambiguously drafted as to warrant the admission of parol evidence to prove that the parties intended that the contract could only be terminated for just cause. Cloverdale's argument in this respect is that paragraph 11 is ambiguous because subparagraph (a) provides for termination without regard to cause, and subparagraph (b) provides for termination upon any one of seven occurrences. We are satisfied, however, that these paragraphs, read together, are not ambiguous. Rather, the contract clearly provides SAI with two independent bases for termination: (1) sixty days written notice by either party, and (2) automatic termination within ten days of SAI's learning of any one of seven occurrences constituting default by Cloverdale. The two provisions are clearly differentiated in separate subparagraphs--only 11(a) applies to the facts of this case.
27
Third, Cloverdale cites J.R. Watkins Co. v. Rich, 254 Mich. 82, 235 N.W. 845 (1931), for the proposition that even if the parties are bound by a contract terminable at will, Michigan law limits SAI to the good faith exercise of that express right.
28
Watkins also involved a sales distributorship, but the issue there was whether sureties were bound by their signatures to a contract. In Watkins, the J.R. Watkins Company sold its merchandise through salesmen who were permitted to buy goods on credit and solicit sales in an allotted territory. Walter E. Rich was a Watkins salesman who had operated under this credit agreement continuously since 1924, and had become indebted to the company for $715.30. On December 21, 1927, the company sent Rich a new contract, requiring not only his signature, but the signatures of sureties who would agree to pay Rich's old debts and all unpaid future charges at the time, place, and manner provided in the contract. "The contract provided that payment of the old debt should be from time to time during its term in amounts satisfactory to plaintiff, and that future charges should be paid on expiration or termination of the agreement. The practice was to make periodical or occasional payments." 254 Mich. at 83, 235 N.W. 845.
29
After Rich had obtained what the company deemed to be a sufficient number of sureties, the parties finally executed the contract in May 1928. One month later the company terminated the contract and demanded payment of all debts incurred by Rich as principal and Irving H. Brown and others as sureties. The termination provision of the contract provided: "And it is further mutually agreed that either of the parties hereto may terminate this agreement at any time by giving the other party notice thereof in writing by mail, and any indebtedness then owing by either party to the other shall thereupon be and become immediately due and payable." Id. at 84, 235 N.W. 845. The Michigan Supreme Court, affirming the trial court judgment, found "that the purpose of the sureties in their undertaking was to aid Rich to obtain the business for a new full term in which to pay his debts; that they would not have executed it if they had known such opportunity would be arbitrarily refused him ..." and that "testimony strongly indicated that plaintiff was [only] concerned with securing the execution of a contract to pay the old debt by sufficient sureties...." Id. at 84, 85, 235 N.W. 845. The Michigan Supreme Court discharged the sureties from contractual liability for Rich's debts because it found that the company had "arbitrarily and illegally terminated and breached the contract...." Id. at 85, 235 N.W. 845.
30
Later decisions have indicated that the basis behind the Watkins decision was the lack of good faith on the part of the company at the time it entered into the suretyship contract. Accordingly, the courts have limited the good faith rule announced in Watkins to situations where one of the parties lacked good faith at the time he or she bargained for the termination right. If properly bargained for, the right is given full effect and may be exercised for any reason. Busam Motor Sales v. Ford Motor Co., 203 F.2d 469 (6th Cir.1953); Bushwick-Decatur Motors v. Ford Motor Co., 116 F.2d 675 (2d Cir.1940). Cloverdale presented the court with SAI internal memos indicating that SAI had also discussed with Caledonia the possibility of a distributorship. But we find in these memos no evidence that could lead a reasonable jury to conclude that SAI submitted its standard form contract to Cloverdale in bad faith. There is no evidence that SAI planned to substitute Caledonia for Cloverdale when SAI contracted with Cloverdale in early 1986, and there is no evidence that SAI took active steps to cause Caledonia to quit its former distributor. SAI may have hoped that Caledonia would return for discussions, but liability for bad faith does not attach based upon one's hopes.
31
Finally, Cloverdale argues that representations made by SAI subsequent to the signed agreement modified the contract's termination provisions. It is indeed, as Cloverdale claims, well-established that subsequent oral modifications of a written contract may be valid notwithstanding a contract provision indicating that only written modifications are effective (see Morley Brothers, Inc. v. F.R. Patterson Construction Co., 266 Mich. 52, 253 N.W. 213 (1934)), and despite proof of consideration for the subsequent modification (see McCarty v. Mercury Metalcraft Co., 372 Mich. 567, 576, 127 N.W.2d 340 (1964)). But given the opportunity to present the court with facts sufficient to show a subsequent oral modification of the parties' written agreement, and thereby defeat summary judgment, Cloverdale failed to carry its burden. The only evidence it presented to prove that the parties had modified paragraph 11(a) was Moilanen's affidavit indicating that "both before and after the execution of this contract, it was presented to me that SAI was committed to a long-term distribution arrangement with Cloverdale and that Cloverdale's exclusive distributor status would not be terminated so long as Cloverdale performed its obligations under the agreement." Moilanen's affidavit does not state who made the statements and Cloverdale's answers to SAI's interrogatories indicate that the last oral representation occurred "between February 20, 1986 and March 28, 1986," prior to the final execution of the integrated contract in which all prior representations would necessarily have merged. See NAG Enterprises, Inc. v. All State Industries, Inc., 407 Mich. 407, 410, 285 N.W.2d 770 (1979).
32
Michigan assigns the burden of proof of subsequent oral modification to the alleging party, Rasch v. National Steel Corp., 22 Mich.App. 257, 177 N.W.2d 428, 429 (1970), and in light of a written-modification-only provision, vague assertions of an oral modification fail to raise a genuine factual issue sufficient to defeat a summary judgment motion. Bushwick-Decatur Motors v. Ford Motor Co., 116 F.2d 675, 678 (2d Cir.1940). This holding in Bushwick-Decatur Motors is fortified by recent Supreme Court pronouncements with respect to the standards for summary judgment indicating that Rule 56 requires the party with the burden of proof to present specific facts showing the essential elements of its theory. See Celotex, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Based upon Rule 56 and Michigan law, we find that the district court acted properly in dismissing Cloverdale's contractual theories of recovery.
IV.
33
Cloeverdale also argues that the district court improperly granted summary judgment on a quasi-contractual claim for unjust enrichment, improperly declined to apply principles of estoppel, and improperly denied Cloverdale the opportunity for "equitable recoupment" pursuant to the so-called "Missouri rule" announced in Lichnovsky v. Ziebart International Corp., 93 Mich.App. 60, 285 N.W.2d 795 (1979), rev'd on other grounds, 414 Mich. 228, 324 N.W.2d 732 (1982). We disagree.
34
A quasi-contractual theory of recovery is inapplicable when the parties are bound by an express contract. Randolph v. New England Mut. Life Ins. Co., 526 F.2d 1383, 1387 (6th Cir.1975). Moreover, although SAI benefitted from the sale to Cloverdale of nearly one million dollars worth of aerial lift equipment, Cloverdale received the equipment for which it bargained. SAI was not unjustly enriched. Although Cloverdale alleged that due to the contract termination it "was left with a one million dollar inventory of SAI equipment and parts which it could no longer service or sell competitively," it offered no evidence that would support such a statement by showing, for example, that it could not re-sell the equipment.
35
With respect to its estoppel theory, Cloverdale alleges that, in reliance on what it believed to be a long term distribution agreement, it expanded and now has lost substantial funds as a result of the expansion of its Michigan facility. Concededly, losses suffered in reliance on representations may invoke estoppel principles even where the other party may not be enriched. But because promissory estoppel requires reasonable reliance, Cloverdale has no basis for invoking it here. In light of the unambiguously expressed terms to which Cloverdale assented indicating that either party could terminate the contract at will, we cannot conclude that reliance on vague assertions to the contrary was reasonable. See, e.g., 3 P.M., Inc. v. Basic Four Corp., 591 F.Supp. 1350 (E.D.Mich.1984). Furthermore, Cloverdale presented the court with no evidence that any long term contract representations upon which Cloverdale might have relied were made after the parties contracted. Affidavits indicate that any oral representations pre-dated the contract. The parol evidence rule would have barred introduction of prior oral representations contradicting the express language of the written integrated contract.
36
Finally, Cloverdale argues that Michigan has adopted the "Missouri rule," and that this court is bound to do likewise. See, e.g., Lichnovsky v. Ziebart International Corp., 93 Mich.App. 60, 285 N.W.2d 795 (1979), rev'd, 414 Mich. 228, 324 N.W.2d 732 (1982).
37
Without deciding whether such a rule exists in Michigan, we need only note that in its discussion of the rule, the Michigan Supreme Court indicated that it is "a limitation fashioned by some courts to prevent a manufacturer or licensor from exercising an unrestricted power to terminate an agreement which does not specify time or duration or the manner of termination...." Lichnovsky v. Ziebart International Corp., 414 Mich. 228, 245, 324 N.W.2d 732 (1982). The SAI/Cloverdale contract, however, contains express provisions detailing both the manner of termination and notice requirements to which both parties freely assented. Lichnovsky 's dicta indicates that the Missouri rule would not apply in Michigan to contracts in which the parties have expressly agreed to the terms and procedures applicable to termination.
V.
38
Finally, Cloverdale sought recovery based upon two theories of fraud: active misrepresentation and silent fraud. Cloverdale's complaint alleged that through both the representation of an intent to enter into a long-term distribution relationship and through concealment of its discussions with Caledonia, SAI fraudulently induced Cloverdale to agree to a contract terminable at will.
39
Candler v. Heigho, 208 Mich. 115, 121, 175 N.W. 141 (1919), sets forth the elements constituting active misrepresentation in Michigan. According to Candler,
40
The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.
41
See also United States Fidelity & Guaranty v. Black, 412 Mich. 99, 114, 313 N.W.2d 77 (1981). But "an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises are contractual and do not constitute fraud." Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813 (1976). Although Michigan has a "bad faith" exception to the rule that statements relating to future actions are not actionable as fraud, see Hi-Way Motor, 398 Mich. at 337-38, 247 N.W.2d 813; Crowley v. Langdon, 127 Mich. 51, 58-59, 86 N.W. 391 (1901), we have found no evidence of bad faith in SAI's actions. Cloverdale presented to the court memoranda evidence that SAI had discussed with Caledonia the possibility of its becoming an aerial lift distributor, but there is no evidence in those memos that SAI took active steps to cause Caledonia to break relations with its former distributor and no evidence that SAI knew at the time of contracting with Cloverdale that it would exercise its right to terminate the contract later that year in order to deal with Caledonia. Cloverdale failed to make any showing of bad faith and therefore cannot recover under a theory of misrepresentation for SAI statements relating only to future actions.
42
In support of its silent fraud claim, Cloverdale cites United States Fidelity & Guaranty v. Black, 412 Mich. 99, 313 N.W.2d 77 (1981), for the proposition that it has a valid claim for silent fraud under Michigan law. United States Fidelity states, in relevant part:
43
It is generally recognized that "[f]raud may be consummated by suppression of facts and of the truth, as well as by open false assertions," Fred Macey Co. v. Macey, 143 Mich. 138, 153, 106 N.W. 722 (1906), since "a suppression of the truth may amount to a suggestion of falsehood." Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383, 388, 9 S.Ct. 101 , 32 L.Ed. 439 (1888). In order for the suppression of information to constitute silent fraud there must be a legal or equitable duty of disclosure.
44
412 Mich. at 125, 313 N.W.2d 77. In discussing the duty of disclosure, however, United States Fidelity also stated that "a party to a business transaction is under an obligation to exercise reasonable care to disclose to the other party, before the transaction is consummated, any subsequently acquired information which he recognizes as rendering untrue, or misleading, previous representations which, when made, were true or believed to be true." 412 Mich. at 127, 313 N.W.2d 77. We conclude, however, that this case is not one of subsequently acquired information rendering a prior statement misleading. Moreover, Cloverdale has not cited to the district court, or to us, any cases indicating, even by analogy, that a manufacturer has a duty to disclose its long range marketing plans to distributors.
45
The fact is, Cloverdale presented no credible evidence indicating that it was the victim of any "suggestion of falsehood." Rather, Cloverdale's dissatisfaction results, not from any tortious act performed by SAI, but from Cloverdale's agreeing to a contract terminable at will that it might not have agreed to if it had anticipated that SAI, and not Cloverdale, would be the first to exercise the termination right. Cloverdale frames the duty issue as a duty to disclose discussions of a master distributorship. But in light of the contract to which it assented, Cloverdale really asks this court to impose upon SAI, retroactively, a duty to inform Cloverdale at the time of contracting that SAI might choose to exercise the at-will termination provision of paragraph 11(a) if a better arrangement arises. Cloverdale had constructive notice of that option when it agreed to paragraph 11. Nothing more is required and this court is not empowered "to make a different contract for the parties or to look at extrinsic testimony to determine their intent when the words used by them are clear and unambiguous and have a definite meaning." Michigan Chandelier Co. v. Morse, 297 Mich. 41, 49, 297 N.W. 64 (1941).
46
AFFIRMED.
*
The Honorable John W. Potter, United States District Judge for the Northern District of Ohio, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3064071/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10373 JANUARY 28, 2009
___________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00761-CV-ORL-28DAB
DAVID ACOSTA,
Plaintiff-Appellant,
versus
MARIE D. CAMPBELL, GREGG
DREILINGER, LAW OFFICES OF
DAVID J. STERN, P.A.,
CITIMORTGAGE, INC., CITIBANK,
FSB, IMELDA W. LAY, MORTGAGE
CAPITAL ASSOCIATES, INC., JAY
M. STEREN, and RESIDENTIAL
FUNDING CORP.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(January 28, 2009)
Before WILSON and PRYOR, Circuit Judges, and MIDDLEBROOKS,* District Judge.
_________
* Honorable Donald M. Middlebrooks, United States District Judge for the Southern
District of Florida, sitting by designation.
PER CURIAM
David Acosta, Appellant, appeals pro se the district court’s grant of summary
judgment against Appellant and in favor of Defendants-Appellees, attorneys Marie
D. Campbell and Gregg Dreilinger; the Law Offices of David J. Stern, P.A. (the “Law
Office”); Citimortgage, Inc. (“Citimortgage”); Citibank, FSB (“Citibank”); Mortgage
Capital Associates, Inc. (“MCA”); Residential Funding Corp.; Jay M. Stern, president
of MCA; Imelda W. Lay, an employee of MCA; and John Does 1-20, in Appellant’s
pro se action under the Racketeer Influence and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1961 et seq.; the Florida Civil Remedies for Criminal Practices Act
(“Florida RICO”), Fla. Stat. § 772.101 et seq.; the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.; Florida’s Fair Consumer Collection Practices
Act (“FCCPA”), Fla. Stat. § 501.201 et seq.; and the Florida Unfair and Deceptive
Acts and Practices Act (“FDUPTA”), Fla. Stat. § 501.201 et seq.
Background
In January of 2000, Petitioner, David Acosta, while living in Pennsylvania,
began the process of entering into two purchase-money loan transactions to finance
the purchase of residential property located in Longwood, Florida. [Red Br. 3].
MCA, a correspondent lender for CitiMortgage and Citibank originated both of the
loans: the first for $460,000, and the second for $57,000. Id. MCA and Acosta closed
2
the first Mortgage on March 24, 2000, and MCA assigned the first mortgage loan to
CitiMortgage. [Red Br. 3]. The assignment of the first mortgage was recorded on
April 5, 2000. Id.
Thereafter, MCA sent a letter to Acosta requesting that he execute a “Florida
specific note” for the first mortgage, advising him in a subsequent letter on April 18,
2000, that “[Citimortgage] will return to us the note previously signed. . .”. Id.
Appellant executed a new promissory note for $460,000 on April 20, 2000 in favor
of MCA. [Bl. Br. 7]. At some point after the closing but prior to February 2003,
CitiMortgage endorsed the promissory note securing the first mortgage to Citibank,
however; CitiMortgage did not deliver the assignment of the Mortgage to Citibank
until September 7, 2004. [Bl. Br. 7, Red Br. 5]. In February of 2003, Acosta stopped
paying his mortgage because his “closer examination of the [loan] transaction
revealed fraud,” and has not made a payment thereafter on the first mortgage. [Bl. Br.
8, Red. Br.4].
On July 11, 2003. CitiMortgage sent a letter to Acosta advising that the first
mortgage was in default, and that the loan was referred to the Law Office for the
commencement of foreclosure proceedings. [Red. Br. 5, Bl. Br. 8]. On July 11, 2003,
Law Office “delivered for filing” a foreclosure Complaint on behalf of Citimortgage
against Acosta in state court. [Red Br. 5]. On July 12, 2003, Acosta sent a certified
3
letter, with a certificate of service dated July 14, 2003, to the Law Office providing
his “Notice of Dispute and Debt Validation Request” pursuant to 15 U.S.C. § 1692g.
[Red. Br. 5, Bl. Br. 9]. On July 16, 2003, the Clerk’s office docked the foreclosure
Complaint, with leave to amend. [Red. Br. 5]. At that time, CitiMortgage had not yet
assigned the mortgage to Citibank, therefore, the foreclosure action was instituted in
the name of the mortgagee, CitiMortgage. [Red. Br. 40]. The foreclosure action was
later dismissed, without prejudice, because Citibank was deemed a non-joined
indispensable party. [Red. Br. 41]. Citibank then appeared as plaintiff in the re-filed
foreclosure action as the hold and owner of both the note and the mortgage. Id.
On or about May 21, 2004, Acosta instituted this federal court action against
Law Office. An exhaustive recitation of the extensive procedural history of the
federal action is not necessary. Instead, we will set forth the disposition of Acosta’s
claims in the Third Amended Complaint against the parties who ultimately became
the Defendants-Appellees.
The Third Amended Complaint set forth five counts: Count I alleged
violations of RICO, 18 U.S.C. §§ 1961, 1962 et seq.; Count II alleged violations of
Florida RICO; Count III alleged violations of the FDCPA, 15 U.S.C. § 1692, et seq.;
Count IV alleged a violation of the FCCPA, Fla. Stat. § 559.55, et seq.; and Count V
alleged a violation of FDUPTA, Fla. Stat. § 501.201 et seq. On August 22, 2005, the
4
Law Office and Citimortgage filed motions to dismiss the Third Amended Complaint,
and on October 3, 2005, Citibank filed its motion to dismiss the same. On September
19, 2005, Magistrate Judge Baker heard oral argument on Citimortgage and the Law
Office’s motions to dismiss. On October 26, 2005, Residential Funding Corporation
filed its motion to dismiss the Third Amended Complaint. MCA never filed a motion
to dismiss.
On November 4, 2005, Magistrate Judge Banker issued a Report and
Recommendation (“R&R”), addressing the motions filed by Citimortgage, Inc., the
Law Office, and Citibank, FSB. The R&R did not address the motions filed by
Defendant, Residential Funding Corporation, but recommended dismissal against
both Residential Funding Corporation and MCA. The Report and Recommendation
recommended the dismissal of Counts I (RICO), II (Florida RICO), and V
(FDUTPA), with prejudice, and recommended that most claims in Counts III and IV
(FDCPA and FCCPA claims) be dismissed.
Overruling Acosta’s objections to the R&R, on January 19, 2006, Judge
Antoon adopted the Magistrates Report and Recommendation in full, dismissing all
but two of petitioner’s claims, as stated above. The two issues that remained were:
(1) whether defendants violated the FDCPA when Defendants continued with
mortgage foreclosure proceedings (filing the service of the complaint) even though
5
they had allegedly had already received correspondence from Petitioner disputing the
debt; and (2) whether defendants violated the FDCPA for failing to communicate to
credit reporting agencies that the debt owed by Plaintiff was disputed. Defendants
moved for summary judgment on Petitioner’s remaining claims on June 16, 2006. The
Magistrate judge’s Report and Recommendation recommended granting summary
judgment in favor of Defendants and against Acosta on both claims. Judge Antoon
adopted the Report and Recommendation on December 22, 2006. Judgment was
entered in favor of MCA, Jay M. Steren, Imelda W. Lay and Residnetial Funding
Corporation on December 22, 2006, and in favor of the Law Office, Citimortgage,
and Citibank on December 26, 2006. Acosta appeals from this judgment.
Standard of Review
This Court reviews de novo both a district court’s grant of a motion to dismiss
under 12(b)(6) for failure to state a claim, and a district court’s grant of summary
judgment. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8: “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). We liberally
construe pro se pleadings. Butler v. Prison Health Services, Inc., Slip Copy, 2008 WL
4291321, * 1, citing Brown v. Johnson, 387 F.3d 1244, 1350 (11th Cir. 2004).
6
However, a complaint “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1965 (2007) (citation omitted). Factual allegations in a
complaint need not be detailed but “must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Id. at 1964-65 (citations omitted). For the purpose
of the motion to dismiss, the complaint is construed in the light most favorable to the
plaintiff, and all facts alleged by the plaintiff are accepted as true. Hishon v King &
Spaulding, 467 U.S. 69, 73 (1984). Regardless of the alleged facts, however, a court
may dismiss a complaint on a dispositive issue of law. Marshall County Bd. of Educ.
v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
Summary judgment is appropriate only when there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears
the burden of meeting this exacting standard. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). In applying this standard, the evidence, and all reasonable
factual inferences drawn therefrom, must be viewed in the light most favorable to the
non-moving party. See Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir.
1998); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
7
The non-moving party, however, bears the burden of coming forward with
evidence of each essential element of their claims, such that a reasonable jury could
find in their favor. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th
Cir. 1990). The non-moving party “[m]ay not rest upon the mere allegations and
denials of [its] pleadings, but [its] response . . . must set forth specific facts showing
that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). “The mere existence of
a scintilla of evidence in support of the [non-movant's] position will be insufficient;
there must be evidence on which the jury could reasonably find for the
[non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Further,
conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will
not create an issue of fact for trial sufficient to defeat a well supported summary
judgment motion. See Earley, 907 F.2d at 1081. The failure of proof concerning an
essential element of the non-moving party's case necessarily renders all other facts
immaterial and requires the court to grant the motion for summary judgment. See
Celotex, 477 U.S. at 322.
Discussion
After careful review of the record, we find no reason to disturb the well-
reasoned opinions of the district court granting summary judgment in favor of
defendants and against Acosta on the remainder of Petitioner’s FCCPA and FDCPA
8
claims. We also affirm the district court’s dismissal with prejudice of Petitioner’s
FDCPA claims, federal RICO claims, Florida RICO claims, Florida Consumer
Collection Practices Act (“FCCPA”) claims, and Florida Deceptive and Unfair Trade
Practices Act (“FDCPA”) claims.
However, one claim raised by Appellant requires more discussion. Appellant
claimed that the defendants, Citimortgage, Citibank, and the Law Office, violated 15
U.S.C. § 1692c(b) by “communicating with a third-party information about the debt
without prior consent of the consumer.” [Third Amended Complaint, ¶133(c)].
Specifically, Acosta argues that on October 2, 2003, Dawn Desmond and Claudia
Bunge, Desmond’s supervisor, both employees of the Law Office, sent a letter with
information about Acosta’s alleged debt to Marshall C. Watson, P.A., attorneys for
another of Acosta’s creditors. [R 103 ¶ 121-23.] The communication was a
confidential payoff letter provided at the request of the Watson, P.A. law firm,
attorney for the MCA, the second mortgage holder of the Florida residence, that was
a defendant in the foreclosure action and a co-defendant in the present action. [Red
Br. 36-37].
Under the FDCPA:
Except as provided in section 804 [15 USCS § 1692b], without the prior
consent of the consumer given directly to the debt collector, or the express
permission of a court of competent jurisdiction, or as reasonably necessary to
9
effectuate a postjudgment judicial remedy, a debt collector may not
communicate, in connection with the collection of any debt, with any person
other than the consumer, his attorney, a consumer reporting agency if
otherwise permitted by law, the creditor, the attorney of the creditor, or the
attorney of the debt collector.
15 U.S.C. § 1692c(b).
The district court adopted the magistrate judge’s Report and Recommendation
that found that “because it was a confidential payoff letter provided at the request of
Watson, P.A., who is the attorney for another creditor, the second mortgage holder,
involved in the foreclosure,” and “[a]ttorneys for creditors are excluded from
application of the FDCPA,” Acosta failed to state a claim. The Report and
Recommendation further stated that “as a practical matter, in a state foreclosure
action, the first and second mortgage holders and other creditors must be able to
communicate regarding the balance or settlement of the outstanding mortgages.” [R
132 p. 24]. We agree that the letter sent to the attorney for the second mortgagee is
not an action proscribed by the FDCPA.
Congress enacted the Fair Debt Collection Practices Act “to eliminate abusive
debt collection practices by debt collectors, to insure that those debt collectors who
refrain from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers against
debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA prohibits unfair or
10
unconscionable collection methods, conduct which harasses, oppresses or abuses any
debtor, and the making of any false, misleading, or deceptive statements in
connection with a debt, and it requires that collectors make certain disclosures. 15
U.S.C. §§ 1692d, 1692e, 1692f. The FDCPA applies to “debt collectors,” as defined
as “any person who uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection of any debts*, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Title 15 U.S.C. 1692e
generally prohibits the use of any false, deceptive, or misleading representations or
means to collect a debt. 15 U.S.C. § 1692e.
Petitioner argues that: “[a] plain reading of [the state] indicates that the only
third parties with whom a debt collector may communicate with are its own attorney
or the attorney consumer,” and that “[t]he statute does not create a blanket exception
for all attorneys of all creditors to communicate about a consumer’s disputed debt.”
[Bl. Br. 33]. Therefore, Petitioner contends that the letter sent to the attorneys for the
second mortgage holder, at the second mortgage holder’s request, constitutes an
*
The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising
out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”
15 U.S.C. 1692a(5).The FDCPA defines “creditor” as “any person who offers or extends credit creating a debt or to
whom a debt is owed.” 15 U.S.C. 1692a(3).
11
violation of 15 U.S.C. § 1692c(b).
Defendants respond with three primary arguments. First, the foreclosure action
was not a “debt collection” under the statute, and therefore the events surrounding the
mortgage foreclosure are not subject to the FDCPA. [Red Br. 37]. Second, that
MCA’s attorneys are not “third parties” under 15 U.S.C. § 1692c(b) because they a
defendant with an interest in the mortgage foreclosure proceeding. [Red Br. 37-38].
Third, defendants argue that the communication was “reasonably necessary to
effectuate a postjudgment remedy” because “when the priority of the involved
mortgages remains to be determined by the same lawsuit, the mortgage information
is necessary to a proper evaluation of potential post judgment remedies.”** [Red Br.
38].
We need not address the Defendant’s arguments because we can resolve the
appeal on another ground. Our analysis in Vega v. McKay, 351 F.3d 1334 (11th Cir.
2003) (per curiam)*** is instructive. In Vega, we affirmed the district court’s ruling
that the complaint package, consisting of a civil complaint, a summons to appear for
**
This argument is unavailing: the communication occurred before there was a judgment in the foreclosure
action, therefore; the communication could not reasonably be said to “effectuate a postjudgment remedy.”
***
Petitioner argues Vega should be overturned because it undermines the consumer rights under FDCPA
when creditors attach FDCPA notices to the complaint or summons, but Vega is binding authority that can be
overruled only by the Court sitting en banc. McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004) (citation
omitted) (stating that the “Eleventh Circuit follows the absolute rule of the Fifth Circuit that a prior decision of the
circuit panel or en bank cannot be overruled by a panel but only by the court sitting en banc”).
12
a pretrial conference, and a FDCPA notice, was not an “initial communication” within
the meaning of the FDCPA. Id. at 1335-36. Like the plaintiff-appellant in Vega,
Acosta was served with a foreclosure complaint in which a FDCPA notice was
attached. Based on our holding in Vega, that a foreclosure package including a
FDCPA notice is not an “initial communication,” under 15 U.S.C. § 1692g, it follows
that a communication made by the a party in a foreclosure action or its counsel
regarding the foreclosure action is not a “communication” under 15 U.S.C. §
1692c(b).
The FDCPa was passed in 1977 in order protect consumers from unfair debt
collection practices. “A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection with
the collection of a debt.” 15 U.S.C. § 1692d. Additionally, the House Report on the
FDCPA states: “a debt collector may not contact third persons such as a consumer’s
friends, neighbors, relatives, or employer. Such contacts are not legitimate collection
practices and result in serious invasions of privacy, as well as the loss of jobs.” S.Rep.
No. 95-382, reprinted at 1977 U.S.Code Cong. & Admin.News 1695, 1699.
In this case, the communication between the attorneys for the two creditors
does not implicate Acosta’s privacy interests because the second mortgage holder
would necessarily know about Acosta’s default through the foreclosure proceedings.
13
In addition, the communication was not for the purpose of harassing or embarrassing
Acosta, nor did it jeopardize his employment. Based on our reasoning in Vega, we
hold that a communication issued from foreclosing party, or its counsel, regarding the
foreclosure, does not violate 15 U.S.C. § 1692c(b), as such a communication is not
subject to the FDCPA.****
For the foregoing reasons, we AFFIRM the district court.
****
This holding does not limit the proscriptions of 15 U.S.C. § 1692c(b) to allow debt collectors, who are
not mortgagees in foreclosure actions, to communicate with any other creditors the debtor may have. Such a premise
would contravene many of protections offered by the FDCPA.
14 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1604340/ | 8 So.3d 358 (2009)
HOOKS
v.
HOLLENBECK.
No. SC08-2210.
Supreme Court of Florida.
April 3, 2009.
Decision without published opinion. Rev.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604362/ | 8 So.3d 1189 (2009)
Frank ORDZIEJESKI, Appellant,
v.
David FREUDENBERG, Village Pointe Realty, LLC, d/b/a Weichert, RealtorsVillage Point, a Florida limited liability corporation, Gemma Sicolo and Patricia Freudenberg, Appellees.
Nos. 4D07-4972, 4D07-4973.
District Court of Appeal of Florida, Fourth District.
April 15, 2009.
*1190 June Galkoski Hoffman and Susan H. Aprill of Fowler White Burnett, P.A., Miami, for appellant.
Arthur C. Koski of Law Offices of Arthur C. Koski, P.A., Boca Raton, for appellees David Freudenberg, Village Pointe Realty, LLC, d/b/a Weichert, Realtors Village Point, a Florida limited liability corporation, and Gemma Sicolo.
PER CURIAM.
This court consolidated two appeals, including a cross-appeal from two final judgments entered in a real estate contract dispute. David Freudenberg entered into a contract to purchase Frank Ordziejeski's property. Believing that the contract had been fraudulently induced, Ordziejeski refused to proceed with the closing. Freudenberg filed a complaint for specific performance and breach of contract. Ordziejeski answered raising fraudulent inducement and unclean hands as affirmative defenses. Ordziejeski also filed a third-party complaint against his realtors for common law indemnity, breach of fiduciary obligation, and fraud.
Freudenberg moved for partial summary judgment on the breach of contract claim and the trial court granted the motion. Based upon that order, the third-party defendants moved for summary judgment, which the trial court also granted. Ordziejeski appeals the summary judgment entered in favor of the third-party defendants in case number 4D07-4972.
*1191 The contract case went to trial and the issues raised by the affirmative defenses were submitted to the jury. The jury found in favor of Ordziejeski, and the trial court entered a final judgment in his favor. Freudenberg appeals the final judgment in favor of Ordziejeski in case number 4D07-4973.
We affirm the final judgment in favor of Ordziejeski on Freudenberg's claims. Although the trial court entered a partial summary judgment on the breach of contract claim, it is apparent that the court did not consider that the partial summary judgment disposed of the affirmative defenses as the court submitted them to the jury, and the jury found in favor of Ordziejeski. No reversible error has occurred.
However, we also note that the entry of the partial summary judgment on breach of contract liability would have been error if it had included a rejection of the affirmative defenses because material issues of fact abounded. The trial court erred in entering the partial summary judgment.
Normally, we may not have commented on the error in entering partial summary judgment where we are affirming the ultimate final judgment. However, the partial summary judgment also prompted the trial court to enter a judgment in favor of the third-party defendants. That too was error, as material issues of fact were present. We reverse the judgment in case number 4D07-4972. Although the final judgment in favor of Ordziejeski may mean that the third-party claims will not go forward on remand, our resolution of this issue will impact any future awards of attorney's fees.
Affirmed in part; reversed in part, and remanded for further proceedings.
WARNER, HAZOURI, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604474/ | 25 Wis.2d 265 (1964)
PIRE and others, Appellants,
v.
STATE AERONAUTICS COMMISSION, Respondent:
WKBH TELEVISION, INC., Intervening Respondent.
Supreme Court of Wisconsin.
September 29, 1964.
October 27, 1964.
*268 For the appellants there was a brief by Ramsdell, King, Carroll & Barland of Eau Claire, attorneys, and J. Curtis McKay of Milwaukee of counsel, and oral argument by Mr. McKay and Mr. Thomas H. Barland.
For the respondent the cause was argued by George B. Schwahn, assistant attorney general, with whom on the brief was George Thompson, attorney general.
For the intervening respondent there was a brief by Johns, Pappas & Flaherty of La Crosse, and oral argument by Robert D. Johns.
HEFFERNAN, J.
The appellants are individual aviators, and they contend that:
1. The commission exceeded its delegated authority granted it by the legislature when it allowed consideration other than aeronautical safety to control the granting of a construction permit.
2. The action of the commission in rejecting the report of the hearing officer and the recommendations of its own staff violated the spirit of the Administrative Procedure Act.
3. Evidence was improperly excluded by the hearing officer to the prejudice of the appellants.
The essence of the appellants' first contention is that the decision of the commission was based upon economic factors, rather than upon the question of safety to air navigation. *269 Though economic information was submitted to the commission, at the very outset the hearing officer made it clear that the decision would be based upon the question of air hazards and not upon problems of economics as they might affect the television industry. The counsel for the commission objected to the introduction of economic evidence because it had no bearing on safety "or the primary cause of this hearing." The examiner stated that information as to economics was allowed to come in only for the purpose of showing the interest of the parties.
Since the decision of the commission is not based upon the economic evidence in the record, it is not necessary to reach that question in this appeal. The decision of the commission is supported by other evidence that the appellants concede is proper under the authority delegated to the commission. That evidence is the evidence concerning the hazard to air navigation. The fact is that the references to economic factors were merely incidental to the basic finding and decision of the commission that the proposed tower did not constitute an unacceptable hazard to the safe operation of aircraft.
Emphasis is placed upon the conduct and votes of the members of the commission at the meeting of the commission on December 16, 1962, when the report of Mr. Leonard, the hearing officer, was submitted to the entire commission.
Mr. Leonard's position, in accordance with his report, was that the tower was a hazard to air navigation.
Mr. Love stated he did not believe the tower to be an unacceptable hazard and that if the tower were denied, the commission would be limiting the right of the applicant to serve the public.
Mr. Cole stated he did not believe the tower was a hazard.
Mr. West, although he indicated that the commission had an obligation to television users, indicated that he disbelieved the pilots, who, in his words, "were against all towers." His *270 decision was based, therefore, upon a refusal to give credence to testimony that the proposed tower was a hazard.
Vice-chairman Olson objected to the consideration of the question at all, because he felt that he had not had sufficient time to study the record.
The circuit court, in analyzing the vote at this particular meeting, stated:
"... we conclude that the majority of the commission by its decision, and supporting minutes of the December 16th meeting, have found that the proposed tower will not invade a recognized VFR flyway and will not create an unacceptable hazard to aviation traffic in the vicinity."
Subsequently, on a motion for rehearing, Mr. Olson, together with the other members of the commission, voted to deny a rehearing. There is no intimation in the record or the brief of counsel that Mr. Olson gave any weight to the economic factors.
Two of the members of the commission expressed some concern for the problems of the television industry, but even those two indicated, supra, that they believed the tower was not a hazard or disbelieved those who testified it was. The majority of the commission based its decision on the evidence that the proposed tower was not a hazard to air navigation.
The question, therefore, is whether the commission's decision is supported by substantial evidence. The question before the commission was the determination of whether the tower at that location was a hazard unacceptable to the aviation traffic. Upon reviewing the entire record, it appears that this conclusion is supported by such evidence. Substantial evidence in a case of this kind is evidence upon which reasonable minds could arrive at the same conclusion reached by the commission. Ashwaubenon v. State Highway Comm. (1962), 17 Wis. (2d) 120, 131, 115 N. W. (2d) 498.
*271 The F.A.A., prior to the hearing in question, made a determination that the tower in question was not a hazard to air navigation. This report was submitted in evidence in the course of the hearing. Expert testimony, particularly that of Mr. Lowell Wright, a former employee of the Civil Aeronautics Administration, indicated that the tower would not constitute an unacceptable hazard to the safe operation of aircraft in the vicinity of La Crosse. Mr. Lappas, an aeronautical consultant, testified that the tower would not constitute an unacceptable hazard to IFR flying with necessary adjustments as prescribed by the F.A.A., nor would it constitute an unacceptable hazard to VFR flying. The proposal for the tower was also submitted to the La Crosse aviation board. It did not object to the erection of the tower at the proposed site, even though earlier proposed locations had been rejected.
There was expert testimony submitted by Mr. Wright to show that the height of a tower was not necessarily a significant factor in the incidence of aircraft collisions and evidence that during the past four years midair collisions between aircraft have occurred from between 17 to 20 times per year, while in the past twelve years there have only been 18 collisions with tall towers.
These are all factors upon which the commission may well have concluded that the tower did not constitute an unacceptable hazard to the safe operation of aircraft.
It is true that 21 aviators from other parts of the state objected to the erection of the tower, but it is equally significant that no local objections were made. The weight, however, of their testimony was for the commission, and it is not within the province of the court to review that determination.
There was also evidence to show that the proposed tower was just outside of the La Crosse airport control area. Under the rules promulgated by the F.A.A., anyone flying in the *272 area must fly at an elevation of 700 feet or more and must have visibility of at least three miles. Anyone flying in the area or in its immediate vicinity and having the visibility required would not be placed in greater hazard because of the height of the tower. Although the rules of the La Crosse control area do not completely eliminate all hazards, they are significant in reducing the hazards created by the tower, and this fact was properly considered by the commission.
It appears, therefore, that there was substantial evidence to show that this tower was not an unacceptable hazard to air navigation and that such evidence was more than a mere scintilla and was such that a reasonable mind could accept in arriving at the same conclusion as that reached by the commission.
The appellants have also contended that rejection of the recommendation of one of its members, the hearing officer, and one of its staff was improper. Sec. 114.135 (6), Stats., provides that:
"No person shall erect ... any ... tower or any other object the height of which exceeds the limitations set forth in sub. (7) without first filing an application and procuring a permit from the state aeronautics commission." (Emphasis supplied.)
To accept the contention of the appellants would be a grave departure from the authority delegated to the commission by the legislature. The hearing officer acts only for the commission, and in this case was but one member of it. It is crystal clear from the very words of the statute that the authority delegated is not to a hearing officer or the staff. The authority is vested in the commission acting as a body. Kavanaugh v. Wausau (1904), 120 Wis. 611, 98 N. W. 550.
The appellants also contend that they were prejudiced in that Chairman Leonard, acting as a hearing officer, stated *273 that economic factors would not be considered and that the hearing would be confined to the aeronautical aspects of the tower application. There is no evidence, however, that any economic evidence was offered by the appellants, nor that it was excluded by the hearing officer.
Furthermore, the review of the record and of the decision of the commission makes it apparent that the decision of the commission is supported by substantial evidence relevant to whether the tower was an unacceptable hazard to air navigation, and there is no contention that the appellants were denied any right to submit evidence on this subject. On the contrary, their right to submit evidence and testimony on this controlling aspect of the commission's decision was unlimited.
Upon a review of the record, we conclude that the commission did not exceed its statutory authority in granting the permit. It is also presumed that orders and acts of administrative agencies are prima facie valid and must be shown to be otherwise by clear and satisfactory evidence. Madison Bus Co. v. Public Service Comm. (1953), 264 Wis. 12, 14, 58 N. W. (2d) 463; Halsey, Stuart & Co. v. Public Service Comm. (1933), 212 Wis. 184, 195, 248 N. W. 458.
The appellants have not successfully assumed the burden of showing that there was any irregularity or invalidity in the decision-making process of the commission. The decision of the commission is supported by substantial evidence of the nature which even the appellants concede is proper for the determination here in question, namely, whether the tower is an unacceptable hazard to air navigation.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604240/ | 810 So. 2d 871 (2002)
STATE of Florida, Petitioner,
v.
Maynard WITHERSPOON, Respondent.
No. SC01-83.
Supreme Court of Florida.
January 31, 2002.
*872 Robert A. Butterworth, Attorney General, and David H. Foxman and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, FL, for Petitioner.
James B. Gibson, Public Defender, and M.A. Lucas, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
PER CURIAM.
We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:
[W]hether, if the reason which prompted the Tripp rule is not present, Tripp must apply.[1]
Witherspoon v. State, 776 So. 2d 984, 985 (Fla. 5th DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We restate the certified question as follows:
When a defendant is originally sentenced consecutively on a single scoresheet, does the holding in Tripp v. State, 622 So. 2d 941 (Fla.1993), require the granting of credit for time served in prison where the defendant's newly imposed sentence upon revocation of probation does not exceed the maximum permitted by the sentencing guidelines?
Witherspoon was charged with two counts: (I) armed burglary; and (II) attempted armed robbery. He pled guilty to both charges and was sentenced on May 2, 1991, to twenty years' imprisonment on count I and five years' probation on count II to run consecutively to count I. Witherspoon's permitted sentencing range was twelve to twenty-seven years as calculated on his amended scoresheet, and with the one-cell bump up, his sentencing maximum was forty years.[2]
On July 6, 1999, Witherspoon was released from prison and began serving his probationary sentence on count II (attempted armed robbery). On January 6, 2000, an affidavit of violation was filed against him, and his probation was revoked. Witherspoon was then sentenced to the statutory maximum for count II[3] fifteen years' incarcerationwithout any credit for jail time served on the original burglary charge.
*873 The Fifth District Court of Appeal reversed and remanded for the trial court to award credit for time previously served on count I and certified the aforementioned question regarding whether this Court's opinion in Tripp v. State, 622 So. 2d 941 (Fla.1993), applied to a case where the award of credit was unnecessary to ensure that the defendant's total prison time did not exceed the guidelines range. Witherspoon v. State, 776 So. 2d 984, 985 (Fla. 5th DCA 2001). We have answered the certified question in the affirmative in Hodgdon v. State, 789 So. 2d 958 (Fla.2001).
In Hodgdon, this Court specifically stated that an application of Tripp was not precluded where the newly imposed sentences were within the guidelines. Id. at 962. We reasoned that "both offenses were factors that were weighed in the original sentencing through the use of a single scoresheet and must continue to be treated in relation to each other, even after a portion of the sentence has been violated." Hodgdon v. State, 789 So.2d at 963 (quoting Tripp v. State, 622 So. 2d 941, 942 (Fla.1993)). Consistent with Hodgdon, we hold that Tripp should be applied notwithstanding the fact that the newly imposed sentence is within the guidelines.
We therefore approve the decision of the district court of appeal and answer the certified question in the affirmative.
It is so ordered.
SHAW, HARDING, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.
WELLS, C.J., dissents with an opinion, in which QUINCE, J., concurs.
WELLS, C.J., dissenting.
I dissent because I do not believe that the rule of Tripp should apply in this instance. I would quash the Fifth District's decision and apply the well-reasoned opinion of Judge Cope in Priester v. State, 711 So. 2d 177 (Fla. 3d DCA 1998), with which the Fifth District also agreed in this case.
QUINCE, J., concurs.
NOTES
[1] The referenced rule from Tripp v. State, 622 So. 2d 941, 942 (Fla.1993), provides:
[I]f a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense.
[2] "Witherspoon's original guideline maximum was reflected to be 22 years. At resentencing in this case, an error was found in the original scoresheet and was, without objection, corrected to reflect a maximum of 27 years so that, with the one cell bump-up, 40 years less Witherspoon's original sentence remained available to the trial court." Witherspoon v. State, 776 So. 2d 984, 985 (Fla. 5th DCA 2001); see Fla. R.Crim. P. 3.701(d)(14).
[3] Attempted armed robbery is a second-degree felony which carries a statutory maximum of fifteen years. See §§ 812.13, 921.0012(3), 777.04, 775.082(3)(c), Fla. Stat. (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605516/ | 416 So.2d 729 (1982)
Gregory Lee McGEHEE
v.
Louise Shaw HARRIS.
80-513.
Supreme Court of Alabama.
June 30, 1982.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Herbert W. Peterson of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
PER CURIAM.
Gregory Lee McGehee (plaintiff) brought action against Louise Shaw Harris (defendant) for injuries he sustained as the result *730 of a collision between his motorcycle and her automobile. The case was tried before a jury in the Circuit Court for Jefferson County. The trial court granted defendant's motion for a directed verdict against plaintiff's count alleging wantonness, but allowed the case to go to the jury on the count alleging negligence. The jury found both defendant and plaintiff negligent and the trial court instructed it to return a verdict for the defendant. The jury did so and judgment was entered accordingly. Plaintiff perfected this appeal after the denial of his motion for a new trial.
Two issues are presented for our review in this appeal. The first is: Did the trial court properly enter a directed verdict in favor of the defendant on plaintiff's count alleging wantonness? The second issue is: Did the trial court properly deny plaintiff's requested jury charges founded on the rules of the road contained in Code 1975, §§ 32-5-112(a) and 32-5-115? After our review of this appeal, we conclude that the trial court properly granted defendant's motion for a directed verdict on the count alleging wantonness, and properly denied plaintiff's requested jury charges.
The pertinent facts are as follows. On January 3, 1978, plaintiff was riding his motorcycle on Glynn Drive in Birmingham, Alabama. Plaintiff was traveling north toward defendant's home located on the east side of Glynn Drive. Defendant's home is located on the downward side of a hill as one travels north on Glynn Drive. Testimony related that one traveling northerly could not see traffic on the downward side of the hill until one reached its top. Both plaintiff and defendant testified that they first saw each other at the time plaintiff came over its top. The parties' testimony also was consistent and in agreement that defendant's vehicle already was in the road at the time the parties first saw each other. Plaintiff was familiar with the road prior to the date of the collision. The defendant had lived at her residence for twenty-four years. The exact distance between plaintiff and defendant when they first saw each other is uncertain. Defendant testified that plaintiff was seven or eight car lengths away. Plaintiff testified that it may have been 25-30 feet. Whatever the exact distance may have been, it is clear that it was relatively short. When the collision occurred, part of defendant's car was over the line dividing the two lanes of travel on Glynn Drive. Plaintiff struck defendant's car in the area of the passenger door on the right side of defendant's two-door, 1969 Ford Fairlane automobile. Although plaintiff's motorcycle had no speedometer, plaintiff testified he was traveling 18 to 20 miles per hour when he first saw defendant. Plaintiff testified that defendant was backing slowly when he first saw her. Defendant's testimony was similar. In her words she was backing at a normal speed.
Plaintiff theorizes that defendant acted in a wanton manner in causing the collision. Plaintiff argues that because defendant recognized his peril, she was obligated to do more than merely continue backing her automobile in a normal manner. He contends that defendant was obliged to take action to avert the recognized danger that she had created. Plaintiff takes the position that had defendant backed her vehicle more quickly, she could have cleared plaintiff's lane of travel for him.
At the outset it is appropriate that we note some basic principles regarding wantonness and the propriety of a directed verdict. A party's request for a directed verdict is governed by the following standard of review.
Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the directed verdict, the directed verdict is properly refused.
Alabama Power Company v. Robinson, 404 So.2d 22 at 24 (Ala.1981); Alford v. City of Gadsden, 349 So.2d 1132 at 1135 (Ala.1979); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).
A directed verdict properly is granted only where:
*731 [T]he facts are such that all reasonable men must draw the same conclusion from them.... Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
. . . .
In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint....
Alabama Power Company v. Robinson, at 25; Turner v. People's Bank of Pell City, 378 So.2d 706 at 709 (Ala.1979); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).
This court has made the following observation regarding wantonness.
Each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result. Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So.2d 299; Alabama Power Co. v. Dunlap, 240 Ala. 568, 200 So. 617; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Shepard v. Louisville & N. R. Co., 200 Ala. 524, 76 So. 850.
Simon v. Goodman, 244 Ala. 422 at 424, 13 So.2d 679 at 680 (1943) (emphasis added).
Applying the above-quoted principles, we conclude that the trial court correctly entered a verdict against plaintiff on his wantonness count. Although plaintiff insists that defendant was aware of the danger presented by the circumstances, the testimony of both parties was to the contrary. Neither party was conscious that "an injury would likely or probably result ...." Plaintiff called the defendant as an adverse witness and elicited the following testimony.
Q. Insofar as you were concerned, when you first saw him come over that hill were you perceiving any sort of danger or fear that there might be a collision?
A. Yes, sir.
Q. So when you first saw him come over the hill, you thought there was a chance that there could be a collision?
A. Yes, sir, if I didn't get the lane cleared.
Q. But you kept on backing up like you normally do; isn't that right?
A. Yes, sir.
Q. And then at some point as you were backing up normallyyou testified earlier that you saw Greg switch lanes about halfway between you and he; is that right?
A. Yes, sir.
Q. And then you stopped?
A. Yes, sir.
Q. And then a collision occurred?
A. Yes, sir.
. . . .
Q. When you saw Greg was crossing over from his lane over to the other lane, did it appear to you that he was doing that on purpose?
A. Yes, sir.
. . . .
Q. Did it look like he was in control of his motorcycle at that time?
A. Yes, sir.
Q. So, just so we get this down, then I'm through, Mrs. Harris, with my questions.
You were backing out and saw Greg, up here (indicating), and then you kept your eyes on him; is that right?
A. Yes, sir.
Q. And you knew there was a possibility of a collision?
*732 A. Yes, sir.
(Emphasis added.)
Plaintiff testified to a similar effect on cross-examination:
Q. All right. Did you on the afternoon of this accident have any judgment or opinion how much distance it would take you to stop going at whatever speed you were going when you first saw her car?
A. No, sir, I didn't. I didn't know I was going to hit the car.
(Emphasis added.)
The mere "possibility," or "chance," that there "might be" a collision does not rise to an awareness that injury "would likely or probably result" as stated in Simon v. Goodman. Thus, wantonness cannot be ascribed to defendant at the time the parties first observed each other.
The subsequent actions of the parties, from the time they first observed each other until the collision, also convinces us that plaintiff's count alleging wantonness is unfounded. As plaintiff proceeded down the hill and approached defendant's automobile, he took action to avoid defendant. He testified to the following on direct examination:
Q. What did you do in between those thirty feet between when you first saw the car and you hit it?
A. I saw her backing out, and I slowed down. And then I got closer and II just put on the brakes and started sliding.
Q. Now, did you ever start to go to the left?
A. Yes, I did.
Q. And about when? Was that towards the end of that thirty or twenty-five feet or further back?
A. It was at the end of it.
Q. And what were you doing? Why were you going to the left?
A. Well, she was blocking mostly the right lane and a little bit of the left, and I was going to try to go around her.
Q. Did you ever get around her?
A. No, sir.
Defendant's testimony substantially agreed with plaintiff's.
Q. Whereabouts in that lane was he when you first saw him? Was he in his lane?
A. Yes, sir, coming over the top of the hill.
Q. And you were trying to clear his lane so he could drive on through?
A. Yes, sir.
Q. Continue, if you would. I'm sorry I interrupted you.
A. And about halfway down the hill he switched over into the left lane.
Q. Well, when you say, "halfway down", do you mean about halfway from between when you first saw him and when you hit?
A. Yes, sir.
. . . .
Q. Did he straighten up down here (indicating), or did he just keep on coming and go to the outside?
A. He kept coming until he got to my car, and then he laid his bike over and slid up under it.
Q. But it was about halfway from you; is that right?
A. Yes, sir, when he started switching over.
. . . .
Q. And when you saw him switch lanes, what did you do?
A. I tried to get the car cleared, but I seen he was going to hit me so I just stopped.
Q. Tried to get the car clear of what?
A. The right lane.
Q. The lane that he had been in when you first saw him?
A. Yes, sir.
Q. But when you saw him switch lanes you just stopped?
A. Yes, sir.
Q. And what was the reason you stopped?
A. I seen he was going to hit me so I just stopped.
The above facts, under any reasonable view, cannot support a claim of wantonness. We cannot agree that defendant's *733 actions, even when viewed most favorably to plaintiff, constitute "reckless indifference to the consequences," or that they show defendant "consciously and intentionally did some wrongful act or omitted some duty which produced injury to appellant...." Taylor v. Thompson, 271 Ala. 18 at 21, 122 So.2d 277 at 279 (1960). Previously, this court has held that a plaintiff's attempt to establish a case for wantonness amounted to no more than mere negligence, and that a directed verdict against a count for wantonness was given properly. Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970); Taylor v. Thompson, supra. At most, that is the case here.
Next, we address plaintiff's claim that the trial court erred in denying his requested jury charges modeled on Code 1975, §§ 32-5-112(a) and 32-5-115.[1] Plaintiff requested the following charge based on § 32-5-112(a):
The driver of a vehicle entering a public highway from a private road shall yield the right-of-way to all vehicles approaching on such public highway.
His charge modeled on § 32-5-115 read:
The driver of a vehicle within a business or residence district emerging from an alley, driveway or building shall stop such vehicle immediately prior to driving onto a sidewalk or into the sidewalk area extending across any alleyway or private driveway, and shall yield the right-of-way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicle [sic] approaching on said roadway.
Although the trial court denied plaintiff's above-requested charges, he gave the following charge, also requested by plaintiff:
The driver of a vehicle shall not back the same unless it shall reasonably appear that such a movement can be made with safety and without interfering with other traffic.
The given charge was taken from Code 1975, § 32-5-72(a).
Although there are at least several bases upon which the trial court could have denied plaintiff's first two requested charges, one is adequately dispositive of this issue. The refusal of a requested written charge is not error where the trial court's oral charge covered the principles contained in the requested written charge. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975); Long-Lewis Hardware Company v. Lightsey, 392 So.2d 545 (Ala.Civ.App.1981); M. C. West, Inc. v. Battaglia, 386 So.2d 443 (Ala. Civ.App.1980); Rule 51, Alabama Rules of Civil Procedure. Here, the given charge adequately covered the principles of law in the refused charges to the extent they were applicable to the facts of this case.
The defendant was not entering or emerging from her driveway. She was already in the road at the time the parties first saw each other. On direct examination plaintiff testified to the following:
Q. Now, where was Mrs. Harris' car when you first noticed it that day?
A. It was out of the driveway into the right lane.
Q. Now, we have used a photograph that's come into evidenceStep down here with the Jury, Greg, please.
. . . .
Q. Now, when you first saw her car, where were the front wheels?
A. They were right out of the gutter.
Q. Is there a gutter right in front of her driveway?
A. Yes.
Q. And that's where the front wheels were, just right outside the gutter; is that right?
A. Yes.
Plaintiff further explained the location of defendant's automobile on cross-examination:
Q. And when you saw her, her car was moving with the front wheels or the front of her car, I believe you said, just out of the gutter; is that right?
A. Well, they were out of the gutter.
*734 Q. Well, I said they werejust out of the gutter when you first saw her; is that right?
A. Right.
Q. And by out of the gutter you mean on the street side of the gutter?
A. Yes, sir.
Q. She was out in the street then with the front of the car
A. Yes, sir.
Q. the first time you ever saw her, right?
A. Right.
Defendant's testimony was consistent with plaintiff's:
Q. Did you ever see Mr. McGehee come over that hill?
A. Yes, sir.
Q. When did you see him come over the hill?
A. I had gotten out into the street and he come over the top of the hill.
Mitchell Burns resided on Glynn Drive, where the collision occurred. He observed the collision from a distance of approximately 100 yards. Burns was a friend of plaintiff, and a neighbor of defendant. He testified that as plaintiff came over the hill, the front wheels of defendant's automobile were in the gutter.
Under the facts adduced at trial, there was no basis for the giving of plaintiff's requested charges. The trial court ruled properly in denying them. Therefore, no error was committed.
The judgment of the trial court, for all of the foregoing reasons, is due to be affirmed.
AFFIRMED.
MADDOX, FAULKNER, EMBRY, BEATTY and ADAMS, JJ., concur.
JONES, J., concurs specially.
TORBERT, C. J., and ALMON and SHORES, JJ., dissent.
JONES, Justice (concurring specially).
I am not sure that the oral instructions are adequate to cover the charge requested. The two charges deal with different rules of the road. I nonetheless concur because I view the requested charge as inapplicable to the facts of this case.
TORBERT, Chief Justice (dissenting).
I respectfully dissent. I believe it was error for the trial court to refuse to give the appellant's requested jury charges based upon Code 1975, §§ 32-5-112(a) and 32-5-115. The Court holds that the trial court's oral charge adequately covers the principles in the requested written charges. I cannot agree. The trial court charged:
"The driver of a vehicle shall not back the same unless it shall reasonably appear that such a movement can be made with safety and without interfering with other traffic."
The plaintiff's two refused charges stated that a vehicle entering the highway from a private road or drive and within a business or residential district, shall yield the right-of-way to all vehicles approaching on the public highway. No mention of §§ 32-5-112(a) and 32-5-115 was made to the jury, though the defendant was entering the road from her driveway when she first saw the plaintiff.
Upon seeing the plaintiff, the defendant failed to yield the right-of-way, continued to back out of the private drive, and did not clear the way for him to go around her. The evidence presented at trial showed that these two sections of the Code were directly applicable, since the defendant failed to take any measures to yield the right-of-way to the plaintiff.
It is likewise clear that the court's oral charge was inadequate. That charge merely stated that the driver shall not back a vehicle unless it reasonably appears that it can be done "with safety and without interfering with other traffic." This charge says nothing about entering a public highway, as was the case here. Neither does it mention the duty of the driver to yield the right-of-way to oncoming traffic. It simply instructs the driver to do the obviousto back with safety.
*735 For these reasons, I cannot concur with the majority. I believe it was error to refuse the two requested written jury charges and, as a result, I would reverse.
ALMON and SHORES, JJ., concur.
NOTES
[1] Both sections were repealed subsequent to the parties' collision by Acts 1980, No. 80-434. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3343031/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The plaintiff, Rita Vogt ("wife") instituted this action in May 1989 against the defendant Richard Vogt ("husband") seeking a legal separation, alimony, a division of property pursuant to General Statutes 46b-81,1 counsel fees and such other and further relief as law and equity may provide. This matter which was claimed to the limited contested list was referred to the undersigned for hearing and judgment. The amended complaint2 contains the following allegations all of which are admitted3 by the husband. The parties were married on May 14, 1977 in North Branford, Connecticut. At the time of the instituting of this action the wife had been a resident of Connecticut for more than twelve months. There are no minor children issue of the marriage or born to the wife since the date of the marriage. The wife is not a recipient of state welfare assistance. The marriage of the parties has irretrievably broken down. Accordingly, a decree of legal separation is entered.
There are no pendente lite orders of the court with reference to the plaintiff's support or alimony but the parties entered an agreement in September 1989 whereby the husband was to pay the wife the amount of $180.00 per week. This was to cover food and certain household sundries for her personal use and the husband agreed to continue to pay other household expenses including the mortgage and taxes. The court (Mihalakos, J.) did enter a pendente lite order on the wife's motion for an allowance to prosecute that the husband pay the wife the sum of $2,200.00 as such allowance. The parties did not separate and continue to live in the marital home at 15 Pomps Lane in North Branford although in separate accommodations. The defendant's answer to the plaintiff's amended complaint, as noted, admits all its allegations including the irretrievable breakdown of the marriage. The parties, however, are in dispute over the assignment of property, an alimony award to the wife and an award of counsel fees for her pursuant to General Statutes 46b-81, 46b-824 and 46b-625 respectively.
At the hearing before the undersigned the wife and the husband were the only witnesses that testified. The court had the opportunity to assess their "appearance and attitude" as they testified. See Levitson v. Levitson, 182 Conn. 19, 23, CT Page 2408 437 A.2d 1961, 1980; LaBella v. LaBella, 134 Conn. 312, 318,57 A.2d 627 (1948). Several exhibits were admitted into evidence. The evidence generated questions of credibility. See Beede v. Beede,186 Conn. 191, 195, 440 A.2d 283 (198Z); Smith v. Smith,185 Conn. 491, 493, 441 A.2d 140 (1981). The trier may believe all or part of the testimony of a witness. Smith v. Smith,183 Conn. 121, 123, 438 A.2d 842 (1981). Moreover, the court is not bound by the uncontradicted testimony of any witness, Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); Acheson v. White, 195 Conn. 211, 217, 487 A.2d 197 (1985); and in "evaluating such testimony, the trial court must assess the credibility of the testifying witness and consider the presence or absence of corroborating evidence." Bieluch v. Bieluch, supra, 555-556. "Testimony that goes uncontradicted does not thereby become admitted and undisputed; . . . nor does the strength of a witness' belief [in it] raise it to that level." Stanton v. Grigley, 177 Conn. 558, 563, A.2d (1979). The interest of any witness may also be considered on its issue of credibility. Buonanno v. Cameron, 131 Conn. 513, 515,4 A.2d 107 (1945); Nesbit v. Crosby, 74 Conn. 554, 564, 51 A. 550
(1902).
Certain background circumstances may usefully be set out at this point. The wife is presently fifty-two years old and the husband is fifty-six years old. Both the wife and the husband are practicing Jehovah Witnesses. The present marriage is the second marriage for both, each of them have children by their first marriages. All of these children are now adults. The parties first met early in 1973. At that time she resided across the street from the husband's auto repair business on Foxon Road in North Branford. At that time her four children, then aged 14, 13, 12 and 10 resided with her. She and the defendant began living together. In 1974 the parties, together with her children, moved into a house on Clear Lake Manor Road ("Clear Lake") in North Branford which he had built on land he had purchased in 1972. A daughter of the husband also lived there for about one year, around 1975. That daughter has since married. About the end of 1976 the wife and her children moved out of the Clear Lake house to a rental house in North Branford. The husband later came to her several months thereafter, they discussed why she had left and he told her that he was sorry about his treatment of her. He wanted to resume their relationship and he gave her an engagement ring. She indicated that she did not wish to go back to the Clear Lake house. He agreed and said that another house would be purchased. In April 1977, he purchased a home on Pomps Lane ("Pomps Lane") in North Branford for $53,500.00 upon which he alone executed a bank mortgage for $23,500.00. The parties moved into the Pomps Lane house and were married there on May 14, 1977. The wife's children also returned with her and the children lived there CT Page 2409 with the parties.
In 1979 the husband instituted a divorce action against the wife. The parties later reconciled and as part of their agreement to do so the title to Pomps Lane was put in the names of both the wife and the husband; he alone still remained liable on the mortgage. Although the parties continued to live together there has been no sexual relations since about 1980. For about the same period of time there has been an appreciable lack of communication between them. Anomalously, however, both have since gone together on vacations to such places as Florida, California and Maine. In 1982, on a joint Florida vacation trip a time share condominium was purchased in both names with money from the husband's repair business account. On occasion, they used it together and on occasion the wife used it alone. In 1984 while both were in Florida on vacation visiting friends, the parties bought two building lots at Citrus Spring with money from the husband's repair business account. Title was taken to this property in both names. None of the wife's children live with them as all are now adults and on their own.
The husband continues to own and operate, as he has since 1956, an automobile repair business on Foxon Road where he also sells gasoline. This business is a sole proprietorship and he has no employees. The wife over the years has been employed intermittently as a seamstress, a health aide and an office and a cleaning person. She is also a certified nursing aide having completed a technical school course in that calling. Both the parties are high school graduates. These facts will be developed and supplemented below as necessary.
"A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property so long as it considers all relevant statutory criteria. . ." Debowsky v. Debowsky, 12 Conn. App. 525,526, 532 A.2d 591 (1987). "While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of the case. Valante v. Valante,180 Conn. 528, 531, 429 A.2d 964 (1980)." Carpenter v. Carpenter,188 Conn. 736, 740-741, 453 A.2d 1151 (1982); McPhee v. McPhee,186 Conn. 167, 172, 440 A.2d 274 (1982); Jackson v. Jackson,17 Conn. App. 431, 434, 553 A.2d 631 (1989). The court has weighed and considered all the statutory criteria in 46b-81. "Actions for dissolution of marriage are inherently equitable proceedings. Sunbury v. Sunbury, 210 Conn. 170, 174,553 A.2d 612 (1989); Pasquariello v. Pasquariello, 168 Conn. 579, 584,362 A.2d 835 (1975); German v. German, 122 Conn. 155, 161,188 A. 429 (1936). "Serrano v. Serrano, 213 Conn. 1, 12, CT Page 2410566 A.2d 413 (1989) . "The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage." Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835
(1975); Sunbury v. Sunbury, 210 Conn. 170 , 174 , 553 A.2d 612
(1989); Sardilli v. Sardilli, 16 Conn. App. 114, 118-119,546 A.2d 926 (1988) ("the paramount role of a court when considering domestic relations cases is one of a `court of equity.'") "The purpose of property division `is to unscramble the ownership of property, giving to each spouse what is equitably his.' Clark, Domestic Relations (1968) p. 450." Beede v. Beede, 186 Conn. 191,195 440 A.2d 283 (1982); Pasquariello v. Pasquariello , supra, 583-585. An assignment of property is not to be considered in a "financial vacuum" but rather should be considered in relation to all other relevant financial factors. Krause v. Krause, 189 Conn. 570, 571, 456 A.2d 1204 (1983).
Both parties filed financial affidavits at the time of trial. The wife's affidavit indicates total cash value of all her assets to be $137,900.00 and her total liabilities to be $1200.00 (this is apparently the amount due on her Visa credit card). The husband's affidavit indicates total cash value of all his assets to be $1,015,351.29 and his total liabilities to be $74,755.00. Certain adjustments are necessary to each affidavit based upon the evidence before the court. The adjustment6 on the husband's affidavit would raise the total cash value of all his assets to be $1,053,601.00.
Briefly, the wife proposes a property settlement, dividing the real property and the personalty such that she would receive $403,169.79 and the husband would receive $675,869.79. As to alimony she proposes that she be awarded $328.00 per week and that he be required to provide medical coverage for her. She also wants him to pay her counsel fees. The husband, on the other hand, proposes that she be assigned property from his securities, savings and other personal investments in the sum of $100,000.00 and that she relinquish any claim or interest to any of the personalty of that nature so remaining. He does not propose that she be awarded any interest in any real property in which he has any interest. As to alimony he proposes an alimony award of $180.00 per week as periodic alimony for a period of two years which shall be nonmodifiable as to amount and term. In addition, he proposes that he defray the cost of her medical insurance so long as that is available to him but not for a period to exceed two years. Having already paid $2,200.00 of her counsel fees, he maintains that each party should pay their own counsel fees, costs and expenses for this action. In discussing the claims as to the property division and alimony the court will endeavor to employ, so far as practicable, the format both counsel appeared to use, including the financial CT Page 2411 affidavits. It should be pointed out that materials in the file indicate that moneys were expended on behalf of the plaintiff for real estate appraisers (for appraisals of the Pomps Lane, Clear Lake Road and Foxon Road properties), certified public accounting firm (in analysis of the parties' joint tax returns for the years ending 1986, 1987, 1988 and 1989) and a physician's report concerning the plaintiff wife. The parties stipulated to the values of the three North Branford properties. None of the experts appeared and testified and no written report of any real estate accounting or medical expert was offered into evidence.
Turning first to the property division the court "shall consider" all the factors set out in 46b-81. The ages and educational backgrounds of the parties have been referred to above. The marriage, as noted, is about thirteen and a half years in duration. It is the second marriage for each and the children of the prior marriage of each are all adults. Her youngest son lived with the parties until two or three years ago. In determining the cause of the breakdown of the marriage, there has been for some time a lack of communication7
generally between them. When others are present this is always not so. There has been no sexual relations between them since about 1980. They have taken trips together over the years visiting friends and relatives. Both are members of Jehovah Witnesses and they have consulted with the elders of that group concerning the problems in the marriage without solution. Some time after their 1980 reconciliation they sought counselling, but that was unproductive. She knew very little of the financial affairs of her husband. There was some evidence from the wife concerning some physical abuse which this court finds was not proven by her. It cannot be said that this marriage was a true partnership. The credible evidence, however, is such that the husband must certainly bear the greater responsibility for the breakdown of the marriage. There was evidence concerning the health of the parties some of which the court does not credit.8 Both parties made observations about their health. The court concludes that the health of each is good.
The husband operates an automobile repair service where he also pumps gasoline. He has been in this business since 1956, it is operated as a sole proprietorship. He has no employees and works at this business for five days per week from about 6 A.M. to 5:30 P.M. When he goes on vacation or is otherwise unable to be there the business is closed. This has been his sole employment from 1956 to this time. The wife, on the other hand, is presently unemployed.9 In the past, from about 1977 she has been employed as a seamstress, in child care, in elderly care including work at a nursing home, health aide for handicapped child and home and office cleaning. Since the CT Page 2412 marriage she estimates income from her employment in amounts varying from $4,000.00 per years to $7,000.00 per year. Fairly viewed, since 1980 the plaintiff has not devoted much of her time to employment. She has been a certified nurse's aide since 1982 and is still so certified. She maintains that she has a problem since injury several years on her right hand when tendons were stitched wrong. This, she claims, causes her difficulty in turning and lifting patients and the tightness in her right hand is painful at times and has to change hands. She has not since sought employment in the context of her background as a certified nurse's aide. Presently she cleans a doctor's office once a week and spent one day a week babysitting for a grandchild. On the credible evidence, the court determines that the wife is "employable" in the sense that she does possess the vocational skills of a certified nurse's aide, is intelligent and should endeavor to use them in the health care field. In this determination the court factors its recognition of the circumstance that she appears to be intelligent and reasonably adapted to obtaining, with application, employment in the health care sector. See Levetson v. Levetson, 182 Conn. 19, 23,437 A.2d 819, (1980). This is not to say that she is not employable elsewhere. But she has made very little effort to find work. The total net weekly income of $22.50 on her financial affidavit does not, on the evidence, properly reflect her potential earning capacity.
Although the court believes that the wife is employable, it is not only required but Leir end equitable that, given her station, the amount and sources of income she presently has been given weight in determining the orders to be entered. There can be no serious question that her present circumstances in that context, fairly viewed, require an equitable upgrading. This is so because, among other reasons two of the three pieces of realty in which she holds a record interest with her husband are claimed in full by him because, as he argues, he has furnished the money to purchase, improve and maintain the marital home on Pomps Lane as well as his claims that he furnished all the money to purchase the Florida lots. In addition, it is fair to say that the husband's opportunity for future acquisition of capital assets are greater than that of the wife. It, however, cannot be overlooked that if he should be unable to continue working, that potential will be greatly reduced.
The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates presents interesting considerations. Using round figures gleaned from the evidence, it appears that somewhat over 70% of the value of the husband's assets were acquired by him before his marriage and that about 27% were acquired after his marriage. Moreover, the evidence would CT Page 2413 disclose that he paid for by far the greater monetary consideration (if not all) the assets acquired after the marriage The wife, in terms of he total cash value of her assets, both real and personal, brought none of those to the marriage. The statute provides that "The superior court may assign to either the husband or the wife all or any part of the estate of the other. . . ." General Statutes 46b-81 (a). A fair and equitable distribution of the marital property is to be based upon a consideration of all the statutory criteria. The court "may" consider the amounts contributed by each spouse during the marriage to jointly held assets of each. See e.g. Murphy v. Murphy, 180 Conn. 376, 379, 429 A.2d 897 (1980). Moreover, the "estate" of a party includes not only property held by each, but also any property received by inheritance. See North v. North, 185 Conn. 35, 39 458 A.2d 507 (1981). In addition, courts ought to consider nonmonetary (as well as monetary) contributions of the parties in making property distribution orders. O'Neill v. O'Neill, 13 Conn. App. 300,10
306-30), 536 A.2d 978, cert. denied 207 Conn. 806, 540 A.2d 374
(1988); see Blake v. Blake, 207 Conn. 217, 230-232,541 A.2d 1201 (1988).
For convenience of reference, the court, in its orders distributing the property of the parties, will follow generally the format used by them. That comprises the real estate and the personal property which, in turn, is broken down into schedules entitled "Securities" and "Savings and Investments." There are also motor vehicles, jewelry and household furnishings.
Turning first to the real estate in which the parties, either singly or jointly, have an interest, there are seven items to be considered:
1. 15 Pomps Lane, North Branford: The parties stipulated that this property has a value of $187,500.00 and that there is presently on it a first mortgage to a bank which mortgage has an unpaid balance of approximately $13,000.00 upon which mortgage the husband is solely responsible . When the house was purchased in 1977 for $53,500.00 the husband paid from his own funds the cash needed to be advanced as well as his executing a first mortgage to the Connecticut Savings Bank in the original amount of $23,500.00 on which the present balance is $13,000.00 according to the defendant's financial affidavit. Since 1977 to date he has paid the mortgage, taxes, insurance, utilities (except possibly the telephone for a time) and, in addition, he has spent between $8,000.00 and $10,000.00 in improvements there. This has a living room, dining room, two and a half bedrooms, kitchen and den as well as a glass in porch. This is the house that was acquired at the time the parties reconciled in 1977. At that time he gave her an engagement ring and CT Page 2414 agreed, as she asked, that they could reconcile on the condition that they not return to live in the Clear Lake house. He agreed and said a new house would be obtained and Pomps Lane was purchased in his name. About a month later they were married in that house. Thereafter, in 1980, the title was put in both their names as joint tenants.
It is ordered that the defendant husband's interest in the real estate known as #15 Pomps Lane be and hereby is assigned to the plaintiff wife to be hers; subject, however, to an equitable lien in favor of the defendant husband in the amount of Ten Thousand Dollars ($10,000.00) which lien shall be payable in full four years from the date hereof without interest. In the event that the plaintiff shall die, remarry, sell or transfer any interest in the Pomps Lane real estate, then said lien shall become payable at once. It is also ordered that the defendant who is now solely responsible on this mortgage to the Connecticut Savings Bank shall continue to make the present monthly payments on it including the real estate taxes.
2. 55 Clear Lake Road, North Branford: The parties stipulated that this house has a value of $186,700.00. There is no mortgage on it. This house was built by the husband before the marriage with his own funds on land he had purchased. This property is ordered to remain that of the defendant husband.
3. 220 Foxon Road, North Branford: The parties stipulated that this real estate has a value of $1,000,000.00. The husband owns an individual one-quarter interest in it and the value of his interest is $250,000.00. The husband acquired his interest In 1959 and it came to him through his family. He operates his automobile repair and gas station business on a portion of this property. His father, who owns an undivided one-half interest operates and maintains a trailer park on another portion; the defendant husband has no interest in the trailer park business. His sister owns an undivided one-quarter of the Foxon Road property and lives in a two-family house that is located there. The defendant's one-quarter interest in the Foxon Road property is ordered to remain that of the defendant husband.
4. Saboddy, Maine property:11 Although not stipulated to, there appears to be no serious dispute that this property has a value of $100,000.00. The plaintiff wife has an undivided one-fifth interest in it with a value of $20,000.00 which came to her through inheritance from her father's estate in 1987. This property is ordered to remain that of the plaintiff wife.
5. Citrus Springs, Florida: Although not stipulated to, there appears to be no serious dispute that the two building lots in Citrus Springs have a value of $7,000.00. These were CT Page 2415 purchased in 1984 by funds of the husband and placed in joint names at that time. The plaintiff's interest in these lots is assigned to the defendant husband, and the plaintiff is ordered to execute any and all documents necessary to transfer her record interest to this Florida property. See Ivey v. Ivey,183 Conn. 400, 492-93, 439 A.2d 425 (1981).
6. Daytona Beach, Florida: This property is a "time share" condominium and there appears to be no serious dispute that it has a value of $9,000.00. It was purchased in 1986 by funds of the husband and placed in joint names at that time. The defendant's interest in this "time share" condominium is assigned to the plaintiff wife and the defendant is ordered to execute any and all documents necessary to transfer his record interest to this Florida property. See Ivey v. Ivey, supra.
7. Actworth, New Hampshire: This property is acreage and there appears to be no serious dispute that it has a value of $7,500.00. The defendant purchased this land together with a friend, Al Hawkins in 1972, and each has an undivided one-half interest. The defendant's interest in this property is ordered to remain that of the defendant husband.
The personal property is listed in the defendant's financial affidavit and in two exhibits admitted at the trial: (1) Schedule B12 captioned "Savings and Investments" and Schedule C13 captioned "Securities." The court notes here that in making its orders concerning the division of property and also alimony, it has considered the "Tax Calculations" in the plaintiff's post-trial although no tax consequence evidence was presented at the trial.
As to the personal property the following is ordered set over to the plaintiff wife to be her sole property:
1. Fifty percent (50%) of the value of the investments designated "No. Units in Schedule B (which include state and municipal obligations which total $73,931.72) $36,965.86 2. Fifty percent (50%) of the value of the CBT savings account referred to in Schedule C (which totals $24,092.22) 12,046.11 3. The following "Securities" in Schedule C: Central Maine Power, Southern Co., Texas Utilities, Pan Am, Tie Comm. nd Edisto Resources, 20,076.75 4. One 1989 Mercury Sable automobile, 13,000.00 CT Page 2416 5. The jewelry (six rings listed on Exhibit A (insurance appraisal), 3,145.00 6. The "Depression Glass" collection, 3,000.00
The following personal property is to remain the sole property of the defendant husband and is so ordered:
1. Travelers HR10 (retirement plan) referred to in Schedule C, $179,484.38 2. Fifty percent (50%) of the value of the investments, designated "No Units" in Schedule B (which include state and municipal obligations and total $79,931.72), 36,965.86 3. Fifty percent (50%) of the CBT savings account referred to in Schedule C (which totals $24,092.22) 12,046.11 4. The following "Securities" referred to in Schedule C: CBT-Bank of New England, Black Hills Corp., United Illuminating, Southern New England Telephone, TECO and United Illuminating (Pref.) 56,013.01 5. One 1987 Mercury Grand Marquis automobile and one 1978 Ford pickup 9,000.00
It is also ordered, for the record, that although the plaintiff wife makes no claim of any interest in the automobile repair and gasoline station business presently operated by the defendant husband, the sole ownership of that business has been and is to remain in his sole ownership free and clear of any claim of any nature to it, in whole or in part, by the plaintiff wife.
Except as expressly provided in this memorandum, each party shall be responsible for their individual liabilities as shown on their financial affidavits. No orders are entered concerning the disposition of the furniture and furnishings in #15 Pomps Lane, North Branford and the parties should divide these as they jointly determine, and in the event of disagreement, they should consult with the Family Relations Office; no such orders are entered because only in the plaintiff's post-trial brief is a proposed division set out. The parties should settle this matter themselves.
We next take up the matter of alimony. The statute, i.e., General Statutes 46b- 82 permitting an award of alimony is permissive and not mandatory . When awarded, the trial court is to determine the type, amount and duration that appears to be proper for the particular case. Carpenter v. Carpenter, 188 Conn. 736, CT Page 2417 742, 453 A.2d 1151 (1982); El Idrissi v. El Idrissi,173 Conn. 295, 299, 377 A.2d 330 (1977); Holley v. Holley,194 Conn. 25, 31-32, 478 A.2d 1000 (1984); Koper v. Koper,17 Conn. App. 480, 483, 553 A.2d 1162 (1989). The court must consider and weigh the criteria set out in 46b-82 which are nearly identical with those in 46b-81. Holley v. Holley, supra; DeVillis v. DeVillis, 15 Conn. App. 318, 321, 544 A.2d 639
(1988). Section 46b-82 in addition does permit the consideration of ". . . the award, if any, which the court may make pursuant to section 46b-81. . . ." As with a property division, in considering the matter of alimony, no single criterion is preferred over the others in the circumstances of a particular case. Carpenter v. Carpenter, supra, 740-741; DeVillis v. DeVillis, 15 Conn. App. 318, 322, 544 A.2d 639
(1988). This court has considered and weighed all the criteria in 46b-82. In setting the type, amount and duration of alimony the court does not do so in a financial vacuum, but endeavors to do so in relation to all other relevant factors, financial and otherwise, (including the distribution of realty and personalty made to her). The defendant husband is ordered to pay as alimony to the plaintiff wife the sum of $225.00 per week for a period of five (5) years from the date of judgment in this case. It is also ordered that the defendant husband maintain at his sole expense the medical and/or dental health insurance coverage he presently has for the period of five (5) years from the date of judgment in this case, or until the wife's remarriage, death or cohabitation as defined by statute whichever event may first occur.
As to counsel fees, an order may enter that the defendant husband pay $3,000.00 toward the plaintiff wife's counsel fees.
Accordingly, a judgment of legal separation is entered together with judgment in accordance with the foregoing orders concerning the distribution of property, alimony and counsel fees.
ARTHUR H. HEALEY, JUDGE. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1605758/ | 416 So.2d 718 (1982)
Repsie Rhea BOONE
v.
Dr. M. M. MULLENDORE.
80-423.
Supreme Court of Alabama.
June 30, 1982.
*719 M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellant.
William M. Bouldin of Guin, Bouldin, Porch & Alexander, Russellville, for appellee.
John T. Mooresmith, Mobile, for amicus curiae Medical Ass'n of the State of Ala.
TORBERT, Chief Justice.
This is a medical malpractice case wherein the trial court granted summary judgment in favor of the defendant on the ground that plaintiff, Repsie Rhea Boone, is limited in her recovery of damages to the amount of the settlement with the hospital measured in terms of her actual medical expenses incurred in giving birth. Mrs. Boone appeals and we reverse.
In 1976, Repsie Rhea Boone visited Dr. M. M. Mullendore, complaining of cramps and bloating in her abdomen. On July 6, 1976, Mrs. Boone was admitted to Colbert County Hospital for exploratory surgery. During the surgery, Dr. Mullendore discovered and removed cysts in Mrs. Boone's Fallopian tubes and ovaries. After the surgery, Dr. Mullendore dictated an operative summary and procedure that stated that "the left and right [Fallopian] tubes were removed." Additionally, the plaintiff also alleges that Dr. Mullendore informed her that her Fallopian tubes had been removed and that she was sterile. As a result of this representation, Mrs. Boone did not use contraceptive methods. She became pregnant, however, and in April 1978 delivered a healthy child.
The Boones brought suit against Colbert County Hospital and Dr. Mullendore for negligently representing that her Fallopian tubes had been removed and that she was sterile, or, in the alternative, for negligent failure to remove the Fallopian tubes. Mrs. Boone sought compensatory damages for medical expenses and costs reasonably incurred in the rearing of the child. At the pretrial hearing, Mr. Boone withdrew as a party plaintiff and following the pre-trial hearing, Mrs. Boone reached a pro tanto settlement with the hospital for $1,500.00, which was conceded to be the amount of her medical expenses. Subsequently, Dr. Mullendore moved for, and the trial court granted, a summary judgment on the ground that, as a matter of law, Mrs. Boone could not recover more than the settlement amount for actual medical expenses incurred in giving birth. This appeal followed.
*720 The issue on appeal is what damages may be recovered by a parent as a result of the negligent treatment, or the negligent misrepresentation of a doctor that the parent is incapable of having children. For the reasons set forth below, we hold that the trial court erred in limiting damages to out-of-pocket medical expenses.
Mrs. Boone contends that a health care provider should be subject to liability in damages for negligence that results in the wrongful birth of a child. At this point, it will be helpful to make distinctions in the terminology used by the parties. A claim for "wrongful birth" is one brought against a physician who "failed to inform parents of the increased possibility that the mother would give birth to a child suffering from birth defects ... [thereby providing] an informed decision about whether to have a child." Phillips v. United States, 508 F.Supp. 544, 545 n.1 (D.S.C.1981) (quoting Comment, 8 Hofstra L.Rev. 257, 257-58 (1979)). A claim for "wrongful life" is one by which a child seeks recovery for being born with infirmities. See, Elliot v. Brown, 361 So.2d 546 (Ala.1978), wherein this Court refused to recognize a cause of action for "wrongful life." This case is, instead, more suited to a traditional medical malpractice, negligence action. In the court below, the plaintiff alleged that Dr. Mullendore was negligent in failing to remove her Fallopian tubes or, in the alternative, was negligent in representing that her Fallopian tubes had been removed and that she was sterile. Some jurisdictions have defined actions of this type as an action for "wrongful pregnancy."
The present action, therefore, is focused upon the issue of whether Dr. Mullendore negligently performed surgery upon Mrs. Boone and made misrepresentations to her as to her future capability to conceive a child, thus causing her to rely upon such statements and to become pregnant. A number of courts have been faced with this issue. See, Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill. App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Betancourt v. Gaylor, 136 N.J.Super. 69, 344 A.2d 336 (1965); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App. 1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974).
In Alabama, in order to state a cause of action for negligence, the plaintiff must show that the defendant has a legal duty, that the defendant has breached that duty, that the defendant's breach proximately caused an injury, and that damages have resulted to the plaintiff. Quillen v. Quillen, 388 So.2d 985 (Ala.1980). It is also the law in Alabama that a physician owes a duty to exercise reasonable care in the treatment of his or her patients. Code 1975, § 6-5-484(a). Therefore, if proven, the negligent misrepresentation of the nature of the surgery and/or such negligent performance of that surgery as would wrongfully cause a patient to become pregnant would be a breach of that duty.
Since the trial court granted the defendant's motion for summary judgment, we must initially state that the party moving for summary judgment must be entitled to a judgment as a matter of law, Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981), with all reasonable inferences concerning issues of material fact to be drawn in favor of the non-moving party. Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978). Assuming, without deciding, that the first three elements for a cause of action for negligence are met, the issue becomes whether the trial court erred in holding that Mrs. Boone could not recover more than the $1,500.00 in medical expenses paid to her by the hospital. We hold that the trial court erred in granting Dr. Mullendore's motion for summary judgment on the issue of damages.
*721 Among the difficult issues in an action of this type is the measure of damages to be ascertained. Several theories have been proposed by other courts and by the parties to this action. Dr. Mullendore urges this Court to find that, as a matter of law, the benefits accruing to the parents of a healthy child outweigh the economic and emotional detriment of having an unwanted, unanticipated child. See, e.g., Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). Under this theory the holding of the trial court would have to be affirmed.
In California, it has been held that all costs and expenses of rearing such a child, and also emotional distress, are recoverable. Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). A third view of damages is that the parents may recover only damages for pregnancy-related costs and expenses, and damages for pain and suffering. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975).
The fourth view of damages, which is urged by the appellant, is known as the "benefit" rule of damages. Under the "benefit" rule, parents may recover for damages proximately caused by the physician's negligence, including pregnancy-related expenses and the economic damages to the family resulting from the birth and rearing of the additional child. These damages may be offset, however, by the benefits accruing to the family as a result of the child's birth. Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977). See also, Restatement (Second) of Torts, § 920 (1977). Mrs. Boone contends that the losses and benefits resulting from a wrongful pregnancy are relatively tangible and are measurable factors for the jury to consider separately. We cannot agree.
Today, we adopt as the measure of damages in an action of this type essentially the standard set out in Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff'd, 349 A.2d 8 (Del.1975). This Court believes that damages should be limited to the actual expenses and the injury attending the unexpected pregnancy. Thus, the damages recoverable would include: (1) The physical pain and suffering, and mental anguish of the mother as a result of her pregnancy; (2) the loss to the husband of the comfort, companionship, services, and consortium of the wife during her pregnancy and immediately after the birth; and (3) the medical expenses incurred by the parents as a result of the pregnancy. Any additional damages would tend to be extremely speculative in nature, and awarding such damages could have a significant impact on the stability of the family unit and the subject child.
As indicated, numerous courts have addressed these issues in recent years and have come to various conclusions. A large number, however, have held that for public policy and other reasons the expenses of rearing a child to the age of majority should be denied. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982); Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff'd, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill.App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Stewart v. Long Island College Hospital, 35 A.D.2d 531, 313 N.Y.S.2d 502 (1970), aff'd, 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972); Hays v. Hall, 477 S.W.2d 402 (Tex.Civ.App.1972); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). The cornerstone of this denial is the idea that a normal healthy life should not be the basis for a compensable wrong. "The existence of a normal, healthy life is an esteemed right under our laws, rather than a compensable wrong." Wilczynski v. Goodman, 29 Ill.Dec. at 224, 391 N.E.2d at 487. As one court has stated:
"To permit the parents to keep their child and shift the entire cost of its upbringing to a physician who failed to determine or inform them of the fact of pregnancy would be to create a new category of surrogate parent. Every child's smile, every bond of love and affection, every reason for parental pride in a child's achievements, every contribution by the child to the welfare and well-being *722 of the family and parents, is to remain with the mother and father. For the most part, these are intangible benefits, but they are nonetheless real.... We hold that such result would be wholly out of proportion to the culpability involved, and that the allowance of recovery would place too unreasonable a burden upon physicians, under the facts and circumstances here alleged."
Rieck v. Medical Protective Co., 219 N.W.2d at 244-45.
The birth of a healthy child, and the joy and pride in rearing that child, are benefits on which no price tag can be placed. This joy far outweighs any economic loss that might be suffered by the parents. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982).
"A child is bornhow can it be said within the ambit of legal predictability that the monetary cost of that life is worth more than its value? We recognize that a few courts, approaching the problem in clinical terms, have applied a `balancing test' which, presumably, permits a jury to say that a life has been weighed and found wanting and thus the parents have been `damaged'. See 27 A.L.R.3d Annot.: 906 and the discussion of the cases in Terrell v. Garcia, Tex.Civ.App., 496 S.W.2d 124 (1973). We respect the efforts of other Courts to provide a remedy under the circumstances but it seems to us that that kind of judgment, if appropriate at all in an American Court of law, might be applied at the end of a life, after it has been lived and when the facts can be identified. But, in our view, any attempt to apply it at birth can only be an exercise in prophecy, an undertaking not within the speciality of our fact-finders."
Coleman v. Garrison, 349 A.2d 8 (Del.1975). In Terrell v. Garcia, 496 S.W.2d 124 (Tex. Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974), the Texas Court of Civil Appeals succinctly spelled out the inherent problems of the "benefits rule" advocated by the plaintiff. That court stated:
"Irrespective of the public policy view, adoption of the `benefits rule' as suggested by Troppi, would present unsurmountable problems of proof under our present standards for proof of damages. Proof could undoubtedly be offered regarding the cost of care and maintenance for a hypothetical child, although the standard of living and extent of education to be provided such child would undoubtedly require considerable conjecture and speculation by the trier of facts.
. . . .
"... Nevertheless, as recognized in Hays and Troppi, the satisfaction, joy and companionship which normal parents have in rearing a child make such economic loss worthwhile. These intangible benefits, while impossible to value in dollars and cents are undoubtedly the things that make life worthwhile. Who can place a price tag on a child's smile or the parental pride in a child's achievement? Even if we consider only the economic point of view, a child is some security for the parents' old age. Rather than attempt to value these intangible benefits, our courts have simply determined that public sentiment recognizes that these benefits to the parents outweigh their economic loss in rearing and educating a healthy, normal child."
496 S.W.2d at 127-28. To allow damages under the "benefit rule" as urged by Mrs. Boone, would only invite speculative and ethically questionable assessments of damages that in the long run would cause a great emotional impact on the child, its siblings, and the parents.
Another problem is the possible harm that can be caused to the unwanted child who will one day learn that he not only was not wanted by his or her parents, but was reared by funds supplied by another person. Some authors have referred to such a child as an "emotional bastard" in a realistic, but harsh, attempt to describe the stigma that will attach to him once he learns the true circumstances of his upbringing. 50 Cin.L. Rev. 65 (1981); Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982). Mrs. Boone, however, contends that such damages are not for the *723 child, but are, as stated by the Illinois Court of Appeals in Doerr v. Villate, 74 Ill.App.2d 332, 220 N.E.2d 767 (Ill.Ct.App.1966), "to replenish the family exchequer so that a new arrival will not deprive other members of the family of what was planned as their just share of family income." We cannot agree. If the "benefit rule" is adopted, it will place the parent in the win-lose situation that if they admit that the child is a welcome addition and that they will love the child and rear it properly, they may get no damages at all. It would thus be to their advantage, at least monetarily so, to deny any affection for the child and to emphasize all of the economic problems the child will cause, thus increasing damages and the possibility of emotional trauma in the child at the time he or she learns of the earlier court proceedings.
This dilemma leads to several more problems in the assessment of damages. First, in Alabama one seeking to hold another liable for damages is required to use reasonable efforts to avoid or mitigate his or her damages. Bates v. General Steel Tank Co., 36 Ala.App. 261, 55 So.2d 213, cert. dismissed, 256 Ala. 466, 55 So.2d 218 (1951). Yet courts recognizing this cause of action have rejected the argument that parents should choose among the various methods of mitigationadoption, abortion, etc.seeing the moral issues begin to make inroads into an already emotional and speculative process of determining damages. The issue is one "which meddles with the concept of life and the stability of the family unit." Wilbur v. Kerr, 628 S.W.2d at 571.
Another problem arises in regard to the damages that may be awardednamely, what to do with the money recovered. If damages are awarded for the care and maintenance of the child, should the money go directly to the family to use as the parents see fit, should the money be placed in a special trust fund for the child, or should a guardian ad litem be appointed for the benefit of the child to insure that the money recovered actually goes to the rearing of the child?
As stated by the Supreme Court of Arkansas in Wilbur v. Kerr:
"It is a question which meddles with the concept of life and the stability of the family unit. Litigation cannot answer every question; every question cannot be answered in terms of dollars and cents. We are also convinced that the damage to the child will be significant; that being an unwanted or `emotional bastard,' who will some day learn that its parents did not want it and, in fact, went to court to force someone else to pay for its raising, will be harmful to that child. It will undermine society's need for a strong and healthy family relationship. We have not become so sophisticated a society to dismiss that emotional trauma as nonsense."
628 S.W.2d at 571.
We must emphasize that our holding is in the restricted context of a healthy, though unplanned and unexpected, child. Nothing in this opinion should be construed as addressing, or commenting upon, the measure of damages attendant with a right of action, if any, in favor of the parents of a child, in an action of this type, when the child is born and afflicted with predetermined or readily foreseeable genetic or hereditary defects.
In conclusion, this Court holds that there is no viable reason for exempting a physician from liability when his negligence proximately and wrongfully causes a patient to become pregnant. Because the issues of negligence and proximate cause are generally questions of fact for the jury, and because we hold that the trial court erred in limiting the amount of damages recoverable to the out of pocket expenses of delivering, the holding of the trial court is reversed and the cause remanded. If, at trial, liability is established, the damages recoverable by the plaintiffs include: (1) compensation for the physical pain and suffering, and mental anguish of the mother as a result of the pregnancy; (2) the loss to the husband of the comfort, companionship, services, and consortium of the wife during her pregnancy and immediately after the birth; and (3) the medical expenses incurred as a result of the pregnancy.
REVERSED AND REMANDED.
*724 MADDOX, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
FAULKNER, JONES and SHORES, JJ., concur specially.
Though Justices SHORES and BEATTY did not sit during oral argument, tapes of oral argument and the briefs of the parties have been made available and have been studied carefully by them.
FAULKNER, Justice (concurring specially).
My difference with the majority is simply that I would hold that damages here should be assessed under the "benefit" rule.
The issue presented in the present appeal is whether this Court will recognize an action for "wrongful pregnancy" and award full and complete damages. The action for wrongful pregnancy is "generally brought by the parents of a healthy, but unwanted, child[,] against a pharmacist or pharmaceutical manufacturer for negligently filling a contraceptive prescription, or against a physician for negligently performing a sterilization procedure or abortion." Phillips v. United States, 508 F.Supp. 544, 545 n. 1 (D.S.C.1981). See Robertson, Civil Liability Arising from "Wrongful Birth" Following an Unsuccessful Sterilization Operation, 4 Am. J.L. Comment, Pregnancy After Sterilization: Causes of Action for Parent and Child, 12 J. Fam. L. 635 (1972). The majority of jurisdictions addressing the wrongful pregnancy issue have recognized that parents are entitled to bring such a claim. Phillips v. United States, 508 F.Supp. at 549. Today, this Court refuses to follow the majority rule, and fails to permit a doctor to be held fully responsible for his or her negligence. I would follow the majority rule, and permit the parents in the present case to recover complete damages for wrongful pregnancy.
The majority opinion raises two major arguments against granting full damages for wrongful pregnancy. First, the majority asserts that damages for wrongful pregnancy are unascertainable. Second, a more emotionally charged argument is asserted that public policy recognizes the value of human life and this value precludes any action for wrongful pregnancy.
The resolution of the question of a physician's liability for wrongful pregnancy, however, does not require "intrusion into the domain of moral philosophy." Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, 513 (1971). Public policy arguments in such cases often serve as a smokescreen hiding the true issue. The ultimate issue is whether a physician is liable for negligently failing to perform an operation or for negligently misrepresenting the nature of an operation.
Dr. Mullendore asserts that recovery for wrongful pregnancy is against public policy. The thrust of this argument is that the "sanctity of life precludes a cognizable action in law." Speck v. Finegold, 268 Pa.Super. at 354, 408 A.2d at 503 (1979). It is urged that life, as a matter of law, cannot be damaging to either a child or a parent. Many of the early cases, implicitly accepted by the majority opinion, relied on public sentiment against abortion and sterilization and the sentiment in favor of procreation. See Glietman v. Cosgrove, 49 N.J. 22, 227 A.2d 687 (1967). "The great end of matrimony is not the comfort and convenience of the immediate parties, ... but the procreation of progeny." Shaheen v. Knight, 6 Lyc. 19, 23, 11 Pa.D. & C.2d 41, 45 (1957).
The majority asserts that "a normal healthy life should not be the basis of a compensable wrong." I agree. Nevertheless, the purpose of an action for wrongful pregnancy is not to recover for the life of the child, but the "diminution in the family wealth that necessarily resulted in a hardship to the other family members." Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).
The majority also contends that a child whose parents recover damages for wrongful pregnancy will be an "emotional bastard." First it should be noted that the majority permits some, but not all, damages suffered for wrongful pregnancy. Will a child feel any less an "emotional bastard" if its parents recover the damages permitted *725 by the majority rather than full and complete damages? Furthermore, it is difficult to believe that a child will feel like an "emotional bastard" in either case. How many members of society who were born when birth control was unacceptable, learned that their births were unexpected and sensed their births had undesired effects on the family treasury? If this Court were to grant the full measure of damages for "wrongful pregnancy" the economic pressures of raising an unexpected child would be taken off the parents, permitting them to concentrate on giving the child the love and care he or she needs.
Furthermore, the Supreme Court of the United States recognized that the right to privacy protects a husband and wife from unwarranted intrusions into the fundamental decisions of a family concerning contraception and abortion, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In light of such Supreme Court decisions, it cannot be maintained that family planning and contraception are against public policy.
"To say that for reasons of public policy, contraceptive failure can result in no damage as a matter of law ignores the fact that tens of millions of persons use contraceptives daily to avoid the very result which the defendant would have us say is always a benefit, never a detriment."
Troppi v. Scarf, 31 Mich.App. at 253, 187 N.W.2d at 517.
The majority asserts that recognizing full damages for wrongful pregnancy "meddles with the concept of life and the stability of the family unit." I believe that the failure of this Court to recognize this cause of action intrudes on the constitutionally protected right of the Boones to determine the size of their family. The Court in Speck v. Finegold, paraphrasing Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967), noted: "the birth of an [unanticipated] child may be less than a blessing in an economically deprived family, particularly if the sterilization had been intended to prevent the birth of a physically defective or mentally retarded infant." 268 Pa.Super. at 360, 408 A.2d at 506.
Certain public policies favor granting complete damages for wrongful pregnancy. Society has an interest in seeing that operations are properly performed and that patients are properly advised. The recognition of a cause of action encourages physicians to accurately perform these tasks by penalizing those physicians who fail to observe customary standards of medical practice. See Phillips v. United States, 508 F.Supp. at 551.
Perhaps the most difficult issue in wrongful pregnancy actions is the ascertainment of damages. Several theories of damages have been proposed by other courts. The doctor asks this Court to find, that as a matter of law, the benefits accruing to the parents of a healthy child outweigh the economic and emotional detriment of having an unwanted, unanticipated child. See Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ. App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). Other jurisdictions take the approach that all costs and expenses of raising such a child, including emotional distress and the actual cost of having an infant, are recoverable. See, e.g., Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). A third view of damages, taken by the majority of this Court, is that the parents may recover only damages for pregnancy-related costs and expenses, and damages for pain and suffering. Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.), aff'd, 349 A.2d 8 (Del.1974). Finally, the fourth view of damages, which I would adopt, is the so called "benefit" rule of damages.
Under the "benefit" rule, parents may recover for damages proximately caused by the physician's negligence, including pregnancy-related expenses and the economic damages to the family of the birth and rearing of an additional child. These damages *726 may be offset, however, by the benefits accruing to the family on the birth of the child. Section 920 of the Restatement (Second) of Torts (1979), states:
"Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable. [Emphasis added.]"
This rule permits the factfinder flexibility in determining the extent of benefits accruing to the parents in different circumstances. As the court in Troppi v. Scarf, 31 Mich.App. at 256-57, 187 N.W.2d at 518-19, points out, the trier of fact must have the power to evaluate the benefit according to all the facts and circumstances in a particular case. "Family size, family income, age of the parents, and marital status are some, but not all of the factors" which the trier of fact may consider in awarding damages. Id.
"Consider, for example, the case of the unwed college student who becomes pregnant due to a pharmacist's failure to properly fill her prescription for oral contraceptives. Is it not likely that she has suffered far greater damage than the young newlywed who, although her pregnancy arose from the same sort of negligence, had planned the use of contraceptives only temporarily, say, while she and her husband took an extended honeymoon trip? Without the benefits rule, both plaintiffs would be entitled to recover substantially the same damages.
"Application of the benefits rule permits a trier of fact to find that the birth of a child has materially benefited the newly wed couple, notwithstanding the inconvenience of an interrupted honeymoon, and to reduce the net damage award accordingly. Presumably a trier of fact would find that the `family interests' of the unmarried coed has [sic] been enhanced very little."
The major difficulty in applying the "benefit" rule is that comment 6 to Section 920 of the Restatement indicates that benefits to one type of interest may not offset damages to another type of interest. Nevertheless, the benefit rule is rooted in the equitable principle of unjust enrichment. See Sherlock v. Stillwater Clinic, 260 N.W.2d at 176. In a cause of action for "wrongful pregnancy," it would be unfair and would result in unjust enrichment to strictly apply the "same interest" limitation. Since the economic burden and emotional distress of rearing an unexpected child are inextricably related to each other, I would hold that the reasonable costs of rearing a child may be offset by the value of the economic and emotional benefits conferred on the parents by a child. See Troppi v. Scarf, 31 Mich.App. at 258, 187 N.W.2d at 518. Accord, Sherlock v. Stillwater Clinic, 260 N.W.2d at 176. In the case of a normal, healthy child, these expenses usually do not extend beyond the age of majority when the parents are no longer under an obligation of support. Id. These damages may be offset by the value of the child's aid, comfort and society. Id.
The majority also asserts that such a measure of damages is unascertainable and entirely speculative. Nonetheless, the pregnancy-related expenses, medical and hospital bills, lost wages and so forth are readily ascertainable. Likewise, the cost of rearing of a child is an expense routinely computed by juries. Mrs. Boone's damages for pain and suffering are ascertainable, as this court recently recognized in Taylor v. Baptist Medical Center, 400 So.2d 369 (Ala. 1981). The only uncertainty arises from the application of the "benefits" rule. While the exact dollar value of the benefits accruing to the parents is difficult to determine, it is enough that the plaintiff shows the extent of damages as a matter of reasonable and justifiable inference. Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); American Life Insurance Co. v. Shell, 265 Ala. 306, 90 So.2d 719 (1956). The rule in Alabama is that when damages are not capable of being precisely measured, the amount of damages to be granted rests largely within the discretion of the jury. *727 Summerlin v. Robinson, 42 Ala.App. 116, 154 So.2d 685 (1963). The most fundamental principle of tort law is that a party should recover for injuries caused by the wrongdoing of others. A party who is wronged should have an opportunity to present to the jury the question of what are reasonable and proper damages. This Court and courts of other jurisdictions have permitted the question of damages to be submitted to a jury in analogous situations. See, e.g., Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965) (recovery of parents for permanently injured child); Sellnow v. Fahey, 305 Minn. 375, 233 N.W.2d 563 (1975) (recovery for wrongful death). Juries have been able to comprehend and determine the amount of damages in similar situations, and are capable of determining fair and reasonable damages in an action for wrongful pregnancy.
An action for wrongful pregnancy, in which damages are measurable, may be distinguished from an action for "wrongful life," in which damages are said to be incalculable. It should be recalled that in an action for wrongful life, an action is brought on behalf of a child for negligently permitting the child to be born. See Elliott v. Brown, 361 So.2d 546 (Ala.1978). Several courts have denied actions for wrongful life, based on the rationale that we cannot measure "the value of life with impairments against the nonexistence of life itself." Id. at 547 (quoting Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 687 (1967)); Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). Justice Almon, speaking for this Court, has noted that there is no legal right not to be born. Elliott v. Brown, 361 So.2d at 548. Nevertheless, several courts which have refused to recognize an action for wrongful life have recognized an action for wrongful pregnancy. See Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981); Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (N.J.1979); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979). These cases distinguish wrongful life actions in two ways. First, the courts state that whether it is better to be born with defects, or not at all, is beyond our current ability to understand or calculate. Second, and more important, is that a cause of action is not cognizable at law for the right not to be born. These courts have permitted recovery for wrongful pregnancy. A parent has the right not to have a child. Thus, a legal right has been damaged. Furthermore, damages for rearing a child are similar to damages already committed to the power and domain of the jury.
The appellee also contends that Mrs. Boone may not recover for wrongful pregnancy because she failed to mitigate damages by aborting the child or giving it up for adoption. The Michigan appellate court addressed this question in Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971). The court eloquently stated this conclusion:
"However, to impose such a duty upon the injured plaintiff is to ignore the very real difference which our law recognizes between the avoidance of conception and the disposition of the human organism after conception.... At the moment of conception, an entirely different set of legal obligations is imposed upon the parents. A living child almost universally gives rise to emotional and spiritual bonds which few parents can bring themselves to break.
"Once a child is born he obviously should be treated with love regardless of whether he was wanted when he was conceived. Many, perhaps most, persons living today are conceptional accidents in the sense that their parents did not desire that a child result from the particular intercourse in which the person was conceived. Nevertheless, when the child is born, most parents accept him with love. That the plaintiffs accepted their eighth child does not change the fact that the birth of another child, seven years younger than the youngest of their previously born children, unbalanced their life style and was not desired by them."
*728 JONES and SHORES, Justices (Concurring specially).
We are in complete agreement with the majority opinion, both as to the issue of liability and as to the measure of damages recoverable in such cases. We concur specially in order to amplify the rationale for rejection of the "benefit" rule and to clarify the mental anguish element set forth in the opinion as a portion of item 1 of the recoverable elements of damages.
While we agree that Plaintiff has suffered damages beyond the medical expenses incurred in the prenatal care and birth of her child, we further agree that legal damages may not be extended to cover the economic burden of rearing the child to the age of majority.
To adopt such a measure of damages would reduce the value of the parent/child relationship to a mathematical formula, subject to being diminished only by incalculable future events. But, more than this, it would equate the right of the mother to elect, in the first instance, not to conceive with a presupposed subsequent attitude of "not wanting" the child born of her "wrongful pregnancy." A woman's personal right to exercise the option not to become pregnant does not necessarily mean that a child conceived as a result of the breach of that initial right is an "unwanted" child. To the contrary, it is more accurately an "unexpected" or "unanticipated" child.[1]
Indeed, it is the difference between these two concepts that constitutes the premise upon which the law must formulate its measure of damages. Inherent in the mother's decision to carry the child to full terma right not inconsistent with her initial decision not to conceiveis her decision to rear the child. Because the decision to bear the child is not economically motivated, the damages for rearing the child cannot be economically measured.
Instead, the law must relate her damages to the reality of her injury. If Mrs. Boone did, in fact, conceive a child as a result of Dr. Mullendore's negligence, as alleged, a legal right has been violated and she has suffered an injury, in that she relied on the doctor's representations that she was sterile and, in doing so, did not exercise her right to elect some other form of contraception. However, the law should not assume, nor does public policy permit the assumption, that her injury consists in giving birth to an "unwanted" child. For the tort of negligently interfering with her right not to become pregnant she is entitled to compensation, but only to the extent of her resultant injuries, one element of which is the mental anguish which flows directly from the loss of such right. The normal causation/resultant injury rationale of tort law, however, is not applicable to this situation. To effect a legal rule that fosters the "unwanted child" concept by permitting an award of damages based upon the costs of the child's maintenance and support would impede, rather than enhance, the natural familial relationship.
On the other hand, the law should recognize that an alleged wrong, if legally established, results in denial of Plaintiff's lawful right to exercise the option not to become pregnant. The wrong is directly and exclusively related to her personal right not to become pregnant. In reliance on the Defendant doctor's representation, she says, she proceeded on the assumption that her choice not to become pregnant had been assured, and thus did not exercise other methods of contraception.
Consequently, assuming liability as alleged, Mrs. Boone is entitled to recover, if proved, those elements of damages enumerated in the Court's opinion, including any mental anguish suffered by her for the violation of her personal right not to conceive a child.
NOTES
[1] While we differ materially with the measure of damages formulated therein, see Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971), for an excellent discussion of the distinction, which the law recognizes, between avoidance of conception and the disposition of the human organism after conception. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604632/ | 810 So.2d 744 (2001)
Ex parte LIFE INSURANCE COMPANY OF GEORGIA.
(Re Military Insurance Specialists, Inc. v. Life Insurance Company of Georgia).
1990932.
Supreme Court of Alabama.
May 11, 2001.
Dissenting Opinion on Denial of Rehearing July 13, 2001.
*745 Richard P. Decker of Decker & Hallman, Atlanta, Georgia; and H.E. Nix, Jr., of Nix, Holtsford & Vercelli, P.C., Montgomery, for petitioner.
Stephen W. Drinkard and M. Adam Jones of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery. (Brief in support of application for rehearing filed by Rhon E. Jones of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery) for respondent.
STUART, Justice.
This Court granted this petition for certiorari review of the Court of Civil Appeals' judgment reversing a summary judgment for Life Insurance Company of Georgia ("Life of Georgia"). See Military Ins. Specialists, Inc. v. Life Ins. Co. of Georgia, 810 So.2d 732 (Ala.Civ.App.1999).
Military Insurance Specialists, Inc. ("MIS") hired Tom Donahey to develop a supplemental health-insurance policy that would be offered by MIS to the Civilian *746 Health and Medical Program of the Uniformed Services ("CHAMPUS"). In July 1994, pursuant to an "Exclusive Marketing Agreement" (the "Agreement"), the parties agreed that Life of Georgia, which is a subsidiary of the ING America Life Corporation ("ING"), would underwrite the CHAMPUS policy through its health-insurance division, Associated Doctors Senior Services Division ("Associated Doctors"). The Agreement also provided that MIS would be Life of Georgia's general agent "to recruit and recommend for appointment independent insurance agents to solicit applications for the CHAMPUS policy" and that MIS would be the exclusive marketing agent for the CHAMPUS policy. The Agreement expressly permitted Life of Georgia to withdraw from the sale of any policy upon its providing MIS with written notice.
MIS developed a marketing plan for the CHAMPUS policy and created computer programs to be used in selling and administering the policy. Donahey and MIS's president, James L. Lane, used MIS's contacts to recruit agents to sell the CHAMPUS policy throughout the United States.
When Bob St. Jacques became ING's president in the fall of 1994, he initiated an evaluation of ING's corporate strategies with regard to its subsidiaries, including Life of Georgia. In January 1995, ING considered eliminating Life of Georgia's Associated Doctors Division and its health-insurance products by selling Associated Doctors' assets and dissolving it as a business entity. During a February 1995 meeting, St. Jacques met with Lynn Taylor, Associated Doctors' president, and Darryl Harris, Associated Doctors' vice president and chief actuary, and discussed the possibility of selling Associated Doctors. Life of Georgia hired an actuarial firm to establish the value of Associated Doctors and hired a consulting firm to identify potential purchasers.
By April 1995, Union Fidelity Life Insurance Company had completed a "due diligence" study of a possible purchase of the assets of Associated Doctors, and it had begun negotiations with Life of Georgia.
In May 1995, Harris and a Life of Georgia representative met with Donahey and another MIS representative to discuss the sales of the CHAMPUS policy. During this meeting, MIS was not told of Life of Georgia's decision to possibly sell Associated Doctors.
Instead of selling Associated Doctors, Life of Georgia dissolved Associate Doctors, and Union Fidelity, pursuant to a contract with Life of Georgia dated June 29, 1995, agreed to administer the currently effective health-insurance policies that had been sold by Associated Doctors, including the CHAMPUS policies. On June 29, 1995, Life of Georgia sent a letter to its "entire field force" stating that Life of Georgia had decided to stop selling health insurance through Associated Doctors, that no new applications for health insurance through Associated Doctors would be accepted or processed after July 20, 1995, and that Union Fidelity would administer the Associated Doctors'"block of business", including the CHAMPUS policies. Under the contract between Life of Georgia and Union Fidelity, MIS agents would continue to receive commissions for all CHAMPUS policies sold before July 20, 1995.
MIS had heard rumors before June 29, 1995, about the possible dissolution of Associated Doctors, and Lane had asked Taylor what would happen if Associated Doctors ceased doing business. Taylor responded by saying that the CHAMPUS program would be retained and administered by Life of Georgia. Taylor testified *747 that as of March 1, 1995, he knew that Associated Doctors was going to be dissolved. Taylor also admitted that he had continued to encourage MIS to recruit agents and to market the CHAMPUS policy after a decision had been made in February 1995 to investigate the possibility of selling Associated Doctors.
Harris also assured Donahey and other MIS representatives that MIS was "going to be okay." Harris, however, maintained that the final decision to dissolve Associated Doctors was not made until June 29, 1995, and that MIS was notified on that date.
MIS sued Life of Georgia, Taylor, and Union Fidelity, alleging breach of contract, fraud, tortious interference with a business relationship, misappropriation of trade secrets, conspiracy, fraudulent suppression, and conversion. Pursuant to the parties' stipulation, the trial court dismissed all claims against Union Fidelity. MIS voluntarily dismissed all claims against Life of Georgia and Taylor except the claims alleging breach of contract and fraudulent suppression. The trial court entered a summary judgment for Taylor on both claims.
Additionally, the trial court entered a summary judgment for Life of Georgia on the breach-of-contract claim.[1] The court, however, concluding that Life of Georgia had failed to make a prima facie showing that it was entitled to a summary judgment on MIS's fraudulent-suppression claim, denied the motion for summary judgment on that claim.
Pursuant to Rule 54(b), Ala.R.Civ.P., MIS moved for an order certifying as final the summary judgment for Life of Georgia on MIS's breach-of-contract claim. Life of Georgia filed a motion asking the court, also pursuant to Rule 54(b), to certify as final the ruling on the breach-of-contract claim, and also asking for a statement as required by Rule 5, Ala.R.App.P., to seek permission to appeal the order denying the summary judgment on the fraudulent-suppression claim. The trial court granted both motions; thus, MIS appealed from the summary judgment for Life of Georgia on the breach-of-contract claim, and Life of Georgia filed a notice of appeal from the denial of its summary-judgment motion on MIS's fraudulent-suppression claim.
This Court transferred the appeals, pursuant to § 12-2-7(6), Ala.Code 1975, to the Court of Civil Appeals. On July 24, 1998, the Court of Civil Appeals affirmed the summary judgment for Life of Georgia on the breach-of-contract claim, without an opinion. Military Ins. Specialists, Inc. v. Life Ins. Co. (No. 2970030), 757 So.2d 488 (Ala.Civ.App.1998)(table). (The Court of Civil Appeals had previously dismissed Life of Georgia's appeal.)
In October 1998, MIS moved for a clarification of the trial court's order with regard to the period during which MIS claimed it had incurred loss or damage as a result of Life of Georgia's alleged fraudulent suppression. Life of Georgia responded to MIS's motion for clarification and renewed its motion for summary judgment on MIS's fraudulent-suppression claim. The trial court granted Life of Georgia's renewed motion for summary judgment on the fraudulent-suppression claim and denied MIS's motion for clarification.
MIS appealed. The Court of Civil Appeals reversed the summary judgment for Life of Georgia and remanded, holding that MIS had produced sufficient evidence *748 to create a genuine issue of material fact as to whether Life of Georgia owed a duty to MIS to disclose the decision to sell Associated Doctors and to cease taking applications for CHAMPUS policies; whether Life of Georgia's failure to disclose this information induced MIS to act, or not to act, to its detriment; and whether MIS was damaged as a result of Life of Georgia's failure to disclose.
Life of Georgia petitioned this Court for certiorari review to consider this question:
"[W]hether a court can place on an insurance company an additional unwritten or unlegislated duty to disclose to its agent a decision to withdraw a particular policy from sale, when the Agreement between the parties explicitly provides that the insurance company may withdraw a policy for sale at any time upon written notice."
(Life of Georgia's brief to this Court at p. 7.)
"`"Summary judgment [for a defendant] is proper when there is no genuine issue of material fact as to any element of a cause of action, and the defendant is entitled to a judgment as a matter of law. If there is [substantial] evidence ... of every element of a cause of action, summary judgment is inappropriate."' Ex parte General Motors Corp., 769 So.2d 903, 908 (Ala. 1999), quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989)(Houston, J., concurring specially)[.]"
Ex parte Ledford, 761 So.2d 990, 992-93 (Ala.2000). In a summary-judgment case, this Court reviews the record in a light most favorable to the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
Section 6-5-102, Ala.Code 1975, defines "fraudulent suppression":
"Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case."
To establish a claim of fraudulent suppression, a plaintiff must prove by substantial evidence that the defendant was under a duty to disclose an existing fact of which it had knowledge; that it suppressed the fact by concealment or nondisclosure; that the suppression induced the plaintiff to act or to refrain from acting; and that the acting or refraining from acting resulted in damage to the plaintiff. Ex parte Dial Kennels of Alabama, Inc., 771 So.2d 419 (Ala.1999); Foremost Ins. Co. v. Parham, 693 So.2d 409, 423 (Ala. 1997).
Life of Georgia contends that MIS did not produce evidence indicating that Life of Georgia was under a duty to disclose to MIS the planned change in Life of Georgia's Associated Doctors Division and the change in the sale and administration of the CHAMPUS policy.
"Generally, mere silence does not constitute fraud. However, § 6-5-102, Ala. Code 1975, establishes two situations in which a duty to speak could arise: `from the confidential relations of the parties or from the particular circumstances of the case.' The [plaintiffs] do not contend that their relationship with [the defendant] was a confidential one. Therefore, we must determine whether a duty to speak arose from the circumstances of this case. In ascertaining whether the circumstances of the case created a duty to disclose, `we must consider a number of factors: 1) the relationship of the parties; 2) the relative knowledge of the parties; 3) the value of the particular fact; 4) the plaintiff's *749 opportunity to ascertain the fact; 5) customs of the trade; and 6) other relevant circumstances.' [State Farm Fire & Casualty Co. v.] Owen, 729 So.2d [834], 842-43 [ (Ala.1998)]. Moreover, we must examine the relationship or circumstances at the time of the alleged suppression. Id."
State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 324 (Ala.1999). "This Court has often ruled that there is no duty to disclose facts when information is not requested," Bulger v. State Farm Mut. Auto. Ins. Co., 658 So.2d 425, 426 (Ala.1995); however, the duty may arise from a request for information. Jewell v. Seaboard Indus., Inc., 667 So.2d 653 (Ala.1995). Silence in the face of a request for information regarding a material fact is a "relevant circumstance," and, although our cases recognize that "an obligation to disclose does not arise where the parties to a transaction are knowledgeable and capable of handling their affairs" (Trio Broadcasters, Inc. v. Ward, 495 So.2d 621, 624 (Ala.1986)), even in an arm's-length transaction between parties fully capable of protecting their own interests a duty to disclose will arise when the information has been specifically requested. Ex parte Ford Motor Credit Co., 717 So.2d 781 (Ala.1997). See also, Ex parte Farmers Exchange Bank, 738 So.2d 24 (Ala.2000).
Acknowledging that a duty to disclose can arise from a confidential relationship between the parties, the Court of Civil Appeals held that because the representatives of MIS and Life of Georgia "were experienced and knowledgeable in the insurance field and were capable of protecting their interests in an arm's-length transaction," there was no confidential relationship between these parties that would support a finding of a duty to disclose. 810 So.2d at 739, citing Holdbrooks v. Central Bank of Alabama, N.A., 435 So.2d 1250 (Ala.1983), quoting 15A C.J.S. Confidential (1967). However, the Court of Civil Appeals further held, in light of the particular circumstances of the case, that MIS had presented sufficient evidence to create a genuine issue of material fact as to whether Life of Georgia owed MIS a duty to disclose Life of Georgia's plan to sell the assets of Associated Doctors and to transfer the administration of its health-insurance division, including the CHAMPUS policies, to Union Fidelity. We disagree.
"In evaluating the question whether [the defendant] had a duty to speak, we must consider a number of factors: (1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff's opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances."
State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 842-43 (Ala.1998).
As the Court of Civil Appeals noted, the record suggests that Life of Georgia and MIS were in an "arm's-length" relationship. Additionally, the evidence indicates that the representatives of MIS "were experienced and knowledgeable in the insurance field and were capable of protecting their interests." 810 So.2d at 739. The relationship of the parties was explicitly clarified in the Agreement, which provided that Life of Georgia could withdraw from the sale of any policy of insurance upon written notice to MIS. Clearly, Life of Georgia had superior knowledge of the fact that it intended to sell or to dissolve Associated Doctors and that that action would affect Associated Doctors' administration of the CHAMPUS policies. However, "`[s]uperior knowledge of a fact, without more, does not impose upon a party a legal duty to disclose such information.' Surrett v. TIG Premier Ins. Co., *750 869 F.Supp. 919, 925 (M.D.Ala.1994)." State Farm Fire & Cas. Co. v. Owen, 729 So.2d at 843. Despite the testimony of Donahey about the value of the information, in light of the terms of the contract between MIS and Life of Georgia the value of the knowledge of the possible sale of Associate Doctors is minimal. Indeed, under the contract, Life of Georgia could terminate the sale of any policy at any time.
The record indicates that representatives of MIS did inquire as to the legal status of Associated Doctors and that Life of Georgia was not forthright regarding its plans for Associated Doctors. Before MIS was formally notified by Life of Georgia, MIS learned of the possibility that Life of Georgia planned to dissolve Associated Doctors. Because MIS's CHAMPUS policy was underwritten and administered by Associated Doctors, the prospect of a change in the structure of Associated Doctors prompted MIS representatives to specifically inquire of Life of Georgia representatives whether the rumors were true and, if so, what would happen to MIS and its CHAMPUS policy. Life of Georgia responded by assuring MIS that it "would be okay." Further, Life of Georgia continued to encourage MIS to market the CHAMPUS policy at the same time Life of Georgia was negotiating with Union Fidelity and others regarding the dissolution of Associated Doctors. On June 29, 1995, Life of Georgia finally notified MIS that Associated Doctors had been dissolved and that the CHAMPUS policy would not be sold after July 20, 1995.
We conclude that MIS's inquiries did not create a duty to disclose, given the Agreement between the parties. MIS expressly agreed that Life of Georgia could withdraw a policy from sale at any time, as long as Life of Georgia provided MIS with written notice. Therefore, in the Agreement MIS had effectively foreclosed any duty Life of Georgia might have had to disclose upon direct inquiry. If the terms of the Agreement had not been as clear, it would be appropriate to impose a duty to disclose in response to a direct inquiry. While we do not condone Life of Georgia's responses upon direct inquiry, we do not find in this situation that Life of Georgia had a duty to disclose. Cf. Ex parte Ford Motor Credit Co., supra, 717 So.2d at 787 ("[w]hile the law still requires, even in the present adversarial world of commercial transactions, that direct questions be responded to truthfully and accurately, the law also generally allows a business to keep confidential its internal operating procedures").
The parties had previously determined in the negotiation of the Agreement that with written notice Life of Georgia could terminate the sale of any policy at any time for any reason. The record indicates that Life of Georgia, pursuant to the Agreement, notified MIS when it decided to terminate its health-insurance division and to transfer the administration of that division's policies to Union Fidelity. In light of the terms of the Agreement, we conclude that Life of Georgia effectively eliminated any duty Life of Georgia might have had to disclose this information before it gave the notice. While we recognize that MIS presented expert testimony indicating that the customs of the trade required Life of Georgia to disclose the potential sale of Associated Doctors, it appears to this Court that MIS entered into an Agreement that was below industry standards. MIS, by its own actionsnot Life of Georgiaplaced MIS in a disadvantageous situation. MIS's expert witness's testimony, in light of the other considerations, did not constitute evidence of "such weight and quality that fair-minded persons ... [could] reasonably infer the existence" of fraud. See West v. Founders *751 Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)(defining "substantial evidence"). In light of the Agreement between the parties, we conclude that, despite MIS's direct inquiry about Associated Doctors and the testimony with regard to the customs of the trade, Life of Georgia, as a matter of law, had no duty to disclose the possible sale of Associated Doctors.
On review of a summary judgment, this Court views the evidence in the same manner as did the trial court. Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). Here, the evidence, considered under these particular circumstances and viewed in a light most favorable to MIS, indicates that as a matter of law Life of Georgia had no duty to disclose. To uphold MIS's claim, this Court would have to rule that Life of Georgia had a duty to disclose any potential change in circumstance despite the terms of the Agreement. To impose such a duty would violate the principles of contract law.
"As the Court stated in Milton Construction Co. v. State Highway Dep't, [568 So.2d 784 (Ala.1990)], the state constitution protects contractual obligations from impairment by the legislature or the judiciary, and the right of freedom of contract is a cherished one that courts are bound to protect. At 17 Am.Jur.2d Contracts § 178 (1991), these principles are stated as follows:
"`The courts are averse to holding contracts unenforceable on the ground of public policy unless their illegality is clear and certain. Since the right of private contract is no small part of the liberty of the citizen, the usual and most important function of courts of justice is to maintain and enforce contracts rather than to enable parties thereto to escape from their obligations on the pretext of public policy, unless it clearly appears that they contravene public right or the public welfare. Rules which say that a given agreement is void as being against public policy are not to be extended arbitrarily, because "if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be enforced by courts of justice."'"
Sutton v. Epperson, 631 So.2d 832, 835 (Ala.1993).
Life of Georgia raises other issues, but, because we hold that Life of Georgia had no duty to disclose, we need not address them.
The trial court properly entered the summary judgment for Life of Georgia on MIS's claim alleging fraudulent suppression. The judgment of the Court of Civil Appeals is reversed, and this cause is remanded for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
MOORE, C.J., and HOUSTON, SEE, and BROWN, JJ., concur.
LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., dissent.
On Application for Rehearing
STUART, Justice.
APPLICATION OVERRULED.
MOORE, C.J., and HOUSTON, SEE, and BROWN, JJ., concur.
LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., dissent.
*752 LYONS, Justice (dissenting).
The agreement gave Life of Georgia the right to withdraw from the sale of any policy merely by giving written notice to MIS. However, once its representatives responded to MIS's direct inquiries about Life of Georgia's future plans with assurances rather than a reminder of the absence of any obligation, under its contract, to disclose its future plans, Life of Georgia waived the right to rely on this feature of the agreement as a defense to a fraud claim. Had Life of Georgia responded, "None of your business," or with more politely phrased words of similar import, it would have been acting in conformity with its agreement, and this lawsuit would have been unnecessary. However, Life of Georgia chose to try to have it both ways, a contractually based right to silence and oral behavior inconsistent with its rights under the contract. I respectfully dissent.
JOHNSTONE, J., concurs.
NOTES
[1] The Agreement provided that Life of Georgia could withdraw a policy from sale at any time upon written notice to MIS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605055/ | 416 So.2d 103 (1982)
STATE of Louisiana
v.
Thomas MURDOCK.
No. 81-KA-3336.
Supreme Court of Louisiana.
June 21, 1982.
*104 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Boudreaux, Jr., Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.
Paul J. DeMahy, St. Martinville, for defendant-appellant.
ROBERT L. LOBRANO, Justice Ad Hoc.[*]
Defendant Thomas Murdock was charged by a St. Martin Parish grand jury indictment with the crimes of aggravated rape, aggravated burglary, aggravated crime against nature (three counts) and attempted first degree murder, violations of La.R.S. 14:42; 14:60; 14:89.1; 14:27 (14:30). Defendant's trial began on May 26, 1981; however, after opening arguments and the victim's testimony, he changed his previously entered pleas of not guilty and not guilty by reason of insanity to guilty of one count of aggravated crime against nature, La.R.S. 14:89.1, and forcible rape, La.R.S. 14:42.1. The state dismissed the remaining counts. Thereafter, defendant was sentenced to serve thirty years at hard labor on the forcible rape conviction and ten years without benefit of probation, parole or suspension of sentence on the aggravated crime against nature conviction, with the sentences to run consecutively. Defendant now appeals on the basis that his sentences are excessive and violative of Article 1, Section 20 of the Louisiana Constitution.
STATEMENT OF FACTS
The testimony of the victim, Paula Bonin Boggs, is basically as follows. On the night of December 26, 1980 she had returned from a hospital visit with one of her three children at approximately 10:00 P.M. Because the doctor had instructed her to awaken her two year old child every two hours during the night, she called two friends to come over to assist her. As she watched T.V. with the lights out, she heard noises outside of her trailer. Thinking her friends had arrived, she unlatched the top latch of the door, and turned on the outside lights. At this time, a man with a stocking over his head pulled open the door and backed Ms. Boggs into the trailer. As she tried to resist him, he twisted her arm and pushed her into various things, including the Christmas tree. The assailant pushed her to the back bedroom but, upon seeing the other two sleeping children on that bed, he pushed her to the first bedroom where he shoved her down on the bed and unzipped his pants. The assailant told Ms. Boggs to undress but she kept begging him to leave her alone and not to hurt her children. He responded, "as long as you do what I tell you to do, nobody's going to get hurt." Then he pulled off Ms. Boggs' shirt and pants and made her have oral sex with him by pushing her head on his penis. Finished with that sexual assault, he threw her down on the bed again, removed a bottle of red capsules from his pants and forced the pills into her mouth. He continued to put capsules in her mouth until she had swallowed all but a couple. Her assailant then raped her after which he pulled the stocking mask above his mouth and had oral sex with her. She continued to fight but could not control herself because the medication continued to have a numbing effect.
*105 The assailant then pulled Ms. Boggs from the bed and allowed her to stand up and check on her children, as she had begged him. Meanwhile her attacker went through Ms. Boggs' medicine chest and removed two bottles of pills which he proceeded to force down her mouth again. The attacker forced Ms. Boggs back into the other bedroom where he had oral sex with her again by pulling her head down on his penis. Afterwards, he started to have sex with her again when her friends Buddy and Peggy started knocking at the trailer. The rapist held his hand over Ms. Boggs' mouth so she could not scream while threatening her children if she did yell. Meanwhile, Buddy came in through the back door. When he did, the rapist got up and ran. Buddy grabbed him; as they fell to the floor Buddy yelled to Ms. Boggs, "Run."
Ms. Boggs ran knocking on various trailer doors until she arrived at the highway where she flagged down a trucker, who notified the police by C.B. Ms. Boggs was taken to a hospital where her stomach was pumped and she was examined for rape and external bodily injuries.
ASSIGNMENT OF ERROR
Defendant argues that the imposition of the sentences to run consecutively was excessive,[1] and quotes the language from State v. Watson, 372 So.2d 1205, (La. 1979) wherein we stated:
"... we have pointed out that, for an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period." id. at 1207.
La.C.Cr.P. Article 894.1[2] sets forth the standards which justify the imposition of imprisonment and/or suspension or probation. The purpose of this statute is to assist the court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case. State v. Douglas, 389 So.2d 1263 (La.1980) Further, the articulation by the trial judge in accordance with that statute facilitates review by this Court.
In the instant case, the trial judge gave an extensive factual basis for the imposition of consecutive sentences, enumerating *106 defendant's lack of a serious criminal history, his alcohol and drug abuse problem, and his mental problems, as well as the circumstances of the offense, the likelihood that defendant will commit another crime, and his potential for rehabilitation. The record clearly exhibits adequate compliance by the trial court with the sentencing requirements and guidelines of Art. 894.1. Furthermore it is our function, as a reviewing court to not merely substitute our judgment for that of the trial judge, but to determine whether that court abused its broad discretion in sentence imposition.
In view of the viciousness of the criminal act and the threat that defendant's conduct posed, not only to the victim, but to her three small children, the sentences of each charge for less than the maximum are not excessive. The victim believed that her life and that of her children were in danger. Defendant's actions in forcing the victim to swallow pills could have resulted in a homicide. Defendant admits to alcohol and drug problems, and although he tried two abuse programs he has not successfully dealt with those problems. The Pre-Sentence Investigation report reveals that defendant has a history of fighting and intoxication which resulted in his receiving a Discharge Under Other Than Honorable Conditions from the Army in 1978. The report further indicates that defendant has done little to help his problem. As this Court recently pointed out in State v. Carter, 412 So.2d 540 (La. 1982), consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public.
In view of the trial judge's extensive factual dissertation prior to sentencing, and the reasons set forth therein, we find no error in the consecutive sentences imposed. Accordingly, the conviction and sentence are affirmed.
NOTES
[*] Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.
[1] Article 1, Section 20, La.Const. of 1974 prohibits the imposition by law of excessive punishment.
[2] La.C.Cr. Art. 894.1 provides:
A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant's crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant's criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
(5) The victim of the defendant's criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant's criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922348/ | 254 B.R. 352 (2000)
In re Leonard A. NADYBOL, Debtor.
No. 99-10726-DK.
United States Bankruptcy Court, D. Maryland, at Greenbelt.
September 26, 2000.
*353 Christopher Rizek, Caplin & Drysdale, Chtd., Washington, D.C., for debtor.
Angelo Frattarelli, U.S. Department of Justice, for United States of America.
MEMORANDUM OF DECISION
DUNCAN W. KEIR, Bankruptcy Judge.
Before the court are cross motions for summary judgment on debtor's objection to the proof of claim filed by United States. The proof of claim asserts a debt owed for nonpayment of federal income taxes for tax years 1984 through 1990, at which time debtor was working for the Army Recreation Machine Fund while living in Germany. Debtor asserts in his objection that no taxes are due pursuant to 26 U.S.C. § 911(a), which allows qualified individuals to exclude "foreign earned income" from gross income. The court has considered the pleadings and the evidence and has determined that a hearing would not aid in the decisional process. The court shall grant summary judgment in favor of the United States, and deny the motion filed by the debtor.
Facts[1]
Debtor is a United States citizen. While he maintained his United States citizenship over the period at issue, he also owned a home in Germany, had a German spouse, obtained a work permit in Germany, and achieved German residency status.
During the tax years in question, 1983-1990, debtor was employed by the Army Recreation Machine Fund, ("ARMP"). According to the stipulated facts, ARMP was formed in 1983 to place slot or "gaming" machines on certain military bases. The U.S. Department of the Army created ARMP as a non-appropriated fund instrumentality ("NAFI")[2]. Army oversight of ARMP was provided through the Army Community Family and Support Center ("ACFSC"). The mission statement of ARMP is: "to provide a highly controlled gaming operation designed to provide recreation for soldiers and family members who are stationed overseas while generating revenue for the morale, welfare, and recreation ["MWR"] programs and projects." Stipulated Facts, Exhibit 1, Memorandum from ACFSC to General Manager, Army Recreation Machine Program. Debtor's job was that of a buyer in the purchasing office.
Debtor was paid biweekly in U.S. currency over his period of employment with ARMP. Although his paychecks were generated by the U.S. Army non-appropriated fund payroll office, ARMP reimbursed the Army for debtor's salary. As part of his job, debtor was issued a U.S. Army, Europe, civilian employee identification card that entitled him to use base post and health facilities as well as other services.
Standard
Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is *354 entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322, 106 S. Ct. 2548.
Discussion
Under IRC § 911(a), "citizens or residents of the United States living abroad" may elect, under certain circumstances, to exclude "foreign earned income" from the calculation of gross income. Section 911(b)(1)(A) defines "foreign earned income" as "the amount received by [the taxpayer] from sources within a foreign country or countries which constitute earned income attributable to services performed by [the taxpayer] during a period [described in further subsections]."
Here, the parties agree that the only potential bar to debtor's use of the foreign income exclusion is IRC § 911(b)(1)(B)(ii). Under section 911(b)(1)(B)(ii), an individual may not include in the calculation of foreign earned income, any income "paid by the United States or an agency thereof to an employee of the United States or agency thereof." The parties have stipulated that defendant was an employee of ARMP during the relevant time period. The parties disagree, however, as to whether ARMP is an "agency" of the United States, for purposes of IRC § 911(a). If the court determines that ARMP is a section 911(a) agency, debtor's objection to the claim filed by the United States must fail.
The income tax regulations expand on IRC § 911(b)(1)(B)(ii) by exempting from the definition of foreign earned income the income earned working for "any U.S. government agency or instrumentality." Treas. Reg. § 1.911-1(a) (emphasis supplied). Debtor has stipulated that ARMP is a "non-appropriated fund instrumentality" of the United States Army. However, at least one court has found that equating "agency" with "instrumentality" is:
not particularly helpful, for the Commissioner has ruled that the American Red Cross held to be an instrumentality of the Government for many purposes, see e.g., Gradall v. United States, 161 Ct. Cl. 714, 329 F.2d 960, 964 (1963) is not an agency of the United States within the meaning of sec. 911(a). Rev. Rul. 60-36, 1960-2 C.B. 279.
Donaldson v. Commissioner, 51 T.C. 830, 837 n. 5, 1969 WL 1555 (1969). Accordingly, that ARMP is a NAFI is not dispositive of its status as an agency under IRC § 911(a).
Courts that have addressed the issue "agency" in the section 911(a) context have focused on the degree of control the government exercises over the entity. See, e.g., Payne v. United States, 980 F.2d 148, 150 (2nd Cir.1992); Kalinski v. Commissioner of Internal Rev., 528 F.2d 969, 973 (1st Cir.1976); Morse v. United States, 195 Ct. Cl. 1, 443 F.2d 1185, 1188 (1971). To that end, courts consider, (and the parties to this action have briefed), the following factors:
1. power of the United States to initiate and terminate the entity;
2. effectuation of government purposes by the entity;
3. exclusion of private profit; and
4. limitation of employment or membership to government-connected persons.
*355 Payne at 150; see also, Morse at 1188.[3]
In its motion for summary judgment, debtor concedes that ARMP was established by the United States Army, and that the Army could terminate it. Accordingly, there is no dispute as to the first factor set forth above.
As to the second factor, debtor cites dictum from the Morse court for the proposition that only if the governmental purpose effectuated by ARMP is "essential" or "critical," can there be a finding that it is a section 911(a) agency.[4] Debtor misconstrues Morse. As framed by that court, the second "element of control" that identifies an "agency" is the "effectuation of Government purposes paramount over those of the organizers and members." Morse at 1188. Nevertheless, as shown below, even accepting debtor's characterization, application of the second factor to the stipulated facts demonstrates governmental control of ARMP.
Debtor quotes subsections of Army Regulation ("AR") 215-1 which indicate that the Army maintains various Morale, Welfare and Recreation ("MWR") programs for the benefit of members of the armed services. Debtor maintains that such programs were categorized into 4 declining levels of importance as Category A, "Mission Sustaining Activities"; Category B, "Basic Community Support"; Category C, "Enhanced Community Support"; and Category D, "Business activities" AR 215-1, §§ 2-9 through 2-12. Debtor quotes the subsections above as indicating that ARMP falls into Category D, which, due to its income generating capabilities is "considered less essential from the perspective of the military mission, but still highly desirable."
Debtor has not provided the court with a copy of the language upon which he relies, and such language does not appear to be part of the current version of AR 215-1.[5] Under the present structure of the regulation, the Army considers every NAFI to be "integral and essential to the conduct of the military mission." AR 215-1, § 3.1(b)(9)(1998). This tenant was echoed by Brigadier General Craig B. Whelden, Commander of the Army Community and Family Support Center in recent congressional testimony:
Readiness, retention, and quality of life (QOL) are inseparable. The MWR and Family programs positively impact soldier and family QOL and yield soldiers more ready and able to perform the military missions whether stationed at home or deployed.
Statement Before the Morale, Welfare and Recreation Panel of the House Panel Comm. on Armed Servs., 106th Cong., 1st Sess. (1999), 1999 WL 8086395.
The court finds that either version of AR 215-1 supports a finding that ARMP serves "Governmental purposes paramount *356 over those of [its] organizers and members." Morse, 443 F.2d at 1188. That ARMP may be "less essential" when compared to other MWR categories is of no moment as to the ultimate issue, whether sufficient government control exists such that ARMP is an IRC § 911(a) "agency".
Debtor also concedes the third factor: that ARMP is operated to the exclusion of private profit. Indeed, as revealed by the Stipulated Facts in this case, excess ARMP funds (funds left over after slot machine payout and entity operating expenses such as payment of employee salary and benefits) not only do not adhere to the benefit of ARMP, but instead are used to promote other MWR programs for the benefit of United States soldiers and their families. Stipulated Facts, ¶¶ 20-21. Moreover, under the regulations governing its existence, ARMP funds are subject to substantial Army control. Section 8.4.B of AR 215-1 restricts machine location, machine payout, the percentage of funds that ARMP may retain, how cash is collected, how cash is deposited, how access to the machines is controlled, and how the income generated is distributed. ARMP is also subject to an annual audit of its finances by the Army. AR 215-1, § 8.4.B(18)(C).
The final factor in determining whether ARMP is an agency under IRC § 911(a) is whether its membership is limited to "government-connected" persons. Debtor argues that since foreign nationals may use the slot machines under certain circumstances, that the membership was not limited to "government-connected persons."[6]
Debtor's argument is similar to that presented to the court in Payne v. United States, 980 F.2d 148, 150 (2nd Cir.1992). That case involved whether the Panama Canal Commission ("PCC") was an agency under IRC § 911(a). The PCC was created pursuant to an act of Congress to administer the Panama Canal under a treaty between the United States and Panama. Debtor was a United States citizen employee of the PCC who lived in Panama. Debtor argued that the PCC was not an agency because it did not limit membership to government-connected persons. Notably, certain members of the PCC board were, as required by the enacting legislation, Panamanians. The Second Circuit did not find this fact dispositive on the issue of whether the members of the PCC were "government connected":
In making this assertion, appellant ignores the fact that the PCC employees are subject to the same duties and responsibilities as federal employees, and that the PCC legislation creates a code of conduct which is substantially similar to the laws applicable to federal employees. In fact, the President established the Panama Canal Board of Appeals, which makes the "final and conclusive" determination for employee grievances about job classification and pay rates. 22 U.S.C. §§ 3660-3662 (1988). Further, it is the Federal Labor Relations Authority which handles disputes between the PCC and the employees' union. Panama Canal Comm'n v. Federal Labor Relations Auth., 867 F.2d 905 (5th Cir.1989). Moreover, United States citizen employees of the PCC, under certain conditions, are eligible for federal benefits such as civil service retirement, disability, and death benefits. 22 U.S.C. § 3649 (1988). These factors provide sufficient evidence of a government connection to the employees of the PCC. The PCC thus complies with the final prong of the test for control.
Payne v. United States, 980 F.2d at 151-52.
*357 Similar to the employees in Payne, ARMP employees are subject to standards of conduct established by Army regulations, and fall under the supervision of the ACFSC Commander. Stipulated Facts, Exhibit 1, ¶ 4d, g; Exhibit 2, AR 215-2, § 7-2a; AR 215-1, § 3.1b(6). Further, all Army NAFIs "operate under the authority of the U.S. Government" and "[a]re administered by military or civilian personnel acting in an official capacity." AR 215-1, §§ 3.1a(1), b(1). The court concludes, as did the court in Payne, that there is sufficient evidence of government connection in this case to satisfy the final element of the control test despite the fact that foreign nationals could use the gaming machines under some circumstances. Accord, Kalinski, supra, 528 F.2d at 973-74 (finding government connection where the civilian employees of the entity under consideration were "subject to military law including but not limited to applicable rules, regulations, and directives issued by competent U.S. military authorities, to the same extent . . . as . . . any U.S. citizen employees paid from appropriated funds. . . .") (internal quotations omitted).
Having viewed the stipulated facts in a light most favorable to the debtor, the court concludes that the United States Army exercised pervasive financial and supervisory control over ARMP and caused it to accomplish Army purposes, on a non-profit basis, limited to persons directly or indirectly affiliated with the Army. Accordingly, ARMP was an agency of the United States for purposes of 26 U.S.C. § 911(a). Payne, 980 F.2d at 152; Kalinski, 528 F.2d at 974. As a consequence, debtor's objection to the claim filed by the United States must be denied. A separate order shall issue.
NOTES
[1] The facts, unless stated otherwise in the text of this opinion, are taken from the "Stipulation of Facts," and the attached exhibits, found at paper 42 of debtor's case file.
[2] A NAFI is an entity created to administer non-appropriated funds. Non-appropriated funds, in turn, are funds that have not been appropriated by Congress, but are generated instead by "participation of [military] personnel and others in [military] religious, morale, welfare, and recreation programs such as base exchanges, theaters, book departments, and restaurants." Kalinski v. Commissioner of Internal Revenue, 528 F.2d 969, 971 n. 7 (1st Cir. 1976).
[3] The Morse court set forth the test with some additional elaboration as to the types of entities it believed were not "agencies":
The elements of control, with power to initiate and terminate, with effectuation of Government purposes paramount over those of organizers and members, the exclusion of private profit, and the limitation of membership to Government-connected persons, serve to identify an `agency.' This excludes such institutions as national banks having overseas branches, which, although chartered by the Government and regulated thereby, exist to earn a profit by serving the needs of the public generally. Morse, 443 F.2d at 1188 (internal citations omitted).
[4] Following the language quoted in the previous footnote, the Morse court stated that to succeed in their case, that plaintiff/taxpayers "would have to show that the [entity taxpayers worked for] was `not established to provide essential morale and recreational facilities and services for personnel of an installation.'" Morse, 443 F.2d at 1188 (internal citations omitted).
[5] As this discussed in the body of this opinion, even as quoted by debtor, AR 215-1 does not (or did not at the time debtor was working for ARMP) support the proposition that the ARMP is not `essential.' The current version of AR-215-1 can be found at:
http://books.usapa.*belvoir.army.mil:80/cgibin/bookmgr/books/r215_1.
[6] Through its regulations, the Army strictly controls who may use ARMP slot machines. As a practical matter, participation by foreign nationals is limited because the machines may only be installed on certain Army "Moral, Welfare and Recreation activities," AR 215-1, § 8.4.B(7), and because MWR activities are generally on military bases. Army regulations further restrict use by foreign nationals if such individuals would not be able to use the machines under local law, AR 215-1, § 8.4.B(8)(b)(1), and if such individuals are under the age of 18, AR 215-1, § 8.4.B(8)(b)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922380/ | 254 B.R. 699 (2000)
In re Paul G. POMAINVILLE, Debtor.
Beverly Chapman, Plaintiff,
v.
Paul G. Pomainville, Defendant.
Bankruptcy No. 98-12302. Adversary No. 98-1200.
United States Bankruptcy Court, S.D. Ohio, Western Division.
March 7, 2000.
*700 *701 Paul Lukey, Cincinnati, OH, for debtor.
E. Hanlin Bavely, Cincinnati, OH, trustee.
MEMORANDUM OF DECISION
JEFFERY P. HOPKINS, Bankruptcy Judge.
The Plaintiff, Beverly Chapman, commenced this adversary proceeding on July 13, 1998, with the filing of a Complaint. By her Complaint, the Plaintiff seeks a judgment against the Defendant, Debtor Paul G. Pomainville, for damages and a finding that the alleged debt is nondischargeable under the authority of 11 U.S.C. § 523(a)(4). A trial of this proceeding was conducted on March 3, 1999.
I
The Plaintiff and Defendant are equal owners of an Ohio corporation known as Dual Effort, Inc. Through the corporation, the parties operated a dry cleaning business known as Hyde Park East Cleaners. They purchased the business in November of 1995, each party contributing approximately $20,000.00 towards the endeavor. The parties had been living together for approximately five years prior to the formation of the corporation.
In addition to their capital contributions, the corporation obtained a $120,000.00 loan for the purpose of start-up capital. Both of the parties signed a promissory note for the repayment of this indebtedness, the Defendant as "president" of Dual Effort, Inc. and the Plaintiff as "vice president." The parties established a business checking account whereby either party could sign off on business checks. Initially, the Plaintiff took care of all of the record keeping. Within six months, in approximately April of 1996, the Defendant became concerned about the business' finances and demanded an accounting from the Plaintiff. This incident marked a transition in the business and personal relationships between the parties. The Plaintiff left the residence that she shared with the Defendant and lived at the business. The Defendant took control of the business' finances and delegated much of this work to an accountant while he worked a separate job in Middletown, Ohio. At some point in this process, the Defendant changed the checking account by removing the Plaintiff as a signatory. The Plaintiff testified that, at times, she could not obtain information about the business from the Defendant or the accountant. The Plaintiff felt as though the Defendant wanted her to work as an employee of the business with no rights of ownership. The Defendant testified that he did not exclude the Plaintiff from the business but attempted to get her to run it so that the corporation would not have to hire managers. The Plaintiff, in late August of 1996, left the business as a result of what she described as physical and emotional violence. Within days of her departure, the Plaintiff suffered a heart attack.
Sometime after the Plaintiff's departure, Ruth Baker began working as an employee at the business. She worked there every day for six or seven months until it closed. She also began living with the Defendant at this time. Eventually the couple got married, although they are no longer living together. Ms. Baker testified that the Defendant kept the receipts and cash from the business in a box in the back of his car when the business closed at the end of each day. She also testified that he kept a good deal of cash in a briefcase that he carried with him at all times. Although Ms. Baker could not state exactly how much cash was kept in the briefcase, she said that it was filled with rows and stacks of $50 and $100 bills. The Defendant *702 would often take money from his briefcase or the box in the car to pay for dinner for himself and Ms. Baker after the close of the business day. However, Ms. Baker was unable to say how much of the cash the Defendant applied toward personal expenditures.
At some unknown time, the main water line into the business ruptured and ruined the boiler. The business was insured by Nationwide Insurance. As a result of this loss and other property losses that the record does not detail, Nationwide Insurance issued six different checks to the corporation totaling $17,057.30. The Defendant did not deposit these funds into the corporate checking account. Instead, the funds were deposited into the Defendant's personal checking account or a savings account held jointly with his daughter. Ultimately, the business did not yield the profits that the parties had hoped for when they purchased it. The parties entered into negotiations regarding a sale of the business. Two or three possible deals were proposed, but the parties could not reach a final agreement. The business was eventually closed and the corporation is now worthless.
II
The Plaintiff contends that the Defendant owes her a nondischargeable debt stemming from his "fraudulent acts." (Complaint at 2.) Specifically, the Complaint alleges that the Defendant: (1) "wrongfully excluded Plaintiff from the operation of [the dry cleaning] business"; and (2) "fraudulently concealed and/or misappropriated the assets of the corporation to his own use." (Complaint at 1-2.) The Plaintiff argues that the alleged debt is excepted from discharge under the authority of 11 U.S.C. § 523(a)(4), which provides in material part:
A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt
. . . .
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.]
Exceptions to discharge are to be strictly construed against the creditor, Manufacturer's Hanover Trust Co. v. Ward (In re Ward), 857 F.2d 1082, 1083 (6th Cir.1988), who bears the burden of proving nondischargeability under § 523(a) by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991).
A. FRAUD OR DEFALCATION
The Plaintiff contends that the Defendant's actions constitute fraud or defalcation while acting in a fiduciary capacity. To prevail under the fraud or defalcation provision of § 523(a)(4), the Plaintiff must prove: (1) the existence of an express trust status to the property at issue; (2) the Defendant was acting in a fiduciary capacity; and (3) the alleged debt arose from the Defendant's fraud or defalcation while acting in the fiduciary capacity. See Capitol Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency, Inc.), 760 F.2d 121, 124 (6th Cir.1985); PaineWebber Inc. v. Magisano (In re Magisano), 228 B.R. 187, 190-91 (Bankr. S.D.Ohio 1998) (Calhoun, J.). To determine whether an express trust giving rise to a fiduciary duty was created, courts must look to state law. Interstate Agency, 760 F.2d at 124.
Under Ohio law, "[a]n express trust is `a fiduciary relationship with respect to property, arising as a result of a manifestation of an intention to create it and subjecting the person in whom the title is vested to equitable duties to deal with it for the benefit of others.'" Gabel v. Richley, 101 Ohio App. 3d 356, 362-63, 655 N.E.2d 773, 778 (Ct.App.1995) (quoting 5 Scott on Trusts § 462.1, at 310 (4th ed.1967)). The record in this proceeding establishes that no such express trust was created with respect to the property at issue. Specifically, the property at issue is the proceeds from the corporation's insurance *703 claims. These proceeds represent the only damages that the Plaintiff was able to quantify at trial.[1] Although she presented some proof of the Defendant's misappropriation of cash receipts that he kept in his briefcase and in a box in his car, the record does not contain any evidence of the amount of these funds misappropriated for the Defendant's personal use. With respect to the insurance proceeds, the record is clear that the Defendant misappropriated funds conveyed to the corporation through six insurance checks totaling $17,057.30. However, these insurance proceeds never served as the corpus of an express trust under Ohio law.
Illustrative of this point is the Gabel decision. In 1970, a corporation known as American Properties, Inc. purchased a twenty-acre parcel of real estate. Each time annual installment payments were made upon the debt incurred to purchase the property, the corporation would deed a portion of the property in three equal shares to the three shareholders of the corporation. When one of the shareholders, Rodney R. Richley ("Richley"), was having difficulty making his portion of the annual installment, he entered into a partnership with James Gabel ("Gabel") to share in Richley's one-third investment in the property. Specifically, Richley and Gabel agreed to make equal annual payments toward Richley's share of the corporate debt incurred to purchase the property and share the net profits arising from the eventual sale of Richley's interest in the property. Notwithstanding his partnership with Gabel, Richley was still unable to make his annual payment to the corporation. As a result, Richley entered into a partnership agreement with Dale Ravenscraft ("Ravenscraft") similar to the agreement between Richley and Gabel. Although Gabel and Ravenscraft were aware of the corporation's involvement in the real estate transaction, neither of them were aware of Richley's partnership agreement with the other. Thereafter, Richley made his annual payment to the corporation from the funds contributed by Gabel and Ravenscraft without contributing any of his own funds. In 1978, one of the houses on the property was destroyed by fire. As a result, Richley received $14,504.00 in insurance proceeds. Neither Gabel nor Ravenscraft were aware of the property loss or the insurance proceeds. Ten years later, Gabel and Ravenscraft learned about the other's involvement with Richley. When confronted, Richley agreed to transfer his entire interest in the property to Gabel and Ravenscraft. Four years later, Gabel and Ravenscraft learned of the 1978 property loss and the insurance proceeds paid to Richley. When Richley refused to tender the proceeds, Gabel and Ravenscraft initiated suit to recover the same under the theory of implied trust.
The trial court ruled in favor of Richley, finding that although a resulting trust existed with respect to the real estate no such trust existed with respect to the insurance *704 proceeds. The appellate court affirmed. Relevant to this proceeding, the appellate court began its analysis by noting the distinction between implied and express trusts. Significantly, the appellate court found that there was no express trust created with respect to the insurance proceeds. Gabel, 101 Ohio App.3d at 363, 655 N.E.2d at 778. Although the court did not elaborate upon its reasoning in support of this finding because the parties themselves conceded the same, the finding appears to have been premised upon the absence of intent by the parties to create a fiduciary relationship with respect to the insurance proceeds given that Gabel and Ravenscraft did not even know about the property loss and the insurance proceeds until fourteen years after the fact.
Similarly, in this proceeding there is no evidence in the record that the Plaintiff and the Defendant intended to create a fiduciary relationship concerning the insurance proceeds. Like Gabel, there is no proof in the record that the Plaintiff even knew of the insurance proceeds until after they were received by the Defendant. The Sixth Circuit, elaborating upon the express trust requirement set forth in Interstate Agency, has stated that "§ 523(a)(4) is limited to only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debtor." R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 180 (6th Cir.1997) (emphasis added); see also Magisano, 228 B.R. at 191 ("The existence of an express trust requires a clearly defined trust res, an unambiguous trust relationship, and specific, affirmative duties undertaken by a trustee."). In this proceeding, similar to Gabel, there is no proof that the Plaintiff placed her corporate share of the insurance proceeds in the hands of the Defendant under an express agreement that he deal with the same for the benefit of the Plaintiff. Absent such an express trust, an action for fraud or defalcation does not arise under § 523(a)(4) even if there otherwise exists a fiduciary relationship between the parties that is recognized by state law.[2]Garver, 116 F.3d at 178 (noting that the Sixth Circuit follows those courts that hold to a narrow construction of the term "fiduciary capacity" under § 523(a)(4) that does not necessarily include all fiduciary relationships recognized under state law).
B. EMBEZZLEMENT OR LARCENY
Although the Plaintiff limited her Complaint and post-trial brief to the issue of fraud or defalcation while acting in a fiduciary capacity, embezzlement and larceny are also grounds for nondischargeability pursuant to § 523(a)(4). Embezzlement and larceny, unlike fraud and defalcation, do not require the existence of a fiduciary relationship. See Magisano, 228 B.R. at 190. Embezzlement, for purposes of § 523(a)(4), is "`the fraudulent appropriation of property by a person to whom such property has been entrusted or into *705 whose hands it has lawfully come.'" Brady v. McAllister (In re Brady), 101 F.3d 1165, 1172-73 (6th Cir.1996) (quoting Gribble v. Carlton (In re Carlton), 26 B.R. 202, 205 (Bankr.M.D.Tenn.1982)). Embezzlement differs from larceny in that the debtor's original acquisition of possession of the property was lawful. Consumer United Ins. Co. v. Bustamante (In re Bustamante), 239 B.R. 770, 777 (Bankr.N.D.Ohio 1999). As noted earlier, the only quantified proof of damages in this proceeding relates to the Defendant's misappropriation of the insurance proceeds. Because there is no proof that the Defendant's initial possession of these proceeds was unlawful, larceny is inapplicable to this proceeding.
To prevail on the basis of embezzlement under the authority of § 523(a)(4), the Plaintiff must prove: (1) she entrusted her property to the Defendant; (2) the Defendant appropriated the property for a use other than that for which it was entrusted; and (3) the circumstances indicate fraud. See Brady, 101 F.3d at 1173. Although there is ample evidence in the record to support the second and third elements, the first element presents a problem. Specifically, the insurance proceeds were the property of Dual Effort, Inc. and not the Plaintiff.[3] Moreover, the proceeds were entrusted to the Defendant, in his capacity as an officer of the corporation, by Dual Effort, Inc. and not the Plaintiff. Under these circumstances, any damages and related judgment of nondischargeability for embezzlement pursuant to § 523(a)(4) run to the corporation and not the shareholder. See Ferraro v. Phillips (In re Phillips), 185 B.R. 121 (Bankr.E.D.N.Y.1995).
In Phillips, the plaintiff ("Ferraro"), a 50% shareholder of a corporation known as Advertising Services Plus, Inc. ("Advertising Plus"), commenced an adversary proceeding against the debtor ("Phillips"), a fellow 50% shareholder, pursuant to § 523(a)(2) and (4). Ferraro brought the action both individually and as a shareholder of Advertising Plus. In addition to Phillips, Ferraro also sued Advertising Plus as co-defendant. The record established that Phillips, designated as the president and treasurer of Advertising Plus, was responsible for the daily business affairs of the corporation while Ferraro, designated as vice president and secretary, primarily engaged in client relations and advertising production. Over a six-year period, Phillips took excessive salaries, misappropriated corporate funds for personal use and fraudulently induced Ferraro to extend credit to the corporation and execute a personal guarantee. Specifically, Phillips controlled the books of the corporation and provided Ferraro and accountants with as little information as necessary. When Phillips did provide information to these individuals, it was often inaccurate. Relying upon false information provided by Phillips through the corporation's accountant, Ferraro signed a personal guarantee for a lease of certain computer equipment and borrowed $10,000.00 and loaned the funds to the corporation. At the same time, Phillips took excessive salaries that exceeded his shareholder agreement with Ferraro and disguised $172,120.07 in personal expenditures as corporate expenditures. As a result of corporate cash flow problems related to Phillips' misappropriations, Ferraro had to use $41,740.13 of his own funds to satisfy the obligations on the $10,000.00 loan and the corporate lease. With respect to these damages, the court entered a nondischargeable judgment in favor of Ferraro. With respect to Phillips' misappropriations of corporate funds, the court entered a judgment in favor of Advertising Plus in the amount of $388,508.07.
Unlike Phillips, there is no evidence in this proceeding that the Plaintiff expended any of her personal funds as a *706 result of the Defendant's conduct allegedly justifying nondischargeability.[4] Instead, the damages cited by the Plaintiff are no different from the damages incurred by Advertising Plus, not Ferraro individually, as a result of Phillips' misappropriations concerning salary and expenses. Under these circumstances, creditors of a corporation could be prejudiced if courts were to permit a shareholder to prosecute a direct action as opposed to a derivative suit. Phillips, 185 B.R. at 127-28 (where judgment to shareholder could impair the rights of creditors whose claims may be superior to that of the shareholder, derivative suit ensures equitable distribution).[5] As a result, the Plaintiff, in her individual capacity, is not entitled to a judgment pursuant to § 523(a)(4) for the Defendant's alleged embezzlement. See Florida Outdoor Equipment, Inc. v. Tomlinson (In re Tomlinson), 220 B.R. 134, 136 (Bankr. M.D.Fla.1998) ("An embezzlement claim requires a showing that the property, allegedly embezzled by the defendant, was the property of the plaintiff.").
III
Strictly construing the exceptions to discharge as required by law, the Court finds no basis for relief for the Plaintiff under the authority of § 523(a)(4). Accordingly, the Complaint filed by the Plaintiff on July 13, 1998, will be DISMISSED. An order to this effect will be entered.
NOTES
[1] The Complaint only prays for "[a]n award of damages" without stating the amount thereof. In her case in chief, the Plaintiff failed to elicit proof of any specific dollar amounts other than the insurance proceeds. Following the close of the Plaintiff's case in chief, the Court finally asked the Plaintiff what she thought her damages were. She testified that she would like the Defendant to be responsible for the entire outstanding balance on the promissory note signed by the parties for the purpose of obtaining the $120,000.00 start-up loan. The Court finds this request to be incomprehensible. In a dischargeability action, a plaintiff must prove that the debtor owes the plaintiff a debt and the debt falls within one of the exceptions to discharge. The Court does not see how either party's obligation on the start-up loan constitutes a debt to the other party absent an allegation of fraud in inducing the other party to obligate himself or herself on the loan. Although the Plaintiff has alleged fraud, she has never suggested that the Defendant fraudulently induced her to sign the promissory note. Absent such circumstances, both parties are liable on the note to the lender alone. Because the Defendant is not obligated to the Plaintiff on the promissory note, the outstanding balance on the same cannot serve as a debt owed by the Defendant to the Plaintiff that is potentially nondischargeable.
[2] Although the existence of a fiduciary capacity for purposes of § 523(a)(4) is defined by federal law, state law is relevant to the issue. Ohio Cas. Ins. Co. v. Kern (In re Kern), 98 B.R. 321, 323 n. 2 (Bankr.S.D.Ohio 1989) (Cole, J.). The Plaintiff relies upon Crosby v. Beam, 47 Ohio St. 3d 105, 548 N.E.2d 217 (1989) and McLaughlin v. Beeghly, 84 Ohio App. 3d 502, 617 N.E.2d 703 (Ct.App.1992) for the proposition that a 50% shareholder owes a fiduciary duty to a fellow 50% shareholder under Ohio law. This assertion is questionable, at best, given that both of the plaintiffs in these cases owned less than 50% of the corporate stock and the courts found a fiduciary duty owed to a minority shareholder by a controlling shareholder in a closely held corporation. Notwithstanding, there is Ohio case law in support of the proposition that an individual who is a 50% shareholder owes a fiduciary duty to a fellow 50% shareholder in a closely held corporation where the former, in addition to his or her capacity as shareholder, is also involved in the daily operations of the business as an officer and director. See Prodan v. Hemeyer, 80 Ohio App. 3d 735, 610 N.E.2d 600 (Ct.App.1992). However, because there is no evidence of an express trust in this proceeding, the Court need not resolve the issue of whether the Defendant owed a fiduciary duty to the Plaintiff.
[3] The Plaintiff herself admits in the Complaint that the Defendant "misappropriated the assets of the corporation to his own use." (Complaint at 2 (emphasis added).)
[4] The Plaintiff notes that because of the Defendant's bankruptcy she is now solely responsible for repayment of the $120,000.00 loan. However, there is no proof that the Plaintiff obligated herself on the promissory note as a result of conduct by the Defendant justifying nondischargeability. In Phillips, on the other hand, Ferraro loaned $10,000.00 to the corporation and executed a personal guarantee solely because of fraudulent financial information about the corporation provided by Phillips. Moreover, Phillips is distinct to the extent that Ferraro sought relief pursuant to 11 U.S.C. § 523(a)(2) for fraudulent misrepresentation. To the extent that any relief was accorded to Ferraro, as opposed to the corporation, pursuant to § 523(a)(4), such relief cannot be had in jurisdictions that require proof of an express trust between the parties. See O'Shea v. Frain, No. 98 C 5651, 1999 WL 1269352, at *5 (N.D.Ill.Dec.22, 1999).
[5] Even if the Court were to assume that the Plaintiff intended to commence this proceeding as a derivative action and obtain a judgment for the corporation as opposed to herself individually, the Plaintiff has failed to do so in accordance with the applicable rules of procedure. "Shareholder's derivative actions are governed by Rule 23.1 of the Federal Rules of Civil Procedure." Brown v. Ferro Corp., 763 F.2d 798, 802-03 (6th Cir.1985), cert. denied, 474 U.S. 947, 106 S. Ct. 344, 88 L. Ed. 2d 291 (1985). Under this rule, "[t]he corporation is a necessary party to the action; without it the case cannot proceed." Ross v. Bernhard, 396 U.S. 531, 538, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970). In Phillips, the court had no trouble entering a judgment in favor of the corporation because Ferraro commenced the suit in his capacity as a shareholder as well as individually and he brought suit against the corporation as well as the debtor. The Plaintiff did not do so in this proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604596/ | 25 Wis. 2d 257 (1964)
STATE, Appellant,
v.
FOGLE, Respondent.[*]
Supreme Court of Wisconsin.
September 29, 1964.
October 27, 1964.
*260 For the appellant the cause was argued by Betty R. Brown, assistant attorney general, and John Peyton, district attorney of Racine county, with whom on the briefs were George Thompson, attorney general, and William A. Platz, assistant attorney general.
For the respondent there was a brief by Rex Capwell and Foley, Capwell, Foley & Kolbe, all of Racine, and oral argument by Rex Capwell.
WILKIE, J.
The sole question on this appeal is whether the trial court properly dismissed the action against respondent under the provisions of Wisconsin's Disposition of Intrastate Detainer Act.[2] This statute, patterned after the Uniform Mandatory Disposition of Detainer Act,[3] permits an inmate of a state prison to request a prompt disposition of any charges pending against him. Sec. 955.22 (2), Stats., provides:
*261 "(2) Duty of District Attorney in Felony Cases. If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary hearing as soon as convenient and notify the warden or superintendent of the prison thereof, unless such hearing has already been held or has been waived. After the preliminary hearing or upon waiver thereof the district attorney shall file an information (unless it has already been filed) and mail a copy thereof to the warden or superintendent for service on the inmate. He shall bring the case on for trial within 180 days after receipt of the request unless:
"(a) No term of court at which the case may be tried is held within such period;
"(b) The trial is continued for cause upon notice to the defendant or his counsel or upon motion of defendant, or is continued by stipulation; or
"(c) The trial cannot be held within such period because of the absence, disability, or disqualification of the judge and inability to obtain the services of another judge within the period. In any case, the trial shall be held at the earliest possible time after the expiration of said period of 180 days." (Emphasis added.)
Sec. 955.22 (7), Stats., provides:
"(7) When Further Prosecution Barred. If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time herein specified the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period herein provided if a trial commenced within such period terminates in a mistrial, or a new trial is granted as provided by law." (Emphasis added.)
The state argues that the phrase "bring the case on for trial" in sec. 955.22 (2), Stats., means only that the district attorney, as here, must perform his duties prescribed in sec. 955.22 (2). When the respondent was arraigned and the *262 prosecutor was standing ready for trial that was enough to comply with sec. 955.22. We do not agree.
The whole thrust of sec. 955.22, Stats., is to provide a legislative definition of what constitutes a reasonable time for bringing an accused to trial where intrastate detainers have been issued, and where there has been a request for a speedy trial.[4] One hundred and eighty days will ordinarily be plenty of time for the complete trial and disposition of such a charge.
It is clear from all of the provisions of sec. 955.22, Stats., that the legislature intended actual trial or the commencement of a trial, when it provided in sec. 955.22 (2) that the district attorney "shall bring the case on for trial within 180 days after receipt of the request ..." Such a conclusion is also supported by the language employed in sec. 955.22 (7), which provides for the dismissal of a case "if it is not brought on for trial" within the specified time.
In the recent case of State ex rel. Fredenberg v. Byrne[5] the court stated at page 511:
"This section [955.22] applying only to intrastate detainers requires, with some exceptions, the trial within one hundred and eighty days of the request by the prisoner or the dismissal of detainer filed against him."
Sec. 955.22 (2), Stats., contains three specific escape hatches to excuse bringing a case to trial within the one hundred and eighty-day period: (1) Where no term of court is held at which the case "may be tried" (sec. 955.22 (2) (a)); (2) where "the trial is continued for cause upon notice to the defendant or his counsel or upon motion of defendant, or is continued by stipulation" (sec. 955.22 (2) (b)); (3) *263 where no judge is available to try the case (sec. 955.22 (2) (c)).
Everyone of these exceptions is couched in terms of a "trial" or a case being "tried." That the matter may be postponed beyond the one hundred and eighty-day period for good cause is covered by sec. 955.22 (2) (b), Stats., which specifically contemplates that the cause may be continued for good cause on motion of either party. If there is good cause why the state cannot be ready to try the accused within the one hundred and eighty days all the district attorney has to do is bring on a soundly based motion for a continuance. In the instant case the district attorney took his time about bringing the matter on for trial. We are not impressed by his complaint that the defendant's motion was dilatory. If he was of that opinion at the time the motion was made, he could have moved to have the motion dismissed on that ground.[6] In the end, if the district attorney was concerned about the time limit, all he needed to do was move for a continuance.
In this case, however, the defendant's own motion to suppress that was not disposed of as of the date when the one hundred and eighty-day period expired was, in effect, a motion that the trial be continued for cause within the meaning of sec. 955.22 (2) (b), Stats. Thus one of the escape hatches was opened so that the state was excused from the requirement that the trial at least be commenced within the one hundred and eighty-day period. The last sentence of sec. 955.22 (2) (c) provides:
"In any case, the trial shall be held at the earliest possible time after the expiration of said period of 180 days."
Under this section the trial court maintaining jurisdiction of the case on proper motion should have set the matter down for trial at the earliest possible time, after the expiration of *264 the one hundred and eighty-day period, thus complying with the provisions of this subsection.
By the Court.Order reversed and cause remanded for further proceedings not inconsistent with this opinion.
GORDON, J. (dissenting).
Sec. 955.22, Stats., is clearly designed to provide for the prompt disposition of pending intrastate charges against persons in prison. If the prisoner makes a formal request for the disposition of a charge outstanding against him, the statute directs that such charge must be brought on for trial within one hundred and eighty days. Sec. 955.22 (2). If it is not so brought on for trial, the statute requires dismissal of the charge. Sec. 955.22 (7). There are, however, several exceptions to the requirement of dismissal recited in the statute; one exception is if "the trial is continued for cause upon notice to the defendant or his counsel or upon motion of defendant..."
In the instant case, the trial was never expressly continued for cause, although the defendant did bring certain motions before the court. In a rather remarkable piece of judicial legerdemain, the majority has determined that a motion by the defendant to suppress certain evidence "was, in effect, a motion that the trial be continued for cause." To say that Mr. Fogle made a motion for a continuance when, in fact, he moved to suppress evidence is, in my opinion, fallacious. It is "correct" only because the majority of the court has said it; it has little else to sustain it.
I believe that the trial court properly granted the accused's motion to dismiss, and the court's order should therefore be affirmed.
I am authorized to state that Mr. Justice HALLOWS and Mr. Justice BEILFUSS join in this dissent.
NOTES
[*] Motion for rehearing denied, without costs, on December 21, 1964.
[2] Sec. 955.22, Stats.; ch. 109, Laws of 1961.
[3] 9B U. L. A., 1963 Supp., p. 101.
[4] See State v. Goetz (1960), 187 Kan. 117, 120, 353 Pac. (2d) 816, 818, which holds that a Kansas statute, substantially similar to sec. 955.22, Stats., means that the case must be tried within the one hundred eighty-day period.
[5] (1963), 20 Wis. (2d) 504, 123 N. W. (2d) 305.
[6] Sec. 955.11, Stats. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604759/ | 401 F. Supp. 1222 (1975)
UNITED STATES of America
v.
Jack W. GRIFFIN and Metro Management Corporation.
No. IP 75-82-CR.
United States District Court, S. D. Indiana, Indianapolis Division.
October 3, 1975.
*1223 *1224 John E. Hirschman, U. S. Atty., Thomas L. Bose, Asst. U. S. Atty., David H. Coffman, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff.
John M. Heeter, and F. Keith Leach, Indianapolis, Ind., for defendants.
MEMORANDUM OPINION
NOLAND, District Judge.
This criminal proceeding was initiated upon the grand jury's return of a twenty-nine count indictment on April 28, 1975, against Metro Management Corporation (hereinafter MMC) and Jack W. Griffin. In general, Count I of the indictment charges that MMC, by and through its President, Jack W. Griffin, conspired with certain unindicted contractors to defraud the Department of Housing and Urban Development of the United States of America (hereinafter HUD) in violation of Title 18 United States Code, Section 371. Counts II through XXIX charge that the defendants, while acting for and on behalf of HUD as an area management broker, solicited and received various amounts of money from said unindicted contractors, in a specific amount charged in each count, in return for being unlawfully influenced in the performance of their official duties in violation of Title 18 United States Code, Section 201(c).
The issues were joined by a plea of not guilty to the charges contained in the indictment and, the defendants having waived their right to trial by jury, trial was held to the Court commencing September 16, 1975. Evidence was presented and testimony was given which have now been duly considered by the Court.
The Court now finds the defendants Jack W. Griffin and Metro Management Corporation guilty as charged in Counts I through XXVIII of the indictment as charged. The Government concedes that no proof was submitted as to Count XXIX and, therefore, the Court now dismisses Count XXIX of the indictment as to both defendants.
The indictment returned by the grand jury named as defendants both Metro Management Corporation and its President, Jack W. Griffin, in each count of the indictment. This opinion henceforth refers to Jack W. Griffin and Metro Management Corporation as the defendants. While MMC and Griffin, constitute two separate legal entities, the corporation acted only through Griffin, its principal officer and agent. Authority for finding both the corporation and its President guilty as charged is found in the case of Continental Baking Company v. United States, 281 F.2d 137 (6th Cir. 1960) where the court stated:
"There is an officer or agent of a corporation with broad express authority, generally holding a position of some responsibility, who performs a criminal act related to the corporate principal's business. Under such circumstances, the courts have held that so long as the criminal act is directly related to the performance of the duties which the officer or agent has the broad authority to perform, the corporate principal is liable for the criminal act also, and must be deemed to have `authorized' the criminal act." 281 F.2d at 149.
Therefore, Jack W. Griffin has been found guilty individually, and his actions *1225 in violation of the law were also the actions of the corporation. Because the acts of Griffin are imputed to the corporation, the following opinion may refer to "the defendants" or to either of the two defendants separately.
The evidence disclosed the following to be the facts and circumstances of the events and transactions which form the basis of the indictment of the defendants herein.
Area management broker contracts are awarded based on a bidding procedure among qualified real estate brokers in a given area. A contracting officer for HUD awards the area contract to the lowest bidder qualifying under HUD standards. The general functions of the area management broker include providing security and protection for repossessed, foreclosed, or abandoned properties under the control of HUD, inspecting such properties and preparing specifications for their repair and rehabilitation so to return them to marketable condition, preparing estimates for the cost of such repairs, and soliciting and receiving bids from qualified local contractors for the repair of such properties on bid forms supplied by the area management broker. At least three bids must be received on each contract and the bidding procedure is to be competitive among the contractors, i. e., the bids are to be kept secret until they are all open. While the area broker has some discretion as to which contractors he forwards bid forms, it is recommended that the forms be distributed on a more or less rotational basis, and no contractor is supposed to be working on more than five jobs at the same time under a local HUD office regulation. Additionally, Article 15 of an area broker's contract prohibits the area broker from receiving any gratuity or compensation from the contractors and no contractor is to have a competitive advantage in the bidding procedure (Ex. #2c, pg. 6). The area management broker then submits the three lowest bids to HUD with a recommendation that the lowest bidder be awarded the contract for the particular job. The practice is that the lowest bidder is usually awarded the contract if he has qualified under HUD standards and the bid is not more than 10% in excess of the initial estimate submitted by the area broker. While the work is in progress, the area broker has the option of inspecting the property, but he must do so upon completion of the project. The area broker then forwards the necessary forms signed by him and the contractor (Form 2542) to HUD where a certifying officer authorizes payment to the contractor out of HUD funds. The area broker is to receive payment from HUD for his services in connection with each property, although there was an allegation that the defendant herein did not actually receive payment in all cases. Additional testimony described other indirect benefits of being an area management broker, such as the knowledge of new available housing in his area and the time when such property will be on the market.
The evidence presented to the court demonstrated a scheme established and administered by defendant Griffin requiring a 10% payment to Griffin by contractors out of the revenue they received on HUD jobs in return for the defendant's favoritism in the awarding of the contracts on such jobs. Clearly this arrangement of a 10% fee constituted an illegal kickback and was contrary to 18 U.S.C. § 201, the relevant portions of which are as follows:
§ 201. Bribery of public officials and witnesses.
(a) For the purpose of this section: "public official" means . . ., or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government or a juror; and . . .
*1226 "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in his official capacity, or in his place of trust or profit.
* * * * * *
(c) Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any person or entity, in return for:
(1) being influenced in his performance of any official act; or
(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(3) being induced to do or omit to do any act in violation of his official duty; . . . shall be fined not more than $20,000 . . ."
In addition, the Court concludes the planning, establishing, and administering of this arrangement clearly constituted a conspiracy against the United States in violation of 18 U.S.C. § 371, which provides as follows:
§ 371. "Conspiracy to commit offense or to defraud United States.
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. . . ."
Although only defendants Griffin and MMC were indicted, the conspiracy was accomplished as alleged by virtue of the cooperation of unindicted co-conspirators Clyde Millhorn, Marion Caughey, Michael Brady, William E. Bruce, Clyde Riggleman, Joseph Zupan, Robert Bilyeu, Steven Dunbar, Junior Perkins, Hubert Robinson, Henry Huber, John Costello and Phillip Ajamie. The conspiracy consisted of the joint action of the conspirators in the rigging of bids through the use of courtesy bids and fictitious business concerns. It is clear that a corporation may be found guilty of a criminal conspiracy under 18 U.S.C. § 371. See, Mininsohn v. United States, 101 F.2d 477 (3rd Cir. 1939) and 19 C. J.S. Corporations § 1364a, p. 1076-1077.
The evidence disclosed that defendant MMC was awarded an area management broker contract for a segment of Marion County, Indiana under Contract #073111 (Ex. #2, 2a, 2b and 2c) commencing September 1, 1967. As to Count I, evidence was presented that as early as late 1967 defendant Griffin, acting on behalf of MMC, was soliciting and receiving payments from local contractors in return for favors in the awarding of contracts for the repair of HUD properties in his area. Contractor Samuel Pierson testified that in late 1967, he had a meeting with defendant Griffin at the defendant's office in Indianapolis, Indiana, whereat the defendant informed Pierson he would be certain to be awarded contracts to repair various HUD properties if he shared 50% of his profit on each job with the defendant. Pierson testified that he was awarded the contract for the repair of certain property through the defendants and that in December 1967 he wrote a check to "Delaware Investment Co." in the sum of $215.00 to pay Griffin his one-half share of the profit on the job. This check was returned for insufficient funds (Ex. 49a), so on January 24, 1968, Pierson paid Griffin the sum of $215.00 cash to replace the check. Griffin then issued Pierson a receipt for such payment (Ex. 49). Pierson testified that in April 1970, he and Griffin modified their agreement so that Griffin would be paid 10% of the contract price on jobs awarded to Pierson through MMC. Pierson testified that he made these 10% payments to Griffin on approximately *1227 80% of the HUD jobs he received through MMC in the total amount of at least $8,215.00. He stated the payments were personally made by himself to Griffin in cash at Griffin's office in Indianapolis, Indiana. (See Exs. 49 through 53).
Witness Robert Henniger testified that he talked with Griffin at the defendant's office in October 1967, at which time he was told that he could get work on HUD properties if he paid 10% of the contract price to Griffin upon being paid by HUD. Henniger stated that he was awarded two jobs of those he bid through the defendants but that he failed to make the 10% payment to Griffin in either case. He testified he thereafter stopped receiving bid forms on HUD jobs from the defendant.
Contractor Clyde Riggleman also testified that a short time after the defendants became an area broker, Griffin promised him that he would be in line to work on HUD properties if he paid the defendant 10% of the contract price on each job received. Riggleman testified that he made such payments to Griffin approximately 75% of the time, including on Order #7767 (Ex. 12), and that if he missed making the payments or was late in making them, inspections on completed work slowed down and he was sent bid forms on the less desirable job sites.
Contractor William Bruce testified that he had worked on HUD properties through Griffin since the fall of 1967. Bruce stated that he made the 10% payments to Griffin on approximately 85% of the jobs secured through the defendants and that the payments were made in cash around the time Bruce himself received his check from HUD. Bruce testified that whenever he got behind on his payments the defendant would remind him that he was behind in his "dues". The witness also described a program of "courtesy bidding" whereby contractors would be told by the defendant that they were to make high bids so that another contractor would be assured of being awarded the contract. Bruce testified that he made approximately 100 of such courtesy bids at the direction of Griffin, and contractors Pierson, Costello, Dunbar, Caughey and Huber also testified they made courtesy bids on various jobs at the direction of the defendant. Exhibits were admitted into evidence demonstrating courtesy bids submitted by the various contractors (See e. g., Ex. 43 upon which bid form Contractor Costello wrote "courtesy"). While there was testimony that courtesy bids were sometimes used to facilitate quick repair of certain properties, the Court concludes that the courtesy bid program allowed the defendant to exercise improper influence and control over the solicitation of competitive bids and the awarding of the contracts.
Testimony was also heard concerning the making of bids by contractors in names other than their own. Contractors Millhorn, Dunbar, Bruce, Caughey, Huber, Costello and Pierson all testified that at the suggestion of Griffin they submitted bids in names other than the one in which they normally did business. This was done so as to by-pass a rule of the local HUD office limiting to five the number of HUD contracts any contractor could be working on at any given time. As an example, contractor Costello testified that he kept a record of those bids he made in names other than his own by keeping a copy of the bid form. (See e. g., Ex. 44a for bid form submitted by Costello under the name of Timothy Akin). Contractors Caughey and Costello also testified that on occasion they each received from the defendant all three sets of bid forms for a particular job with the understanding that they were to submit all three bids on the job, (two of which under names other than their own). Caughey testified that from time to time he would call Griffin or his secretary to find out whether his bids were going to be too high (i. e. in excess of another bid or more than 10% in excess of Griffin's original estimate). Costello testified *1228 that when he would receive three sets of bid forms from the defendant, he would determine under which name the job was to be awarded and he would bid the other two as "courtesies" (See e. g. Exs. 46-48).
Contractor Bruce and witness Richard Teeters testified that shortly after Teeters was awarded the area broker contract for another segment of Marion County, Indiana in late 1969, Griffin met with them at the Milano Inn in Indianapolis, Indiana, at which time the defendant explained to Teeters the proper way to establish and administrate a program such as the defendant had instituted in his area. The defendant explained at that meeting how he administered his receiving of the 10% payments and stated that the most important thing was the cooperation of the contractors.
In summary, contractors Pierson, Riggleman, Ajamie, Huber, Bilyeu, and Bruce testified that they had explicit agreements with the defendant to make kickback payments in the amount of 10% of the contract price to the defendant in return for his influence and assistance in providing them with a steady flow of the best HUD jobs. Contractors Millhorn, Zupan, Perkins, Dunbar and Caughey testified that they also made the 10% kickbacks to the defendant under more of an implied arrangement. The evidence was clear that if a contractor fell behind in making the payments then the defendant would inquire of him about not receiving his "dues", inspections of jobs already completed slowed down, and the number of bid forms received from the defendant slowed down as well. Contractor Caughey testified that on one occasion the defendant told him that he was behind in his dues and that if Caughey did not stay current, the defendant could not pay his (Griffin's) dues.
Contractor Henry Huber testified that on many occasions he would call defendant Griffin on the phone about the status of certain jobs. He stated the defendant would then inform him of the bids on the locations and tell him to go under a certain figure if he wanted the job and over if he did not. Huber testified he was awarded the contract on those jobs in which he bid under the figure quoted to him by the defendant.
The Court concludes that as to Count I the evidence was overwhelming that Griffin conspired with known local contractors to defraud HUD by administering a program of soliciting and receiving illegal kickbacks from those contractors in return for using his position to unlawfully influence the legitimate function and purpose of the competitive bidding system intended to provide for the proper rehabilitation of HUD-owned properties. The Court believes that the entire program of kickbacks and bid rigging administered by Griffin amounted to a conspiracy to defraud the United States and a violation of Title 18, § 371. Defendants Jack W. Griffin and Metro Management Corporation are therefore found guilty beyond a reasonable doubt as to Count I of the indictment.
The Court concludes that the evidence presented by the Government clearly supports a finding of guilty beyond a reasonable doubt as to each defendant on each of substantive Counts II through XXVIII.
As to Counts II through VI, Contractor Clyde Millhorn testified that in 1970 he was desiring to get more work on HUD properties so he talked to defendant Griffin about getting into the "program". The witness testified between November 1970, and December 1971, he paid the defendant the sum of 10% of the contract price on each HUD job received from MMC. The payments were made to Griffin in cash at the defendant's office after Millhorn received his check from HUD. To generate the cash for such payments, Millhorn stated he made checks out to a fictitious sub-contractor by the name of Joseph George in the amount of 10% payment and then endorsed the name of the payee on the back of the check himself. The initials of Griffin's name were used so Millhorn *1229 could keep track of which area broker the funds went to. Admitted into evidence were the purchase orders on jobs awarded to Millhorn and the checks to Joseph George by which he generated the cash to make the payments to Griffin on each particular job. Each check identifies the location of the job and the dates correspond to the dates charged in each count of the indictment. (See Exs. 3, 4, 5, 6 and 7).
In regard to Counts VII through X, Marion Caughey testified that he made 10% cash payments to the defendant on all HUD jobs secured through MMC between the summer of 1969 and 1972, although the kickback on the first of such jobs was made to the defendant through William Bruce. He stated that he normally paid the defendant upon receipt of his HUD check. Introduced into evidence were purchase orders and HUD checks for some of the jobs upon which Caughey testified he made the 10% kickbacks to the defendant. The dates on each check correspond to the date charged in each count of the indictment. (See Exs. 8a, 9a, 10a and 11a).
As to Counts XI through XV, Steven Dunbar testified that he first talked to the defendant in January 1971, and that he paid the defendant 10% of the contract price on every job he received through MMC. On a few occasions the defendant questioned Dunbar about payments which Dunbar felt he had already paid so he started keeping complete records of the payments. Dunbar stated he normally paid the defendant in cash at the defendant's office after cashing his own check from HUD. Introduced into evidence were purchase orders for some of the jobs upon which the witness made the kickback to the defendant. Some of the copies of the orders which a contractor would receive with his check demonstrate a marking by Dunbar such as "Paid Jack" (Ex. 19) indicating that he had made the payment on that particular job. The amounts of the purchase orders contained in Exhibits 16, 17, 18, 19 and 20 correspond to the payments charged in each of Counts XI through XV of the indictment.
As to Counts XVI through XIX, contractor Junior Perkins testified that he paid the 10% kickback to the defendant on all HUD jobs secured through MMC. Perkins stated all payments were made in cash to the defendant at the defendant's office. Admitted into evidence were the purchase orders and checks received by Perkins on four of the jobs in which he made the 10% payment to the defendant. (See Exs. 54-57). The amounts of such jobs correspond to the amounts charged in each of the said Counts XVI through XIX of the indictment.
In regard to Counts XX through XXIV, contractor Hubert C. Robinson testified that he was told by Steven Dunbar that he could get work on HUD houses if he paid 10% of the contract price on each job to the defendant. Robinson worked on HUD houses during 1971 and 1972 and made payments in the total sum of approximately $1,000 in cash to the defendant at his office on all jobs secured through MMC. Admitted into evidence were purchase orders for jobs secured through MMC on which Robinson said he made the 10% kickback to the defendant. The dates and amounts on said purchase orders correspond to those of each count of the indictment. (See Exs. 30, 31, 33, 34 and 35).
As to Counts XXV through XXVIII, contractor Phillip Ajamie testified that he was awarded HUD jobs through MMC from December 1968 through 1971. Ajamie said he paid the 10% kickback to the defendant on all jobs secured through MMC after Griffin told him he could get more HUD work if he made the payments to Griffin. Admitted into evidence were purchase orders for jobs secured through MMC on which Ajamie said he made the 10% kickback to the defendant in cash at the defendant's office. The dates and amounts on said purchase orders correspond to those of each count of the indictment. (See *1230 Exs. 25, 26, 27 and 28). As to Count XXIX of the indictment, the Government concedes that it did not present any evidence as to such charge and, therefore, such count should be and is hereby dismissed as to each defendant.
The defendants contend in their motion for judgment of acquittal under Rule 29 that at the time of the alleged offenses they were not "a person acting for or on behalf of the United States" and therefore cannot be found guilty of Title 18, United States Code, § 201. The defendants point to the fact that in acting as an area management broker they were an independent contractor and exercised no final judgment as to the awarding of jobs or paying of contractors for those jobs. While this Court agrees that an area broker operates as an independent contractor and, as such, exercises no final judgment in said matters, the Court does not believe this precludes him from qualifying as a person acting for or on behalf of the United States under 18 U.S.C. § 201. HUD empowered the defendants to conduct a competitive bidding system in connection with the solicitation and awarding of bids for the repair of HUD houses in the MMC area and Griffin's estimates of the cost of needed repairs served as one basis for the final awarding of contracts by HUD. While the low bidder among those from which the area broker solicited bids was not guaranteed of being awarded the contract by HUD, testimony was presented that such low bidder was in fact awarded the job at least 95% of the time. Thus, the Court feels that the defendants were placed in a position of responsibility and were enabled to exercise discretion to act for and on behalf of HUD in operating the system to provide for the rehabilitation of HUD properties. The mere fact that defendant Jack Griffin, as President of MMC, is an employee of the corporation and not of the United States does not prevent him from acting as a "public official" as defined in 18 U.S.C. § 201(a). The purpose of the statute is to protect the public from the evil consequences of corruption in the public service. Kemler v. United States, 133 F.2d 235 (1st Cir. 1942). The defendants have not pointed out to the Court any authority holding that an employee of a private corporation cannot qualify as a public official under this statute. This Court concludes that both defendants herein were acting for and on behalf of the United States for purposes of 18 U.S.C. § 201.
The defendants also contend that since MMC did not actually come into legal existence until November 13, 1967, and it was awarded the area broker contract for the period commencing September 1, 1967, the contract is invalid and MMC cannot be found guilty of a violation of this statute. The Court does not agree. MMC conducted its affairs as if its contract with HUD was legally sufficient and binding and it is now estopped from asserting that its contract was invalid and thereby escape liability for its conduct.
In conclusion, as to Counts II through XXVIII, the evidence was overwhelming that defendant Jack W. Griffin, while acting in his official capacity as an area management broker for HUD, solicited and received payments of money from local contractors in return for (1) being influenced in the performance of his official acts; (2) being influenced to commit fraud on the United States; and (3) being induced to act in violation of his official duties. Such conduct was in violation of 18 U.S.C. § 201(c). Therefore, the Court finds the defendants Jack W. Griffin and Metro Management Corporation guilty beyond a reasonable doubt as to Counts II through XXVIII of the indictment.
Findings of fact and conclusions of law have not been separately stated but are included in the body of the foregoing opinion as specifically authorized by Rule 23(c) of the Federal Rules of Criminal Procedure.
Judgment is now entered in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604637/ | 269 Minn. 61 (1964)
130 N.W.(2d) 237
JOAN BLOMBERG, A MINOR, BY HOWARD BLOMBERG, HER FATHER AND NATURAL GUARDIAN, AND ANOTHER
v.
JAMES W. TSCHIDA, A MINOR, BY LOUIS TSCHIDA, HIS GUARDIAN AD LITEM.
No. 39,029.
Supreme Court of Minnesota.
July 31, 1964.
*62 Quinlivan, Quinlivan & Williams and Richard R. Quinlivan, for appellant.
G. Harmon Klemme, Rosengren, Rufer, Blatti, Hefte & Pemberton, and Gerald S. Rufer, for respondents.
NELSON, JUSTICE.
Separate suits were commenced by Howard Blomberg, as an individual and as father and natural guardian of Joan Blomberg, a minor, against Louis Tschida, guardian ad litem of James W. Tschida, a minor, for damages incurred as a result of an accident in which Joan Blomberg, a pedestrian, was struck by an automobile driven by James Tschida. A jury found both James Tschida and Joan Blomberg to have been negligent, and judgments for defendant were entered. This appeal is brought by defendant from two orders of the trial court, one dated January 9, 1963, vacating the judgments, and another dated January 17, 1963, vacating the verdicts and the judgments and granting a motion by the plaintiffs for a new trial.
The verdicts were rendered on December 7, 1962, and the trial court automatically stayed the entry of judgment for 30 days. On December 14, the plaintiffs gave notice of an alternative motion for judgment notwithstanding the verdict or for a new trial on the minutes of the court, said motion to be heard on December 28. At the request of defendant's counsel the motions were reset for hearing on January 3, 1963. Defendant's counsel was again unable to appear on January 3, and the hearing was reset at his request for January 8, 1963, which was 2 days after the expiration of the stay of entry of judgment.
The defendant entered judgments pursuant to both verdicts on January 8, before appearing at the hearing on the motion. The record is clear that neither the trial court nor counsel for plaintiffs was aware that judgments had been entered when the motion was being heard. When counsel for plaintiffs learned of the entry of the judgments, he *63 immediately notified the trial court, which issued the following order on January 9:
"Plaintiffs having moved for judgment notwithstanding the verdict, or for new trial, and the previous stay having expired,
"It Is Ordered that all proceedings herein are stayed pending a ruling by the court on plaintiffs' motions, and any judgment or judgments entered herein are hereby vacated."
On January 17 the trial court ordered a new trial, stating in its memorandum that it was necessary "in the interests of justice" because "(a) the jury's finding of contributory negligence is contrary to the greater weight of the evidence, (b) there was error in the charge in failure to instruct as to the measure of care required of a child, (c) trial was had without the testimony of an adult eyewitness who could not be produced."
The defendant seeks to have this court review the merits of the January 17 order granting a new trial and to that end has appealed from both the January 9 and January 17 orders. Thus the issue presented is whether the merits of the January 17 order are properly before this court by an appeal from either the January 9 order or the January 17 order.
1. We will first consider the January 9 order. Whether this order is appealable is not in dispute since an order vacating a judgment is an appealable order.[1] The crucial question is whether the appeal from the January 9 order can raise for review the merits of the January 17 order. Obviously it cannot for the reason that the circumstances surrounding the January 9 order make it clear that the trial court's reason for vacating the judgments on January 9 was entirely unrelated to the reasons upon which the order of January 17 was based. In view of the facts already recited, we think it apparent that the trial court's reason for vacating the judgments on January 9 was simply to allow plaintiffs to have their motion ruled upon before entry of the judgments as they would have had there been no delays in hearing the motion or *64 if their counsel had been aware of the expiration of the stay and obtained a further stay. The language of the January 9 order quoted above indicates that this was the reason.
2-3. The next issue is whether the merits of the January 17 order are presented for review by an appeal from that order. That, in turn, raises the question of whether the January 17 order is an appealable order.
An order granting a new trial is not an appealable order unless it fulfills the requirements of Minn. St. 1961, § 605.09(4),[2] which allows an appeal
"* * * from an order granting a new trial if the court expressly states therein, or in a memorandum attached thereto, that the order is based exclusively upon errors of law occurring at the trial, and upon no other ground * * *."
The January 17 order does not satisfy § 605.09(4) because it is partially based upon the insufficiency of the evidence to support a finding of contributory negligence on the part of Joan Blomberg. Insufficiency of the evidence is not an "error of law" within the meaning of the statute.[3]
4. Defendant contends, however, that the January 17 order is appealable due to what has been termed in Foster v. Herbison Const. Co. 263 Minn. 63, 65, 115 N.W. (2d) 915, 916, "an anomaly in our appellate procedure." Even though an order granting a new trial is not exclusively based upon errors of law, it has been held to be appealable when it is made after entry of judgment and has the effect of vacating the judgment.[4] Defendant's position is that the January *65 17 order is appealable because it was made after judgments had been entered and expressly vacated the judgments in addition to granting a new trial.
It is our view that if the January 9 order vacating the judgments had not been made, or if the trial court had erred in making the January 9 order, then defendant's contention might be meritorious. However, that is not the case before us. The January 9 order was made in due course and it does not appear that the trial court erred. Counsel for plaintiffs should have been aware that the stay of entry of the judgments would expire before his motion was heard and he should have attempted to secure a further stay before the judgments were finally entered. Still, we do not think it was error for the trial court, in the exercise of its discretionary power, to relieve plaintiffs of their counsel's inadvertence, if any, under the circumstances.[5]
It is thus our view that the January 17 order did not have the effect of vacating the judgments. The portion of that order which stated that the judgments were vacated was mere surplusage since the January 9 order had already vacated the judgments. After the entry of the January 9 order, it was as if no judgments had ever been entered. The result as we see it is that the January 17 order is not appealable and its merits are not before this court.
The January 9 order vacating the judgments is affirmed; the appeal from the January 17 order granting a new trial is dismissed.
Affirmed in part and dismissed in part.
NOTES
[1] Morehart v. Furley, 152 Minn. 388, 188 N.W. 1001; People's Ice Co. v. Schlenker, 50 Minn. 1, 52 N.W. 219.
[2] Minn. St. 1961, § 605.09(4), was amended by L. 1963, c. 806, § 8, subsequent to the perfection of this appeal. However, the portion pertinent to matters herein was not altered.
[3] Laramie Motors, Inc. v. Larson, 253 Minn. 484, 92 N.W. (2d) 803; Smith v. Illinois Cent. R. Co. 244 Minn. 52, 68 N.W. (2d) 638; Cunningham, Appealable Orders in Minnesota, 37 Minn. L. Rev. 309, 343.
[4] See, Foster v. Herbison Const. Co. 263 Minn. 63, 115 N.W. (2d) 915; Brown v. Bertrand, 254 Minn. 175, 94 N.W. (2d) 543; Satter v. Turner, 257 Minn. 145, 100 N.W. (2d) 660; Kjeldergaard v. Gulliford, 260 Minn. 234, 109 N.W. (2d) 586; Kruchowski v. St. Paul City Ry. Co. 195 Minn. 537, 263 N.W. 616, 265 N.W. 303, 821; Vasatka v. Matsch, 216 Minn. 530, 13 N.W. (2d) 483; Ayer v. Chicago, M. St. P. & P.R. Co. 189 Minn. 359, 249 N.W. 581.
[5] Rules of Civil Procedure, Rule 60.02, provides in part: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment * * * for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604641/ | 268 Minn. 417 (1964)
130 N.W. (2d) 53
STATE
v.
JOSEPH MLYNCZAK.
No. 38,799.
Supreme Court of Minnesota.
July 3, 1964.
Stanley McMahon, for appellant.
Walter F. Mondale, Attorney General, and Linus J. Hammond, Assistant Attorney General, for respondent.
THOMAS GALLAGHER, JUSTICE.
In our former opinion herein (State v. Mlynczak, 266 Minn. 230, 123 N.W. [2d] 358), this case was remanded to the District Court of Winona County for the purpose of having a transcript of the testimony prepared and filed here so that we might determine whether it was sufficient to support the jury's verdict of guilty. Upon consideration of such testimony, the following supplemental opinion is made a part of our prior decision.
*418 The transcript discloses that at the trial the complaining witness, a boy of 13 years, completely repudiated the accusations he had previously made against defendant which formed the basis of the information under which the latter was being tried. Claiming surprise, the county attorney, with the court's consent, thereupon cross-examined the witness about previous oral statements, not made under oath, and about an unsworn written statement he had given to police officers and to the county attorney wherein such accusations had been made. In the course of such cross-examination, the witness denied the truth of all his previous oral and written statements and consistently testified that they had been made at the insistence and instigation of his mother, who had not witnessed any of the events involved. The following questions and answers are indicative of this procedure:
"Q. Did you give a statement to Captain Berg [of the Winona Police Department] about this?
"A. Yah.
* * * * *
"Q. Is what you are telling here now the same thing you told in the office?
"A. No, but it is the truth.
* * * * *
"Q. What did you want to say?
"A. I want to say that my mother put me up to this all. She did, honest.
* * * * *
"Q. Didn't you and your mother come into the office?
"A. Yes.
"Q. And didn't I ask you then we had a little talk about this whole thing?
"A. Yes.
"Q. And I asked you about what had happened with Mlynczak, didn't I?
"A. Yes, but my mother put me up to the whole thing.
* * * * *
*419 "Q. And we went over the whole experience that you had with Mlynczak, didn't we?
"A. Yes, but that isn't true.
* * * * *
"Q. Your dad has been talking to you about this, hasn't he?
* * * * *
"A. He hasn't. I told him the whole story once before and he just told me to tell the truth, and I am telling the truth now.
"Q. He told you the whole story once before?
"A. I told him the whole story and he just told me to tell the truth, and that is what I am doing now.
"Q. You are doing this to protect who?
"A. Nobody."
Subsequently, the written statement which the witness had repudiated was received over defendant's objection and submitted to the jury as substantive evidence of defendant's guilt.
1. The record fails to disclose any competent evidence which would corroborate the unsworn statements of the complaining witness. In State v. Saporen, 205 Minn. 358, 285 N.W. 898, we held that evidence of the type described was incompetent as substantive evidence in criminal proceedings and admissible only for impeachment purposes on the issue of credibility. There the court stated (205 Minn. 361, 285 N.W. 900):
"The rule is well settled that the only office of impeaching testimony of this kind is to negative or neutralize the testimony to which it is directed. (It may also discredit the witness as such.) * * * That is what Dean Wigmore calls the orthodox and `universally maintained' rule of American decision law. Although approved in the first (§ 1018), it is disapproved in the second, edition of Wigmore, Evidence (§ 1018). The disapproval of the learned author is put upon the ground that the impeached witness testifies finally under oath and subject to cross-examination. Hence, he concludes, `the whole purpose of the hearsay rule has been already satisfied,' and so `there is nothing to prevent the tribunal from giving such testimonial credit to the extrajudicial statement as it may seem to deserve.'
*420 "That, we submit with deference, is not enough to qualify the previous contradictory assertion as substantive evidence. The oath of the witness solemnizes his former extrajudicial statement not at all. It goes only to his testimony which is occasion for and target of the impeachment. The previous statement was when made and remains an ex parte affair, given without oath and test of cross-examination. Important also is the fact that, however much it may have mangled truth, there was assurance of freedom from prosecution for perjury.
* * * * *
"There are additional practical reasons for not attaching anything of substantive evidential value to extrajudicial assertions which come in only as impeachment. Their unrestricted use as evidence would increase both temptation and opportunity for the manufacture of evidence. Declarations extracted by the most extreme of `third degree' methods could readily be made into affirmative evidence. In criminal cases the defendant would have a similar opportunity to entrap the state's witnesses, and use as evidence all their extrajudicial assertions. The same enlargement of the field of inquiry would result in civil cases."
See, also, Erickson v. Paulson, 251 Minn. 183, 87 N.W. (2d) 585; State v. Gulbrandsen, 238 Minn. 508, 57 N.W. (2d) 419.
2. The state contends that the facts in the instant case bring it within an exception to the foregoing rule and cites a number of decisions in support thereof. We have examined the decisions cited and find that in some of them the prior inconsistent written or oral statements received as substantive evidence were statements made by witnesses under oath as in affidavits or in testimony before grand juries; or were statements which the witnesses reaffirmed as true.[1] In others, the courts held merely that under the facts there presented the prior inconsistent statements might be received only for the limited purpose of *421 impeachment.[2] Such facts and circumstances clearly distinguish the cases cited from the instant case where the prior statements involved were not made under oath and where the complaining witness definitely and firmly characterized all of them as untrue.
3. Accordingly, we feel that in the absence of any competent evidence to support the jury's verdict we are left no choice but to remand the case and in the interests of justice to direct the release of defendant from custody. See, State v. Kaster, 211 Minn. 119, 300 N.W. 897; State v. Johnson, 173 Minn. 543, 217 N.W. 683; State v. Larson, 207 Minn. 515, 292 N.W. 107; State v. Webber, 266 Minn. 224, 123 N.W. (2d) 193.
Reversed.
NOTES
[1] Stewart v. B. & O.R. Co. (2 Cir.) 137 F. (2d) 527; United States v. Freundlich (2 Cir.) 95 F. (2d) 376; Robinson v. United States, 113 App. D.C. 372, 308 F. (2d) 327; Harman v. United States (4 Cir.) 199 F. (2d) 34; Zimberg v. United States (1 Cir.) 142 F. (2d) 132.
[2] London Guarantee & Acc. Co. v. Woelfle (8 Cir.) 83 F. (2d) 325; see, Robinson v. United States, 113 App. D.C. 372, 308 F. (2d) 327. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604658/ | 130 N.W.2d 725 (1964)
Loren HARVEY et al., Appellant,
v.
IOWA STATE HIGHWAY COMMISSION et al., Appellee.
No. 51445.
Supreme Court of Iowa.
October 20, 1964.
*726 H. S. Life, Oskaloosa, for appellant.
Evan Hultman, Atty. Gen., C. J. Lyman, Asst. Atty. Gen., and A. Jackson Allen, State Counsel, Ames, for appellee.
STUART, Justice.
Plaintiffs' petition seeking to enjoin the State Highway Commission from taking portions of their farms in relocating State Highway 92 through Marion and Mahaska Counties was dismissed on defendants' motion. They elected to stand upon the pleadings and appealed.
Doubtful pleadings attacked by a motion to dismiss are resolved against the pleader. Well pleaded, relevant and issuable facts are deemed true, but conclusions, not supported by pleaded ultimate facts, are not admitted. Hahn v. Ford Motor Co., Iowa, 126 N.W.2d 350 and cases cited therein.
We treat the following facts alleged in the petition as true. Plaintiffs are residents of and landowners in Marion and Mahaska Counties. The highway commission proposes to take portions of plaintiffs' land to relocate State Highway 92, including a new bridge across the Des Moines river, at a total cost between 5 and 6.5 million dollars. The present highway is 18 feet wide and in good repair, with certain exceptions, and can be repaired, widened to 24 feet and resurfaced adequately for all anticipated future needs for not to exceed 1.5 million dollars. Highway 92 is not a trunk highway and runs parallel to U. S. Highway 34 located 20 to 25 miles to the south which is being rebuilt across the state, and Interstate 80, a four lane divided highway on the north. The traffic on Highway 92 is decreasing and will decrease further when these two highways are completed.
The petition also includes Par. 20 which states: "That no public need or convenience for the building of a new segment of Highway 92 in Marion and Mahaska County as proposed exists legally justifying the same and the expense thereof will constitute an arbitrary and unnecessary spending of public money and an arbitrary unnecessary taking by the defendants of the real estate property of these plaintiffs and without justification or the existence of legal necessity and convenience therefor on the part of the state permitting or justifying *727 under and by the law of eminent domain of the State of Iowa."
This paragraph is a pleading of conclusions which are not admitted in the motion unless supported by the ultimate facts just set out. Plaintiffs' quarrel is with the decision of the commission to relocate portions of Highway 92 rather than repair and widen it in its present location. No other ultimate facts are pleaded. No bad faith, fraud or illegality is alleged. Accepting, for the purposes of the motion, plaintiffs' figures on the comparative costs of repairing and resurfacing the highway in its present location and the cost of relocating the road, and assuming that the repaired road would be adequate for all anticipated future needs, do these facts constitute such illegal and arbitrary action on the part of the commission that we may interfere? We conclude, as did the trial court, that they do not.
When the highway commission acts within the powers conferred upon it by statute, its discretion is broad and plenary. In the absence of fraud, bad faith, or arbitrary abuse of that discretion, the courts have no power to control the manner in which it shall exercise the authority with which it has been invested. Barrett v. Kemp, 91 Iowa 296, 299, 59 N.W. 76; Bennett v. City of Marion, 106 Iowa 628, 630, 76 N.W. 844; Brush v. Incorporated Town of Liscomb, 202 Iowa 1155, 1156, 211 N.W. 856; Minear v. Plowman, 197 Iowa 1188, 1191, 197 N.W. 67; Long v. State Highway Commission, 204 Iowa 376, 378, 213 N.W. 532; Hoover v. Iowa State Highway Commission, 207 Iowa 56, 58, 222 N.W. 438; Porter v. Highway Commission, 241 Iowa 1208, 1217, 44 N.W.2d 682; Rhodes v. Iowa State Highway Commission, 250 Iowa 416, 419, 94 N.W.2d 97; Warren v. Iowa State Highway Commission, 250 Iowa 473, 486, 93 N.W.2d 60; Batcheller v. Iowa State Highway Commission, 251 Iowa 364, 368, 101 N.W.2d 30; A. & S. Inc. v. Iowa State Highway Commission, 253 Iowa 1377, 1384, 1389, 1391, 116 N.W.2d 496; 14 Am.Jur. 392, Courts, § 198; 25 Am.Jur., Highways, p. 354 § 26, p. 359 § 34, p. 374 § 60; see anno. 91 A.L.R. 242.
Plaintiffs concede that the highway commission is the state agency possessing control of and dominion over the primary highway system. This includes the determination of the location and design of the highways. We are asked to subject the commission's judgment to review by the courts upon a pleading that an adequate road can be provided at a much cheaper cost in some other manner. Such a holding would have far reaching effects. There have probably been very few miles of road constructed in the state about which there has not been a difference of opinion as to its advisability and practicality. To permit a person to base an action upon such reasons and enjoin further proceedings until a factual determination is made, could stall the whole road building program and require the commission to spend much time and money justifying its decisions in court. Such decisions must necessarily be made by commission and the courts would be unduly interfering in an administrative matter if it undertook to impose its judgment on the commission for the reasons pleaded.
Plaintiffs cite In re Condemnation of Certain Land (Havner v. Iowa State Highway Commission), 230 Iowa 1069, 300 N.W. 287, in which we affirmed the trial courts' decision holding the condemnation of plaintiffs' land in the angle of converging highways was not for a public purpose. There is no factual similarity to this case. There, the taking was obviously to prevent the construction of a gasoline station at the location condemned. Here, there is a complete relocation of a portion of a primary highway. It may be well to note also that we probably would not reach the same result at the present time in view of the authority granted the commission under the provisions of the Controlled Access Highways Act, Chapter 306A of the Code, I.C.A.
*728 We are not saying that matters cannot be alleged in a petition which would indicate such arbitrary and illegal action that the court would be justified in determining whether there was an abuse of discretion. Nor are we conceding that we have abandoned authority to determine what is public use. We are deciding only the case before us and hold that the matters alleged in this petition are such that they come within the exclusive discretion of the highway commission and it is beyond the authority of the courts to pass upon the judgment of the commission here.
Affirmed.
All Justices concur, except HAYS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605785/ | 416 So. 2d 377 (1982)
Daniel Patrick BRIGGS, Plaintiff-Respondent,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Relator-Respondent.
No. 82-275.
Court of Appeal of Louisiana, Third Circuit.
July 1, 1982.
Writ Denied July 9, 1982.
Jules L. Davidson, Jr., Robert P. Jackson, Richard E. Lee, Alfred A. Mansour, Lloyd G. Teekell and William P. Polk, JJ., Ninth Judicial District, Parish of Rapides, Edwin O. Ware, III, Dist. Atty., McClure & McClure, John G. McClure, Alexandria, for defendant-relator-respondent.
*378 James S. Gravel, Alexandria, for plaintiff-respondent.
Before GUIDRY, STOKER and DOUCET, JJ.
DOUCET, Judge.
The defendant-relator, United States Automobile Association, seeks supervisory writs from an order of the Ninth Judicial District Court, denying relator's motion requesting to return a $250.00 cash advance deposit previously paid under protest in accordance with Local Rule XIII(D) of the Ninth Judicial District Court.
The defendant-relator had previously filed a writ application concerning the validity of Rule XIII(D) of the Ninth Judicial District Court.
The aforementioned writ was granted and made peremptory by this court on May 19, 1982, with the following language, to-wit:
"LSA-R.S. 13:3050 as amended by Act 805 of 1981 sets forth the requirements for jury trial relative to costs, etc. Rule XIII(D) of the Ninth Judicial District Court, insofar as it requires prior payment of a charge of $250.00 which is non-refundable and non-assessable as costs of court, is in conflict with the aforementioned statute and is therefore invalid."
Counsel for defendant-relator prepared and filed a motion for order returning $250.00 from Criminal Court Fund, filed same with the Clerk of the Ninth Judicial District Court and presented the same to the duty order signing Judge, on May 20, 1982. Counsel for defendant-relator was informed that the Judges of the Ninth Judicial District Court were to meet on Friday, May 21, 1982, for their regular conference and the matter would be discussed at that time and a decision made of whether to sign the order or refuse to sign the order. Between the filing of the writ bearing Number 82-195 and the granting of the writ, Rule XIII(D) of the Ninth Judicial District Court was amended on April 16, 1982.
The change in the rule was in the third sentence. At the time Writ Number 82-195 was filed, the third sentence read: "This charge is non-refundable and will not be assessed as cost of court." After the amendment, the wording is: "This charge is non-refundable but will be assessed as cost of court." The remainder of Rule XIII(D) is unchanged.
Counsel for defendant-relator was informed by the duty order signing judge that the Judges of the Ninth Judicial District Court were going to continue to enforce local Rule XIII(D) as most recently amended on April 16, 1982, and the order requesting a refund of the $250.00 previously paid under protest would be refused despite the granting of the writ in Number 82-195 and the making of that writ peremptory and the language of this Honorable Court that local Rule XIII(D) was invalid insofar as it was in conflict with LSA-R.S. 13:3050.
The order requesting the refund of the $250.00 previously paid under protest bears the notation: "Cannot grant refund Rule XIII(D) Jules L. Davidson, Jr., Dist. Judge."
It is from this order of the trial court from which the defendant-relator seeks this court's supervisory relief.
This court has already determined the illegality of Local Rule XIII(D) in Writ No. 82-195, Briggs v. United Services Automobile Association. The Ninth Judicial District Court Local Rule XIII(D) is ex post facto legislation, therefore relator's right to a jury trial is to be determined on the date of the original request, at which time no such valid requirement of a $250.00 charge existed. Therefore the $250.00 charge collected by the Ninth Judicial District Court should be returned as no such valid requirement of this type of charge existed at the time of relator's request for a jury trial. Relator's request for a jury trial is controlled by LSA-R.S. 13:3050.
It should be further noted that the issue of this writ is not different in any substantial way from the original writ granted and made peremptory on May 19, 1982, by this court. The only change in Local Rule *379 XIII(D) was to make the charge a cost of court. Despite this change the charge remains in direct conflict with Writ No. 82-195 Briggs v. United Services Automobile Association, in which we affirmed that a cash charge may not be required because it was in direct contravention of LSA-R.S. 13:3050.
Subsequent to the filing of the Briggs Writ No. 82-275, five additional writ applications were made challenging the validity of Local Rule XIII(D) as amended on April 16, 1982:
(1) Writ # 82-278Allen v. Lumbermans Mutual Casualty Company, 416 So. 2d 380;
(2) Writ # 82-298Durison v. Preferred Risk Mutual Insurance Company, 416 So. 2d 380;
(3) Writ # 82-299Epps v. Louisiana Joint Underwriters of Audubon Insurance, 416 So. 2d 381;
(4) Writ # 82-317 Smith v. Great Atlantic & Pacific Tea Company, Inc., 416 So. 2d 381;
(5) Writ # 82-331Singleton v. Warren Pickett, et al., 416 So. 2d 382.
The same error was alleged in the above listed writs as was alleged in the Briggs Writ No. 275. The legal principles involved are the same. Therefore, they are disposed of similarly.
The Judges of the Ninth Judicial District Court filed an opposition to the Briggs writ application and the above listed writ applications on June 11, 1982. The essence of the opposition is that the revenues are needed. The authority cited for the enactment of Rule XIII(D) is LSA-C.C.P. Arts. 191 and 193. LSA-C.C.P. Art. 193 which allows a court to adopt rules for the conduct of judicial business before it, including governing matters of practice and procedure which are not contrary to the rules provided by law. However, LSA-R.S. 13:3050 provides in clear and unequivocable terms: "The party requesting trial by jury may not be compelled to post a cash bond prior to trial." It is clear that the charge assessed is a bond for costs. It is indisputable that LSA-R.S. 13:3050 prohibits the action complained of. While we sympathize with the Court's financial problems, such sympathies cannot prevail over express statutory law. Our law resolves the competing concerns in favor of greater accessability to our courts with the accompanying fundamental right to jury trials. Rule XIII(D) is contrary to LSA-R.S. 13:3050 and therefore, does not fall within the grant of authority cited in the opposition.
Rule XIII(D) as amended is contradictory in that it states the charge is "non-refundable but will be assessed as cost of court". However, LSA-R.S. 13:843.1 states that a refund of court costs must be made of any unused balance remaining to the credit of the particular suit within a certain time period after termination of a civil suit. The jury bond cannot be called a non-refundable cost of court because the statute provides that court costs are refundable when certain conditions are met.
For the reasons set forth above it is hereby ORDERED, ADJUDGED AND DECREED that relator's writ is granted and made peremptory.
WRIT GRANTED AND MADE PEREMPTORY.
It is hereby ordered, for the reasons herein stated, that applicant's cost paid under protest, in the sum of $250.00, be refunded and the Local Rule XIII(D), of the Ninth Judicial District Court, as amended, is herein found to be invalid and unenforceable as being contrary to LSA-R.S. 13:3050. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605798/ | 349 So. 2d 155 (1977)
DESERET RANCHES OF FLORIDA, INC., Appellant,
v.
Dorothy BOWMAN, Etc., et al., Appellees.
No. 49241.
Supreme Court of Florida.
April 21, 1977.
Rehearing Denied September 6, 1977.
Philip W. Watson and George T. Eidson, Jr., of Akerman, Senterfitt & Eidson, Orlando, for appellant.
Bruce E. Chapin, Orlando, for appellees.
BOYD, Justice.
In December 1975 Dorothy Bowman and other trustees of a certain trust filed a complaint in the Circuit Court, Ninth Judicial Circuit, in and for Osceola County, against Deseret Ranches of Florida, Inc. Among the types of relief sought was establishment of a way of necessity pursuant to Section 704.01(2), Florida Statutes:
"(2) Statutory way of necessity exclusive of common law right. Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when any land or portion thereof outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, and electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner."
The complaint alleged that plaintiffs owned real property which was surrounded by land owned by the defendant and that no route of ingress or egress was available from their land to the nearest public or private road. Alleging further requirements necessary to establish a cause of action under the statute, Count II of the complaint requested that the court establish a statutory way of necessity over the land of Deseret Ranches to provide access to the nearest road.
Deseret Ranches moved to dismiss Count II of the complaint on the ground that the statute is unconstitutional. The court denied the motion and in so doing directly *156 passed on the constitutional validity of the statute. The interlocutory order was appealed by Deseret Ranches to this Court. The appeal is treated as a petition for certiorari.[1] We have jurisdiction.[2]
Appellant's only meritorious argument[3] against the statute's constitutional validity is that it violates Article X, Section 6(a) of the Florida Constitution (1968):
"SECTION 6. Eminent domain.
"(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner."
The argument is that in contravention of the foregoing provision no purpose which is predominantly public is served by the taking of easements through operation of the statute. Although it is conceded that the statute provides a public benefit, it is argued that the benefit is incidental to a purpose which is predominantly private, that purpose being to provide a private land owner with conventional access to the outside world.
In 1961, before the adoption of the Florida Constitution of 1968, there was advanced in Stein v. Darby[4] a similar argument against the statute, cast in terms of unconstitutionality under both the Florida Constitution of 1885 and the Fourteenth Amendment to the United States Constitution. After an excellent review of the common law history of the doctrine of ways of necessity, the Court concluded that the doctrine is grounded in the public policy against the loss of the use of landlocked property. As to the statutes' provision for ways of necessity, Stein stated,
"... we find no logic in the argument that the statute in question, which aids to render the earth from which all sustenance flows available to the uses of man, is unconstitutional as serving something other than a public purpose." 126 So.2d at 320.
Appellant contends that the intervening adoption of the 1968 Florida Constitution, including Article X, Section 6(a) and its "public purpose" requirement, mandates a different result from that reached in Stein and, Article X, Section 6(a) aside, that Stein was wrongly decided.
We agree with the reasoning in Stein and hold the statute constitutional under the present Constitution. The inverse of appellant's contention is true: the statute's purpose is predominantly public and the benefit to the private landholder is incidental to the public purpose. Although state public policy may have altered with respect to the methods of land use since 1961,[5] sensible utilization of land continues to be one of our most important goals. We take notice that Florida grows in population at one of the fastest rates of any state in the nation. Useful land becomes more scarce in proportion to population increase, and the problem in this state becomes greater as tourism, commerce and the need for housing and agricultural goods grow. By its application to shut-off lands to be used for housing, agriculture, timber production and stockraising, the statute is designed to fill these needs. There is then a clear public purpose in providing means of access to such lands so that they might be utilized in the enumerated *157 ways. The statute therefore is in keeping with Article X, Section 6(a), Florida Constitution.
Certiorari is denied.
It is so ordered.
OVERTON, C.J., and ADKINS, HATCHETT and DREW (retired), JJ., concur.
SUNDBERG, J., dissents with an opinion, with which ENGLAND, J., concurs.
SUNDBERG, Justice, dissenting.
I must respectfully dissent from the majority opinion which upholds as nonviolative of Article X, Section 6(a), Florida Constitution of 1968, the provisions of Section 704.01(2), Florida Statutes (1975). Article X, Section 6(a), is a brief restatement of Article XVI, Section 29, and the Declaration of Rights, Section 12, Florida Constitution of 1885. See commentary to Article X, Section 6, 26A Florida Statutes Ann. 479. The conditions of both the former and current constitutional mandates are the same. No private property shall be taken "except (i) for a public purpose (ii) and with full compensation therefor paid to each owner." There can be no doubt that the condition of full compensation is met by the statute in question. Section 704.04, Florida Statutes (1975), provides a judicial remedy and compensation to the servient owner when Section 704.01(2) is invoked. My colleagues and I depart on the question of whether the condition of "public purpose" is satisfied by Section 704.01(2). I am firmly convinced that it is not.
It should be noted at the outset that Section 704.01, Florida Statutes (1975), recognizes two types of ways of necessity. By Section 704.01(1), the common law rule of an implied grant of a way of necessity is "recognized, specifically adopted, and clarified." As pointed out in Stein v. Darby, 126 So. 2d 313 (Fla. 1st DCA 1961), such a way of necessity is historically grounded in real property law concepts. No taking of the land of another is involved because an implied grant of the right-of-way is presumed from the conveyance by the common grantor. It is a right inuring in the estate of the grantee which arises at the time of the conveyance by the common grantor. Principles of eminent domain are not applicable.
However, it is clear from the very title of Section 704.01(2), Florida Statutes (1975), that the statutorily created way of necessity is exclusive of the common law right with no necessity to establish the elements essential to application of the common law rule. It is a delegation by the legislature to private individuals of the sovereign power of the state to exercise eminent domain over the lands of other private individuals. Of course, delegation of the power of eminent domain by the legislature in not unique. Counties and municipalities enjoy such a grant (§ 127.01, Fla. Stat. (1975)) as do quasi-public corporations such as railroad, electric power, gas, and telephone and telegraph companies. See Chapters 360, 361, 362, Florida Statutes (1975). More recently districts and authorities which engage in drainage, flood control, water management, public housing and urban renewal activities, have been properly delegated the power of eminent domain where it is apparent that such activities serve a public as opposed to a private purpose. See Chapters 361, 373, Sections 163.375, 180.22, 298.62, 421.08(3), Florida Statutes (1975). Nonetheless, the test always has been whether or not the purpose of such taking is public or at least primarily public. The public purpose must not be merely incidental, and "public benefit" is not synonymous with "public purpose." Grubstein v. Urban Renewal Agency of City of Tampa, 115 So. 2d 745 (Fla. 1959); Adams v. Housing Authority of City of Daytona Beach, 60 So. 2d 663 (Fla. 1952). On the other hand, incidental private benefit will not be fatal to a proposal if the ultimate, basic objective is a public use. State v. Board of Control, 66 So. 2d 209 (Fla. 1953).
Grubstein, supra, was heavily relied upon by the District Court of Appeal in Stein v. Darby, supra. Grubstein held valid a special *158 act of the legislature[1] providing for the rehabilitation, clearance, and redevelopment of slums and blighted areas in the City of Tampa in accordance with urban renewal plans. The act authorized exercise of the power of eminent domain by the City to accomplish its purposes and permitted lease or sale of property so acquired to private interests in furtherance of the plan of redevelopment. In holding the act constitutional against an assertion that it violated the predecessor to Article X, Section 6(a), Constitution of Florida, the Court opined that, as under the Housing Authority Law, "slum clearance is the dominant or primary purpose of the enactment, and redevelopment of the cleared property [through sale or lease to private interests] is the subordinate purpose, linked to the primary purpose by the necessity of preventing the recurrence of the slum condition and of putting the property to some use." 115 So. 2d 745 at 750. That clearance of slum areas was the dominant purpose of the act was borne out by quoted findings of the trial court:
... that this slum area is a breeding place of disease and crime, and constitutes a menace to the health, safety, morals and general welfare of the City of Tampa and requires a disproportionate expenditure of public funds to preserve the public health and prevent crime, fire, accidents, and to supply public services to the residents of the area; that the tax income to the City, County and State is low and out of proportion to the amounts of public funds required to be expended in servicing the area; that nationally, where slums have been eradicated and the area redeveloped for the best purposes, the tax income accruing has been approximately seven times greater than when the area was a slum;
4. That the police power of the City of Tampa is inadequate to accomplish the removal or elimination of the slum conditions found, and that the area is so far deteriorated as a slum or blighted section that mere conservation methods would not accomplish the elimination of slum conditions; and that the complete replatting and redevelopment of the land on an area-wide basis is the only feasible method of slum elimination in these circumstances;
* * * * * *
6. That the proposed Maryland Avenue Slum Clearance and Urban Renewal Project will, if allowed to be carried through to its completion, fit into the City of Tampa's general plans of development, improve traffic and safety conditions in the area, eliminate the blighted area in question with its disease, crime, fire hazard, and other problems growing out of slum conditions, tie into the proposed system of limited access freeways through the City, reduce a disproportionate drain on the City's financial structure, provide an improved living and working environment within the City of Tampa, and will materially benefit, protect, and conserve the health, safety, morals and general welfare of all the citizens of the City... . Id. at 747.
In the instant case there is no showing of any dominant public purpose to be served through the operation of Section 704.01(2), Florida Statutes (1975). Its dominant or main purpose is to serve the interests of a landlocked private landowner. Any ancillary benefit to the public through development of undeveloped land in this State is just that a "public benefit" and not a "public purpose". The assertion in the statute that it is "[b]ased on public policy, convenience, and necessity" is not the equivalent of "public purpose" which is the sine qua non of Article X, Section 6(a) of our Constitution.
Furthermore, I am unwilling to discard South Dade Farms v. B. & L. Farms Co., 62 So. 2d 350 (Fla. 1950), as being without precedential value on the subject at hand, as does the majority in footnote 3 to the opinion. The majority categorically concludes without analysis that the absence of a requirement *159 of compensation to the servient owner was the only impediment to the predecessor of Section 704.01(2) found in South Dade Farms. They maintain that this deficiency was cured by the amendment adding Section 704.04, Florida Statutes (1975). Review of a portion of the Court's opinion in South Dade Farms is instructive on this point:
Of course, in this instance the taking would have no semblance even of basis in the police power. It is purely a matter of taking from one private owner for the use of another private owner.
When the state attempted, by the statute, to accomplish what would result were the present order enforced, its act constituted a violation of the provision that no state shall "deprive any person of * * * property, without due process of law * * *." Also the Florida constitutional provisions found in the Declaration of Rights that a person shall not "be deprived of * * * property without due process of law * * *" would be violated, not to mention the provision that private property shall not be "taken without just compensation." (Emphasis added). Id. at 351.
Section 12 of the Declaration of Rights provided in pertinent part:
No person [i] shall ... be deprived of life, liberty, or property without due process of law; [ii] nor shall private property be taken without just compensation.
It is crystal clear to me that this Court determined that the predecessor of Section 704.01(2), Florida Statutes (1975), violated both conditions limiting exercise of the power of eminent domain, i.e., (1) the taking must be for a public purpose, and (2) just compensation must be paid for that which is taken. Section 704.04, Florida Statutes (1975), may be an elixir for the latter, but it is no cure for the former. Consequently, the principles of stare decisis dictate the result in this case absent any reason to recede from South Dade Farms and none has been demonstrated.
At a time in history when attention has been focused, quite properly, on the protection of civil rights, we must not lose sight of the fact that the fundamental document expressing the organic law of this state and the nation accords no less dignity to the protection of property rights. Enunciated as one of the "basic" and "inalienable" rights by our present Constitution is the right "to acquire, possess and protect property." Article I, Section 2, Florida Constitution. It is an odious concept indeed that the awesome eminent domain power of the sovereign may be utilized by an individual to take for his own private use the private land of his neighbor against the will of the neighbor regardless of the requirement that full compensation shall be paid. It is no consolation to assert that the right-of-way easement is temporary and shall exist only so long as it is reasonably necessary for the purposes stated in the statute. If Section 704.01(2), Florida Statutes, is held not to violate Article X, Section 6(a), then there can be no rational basis to restrict the power of the legislature to delegate the authority to take permanently.
Mindful as I am of the presumption of validity which accompanies a solemn act of the legislature when it comes to this Court under attack, nonetheless I cannot square the operation of Section 704.01(2) with the constitutional guarantees of Article I, Section 2, and Article X, Section 6(a). Accordingly, I would declare the statute unconstitutional, grant the writ of certiorari, and reverse the order of the trial court.
ENGLAND, J., concurs.
NOTES
[1] Burnsed v. Seaboard Coastline RR., 290 So. 2d 13 (Fla. 1974).
[2] The Supreme Court "May review by certiorari ... any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the supreme court...." Art. V, § 3(b)(3), Fla. Const.
[3] Arguments that the statute works a denial of property without due process of law are without merit. Section 704.04, Florida Statutes, provides for judicial remedy if the servient owner objects to a claim under Section 704.01(2). The objections to statutory easements of Section 704.01 voiced by this Court in South Dade Farms v. BSL Farms Co., 62 So. 2d 350 (Fla. 1950), have also been cured by the enactment of Section 704.04, Florida Statutes, since it provides for compensation to the servient owner if the court finds the statutory claim to exist.
[4] 126 So. 2d 313 (Fla. 1st DCA 1961).
[5] Witness Article II, Section 11, Florida Constitution, and the many enactments of environmental legislation by the Florida Legislature.
[1] Ch. 57-1904, Laws of Fla., Special Acts of 1957. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604682/ | 810 So. 2d 516 (2001)
Mindy ROSEMAN, Appellant,
v.
TOWN SQUARE ASSOCIATION, INC., a Florida corporation, Appellee.
No. 4D00-1072.
District Court of Appeal of Florida, Fourth District.
December 5, 2001.
Opinion on Denial of Rehearing March 13, 2002.
*518 Dan Cytryn of Law Offices Dan Cytryn, P.A., Tamarac, for appellant.
Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., and R. David Ravine of Law Offices of Robert F. Tacher, Fort Lauderdale, for appellee.
ON MOTION FOR REHEARING
WARNER, J.
We grant the motion for rehearing and clarification. We withdraw our previously issued opinion and substitute the following in its place.
In her appeal from a judgment in favor of appellee condominium association in a premises liability case, appellant contends that the trial court erred in bifurcating the issues and trying only liability to the jury first. She also alleges error in the trial court's refusal to permit her to offer evidence of subsequent repairs, refusal to permit appellant's expert to testify regarding procedures that the condominium association should have implemented with respect to the premises, and failure to give a particular jury instruction. We affirm on all issues, holding that the trial court did not abuse its discretion in granting the bifurcation, refusing to permit certain testimony, and denying the requested jury instruction which was not supported by the pleadings or the evidence.
Appellant, Mindy Roseman, claimed to have suffered injuries when the front door at appellee's condominium complex closed quickly, striking her on the back. Specifically, she alleged that the door was not properly maintained and that appellee *519 failed to warn her of this dangerous condition. Prior to trial, appellee moved for bifurcation of liability and damages, alleging that bifurcation would conserve judicial resources. In the motion, it noted that Roseman had listed thirty-two witnesses on damages, with nine being experts. Only four experts were listed on liability. The trial court granted appellee's request, ordering that both portions would be tried before the same jury. On Roseman's motion to clarify, the court directed that the jury would determine whether "there was negligence on the part of Town Square Association which was a legal cause of the door striking Mindy Roseman." Although Roseman later moved for rehearing on the issue, it does not appear that the issue was addressed again.
At a pretrial hearing, Roseman proffered the testimony of an expert in condominium management. He was prepared to render opinions on whether appellee should have placed a written notice on the door stating the door should not be adjusted and whether appellee should have ensured the door was closing at a safe pace. The court determined that these were not matters of expert opinion but were matters within the common knowledge of the jury. However, Roseman was free to argue such theories to the jury.
During trial, Roseman called several witnesses who either visited or lived at the condominium complex. Their testimony established that the door was heavy and "pretty much slammed closed." Roseman also called a door expert who conducted several tests on the closing speed of the door and opined that the door closing mechanism was set at a speed that caused it to close too quickly. In addition, Roseman called Roger Tuttle, a locksmith who performed work on the door approximately eight months after the accident. In a proffer outside the presence of the jury, Tuttle stated that he performed adjustments on the "door closer" on several occasions thereafter. He also stated that he suspected the condominium residents were adjusting the door, so he put a sticker over the screws. When he returned for additional work, he noticed that the stickers had been removed or penetrated. One of the members of the condominium's board of directors told Tuttle that he had experienced continuous problems with the door.
After the proffer, the trial court ruled that Tuttle could not testify that he suspected the residents were adjusting the door screws because Tuttle could not testify that he saw them adjust it before the accident. Tuttle also was not permitted to testify about his own adjustments to the door after the accident. However, he was allowed to testify as to the director's statement about the door problems. Later, appellee read portions of the director's deposition to the jury which indicated the director was not aware of whether the door closer had been replaced. Based upon this statement, Roseman contended that appellee had opened the door to evidence of subsequent repairs. Although the trial court disagreed, it told Roseman that she could use such evidence to impeach the director's testimony that no repairs were made.
At the close of the trial, the trial court read the standard jury instruction on premises liability and refused to include Roseman's requested instruction that the jury should determine whether appellee negligently created a dangerous condition. The case was submitted to the jury, which returned a verdict finding no liability on behalf of appellee.
Bifurcation
Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials and provides: "The court in furtherance of convenience or to avoid prejudice may order *520 a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues." Roseman makes a broad argument that bifurcation should not be permitted in personal injury cases, except in rare circumstances, and requests this court to certify this question to the supreme court as one of great public importance.
Cases involving bifurcation make two principles of law evident. First, the trial court's decision to bifurcate is subject to an abuse of discretion standard of review. See Microclimate Sales Co. v. Doherty, 731 So. 2d 856, 858 (Fla. 5th DCA 1999); Maris Distrib. Co. v. Anheuser Busch, Inc., 710 So. 2d 1022, 1024 (Fla. 1st DCA 1998); Hardee Mfg. Co. v. Josey, 535 So. 2d 655, 656 (Fla. 3d DCA 1988). Second, "bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party." Microclimate Sales Co., 731 So.2d at 858; see also Hardee Mfg. Co., 535 So.2d at 656 (holding there is no abuse of discretion in denying a motion to bifurcate liability and damages in a personal injury case where "factors concerning the cause and nature of the injuries would, unavoidably, have been adduced at a separate trial on liability").
Where a court has disapproved bifurcation in a personal injury case, it has been grounded on the necessity to have evidence of injury to prove or explain some issue in the liability trial. See, e.g., Scandinavian World Cruises Bah., Ltd. v. Barone, 573 So. 2d 1036, 1037 (Fla. 3d DCA 1991). In Barone, the court held that bifurcation was improper because the plaintiff was prejudiced on the issue of liability. During the liability trial, the trial court excluded evidence that the plaintiff suffered an organic brain injury as a result of the accident. This evidence "was necessary to explain certain confusing and inconsistent testimony of the plaintiff, including a glaring inconsistency as to where the plaintiff had slipped and fallen on the defendant's cruise ship." Id.
Unlike Barone, the injuries suffered by Roseman were not intertwined with the issue of whether appellee negligently maintained the subject door. Roseman testified that she was struck on her shoulder. Although she claims the evidence of her medical treatment shortly after the event would buttress her credibility, those facts are immaterial to the liability issues of negligent maintenance or failure to warn of a dangerous condition. The defense's theory was that the door was neither negligently maintained nor a dangerous condition. Therefore, the extent of Roseman's injuries were not a factor in determining liability. We have read the portions of the transcript provided on this appeal and cannot determine that the issues are inextricably intertwined such that the bifurcation prejudiced Roseman.
Roseman's main concern is that jurors would be dissuaded from performing their duties impartially because they could end their service early by agreeing on a defense verdict. That way, the time spent listening to damage testimony and deliberating could be avoided. She claims this was particularly true in the instant case where the trial was held shortly before Christmas, and in voir dire, some jurors expressed a concern for service during the holiday weeks. To reverse based upon these concerns would tread on the discretion of the trial judge who conducted the trial, saw the juror's reactions, and could control the conduct of the trial. Further, it would show a considerable distrust for the validity of our most fundamental legal institution, the jury. We would be presuming that the jury would do the wrong *521 thing simply to suit their own convenience. We can make no such presumption.
Roseman cites to Stecher v. Pomeroy, 253 So. 2d 421, 424 (Fla.1971), for the proposition that absent an issue relating to insurance, the trial court should not bifurcate damages from liability. That case is not helpful because it relates to bifurcating issues of insurance from other issues at a time when insurance companies were routinely named as parties in negligence actions, and Stecher was clearly referring to severance in those cases where an insurance defendant is moving for severance. Stecher has never been cited for the proposition suggested by Roseman.
We conclude that the law is well settled that bifurcation is subject to the sound discretion of the trial court. There is no abuse of that discretion in this case. While Roseman suggests that the trial court should be required to set forth factual findings supporting its order of bifurcation, rule 1.270 requires no such findings. Without a rule requiring them, we are not inclined to compel the trial court to provide written findings for its ruling.
Evidentiary Issues
With respect to the exclusion of Tuttle's proffered testimony that he suspected residents were adjusting the door themselves, the trial court excluded the evidence because Tuttle did not actually see anyone adjust the door. Section 90.604, Florida Statutes (1999), prohibits testimony by a witness who does not have personal knowledge of a matter. In this case, Tuttle was first called to the condominium on a door problem about eight months after the incident causing Roseman's injuries. Tuttle did not have personal knowledge that the door was actually adjusted, let alone by whom the door was adjusted, particularly prior to the accident. The trial court's exclusion of this evidence was not an abuse of discretion.
Secondly, Roseman argues the evidence of Tuttle's adjustments to the door after the incident was admissible to impeach the director's testimony at trial that the door operated correctly. While evidence of subsequent remedial repairs may be admissible for impeachment purposes, see § 90.407, Fla. Stat. (1999), the trial court told Roseman that she could use the evidence to impeach the director's statement that he had reviewed his records and determined that no repairs had been made to the door within a period two months before or two months after the accident. Roseman specifically declined to do so because the evidence of subsequent repairs which she intended to offer occurred eight months after the accident. Thus, they would not be proper impeachment for the statement made by the director.[1]
Roseman also argues that Tuttle's testimony that he adjusted the door after the incident did not constitute evidence of a subsequent remedial repair because none of the adjustments would have made Roseman's injuries less likely to occur, and the evidence was not too remote. Therefore, it should have been admitted. See § 90.407, Fla. Stat. (1999); Donahue v. Albertson's, Inc., 472 So. 2d 482, 484 n. 1 (Fla. 4th DCA 1985) (evidence of subsequent repairs admissible where the repair would not have made the injury less likely to occur). Section 90.407 states the rule "does not require the exclusion of evidence *522 of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment." Roseman argued to the trial court that Tuttle's multiple adjustments to the door sometime after July, 1997, showed that the condominium residents "were persistent [in] re-adjusting the door and that there was a problem that continued." If, by that, Roseman is arguing that the purpose is to show notice of a dangerous condition, there is no necessary connection between Tuttle's repairs eight months after the incident and appellee's knowledge of a dangerous condition at the time of the accident. In Donahue, also a malfunctioning door case, the subsequent repair evidence was relevant to support Donahue's theory that a breakaway switch on a door closer was damaged by people hitting the door as they attempted to enter the store. 472 So.2d at 483-84. A repairman, who replaced a switch just two months after the accident, testified that the customers' frustrated attempts to enter through the exit door caused the switch to break. See id. at 484. While Albertson's had attempted to claim that such abuse would not be sufficient to cause the switch to break, the subsequent repair and the testimony of the repairman proved that the customers banging the door was a cause of switch damage, thus offering direct evidence to support Donahue's theory of causation. See id. The same type of direct connection is not present in the testimony offered by Tuttle.
Moreover, it is arguable that the evidence falls squarely into section 90.407's prohibition of introducing subsequent repairs. While Tuttle did not specify what kinds of adjustments were made, we can only assume that they were made to slow down the closing speed of the door, which closing speed is what Roseman alleged was the problem with the door and caused it to hit her. Thus, such adjustments would have made the injury less likely to occur and are inadmissible.
Finally, if the evidence was offered to show notice of a dangerous condition, it was cumulative. Tuttle was allowed to testify that a director told him that the door was a constant problem. In addition, other witnesses testified to the fast closing speed of the door, which they observed prior to Roseman's accident.
"[A]bsent an abuse of discretion, decisions made by the trial court addressing the admissibility of evidence, the scope of examination of witnesses, or the appropriate subjects of inquiry in cross-examining witnesses are within the trial court's sound discretion." Klose v. Coastal Emergency Servs. of Ft. Lauderdale, Inc., 673 So. 2d 81, 84 (Fla. 4th DCA 1996). No abuse of that discretion occurred in this case.
Next, Roseman challenges the exclusion of the condominium maintenance expert's testimony. The trial court considered the expert's opinions to be a matter within the common knowledge of the jury. The range of subjects about which an expert witness will be allowed to testify are within the trial judge's broad discretion. See Broward County Sch. Bd. v. Cruz, 761 So. 2d 388, 394 (Fla. 4th DCA 2000), aff'd, 800 So. 2d 213 (Fla.2001). In Smaglick v. Jersey Insurance Co. of New York, 209 So. 2d 475, 476-77 (Fla. 4th DCA 1968), this court held that:
Expert opinions are admissible only when the facts to be determined are obscure and can be made clear only by the opinions of persons skilled in relation to the subject matter of the inquiry, and when facts are within the ordinary experience of the jury, conclusions therefrom will be left to them, and even *523 experts are not permitted to give conclusions in such cases.
In this case, whether and how the condominium residents should have been warned not to adjust the door, and whether appellee should have ensured that the door closed at a slower speed are issues within the common knowledge and experience of the jury. The trial court, therefore, did not abuse its discretion in precluding the condominium expert from testifying at trial.
Jury Instruction
Lastly, Roseman challenges the trial court's failure to include an instruction on negligent creation of a dangerous condition. The pleadings, however, did not allege negligent creation of the condition, nor did the facts support the giving of the instruction. There was no evidence that appellee actually created the door's dangerous condition (the quick closing speed). Roseman's theory of her case was that the door was negligently maintained and that appellee failed to provide adequate notice of the door's dangerous condition. The trial court did not err in failing to instruct the jury on an issue not pled nor on which any evidence was offered. See Riegel v. Beilan, 788 So. 2d 990, 991-92 (Fla. 2d DCA 2000).
For the foregoing reasons we affirm the final judgment.
GROSS and HAZOURI, JJ., concur.
ON MOTION FOR REHEARING
WARNER, J.
We deny appellant's motion for rehearing. However, we address her contention that we have created a new test to avoid bifurcation. We have not.
A judge's determination to bifurcate the proceedings is one which we review for an abuse of discretion. See Microclimate Sales Co. v. Doherty, 731 So. 2d 856, 858 (Fla. 5th DCA 1999). When we stated in our opinion that "we cannot determine that the issues are inextricably intertwined such that bifurcation prejudiced Roseman," we were not creating a standard test for the trial court to follow in determining whether or not to bifurcate but merely stating why we do not find that the trial court abused its discretion in ordering bifurcation. In order for us to hold that bifurcation was an abuse of discretion, we must conclude that no reasonable person would have allowed it under the circumstances. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.1980). We simply stated that the issues were not so intertwined such that the trial court's discretionary decision can be overturned.
Appellant argues that Scandinavian World Cruises (Bahamas), Ltd. v. Barone, 573 So. 2d 1036 (Fla. 3d DCA 1991), sets a different standard. In Scandinavian, the third district was reviewing an order granting new trial, which the trial court granted on the ground that the bifurcation of the trial had prejudiced the plaintiff because evidence of plaintiffs brain injury was necessary to explain her inconsistent and confusing testimony on liability. It was the trial court, not the appellate court, that stated the evidence of plaintiffs injury was necessary in order to explain liability testimony. The appellate court held it was not an abuse of discretion to order a new trial based upon the trial court's change of heart regarding the decision to bifurcate. See id. at 1037. Scandinavian sets neither a trial court standard for avoiding bifurcation nor a standard for appellate review.
Like most discretionary decisions, one to bifurcate the proceedings is very difficult to overturn on appeal because of the degree of deference appellate courts give to the trial court's superior vantage point, *524 having viewed all of the proceedings in the case. We give that deference in this case.
Rehearing denied.
GROSS and HAZOURI, JJ., concur.
NOTES
[1] Other examples of the director's statements which Roseman now argues should have permitted impeachment were not raised either to the trial court or in Roseman's briefs and are not placed in context. In particular, the director's statement that the door "worked perfectly," was made in the context of his experimenting with the door himself after having received notice of the accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604674/ | 810 So. 2d 972 (2002)
STATE of Florida, Appellant,
v.
Donald DUHART, Appellee.
No. 4D01-1343.
District Court of Appeal of Florida, Fourth District.
February 6, 2002.
Rehearing Denied April 2, 2002.
*973 Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
SHAHOOD, J.
Appellant, State of Florida, appeals an order granting appellee's motion to suppress. Holding that the trial court abused its discretion in granting appellee's motion to suppress, we reverse and remand for proceedings consistent with this opinion.
In this case, the state charged appellee, Donald Duhart, by information with grand theft of a motorcycle. Appellee filed a motion to suppress the motorcycle that was seized, as well as any statements he may have made to the law enforcement officers.
At the hearing on the motion, the arresting officer testified that he was dispatched to appellee's residence after receiving an anonymous call that a black male was in his garage removing parts from a stolen motorcycle. The caller gave a specific address and indicated that the black male was not wearing a shirt. Upon arriving at the address, the officer observed appellee and one other person removing parts from a motorcycle. Appellee did not have a shirt on.
The officer approached appellee, asked him for identification, and asked whether he had a title to the motorcycle. Appellee answered that he did not, so the officer entered the garage without a search warrant or appellee's invitation to do so. The officer retrieved the Vehicle Identification Number (VIN) from the motorcycle. After running the number through the teletype, the officer confirmed with the Fort Lauderdale Police Department that the motorcycle was stolen out of Fort Lauderdale. Thereafter, he placed appellee under arrest and read him his Miranda rights. Based on this evidence, the trial court granted appellee's motion to suppress.
In considering whether one's Fourth Amendment rights have been violated, the analysis is whether that person has a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Although it is well settled that one has an expectation of privacy in his home or its curtilage, the Fourth Amendment is not necessarily a protection in areas of the home, as in this case, which are open and exposed to public view. See, e.g., Koehler v. State, 444 So. 2d 1032 (Fla. 1st DCA 1984)(no expectation of privacy on unenclosed front porch which was exposed to public view); State v. Detlefson, 335 So. 2d 371 (Fla. 1st DCA 1976)(no reasonable expectation of privacy on front porch of home where delivery men and others were free to observe plants thereon).
In this case, although the area where appellee was working was repeatedly referred to as a garage, the officer actually described it as a covered open area that was attached to the house, more like a carport. Appellee could not have had a *974 reasonable expectation of privacy under these circumstances.
Both the Florida Supreme Court and the United States Supreme Court have held that a vehicle registration number on the outside of a vehicle is considered to be in plain view, even if one must use a flashlight or bend down to view the numbers. See Ramer v. State, 530 So. 2d 915, 918 (Fla.1988)(citing New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986))(looking under the car to obtain the VIN number is not a factor which makes the search unreasonable).
Hence, since the officer was lawfully on the premises and the VIN number was in plain view, appellee's Fourth Amendment rights were not violated. Consequently, the seizure was valid and the trial court erred in granting appellee's motion to suppress.
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
POLEN, C.J., concurs.
KLEIN, J., dissents with opinion.
KLEIN, J., dissenting.
I respectfully dissent. The trial court found that when the officer entered the carport he violated the Fourth Amendment. The only basis on which the majority could reverse that finding is if a carport visible from the street is, as a matter of law, not part of the curtilage for purposes of the Fourth Amendment. I cannot agree with that proposition.
The burden on the motion to suppress in the present case was initially on the defendant to establish his standing to claim an illegal search or seizure by showing he had a legitimate expectation of privacy in the area searched. United States v. Mancini, 8 F.3d 104 (1st Cir.1993). Once the defendant establishes standing, the burden shifts to the state to show that entry without a warrant does not violate the Fourth Amendment. United States v. Perea, 986 F.2d 633 (2d Cir.1992). State v. Morsman, 394 So. 2d 408 (Fla.1981).
The state apparently conceded that the defendant in the present case had standing because the hearing began with the state putting on its evidence. The state may have assumed that the defendant had standing because in his motion to suppress the defendant referred to the area of his home where he was working as a garage and the officer who testified described it as a garage. The officer ultimately clarified that it was an open covered area attached to the house. There was no evidence as to whether it was open on all sides which were not common with the home.
In United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court established four factors to be used to determine, for purposes of search and seizure, whether a particular area constitutes curtilage. The factors are: "[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing." Id. at 334-35, 107 S. Ct. 1134.
The fact that activities carried on within a carport can easily be seen from the sidewalk or street is thus only one factor. If this attached carport had been a garage with the door up, in which the same activity was occurring and it was just as visible from the street, the officer could not have walked in in order to look at the VIN number on the motorcycle. A garage attached to a residence is part of the curtilage for Fourth Amendment purposes. As the court explained in United States v. Oaxaca, 233 F.3d 1154, 1157 (9th Cir. 2000):
*975 We can conceive of no reason to distinguish a garage, where people spend time, work, and store their possessions, from a den or a kitchen, where people spend time, work, and store their possessions. Simply put, a person's garage is as much a part of his castle as the rest of his home.
If the defendant had been working on the motorcycle on his front porch, the officer could have gone on the porch without a warrant because "it is clear that one does not harbor an expectation of privacy on a front porch where salesman or visitors may appear at any time." State v. Morsman, 394 So. 2d 408 (Fla.1981). As La-Fave explains: "It is not objectionable for an officer to come upon that part of the property which `has been open to common public use.'" Wayne R. LaFave, Search and Seizure § 2.3(e) at 499 (3d Ed.1996)(citing People v. Superior Court, 33 Cal. App. 3d 475, 109 Cal. Rptr. 106 (1973)).
Whether an officer can enter an attached carport depends on whether the carport is analogous to the front porch at a home's entrance, i.e., open to the public.
There are no Florida cases addressing the issue of whether an attached carport is part of the curtilage for purposes of search and seizure. There are two cases involving the issue of whether a theft from an attached carport constitutes burglary. State v. Burston, 693 So. 2d 600 (Fla. 2d DCA 1997); Small v. State, 710 So. 2d 591 (Fla. 4th DCA 1998). In Burston the carport was held to be part of the curtilage, and there was accordingly a burglary. In Small the carport was held not to be a structure, and there was no burglary. Burglary cases, however, do not necessarily control search cases because the word "curtilage" in the burglary statute must be interpreted narrowly, i.e., liberally in favor of the defendant, under principles of lenity. State v. Hamilton, 660 So. 2d 1038 (Fla. 1995).
One fact which has been deemed significant in determining whether a carport is part of the curtilage is whether there is a door from the carport into the house, which makes the carport similar to a front porch where the public may be expected to come. State v. Wilbourn, 364 So. 2d 995 (La.1978). The officer did not observe a door to the carport in the present case. Another factor, of course, is visibility from the street; however, it has been held that entering a carport behind a townhouse, accessible by a public alley and visible from the alley, violates the Fourth Amendment. Kann v. State, 694 S.W.2d 156 (Tex.Ct.App.1985).
Whether an officer can go on a driveway in order to check the license plate of a car parked in the driveway depends on the accessibility and visibility of the driveway from the street. Maisano v. Welcher, 940 F.2d 499 (9th Cir.1991); United States v. Smith, 783 F.2d 648 (6th Cir.1986). In this case there was no evidence as to the length or the configuration of the driveway.
As I noted earlier, the state apparently conceded that the defendant had standing, i.e., an expectation of privacy in the area searched. At that point the burden was on the state which could have established that the officer's entry into the carport was constitutional by showing that the carport, under the Dunn factors, was not part of the curtilage. The mere fact that the carport was visible from the street was not, in my opinion, sufficient to carry the state's burden. I would affirm the trial court's finding that this search violated the Fourth Amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604694/ | 810 So. 2d 784 (2001)
In the Matter of ANONYMOUS, a minor.
2001026.
Court of Civil Appeals of Alabama.
July 18, 2001.
PER CURIAM.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; and Ex parte Anonymous, 803 So. 2d 542 (Ala.2001).
CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.
YATES, P.J., dissents.
YATES, Presiding Judge, dissenting.
The trial judge states in his order:
"The operative words setting the basis for the granting of the petition are:
"(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
"(2) That performance of the abortion would be in the best interest of the minor.
"An abortion is not in the petitioner's best interest. The risks attendant upon an abortion, physical and emotional, immediate and long-term, far outbalance her desire to escape from the predicament in which she finds herself, regardless of her willingness to assume those risks.
"Yet she has another alternative. Even if she cannot satisfy the Court that an abortion is in her best interest, she can obtain relief if she is `mature and well-informed enough to make the abortion decision on her own' (emphasis added).
"[The minor] has shown herself to be well-informed.... She is well-informed enough to make the decision.
"But is she mature enough? The Court is not satisfied that she is mature enough. Knowledge is not maturity.
"She testifies that she has a sexually active older sister ... on birth control pills.... She could talk to her sister and she would talk to her if there were post-abortion problems, but she has not sought her advice.
"She testifies that her mother's best friend is available for consultation.... She could talk to her and she could go to her for help if there were post-abortion problems, but she has not sought her advice.
"She has never talked with a woman who has lost a child.
"Her most important previous decision was made about six months ago when she decided to engage in sexual intercourse with her ... boyfriend. She testified that she realized that there was a danger of pregnancy but seems to have been satisfied that condoms would eliminate that risk. In order to make a mature decision then, should she not have consulted with her sister as to why *785 [her sister] was taking birth control pills?
"It is obvious that she simply does not want anyone to know of her situation.
". . . .
"The Court's decision cannot be based upon what the parents would say if she sought their permission but the Court ought to be able to consider her reasons for not wanting to tell her parents, as those reasons bear on her maturity.
"There is a mature woman available to [the minor,] who has faced the same situation,[1] who loves her, and who wants the very best for her. That woman is her mother....
"Apparently, [the minor] has talked only with [an abortion counselor and a `pro-life' counselor], and her boyfriend. She simply does not want anyone else to know. If [the minor] were mature enough to make this decision on her own, would she not have sought the counsel of her sister, or her mother's friend? Given the singular family history, would a mature [17]-year-old have sought her mother's counsel rather than file this petition?
"It is the finding of this Court that [the minor], while well-informed, is not mature enough to make this decision on her own nor is an abortion in her best interest."
Before testimony was taken, the trial judge stated:
"[W]hat you have asked the Court to allow you to do is something that is extremely serious and fatal for your child. And it has been my practice for three years now when I'm faced with these cases to not only have a lawyer for you but to have a lawyer to represent the interest of the unborn child, and that's why [he] is here.
"Both of these lawyers have been in manyI would even say too manyof these cases, because even one is too many."
The minor testified that she and her boyfriend plan to marry when they are older and that they have discussed having three children. The lawyer the trial judge appointed to represent the fetus asked if the minor, knowing that "one of the risks that you are going to face is the possibility that you will be sterile after this procedure," was "willing to place your future three children at risk." The lawyer then asked, if she died as a result of the abortion, "Would that not take away not only your three children but your boyfriend's future wife and his three children?" The lawyer also asked if the minor had ever heard of post-abortion syndrome in men. He asked if she was aware that men are "very often affected psychologically by their child being taken in abortion" and if she was willing to "place [her boyfriend] at the same risk" she was taking. The lawyer also said to the minor: "If you did have a complication and you had to go to the hospital, your church congregation is going to find out what's happened. How is that going to effect your going to church every Sunday?"
Finally, at the close of the proceedings, the trial court stated: "But as I said when I began, I'm sorry you find yourself in this situation, and I know that you want out. But I have a real burden on my heart for this situation."
The trial judge concluded that an abortion is not in the minor's best interest, because, he says, the risks "far outbalance *786 her desire to escape from the predicament in which she finds herself."
The trial judge concluded that the minor is "well-informed enough to make the decision." His conclusion that the minor is not mature enough is not supported by the record. The record does, however, provide clear and convincing proof that an undue burden has been placed on the minor and that her constitutional right to an abortion by way of a judicial waiver has been thwarted. The trial judge bases his finding that the minor is not mature on the fact that she has not talked with her sister, her mother, and/or her mother's friend.
Our supreme court has stated: "When applying the ore tenus standard of review, we will reverse a trial court's judgment only when that judgment is `plainly erroneous or manifestly unjust.'" Ex parte Anonymous, 803 So. 2d 542, 547 (Ala.2001). The judgment in this case is plainly erroneous and manifestly unjust. The judgment is due to be reversed, and the waiver granted. Therefore, I dissent.
NOTES
[1] The trial judge is apparently referring to the fact that the minor's mother was not married when the minor's older sister was born. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604699/ | 810 So. 2d 1090 (2002)
Amy C. ALLEN, individually and as Mother and next friend of Cydney Carole Walker, a minor, Enid C. Allen and W. George Allen, individually and as Grandparents and guardians by power of attorney of Cydney Carole Walker, a minor, Appellants,
v.
Kenneth C. WALKER, Hazel E. Calvet, and Harold L. Lee, Appellees.
No. 4D01-3593.
District Court of Appeal of Florida, Fourth District.
March 20, 2002.
*1091 W. George Allen of Law Office of W. George Allen, Fort Lauderdale, for appellants.
Michael T. Burke of Johnson, Anselmo, Murdoch, Burke & George, Fort Lauderdale, for appellee Hazel E. Calvet.
GROSS, J.
This case involves a final judgment granting separate motions to dismiss filed by the three defendants below. We affirm as to one defendant, but reverse as to the remaining defendants, because the trial court had personal and subject matter jurisdiction over the defendants and venue was proper in Broward County.
Hazel Calvet was an elementary school principal. Cydney Walker was a child enrolled at the school. The child's grandparents gave "specific, written instructions" to the school's administrators concerning who was permitted to pick Cydney up from school. Calvet released the child to the child's father, Kenneth Walker, who had come to the school with private investigator Harold Lee and an order from a Georgia court awarding him "full legal and physical custody." Neither Walker nor Lee was on the grandparents' list.
As to appellee Calvet, we affirm the dismissal. The complaint did not state a cause of action against Calvet. The complaint fails to allege that Calvet knew or should have known of the "unlawful" nature of Cydney's restraint when faced with the court order. Also, the facts as pled fell short of intentional infliction of emotional distress, since there was no conduct "so outrageous in character, and 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 community." Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985) (quoting the RESTATEMENT (SECOND) OF TORTS § 46 (1965)).
The trial court dismissed the case against defendant Lee based on improper venue. An action may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. See § 47.011, Fla. Stat. (2001); St. Laurent v. Resort Mktg. Assocs., Inc., 399 So. 2d 362, 363 (Fla.1981). "Under Florida law, the plaintiff's choice of venue is usually favored if the election is one which has been properly exercised under the applicable statutes." Houston v. Caldwell, 359 So. 2d 858, 860 (Fla.1978), receded from on *1092 other grounds by Kinney Sys., Inc. v. Cont'l Ins. Co., 674 So. 2d 86 (Fla.1996). Here, although Lee resided in Duval County, the facts giving rise to the cause of action occurred in Broward County. Therefore, venue was properly laid in Broward County.
Lee's challenge to venue contends that because "some of the tortious acts complained of were transitory in nature," venue "is proper in the county where the defendant resides." In Wincor v. Cedars Healthcare Group, this court held that, for venue purposes, a tort claim accrues
where the last event necessary to make the defendant liable for the tort took place. The last event occurred when the harmful force, set in motion by the defendant's negligence, first took effect on the body or property of the plaintiff. Thus, a claim for tort arose where the harmful force took effect, or where the plaintiff suffered injury.
695 So. 2d 924, 925 (Fla. 4th DCA 1997) (quoting Tucker v. Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986)). "In other words, a tort accrues where the plaintiff first suffers injury." Wincor, 695 So.2d at 925 (quoting Williams v. Goldsmith, 619 So. 2d 330, 332 (Fla. 3d DCA 1993)).
Here, the plaintiffs first suffered their injury in Broward County when Walker and Lee allegedly kidnapped Cydney from her elementary school. Although Cydney may have suffered ongoing injury while being transported back to Georgia, this does not change the fact that the case "accrued" in Broward County within the meaning of section 47.011. Venue was proper in Broward County despite the fact that the defendant's tortious conduct may have continued into other counties. Wincor, 695 So.2d at 925; see also Gaboury v. Flagler Hosp., Inc., 316 So. 2d 642, 644 (Fla. 4th DCA 1975) (finding venue of wrongful death suit proper in county where wrongful acts took place, although decedent was released and continued into another county where she died).
The trial court dismissed the complaint against Walker based on lack of personal and subject matter jurisdiction. For purposes of personal jurisdiction, a person who commits a tortious act within Florida submits himself to the jurisdiction of Florida courts. See § 48.193(1)(b), Fla. Stat. (2001); Godfrey v. Neumann, 373 So. 2d 920, 922 (Fla.1979). Here, the complaint alleges that Walker committed tortious acts while being physically present in the state. In addition, he was personally served with process less than three weeks after the filing of the complaint against him. There is no reason why the trial court did not have personal jurisdiction over Walker, and, thus, dismissal on those grounds was error.
For purposes of subject matter jurisdiction, the circuit courts of Florida have jurisdiction over any action at law in which the matter in controversy exceeds $15,000, exclusive of interest, costs, and attorney's fees. See Art. V, § 20(c)(3), Fla. Const.; §§ 26.012(2)(a), 34.01(1)(c)4., Fla. Stat. (2001). Here, the complaint sought damages in excess of $15,000. Therefore, the circuit court had proper jurisdiction over the subject matter of the claim.
Affirmed in part, reversed in part.
STEVENSON and HAZOURI, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604513/ | 8 So.3d 17 (2009)
STATE of Louisiana
v.
Travis L. WALKER.
No. 08-KA-563.
Court of Appeal of Louisiana, Fifth Circuit.
January 13, 2009.
*18 Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee, State of Louisiana.
Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant, Travis L. Walker.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
SUSAN M. CHEHARDY, Judge.
Travis L. Walker appeals his conviction and sentence on a charge of third-offense possession of marijuana. We affirm the conviction, but vacate the sentence and remand for resentencing.
On January 6, 2006, the Jefferson Parish District Attorney filed a bill of information charging Travis L. Walker with violation of La.R.S. 14:95.1, possession of a firearm by a convicted felon (Count 1), and violation of La.R.S. 40:966, possession of marijuana, third offense (Count 2). At arraignment on February 22, 2006, the defendant pleaded not guilty to both charges.
The defendant filed various pretrial motions, including various motions to suppress, but the record does not indicate the court ever ruled on them.
On April 3, 2008, the defendant underwent a jury trial on the charge of possession of a firearm by a convicted felon. The twelve-member jury found the defendant not guilty. On the same day, the defendant *19 pleaded guilty as charged to Count 2, third offense possession of marijuana. Pursuant to a plea agreement, the trial court sentenced the defendant to two years at hard labor, to be served in home incarceration with "ATI."
On May 5, 2008, the defendant filed a timely pro se motion for appeal, which was granted on May 15, 2008.
FACTS
Because the defendant pleaded guilty to Count 2 and the trial court never ruled on the pretrial motions, the facts regarding the offense must be drawn from the bill of information. Count 2 of the bill of information alleged that on or about January 7, 2005, the defendant violated R.S. 40:966(C) (third offense) "in that he did knowingly and intentionally possess a controlled dangerous substance to wit: Marijuana, having been previously convicted of possession of Marijuana in the 24th Judicial District Court, Parish of Jefferson, case numbers 02-6025 and 03-0034."
ANDERS BRIEF
Following the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam).[1] The brief asserts that counsel has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Appointed counsel therefore requests leave to withdraw as counsel of record.
The State agrees there are no non-frivolous issues to raise on appeal.
In Anders, the United States Supreme Court stated that a defendant's appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of the record. The request must be accompanied by `"a brief referring to anything in the record that might arguably support the appeal"' so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).[2]
In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to *20 the jury for its consideration." State v. Jyles, supra.
When conducting a review for compliance with Anders, the appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. If the court finds any legal point arguable on the merits, however, it may deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.
The defendant's appellate counsel asserts that after a detailed review of the record, she found no non-frivolous issues to raise on appeal. Counsel points out the defendant waived all non-jurisdictional defects by pleading guilty, and waived his pre-trial suppression motions by failing to pursue rulings before he entered his guilty plea. Counsel further notes the defendant agreed to his sentence as part of a plea bargain, and the trial court properly advised him of his constitutional rights prior to accepting his guilty plea.
Appellate counsel has filed a motion to withdraw as attorney of record, stating she has complied with the provisions of Anders and Jyles, and she has notified the defendant of his right to file a pro se brief in this appeal.
This Court sent the defendant a letter by certified mail, informing him that an Anders brief had been filed and that he would have until August 29, 2008 to file a pro se supplemental brief. Although the letter was sent to the address provided the defendant's court-appointed counsel, the letter was returned, marked "Return to Sender/unclaimed/unable to forward."
An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.
As appellate counsel notes, the defendant filed various pre-trial motions, including motions to suppress the evidence and confession, but the trial court did not hear his motions. Consequently, there are no trial court rulings the defendant could have preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976). Further, the defendant waived his outstanding pre-trial motions by pleading guilty without complaining that the trial court had neither heard nor ruled on them. State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.
The record shows the trial court properly advised the defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The judge also explained to the defendant the offense with which he was charged and the sentencing range for that offense. The judge ascertained that the defendant understood his rights and that he wished to waive those rights and plead guilty. In addition, the defendant, his attorney, and the trial judge signed a waiver of rights form that enumerated the defendant's rights and detailed the sentence he would receive pursuant to his guilty plea. As appellate counsel notes, the defendant did *21 not make or file a motion to reconsider sentence.
Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any non-frivolous basis for an appeal, and an independent review of the record supports counsel's assertion, the defendant's conviction is affirmed and appellate counsel's motion to withdraw as attorney of record is granted.
However, as discussed below, we find reversible sentencing errors on error patent review.
ERROR PATENT DISCUSSION
Pursuant to this Court's standard procedure, as required by La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), the record was reviewed for errors patent. We found a sentencing error that requires the sentence be vacated and a new sentence imposed.
La.C.Cr.P. art. 879 requires the trial court to impose a determinate sentence. In this case the sentence imposed by the trial court is indeterminate. The judge imposed sentence as follows: "Mr. Walker, it's going to be the sentence of the Court that you serve two (2) years hard labor atI'll allow you to do that in home incarceration with ATI." The judge did not orally impose conditions of home incarceration. Nevertheless, the Conditions of Watch Patrol Home Incarceration form lists various conditions. That form was signed by the defendant and his attorney, but was not signed by the judge.
First, the trial court ordered that defendant's hard labor sentence be served in home incarceration. La.C.Cr.P. art. 894.2 provides that the trial court may order home incarceration in lieu of imprisonmentnot as imprisonment. Therefore, a hard labor sentence and an order of home incarceration are incongruent. In order to sentence a defendant to home incarceration, first the sentencing court must suspend the imprisonment and order the suspension to be served in home incarceration with supervision. La.C.Cr.P. art. 894.2(B).
Further, the court shall specify the conditions of home incarceration when such sentence is imposed, and the court may, at any time during the period of home incarceration, modify, change, or add to the conditions of such incarceration. La. C.Cr.P. art. 894.2(C) and (F).
In this case, the Conditions of Watch Patrol Home Incarceration form is ambiguous. It shows the defendant was sentenced to two years, which number is handwritten on the form. The form then indicates that the sentence is suspended, and the defendant is placed on "(active) (inactive) probation for ____ (months)/(years)." The probation is not designated as either active or inactive, and there is no indication of how many months or years the probation will last. It seems, nevertheless, the trial court intended the defendant to be placed on active probation because item 5 of the form states, in part, "A copy of your most recent phone bill must be brought to the first meeting with your probation officer." (Emphasis added.)
This Court addressed a similar sentencing issue in State v. Sosa, 04-507 (La.App. 5 Cir. 12/12/06), 948 So.2d 236, writ not considered, 07-0077 (La.9/21/07), 964 So.2d 321. In Sosa the trial court initially sentenced the defendant to five years at hard labor, the first two of which were to be served on home incarceration. The trial court suspended the last two years of the sentence and placed the defendant on inactive probation. The court also ordered the defendant to pay restitution. The prosecutor *22 advised the trial court that unless the first two years of the defendant's sentence were probated, the victim would have to wait two years to receive any restitution payments. The trial court then amended the sentence to give the defendant probation immediately. The court further stated that the first two years of the sentence would be served on home incarceration as a condition of probation, and the last three years would be served on active probation. Sosa, 04-507, pp. 12-13, 948 So.2d at 244. The defendant's commitment showed the defendant received a five-year sentence at hard labor and was placed on three years of active probation, the first two years of which would be served on home incarceration as a special condition of probation. Id., 04-507 at 13, 948 So.2d at 244.
On appeal, this Court found the trial court apparently intended to suspend the defendant's entire five-year sentence and to place the defendant on active probation for five years, the first two of which would be served in home incarceration. We concluded the record was not sufficiently clear as to the trial court's intention, and therefore the defendant's sentence was indeterminate. We vacated the sentence and remanded to the trial court for re-sentencing. Id., 04-507 at 13, 948 So.2d at 944-45.
Based on the foregoing, we find the sentence here must be vacated and the defendant must be re-sentenced.
DECREE
For the foregoing reasons, the defendant's conviction is affirmed, but the sentence is vacated and the case is remanded for resentencing as set out in this opinion. The motion by counsel for appellant to withdraw as counsel hereby is GRANTED.
MOTION TO WITHDRAW AS COUNSEL GRANTED; CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
NOTES
[1] The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.
[2] The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604515/ | 8 So.3d 702 (2009)
STATE of Louisiana
v.
Baker SEDE.
No. 08-KA-547.
Court of Appeal of Louisiana, Fifth Circuit.
February 10, 2009.
*703 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Juliet Clark-Appellate Counsel, Margaret Hay-Trial Counsel, Assistant District Attorneys, Gretna, LA, for the State of Louisiana.
Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Baker Sede.
Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
SUSAN M. CHEHARDY, Judge.
On October 11, 2001, the Jefferson Parish grand jury indicted defendant, Baker Sede, on two counts of first degree murder, in violation of La. R.S. 14:30. He pled not guilty and was later found incompetent to stand trial.
Almost two years later, the trial court held another sanity hearing and determined defendant was competent to stand trial. On June 1, 2005, defendant changed his former pleas to not guilty by reason of insanity.
On March 8, 2007, defendant withdrew those pleas and entered guilty pleas on both counts of first degree murder. The trial court accepted defendant's pleas and sentenced defendant to life imprisonment, without the benefit of parole, probation, or suspension of sentence on each count, to *704 run concurrently. Defendant subsequently filed an application for post-conviction relief and obtained an out-of-time appeal.
Facts
The record contains limited information on the facts and circumstances surrounding these offenses because defendant entered guilty pleas. The record does reflect that, during the plea colloquy, the State recounted that defendant committed first degree murder of Tyree Smith and a six-month-old infant on June 7, 2001. In defendant's statements to the police, he stated that Ms. Smith was his girlfriend and the six-month-old infant was his daughter.
In his first assignment of error, defendant argues that his convictions must be reversed because the trial judge should have recused herself and refused to accept his guilty pleas because she represented the defendant at his arraignment. Defendant argues that, because June Darensburg represented him at his arraignment, she is prohibited under La C.Cr.P. art. 671 from taking action in his case as a trial judge. He admits that he did not file a motion to recuse but contends Judge Darensburg should have recused herself on her own motion under La.C.Cr.P. art. 672. The State responds that defendant is precluded from raising this issue on appeal because he entered an unconditional guilty plea and, therefore, waived any non-jurisdictional defects.
According to the record, defendant's case was assigned to Division "P" of the Twenty-Fourth Judicial District Court. The minutes of the trial court reflect that, on November 9, 2001, defendant was present in court for arraignment and was represented by Ms. Darensburg "for the arraignment only." At the arraignment, the indictment was read and defendant entered a plea of not guilty. Additionally, the trial court ordered that an IDB attorney be appointed for defendant. The next minute entry reflects that Michael Riehlman represented defendant on November 26, 2001. Ms. Darensburg does not appear as counsel of record for this defendant again.
Subsequently, Ms. Darensburg was elected as district court judge for Division "C" of the Twenty-Fourth Judicial District Court. Although defendant's case was allotted to Division "P," Judge Darensburg, at Judge Zeno's request, conducted the plea colloquy, accepted defendant's guilty pleas, and sentenced defendant in accordance with the plea agreement. After Judge Darensburg sentenced defendant, defense counsel stated:
Your Honor, just for the record, this was discussed at the Bench, and everyone has acknowledged this in the past; this case is originally a Division "P" case, handled by the Honorable Melvin Zeno. Judge Zeno is out of town, he had instructed both defense counsel, and the State, that should some resolution, or should any action need to be taken in this case, in his absence, to contact Your Honor, who would act in his absence.
Your Honor has agreed to do so, both parties are satisfied with Division "C", Your Honor, handling this case instead of Judge Zeno.
Judge Darensburg responded, "And that is correct. I did speak to Judge Zeno regarding this matter, and I did agree to handle it, if in fact there was a plea, that was agreed upon by the defense and the State."
La.C.Cr.P. art. 671 provides mandatory grounds upon which a judge shall be recused in a criminal case. La.C.Cr.P. art. 671(A)(3) provides that a trial judge "shall be recused when he ... [h]as been employed or consulted as an attorney in the cause, or has been associated with an *705 attorney during the latter's employment in the cause." The party that moves for recusal under that section does not have to show bias, prejudice, or personal interest on the part of the judge but merely employment "in the cause." State v. Lemelle, 353 So.2d 1312, 1314 (La.1977); State v. Williams, 00-11 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, 527.
The party desiring to recuse a trial judge must file a written motion assigning the ground for recusation. La.C.Cr.P. art. 674. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself or refer the motion to another judge of that court. La.C.Cr.P. arts. 674 and 675. Further, under La.C.Cr.P. art. 672, a judge may recuse himself, regardless of whether a motion has been filed, in any case in which a ground for recusation exists.
In sum, if this defendant had filed a motion to recuse, the trial judge would have been required to recuse herself under La.C.Cr.P. art. 671(A)(3). See State v. Lemelle, supra; State v. Williams, supra at 13, 788 So.2d at 526. Defendant concedes, as noted above, that he did not file a motion to recuse before he pled guilty.
In general, a guilty plea waives all non-jurisdictional defects in the proceedings prior to the plea and precludes review of such defects either by appeal or post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La.1976); State v. Gaspard, 01-1042 (La.App. 5 Cir. 5/29/02), 820 So.2d 1095, 1096. A defendant may reserve his right to appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, supra at 590-92; State v. Gaspard, supra.
The question is whether a trial judge's failure to recuse amounts to a jurisdictional defect. If a trial judge's failure to recuse is a jurisdictional defect, defendant is not precluded from raising it as an error on appeal. If not, however, defendant waived any remedy when he entered his guilty pleas.
In Crosby, the Louisiana Supreme Court defined jurisdictional defects as those which, even conceding a defendant's factual guilt, do not permit conviction of the charged offense. The supreme court listed the following examples of jurisdictional defects: (1) the lack of jurisdiction of the sentencing court, (2) the conviction represents double jeopardy, (3) the prosecution had prescribed at the time it was instituted, (4) the State lacked constitutional or legal power to try the defendant for the charged offense, (5) the statute under which prosecution is brought is unconstitutional, (6) the charge in the indictment does not constitute a crime, and (7) certain types of patent errors that prevent conviction for the offense. Id. at 588. Further, in Kidd v. Caldwell, 371 So.2d 247, 250 (La.1979), the Louisiana Supreme Court held that defendant could not seek review of the denial of his motion to recuse because he pled guilty without reserving the right to review that denial.[1] We conclude, therefore, that the failure to recuse is not a jurisdictional defect, and, as such, is waived by an unconditional guilty plea. Defendant, who tendered unconditional guilty pleas for two counts of first-degree murder, is, thus, precluded from raising this issue on appeal.
The next inquiry, as noted by defendant in brief, is whether the error is discoverable on the face of the record, which would *706 trigger review on appeal as an error patent. In his brief, defendant relies on State v. Smith, 93-1385 (La.App. 3 Cir. 4/6/94), 635 So.2d 512. In Smith, the trial judge, who determined the defendant's multiple offender status and imposed sentence, represented the defendant at his arraignment prior to being elected as a district judge. The Third Circuit found that the judge's failure to recuse sua sponte when mandatory grounds existed was patent error discoverable on the face of the record, which required reversal of the defendant's sentence.
However, in State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158, the Louisiana Supreme Court held that a guilty plea colloquy was not subject to review for errors patent. Id. at 1162. In Guzman, the supreme court expressly overruled its "previous decision in State v. Godejohn, 425 So.2d 750, 751 (La.1983) (followed in State v. Browning, 483 So.2d 1008 (La. 1986)), wherein [it] held a review of the plea colloquy for errors is subject to error patent review." State v. Guzman, supra. In light of Guzman, the holding of State v. Smith, which relied on the now overruled State v. Browning, is questionable. Accordingly, we are not convinced that the failure to recuse is an error patent.
Even assuming that the failure to recuse was an error patent, it appears the error is harmless. In State v. Williams, 00-11 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, the Fourth Circuit held that the erroneous denial of the defendant's motion to recuse on the grounds of La.C.Cr.P. art. 671(A)(3) was harmless. In Williams, the defendant filed a motion to recuse on the basis of La.C.Cr.P. art. 671(A)(3) because the trial judge had been employed as an assistant district attorney before assuming the bench. The trial judge acknowledged she had been an assistant district attorney at some point while the defendant's case was being considered for prosecution by the district attorney's office but denied any recollection of the defendant or his case.
The Fourth Circuit recognized that, under La.C.Cr.P. art. 671(A)(3), any bias, prejudice, or personal interest on the part of the judge was irrelevant but still concluded that there was no evidence the defendant suffered any prejudice as a result of the trial judge's failure to recuse. The court noted that the defendant pled guilty to a reduced charge. Moreover, there was no indication that the defendant would have fared better if the trial judge had recused herself and a new judge had been appointed to accept the defendant's guilty plea.[2]
Likewise, in the present case, there is no evidence defendant would have fared better if another judge had been appointed to accept his plea. Although defendant did not plead to a reduced charge, he agreed to plead guilty in exchange for a life sentence, instead of the death penalty.
In summary, we conclude that defendant is barred on appeal from raising the issue of the trial judge's failure to recuse because he entered an unconditional guilty plea and the failure to recuse is a non-jurisdictional defect that is waived by an unconditional guilty plea. Furthermore, we decline to consider the trial judge's failure to recuse sua sponte as an error patent. Nonetheless, even if considered an error patent, the trial judge's failure to recuse in this case would be harmless.
*707 In his second assignment of error, defendant argues that the trial judge erred in accepting the defendant's pleas without adjudicating his competency. Defendant argues there is nothing in the record that shows defendant was found competent to stand trial after the trial court's initial determination defendant was incompetent.
In response, the State supplemented the record with a transcript from the hearing on December 11, 2003, wherein the trial court expressly stated, "[considering the evidence, the court finds the defendant competent to stand trial." Here, the minute entry from December 11, 2003 conflicts with the transcript, but the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La.1983). Defendant's argument lacks merit.
Finally, as is our routine practice, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found no errors that require correction. Defendant's convictions and sentences are affirmed.
AFFIRMED.
NOTES
[1] In Kidd, defense counsel sought review of his contempt summons and the denial of his motion to recuse the trial judge. The grounds for the motion to recuse were not discussed in the opinion. Id.
[2] Compare State v. Brown, 03-1747 (La.App. 3 Cir. 5/12/04), 874 So.2d 318, writ denied, 04-1413 (La. 11/8/04), 885 So.2d 1118, where the Third Circuit found the trial judge's failure to recuse himself was not harmless error when the trial judge represented the defendant in the prior conviction and the prior conviction was a significant piece of evidence in the current case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604559/ | 401 F.Supp. 188 (1975)
Margo L. MORRIS, Plaintiff,
v.
THE BOARD OF EDUCATION OF THE LAUREL SCHOOL DISTRICT et al., Defendants.
Civ. A. No. 4684.
United States District Court, D. Delaware.
August 4, 1975.
*189 *190 *191 *192 *193 Jacob Kreshtool, and Sheldon N. Sandler, Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiff.
John E. Messick, Tunnell & Raysor, Georgetown, Del., for defendants.
OPINION
STAPLETON, District Judge:
Margo Morris, a school teacher formerly employed by the Laurel School District, alleges in this action that the District's failure to rehire her for a fourth year violated her rights under the Civil Rights Act, under a collective bargaining agreement, and under the Due Process Clause of the Fourteenth Amendment.
I. THE FACTS
Laurel, Delaware, is a small community located in the southernmost part of the state. The Laurel School District serves the town and the surrounding rural area. Its affairs are administered by an elective school board whose members receive no monetary compensation. The chief administrator of the District is the Superintendent, Mr. Hupp. The District's schools were desegregated in the mid-60's.
Miss Morris, who is black, was hired by the Laurel School District in the Summer of 1970 and subsequently taught in the District for three school *194 years, 1970-71, 1971-72 and 1972-73. She had previously taught in Wycomico County, Maryland. She left her position there because she had been teaching elementary children which she was not certified to do and because she was unable to coach there. In the Laurel District she taught physical education and health and coached a number of teams including the girls' varsity basketball team.
During Miss Morris' first two years in the Laurel District, she taught in the combined junior and senior high school where her principal was Mr. Harrington. Mr. Harrington evaluated Miss Morris' teaching performance during these two years as average and better than average. Miss Morris' performance as a coach also appears to have been satisfactory. In her first year, the girls' basketball team came in second in its division and, in her second year, the team won the division championship and played in the conference championship game.
The District's personnel file on Miss Morris, in contrast to those of a number of other teachers associated with the athletic program, bears no evidence of complaints about her performance either as teacher or coach during the first two years. Nor did the evidence at trial reveal any serious problems during this period. Only one episode described at trial warrants mention in light of subsequent events. During March of 1971, after the basketball season had ended, Miss Morris began dating Kenneth Long. Mr. Long who is also black, attended a number of basketball games during the 1971-72 season and usually sat in the stands. At the conference championship game in Milford, however, Mr. Long sat on the bench beside Miss Morris and both Mr. Harrington and Mr. Hupp observed this.[1] Both thought it inappropriate for a non-coach to be sitting on the bench during a game,[2] and Mr. Harrington mentioned this to Miss Morris at her spring evaluation shortly after the championship game. Thereafter, Mr. Long did not sit on the bench during any games.[3]
Non-tenured teachers in the Laurel District are employed pursuant to ten-month contracts, running from September through June. In March or April of each year, the Laurel School Board discusses the question of contract renewals. To assist in making decisions on renewal, the Board members receive recommendations from Mr. Hupp, who in turn receives recommendations from his subordinates. In the Spring of 1972, Mr. Harrington recommended Miss Morris' *195 reemployment for the coming year without reservation. Mr. Hupp recommended reemployment to the Board. While some of those present at the meeting now claim to have a vague recollection that Mr. Hupp expressed some reservation about his recommendation and mentioned insubordination, the record shows that Mr. Hupp would have had no basis for such an assertion and, for this reason, I conclude that Mr. Hupp did not qualify his recommendation. The Board renewed Miss Morris' contract for the 1972-73 school year.
The 1972-73 school year was one of transition for the Laurel School District. The District was reorganized, thanks to the construction of a new facility. This new building housed the Senior High School and the combined Junior-Senior High School building of prior years became the Laurel Central Middle School. Miss Morris was assigned as a teacher to the Middle School. Her principal there was Mr. Dodson. Mr. Harrington was assigned to be principal of the Senior High. During the transition, Mr. Harrington reviewed with Mr. Dodson a list of teachers at the Middle School who had manifested deficiencies. Miss Morris' name was not on this list.
Miss Morris' teaching during the 1972-73 school year appears to have been uneventful and entirely consistent, in terms of performance, with her first two years. Mr. Dodson evaluated her as an "above average teacher" and recommended that she be rehired for the 1973-74 school year. Mr. Harrington, who also had a supervisory position with respect to Miss Morris that year by virtue of the fact that she was coaching senior high athletics, testified at trial that the "rapport" between them was "good".[4] Miss Morris was always courteous in her dealings with him, and exhibited a willingness to "spend extra time at the school doing things she was asked to do."[5]
Unfortunately, Miss Morris' experience as a coach during the 1972-73 school year did not prove to be as uneventful as her experience teaching.
Senior high school basketball practice started in mid-November at the new high school.[6] The new bleachers had not arrived, however, and the coaches promptly expressed a desire to move to the middle school for practice so that the team members would have the advantages of practicing on the court where they would play their games. At this time, Miss Morris was still seeing Kenneth Long. He would drop her at school in the morning and return towards the end of the day to pick her up. On at least one occasion prior to November 29, 1972 he came into the middle school building and watched the end of basketball practice while waiting for Miss Morris to complete her duties. Parents frequently did the same thing while waiting for their children to finish practice.
Prior to November 29, 1972, no one had told Miss Morris that visitors were not to be permitted at practice. On that day, however, Mr. Harrington wrote Miss Morris a memorandum. He was motivated in doing so by two things: Miss Morris had not previously been given instruction with respect to the security precautions to be taken in the new building and he had heard from *196 the other female physical education instructor that Miss Morris' boyfriend had been attending practices. The subject of the memorandum was "Building Usage." Most of it dealt with securing the building at the end of the day and with confining the students to the gymlocker room area after school hours. The memorandum concluded, however, with the following directive:
There is to be no one admitted to the building during practice sessions except the coaches, players, or other staff members.
Mr. Harrington intended, and Miss Morris understood, that this included Kenneth Long.
While, after November 29, 1972, Mr. Long continued to attend basketball games, there is no persuasive evidence in the record that Mr. Long attended another basketball practice prior to February 19, 1973. By contrast, it appears that with the knowledge of the administration the broad policy expressed in the Harrington memorandum was frequently violated during the winter months by parents and recent graduates.
During the 1972-73 season, Miss Morris' basketball team compiled an enviable record. By January or early February, however, a number of rumors and complaints about Miss Morris were circulating around the community. There were, of course, the inevitable complaints of parents who could not understand why their daughters did not play more. Beyond this, however, there were allegations that Miss Morris discriminated in favor of black players. Also, it was rumored that Miss Morris was "associating with this boy who appeared somewhat drunk, but there was never any odor of alcohol."[7]
On February 19th, Mr. Long went to pick up Miss Morris and was admitted to the building by the janitor. He stood and observed the remainder of the girls' basketball practice. That evening Mr. Harrington received a telephone call from the mother of one of the girls on the team complaining that Miss Morris' boyfriend had been at practice and appeared to be under the influence of something. Mr. Harrington communicated this complaint to Miss Morris on February 20, and reminded her of his instruction that no visitors be permitted at practices. Miss Morris acknowledged that her boyfriend had been present the previous day but denied that he was under the influence of anything.
In addition to talking with Miss Morris, Mr. Harrington relayed the parent's complaint to Mr. Hupp who called a meeting for the following day. At the meeting Mr. Hupp and Mr. Harrington discussed with Miss Morris both recent complaints and certain "rumors". Among the matters discussed were whether Miss Morris had allowed a black girl to practice without gym shoes, whether she had started Debbie West, a black girl, after she had not shown up for practice, why Miss Morris had brought two black girls up from the junior varsity team after two injuries, instead of utilizing white "bench warmers", and whether she had permitted Vera Horsey, another black girl, to act in a coaching capacity. Miss Morris denied that she had allowed any players to coach, but acknowledged having allowed one girl to practice without shoes.[8] Miss Morris further indicated that Debbie West had attended practice even though her participation had been limited by injury, and explained the thought behind her selection of players. There was no indication that either Mr. Hupp or Mr. Harrington was dissatisfied with these explanations. The conference was an amicable one. Hupp and Harrington were understandably concerned about the appearance of racial discrimination in Miss Morris' coaching and wanted to help her improve her relationships with *197 parents. Hupp suggested that she speak with the parents of the "bench warmers" to explain her player selection. Miss Morris was reluctant at first, but agreed to do so.
Within a few days following this February 21, 1973 conference, the Laurel's girl team played the Milford, Delaware, team for the conference championship. The game was attended by Robert Mitchell, a staff captain with the Delaware State Police, who lived in Laurel and who had a daughter on the team. His daughter, Judi, had started at every game during the regular season but did not play in the Milford game. Immediately after the game won by Laurel Captain Mitchell sought out Mr. Harrington and demanded a conference with Mr. Hupp. He wanted an explanation as to why his daughter had not started when she had started all of the other games.
The requested conference was arranged and Miss Morris met with Mitchell, Harrington and Hupp in Hupp's office on February 26, 1973. Captain Mitchell demanded an explanation. He felt that Miss Morris had not played his daughter because she thought Judi was responsible for the complaint about her boyfriend. Miss Morris explained that she had not played Judi because she needed additional rebounding strength. Mr. Hupp told Captain Mitchell that the coach had to have the prerogative of playing the members of the team as she saw fit. Mitchell was not satisfied, however. He announced that Judi had quit the team. After Mitchell left, Hupp told Miss Morris that Mitchell had asked him to fire her because of her conduct and that he (Hupp) had responded that he had no reason to fire her.
Immediately after the Mitchell conference, there was a meeting with the parents of Sheila Fuller who, it turned out, had also resigned from the team. The Fullers were concerned about the fact that their daughter had not played much during the season and also felt that Sheila might be being blamed for the boyfriend complaint. Unlike Captain Mitchell, the Fullers were satisfied with Miss Morris' explanation of her choice of players.
After this conference, Mr. Harrington suggested that Miss Morris talk to the Mitchell and Fuller girls and try to persuade them to return to the team for the state championship game with Lake Forest that evening. Miss Morris was "anxious to do so" and the two of them sat down with Judi Mitchell later that day. According to Mr. Harrington, Miss Morris did a "good job" in trying to convince Judi to come back but the result of the conference was inconclusive. Later in the day, Miss Morris met alone with Sheila Fuller.
Earlier, Mr. Hupp had spoken to Mr. Harrington alone and had suggested that Mr. Harrington speak individually to the members of the team during the course of the afternoon to determine whether Long had been under the influence at practice, whether Miss Morris had quizzed the members of the team about the source of the boyfriend complaint, and whether the team members felt that any of them were treated differently than others.
Mr. Harrington found a marked difference of opinion among the team members. At trial, he described the results of his inquiry as "inconclusive". He provided a copy of the results to Miss Morris along with a memo indicating that he did not think she had been entirely candid with him on the subject of her inquiries of team members regarding the source of the complaint about Mr. Long. The memo concluded, however, with the following statement:
As for the student comment, I feel that if you would give these comments the consideration they deserve it would improve your coaching.
Significantly, Mr. Harrington testified at trial that he wrote this because he had no reason to believe, as of February *198 26, 1973, that Miss Morris would not be back the following year.[9]
Following the February 26, 1973 conference, Captain Mitchell undertook a different type of investigation. The Drug Unit of the Delaware State Police was under his command. Without the knowledge of any member of the school administration or school board, he undertook to find out who the boyfriend was and if he was on drugs. He assigned a state police sergeant to determine where the boy lived. The sergeant located Long in Salisbury, Maryland. Mitchell and the sergeant started surveillance in Salisbury at 5:30 A.M. the next morning. They observed Miss Morris and Long emerge from Miss Morris' residence and proceed to Peninsula General Hospital. From there they went to Laurel where Long dropped Miss Morris off at school. Long then returned to Salisbury. Mitchell sent the sergeant to the Salisbury Hospital where it was determined that Long was on a methadone maintenance program.[10] The activity was the same on the following day, February 28, 1973. The surveillance lasted through March 1, 1973.
On March 15, 1973, Captain Mitchell gave Mr. Hupp a letter at a Lions Club luncheon. The letter described the results of his investigation. It concluded:
I feel that her not being married and residing with a drug addict is not of the highest moral standard and she exemplifies a poor example for the students and athletic teams that she may coach.
Trusting that some action will be taken, I am,
Very sincerely yours,
On Friday, March 16, 1973, Hupp showed the Mitchell letter to Mr. Dodson because he thought it had "serious implications" and "he was her building principal." Also, during the course of that day, he showed the letter to Mr. King, the Chairman of the Board of Education, when he came to the school to sign invoices. At some subsequent time, Mr. Hupp circulated the letter at a meeting of the administrative staff.
On Monday, March 19, 1973, the members of the Board of Education were informed of the Mitchell letter. They had a joint meeting that evening with the members of the Seaford School Board and several state legislators. After the meeting, the Laurel Board members returned to Mr. Hupp's office where he read the letter and expressed the view that it could have "serious implications."[11] There was little discussion because the board members wanted "to think about it a little bit" and it was decided "to have a special meeting concerning it prior to" the board's regular March meeting two days later.[12] Mr. Hupp said he would speak to Miss Morris in the interim.[13] A suggestion was made that the advice of the board's counsel be secured and the board did subsequently confer with him about the matter.[14]
On Tuesday, March 20, 1973, Mr. Hudson, a member of the administrative staff, came to the middle school and told Miss Morris that Mr. Hupp would like to see her in his office. When she arrived, Mr. Hupp and Mr. Fox, the personnel director, were present. Mr. Hupp showed her a xeroxed copy of a portion of the Mitchell letter. He indicated that theretofore Long's presence around the school had been just a nuisance but that now it was an entirely *199 different matter. Hupp and Fox indicated that they would not want a person of this kind around children of theirs and that Long's presence at school was unacceptable. Mr. Hupp further stated that he would be obliged to take the matter before the Board of Education and that the Board would be likely to terminate her employment. Mr. Fox interrupted at this point and asked whether it wouldn't be better if Miss Morris thought about resigning in order to avoid a "blot" on her record. They discussed the alternatives available to her. Miss Morris indicated she would think about the matter and another meeting was scheduled for the following day.
After leaving Mr. Hupp and Mr. Fox, Miss Morris contacted the Delaware State Education Association of which she was a member. The Association's field representative, Bill Davis, accompanied her to the meeting the next day. Miss Morris, Mr. Hupp and Mr. Fox said little. Mr. Davis announced that Miss Morris was not going to be blackmailed or threatened into resigning.
On the following evening, the Mitchell letter was discussed to some extent at the executive session of the Board held prior to the regular monthly meeting. Mr. Hupp was asked if he had a recommendation with respect to the letter and he responded that he did not. The Board apparently decided not to respond. Either during a later part of this session or at another executive session held prior to the regular April meeting of the Board, the Board addressed itself to the question of renewal of contracts for the coming year. Mr. Hupp recommended non-renewal of Miss Morris' contract and the Board accepted this recommendation. No one recalls exactly what was said, but the record does reflect some things about the deliberations. Mr. Hupp based his recommendation on persistent insubordination. He conveyed the impression to the members of the Board that Miss Morris had failed to follow directives repeatedly over an extended period of time, that she had been given an opportunity to correct this deficiency, and that the renewal of her contract for a fourth year with the attendant grant of tenure under state law would, in his judgment, result in problems for the district in the future.[15]
The Board formally voted not to renew Miss Morris' contract at a public session on April 18, 1973 and she was notified in writing of this action on April 19, 1973. No reason for the renewal was stated by the Board when it publicly voted on the matter and none was given in the termination notice. The record contains evidence, however, to indicate that other school districts subsequently inquired about the circumstances of Miss Morris' non-renewal and it is clear that on at least one occasion Mr. Hupp responded that the "biggest reason for this release was failure to comply with administrative directives.[16] The fair inference is that he conveyed the same impression about Miss Morris' performance to the prospective employer that he had communicated to the Board.
At trial, Mr. Hupp testified that he had reached his decision not to recommend renewal of Miss Morris' contract probably at some point in January and, in any event, by February 14, 1973. Accordingly, he maintained, the Mitchell letter had nothing to do with his recommendation. The members of the Board testified that, in voting for non-renewal, they relied on Mr. Hupp's recommendation, his explanation for it and their past experience with Hupp's judgment. They similarly disavowed any connection between the Mitchell letter and the non-renewal decision. Mr. Hupp and several other members of the Board acknowledged, however, that, if the facts stated in the letter were true, they would, in *200 their estimation, impair Miss Morris' effectiveness as a teacher.
II. RACIAL DISCRIMINATION
Plaintiff asserts with conviction that the District's failure to renew her contract is attributable to racial discrimination and, accordingly, that she is entitled to relief under the Civil Rights Acts, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. She correctly observes that the existence of such discrimination must ordinarily be found from circumstantial evidence and proceeds to marshal the testimony and documents which she feels demonstrates an underlying theme of racial bias.
In addition to the undisputed facts that she is black and that her employment was not renewed, Miss Morris stresses what is claimed to be disparate treatment of herself and white coaches in the District. As earlier noted, the files of white coaches who have received tenure and promotion abound with administrative memoranda indicating repeated failures to obey administrative directives, as well as other deficiencies. A brief review of the record of one of these coaches will suffice to illustrate plaintiff's point.
Mr. Doe,[17] who was initially the head football coach and later the athletic director, was originally hired for the 1969-1970 school year and attained tenure in June of 1972. In the early football practice sessions of 1969, Mr. Doe was assisted by his son, Charles, who was not a teacher in the school district. On September 29, 1969, Mr. Hupp wrote to Mr. Doe asking him to make sure his son's efforts could not be construed as coaching.
On September 21 of the following year, Mr. Harrington wrote the following note to the athletic director and Mr. Hupp:
I want it explained to Mr. Charles [Doe] that anytime he is attending a Laurel football game he is attending as a spectator. Friday night one of our staff was questioned by a scout from another school as to who the new coach was, referring to Charles [Doe].
Also, during the game on one occasion in attempting to get two substitutes into the game one of the boys was hit rather hard in the middle of the back by Charles [Doe]. I have not yet been contacted by the parents of this boy, but I'm sure that eventually I will be. I have absolutely no way of defending this type of activity by someone who is not a recognizable legal coach on our staff. If this man's activities are reported to the Delaware Secondary School Athletic Association our position in the conference would be in jeopardy.
On September 29, 1970, Mr. Hupp dispatched a memo to Mr. Doe again asking him to make sure his son's efforts could not be construed as coaching and referring to his son's presence on the bench as a "compromising situation."
In March of 1971, Mr. Harrington again saw Charles assisting at a practice this time helping to coach the track team. This breach was considered sufficiently serious that Harrington wrote a memorandum to the athletic director containing the following warning:
THIS IS A VIOLATION THAT WE ARE GOING TO HAVE TO TURN IN IF IT CONTINUES.
The warning was relayed to Mr. Doe.
On September 6, 1972, Mr. Doe received two memos. In one, Mr. Harrington recorded an effort of Doe to remove 24 students from a weightlifting class who were not football players. Mr. Harrington's memo vetoed this idea and indicated that if Doe's plan to conduct the class for the football squad alone were carried *201 out, it would result in a violation of the DSSAA rules. The other September 6th memo was from Mr. Hupp. It referred to the requirement of attendance by coaches at faculty meetings, a requirement which had been in writing for two years but which had been frequently breached both by Doe and other coaches.
Despite these items in his file, Mr. Doe was appointed athletic director on January 24, 1973. Thereafter, he received a number of memos indicating, among other things, failure to attend a faculty meeting and another alleged breach of the DSSAA rules on unauthorized coaching. No disciplinary action was ever taken as a result of these deficiencies.
This Court agrees that plaintiff's evidence made out a prima facie case of racial discrimination and, under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), placed on the defendants the burden of producing some evidence that the non-renewal of plaintiff's employment had some legally permissible foundation. In response to plaintiff's evidence, the defendants introduced testimony that Miss Morris' contract was not renewed because of job related deficiencies primarily a failure to follow administrative directives. Given the introduction of this evidence, plaintiff had the burden of proving "by competent evidence that the presumptively valid reasons for ... [her] rejection were in fact a coverup for a racially discriminatory decision." McDonnell-Douglas Corp. v. Green, supra, 411 U.S. at 805, 93 S.Ct. at 1826.
Plaintiff has convincingly demonstrated that the reasons given by Mr. Hupp for his recommendation of non-renewal were not in fact the reasons for that recommendation. Mr. Hupp indicated that he made his decision in late January of 1973. The primary reason for the recommendation is said to be that Miss Morris had failed to follow administrative directives. At that time, however, nothing had happened which would even arguably support such a conclusion. While the Court believes that Hupp did not in fact formulate his recommendation until after Long's late February visit to basketball practice, the administration's treatment of Doe and other coaches conclusively establishes that a single failure to follow a directive about visitors at practice was not considered by Hupp to be cause for non-renewal. Indeed, the fact is that no deficiency has been attributed to Miss Morris which could not be attributed with significantly greater justification to other coaches who subsequently were recommended for and received tenure.
Finding that the reasons given by Mr. Hupp were in effect a "coverup", does not end the matter, however. Under McDonnell-Douglas, it is plaintiff's burden to show that there was a "coverup for a racially discriminatory decision." (emphasis added). The common sense rules there established by the Supreme Court for guidance in the evaluation of circumstantial evidence regarding racial discrimination do not require this Court to close its eyes to evidence indicating a different kind of motivation, and the irresistible conclusion on this record is that the disparity in Mr. Hupp's treatment of Miss Morris and the other coaches was attributable, not to her race, but to the Mitchell letter. This is apparent not only from the timing of events and Mr. Hupp's reaction to that letter, but also from the fact that Mr. Hupp's attitude towards Miss Morris prior to March of 1973 seems wholly inconsistent with racial bias towards her.
Mr. Hupp was undoubtedly aware of the rumors in the community about a boyfriend who had some kind of drug problem. Against this background came Mrs. Phillips' complaint about the boy-friend's attendance at practice. On the heels of this complaint came Captain Mitchell's letter of March 15, 1973. Mr. Hupp was obviously disturbed by its contents and considered it a serious matter. He showed it to his fellow administrators, *202 the Chairman of the Board, and then to the members of the Board on March 19th. He expressed the view at that meeting that the letter could have "serious implications". On March 20, he confronted Miss Morris with the letter indicating that he felt the Board would find it cause for discharge and either suggesting, or tacitly supporting a suggestion, that she resign. I believe the fair inference from these facts is that Mr. Hupp foresaw that the information contained in the Mitchell letter would soon be abroad in the community and anticipated continued pressure and trouble from at least a segment of the community if Miss Morris were rehired and given tenure. I conclude that, given this unpleasant forecast of things to come, he decided to follow the path of least resistance by recommending non-renewal of Miss Morris' contract for insubordination.
The Court agrees with plaintiff that a case of employment discrimination can under some circumstances be established by evidence that a public employer yielded to community pressures resulting from racial prejudice. I do not believe that such a case has been made out against Mr. Hupp on this record, however. The community reaction anticipated by Mr. Hupp was related to the facts recorded in the Mitchell letter and I believe it apparent that concern over community racial bias did not produce the Hupp recommendation. According to Miss Morris' own testimony, her relationship with Mr. Hupp from the time of her employment in 1970 until early March of 1973 was an amicable one. As her personnel files as well as her testimony indicate, Mr. Hupp was not critical of her performance as either teacher or coach and offered the few comments which he made to her during this period by way of suggestion as to how she might improve. Most important, it seems that even during the period when Miss Morris' racial objectivity was being questioned in the community, Hupp gave her support in the parent conferences and offered counsel about avoiding the appearance of racial bias.
Turning from Mr. Hupp to the members of the Board, the Court concludes that plaintiff has also failed here to prove a racially discriminatory decision. The Board members, like Mr. Hupp, were exposed to the Mitchell letter. The difference between their position and his was that they had been advised by the chief school administrator that Miss Morris had been repeatedly insubordinate and did not have sufficient first-hand knowledge of the facts to know that this advice was false. So far as the members of the Board are concerned, the ground of insubordination was not a "coverup" and will not support a finding of racial discrimination.
III. THE CONTRACT CLAIMS
Chapter 40 of Title 14 of the Delaware Code recognizes the rights of public employees to join organizations of their choice and to be represented by such organizations in their professional and employment relationships with boards of education. Sections 4006 and 4013 of that Title provide in part as follows:
§ 4006.
(a) An organization certified as the exclusive negotiating representative shall have the right to be the exclusive negotiating representative of public school employees of the school district in all matters relating to salaries, employee benefits and working conditions.
(b) Nothing in this chapter shall be construed as to prohibit the board of education and the exclusive negotiating representative from mutually agreeing upon other matters for discussion, except as prohibited in subsection (c) of § 4011 of this title. [Providing that "no public school employee shall strike while in the performance of his official duties."]
*203 § 4013.
... If there is a conflict between any agreement arising under this chapter and a provision arising under any other chapter of this title, the provisions arising under any other chapter of the title shall prevail.
At all times here relevant, Miss Morris was a member of the Laurel Education Association. That Association entered an agreement with the Laurel Board of Education on June 10, 1970 which remained in effect in the Spring of 1973. Plaintiff alleges that her rights under this collective bargaining agreement were violated by the District in several respects. These claims raise two questions: (1) Is this Court foreclosed by the Eleventh Amendment of the United States Constitution from entertaining plaintiff's contract claims and (2) If not, does the evidence establish breaches of the agreement?
A. The Eleventh Amendment
Under the Delaware Constitution, the General Assembly is charged with the duty of providing "for the establishment and maintenance of a general and efficient system of free public schools ...". 1 Del.C.Ann., Const. of 1897, Art. 10, § 1. In order to fulfill its duty, the General Assembly has provided for a system of local school districts to carry out the educational function within the various geographical areas comprising the state. See 14 Del. C.Ann. § 1001 et seq. Thus, the Laurel School Board, like all other Delaware boards, is undeniably an instrumentality established by the state to assist the state in the performance of an important governmental function. This fact alone is not determinative of the Eleventh Amendment issue, however.[18]
Under the relevant case law, whether an entity assisting the state in the performance of a state function shares the state's freedom from suit in a federal court under the Eleventh Amendment depends on whether, in a suit against that entity, the state is the "real party in interest". Ford Motor Company v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250 (3rd Cir. 1969); S. J. Groves & Sons Company v. New Jersey Turnpike Authority, 268 F.Supp. 568, 574 (D.N.J.1967). The term of art "real party in interest" has been interpreted by the Third Circuit as follows:
In determining whether an "alter ego" status attaches to the instrumentality of a state, it has been said:
"* * * [L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance.
Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations...."
Urbano v. Board of Managers, supra, 415 F.2d at 250-51.
Turning to the case at hand, it is clear that under Delaware law ultimate *204 legal control of the educational process is in the hands of the state. See, for example, 14 Del.C.Ann. §§ 121, 122, 1043, 1049, 1058. Nevertheless, in deciding how the educational process might best in practice be carried out, the state legislature has provided local school districts with considerable autonomy and opportunity for initiative. A district board of education the entity vested by law with the operational duties of "administer[ing] and ... supervis[ing] the free public schools ... and [of] determin[ing] policy and adopt[ing] rules and regulations for the general administration and supervision of the free public schools," 14 Del.C. Ann. § 1043 is elected locally, 14 Del. C.Ann. § 1051, and is required to prepare an annual report to its constituents, 14 Del.C.Ann. § 1050. A district board is vested with the power to adopt courses of study and to select, purchase and distribute textbooks and all other necessary educational materials and apparatus, 14 Del.C.Ann. § 1049(4), (5). The school board appoints the superintendent of schools, who functions as the chief school officer and, as it became clear during this case, substantially determines the day-to-day operation of the schools, 14 Del.C.Ann. § 1091.
Significantly, the district board and its constituents (the latter operating by means of referenda) have the power to levy taxes "for school purposes" and to determine the amount of money to be expended on education within the district.[19] Among other things, the board and the voters may supplement basic teachers' salaries appropriated by the state, 14 Del.C.Ann. § 1304, and may, in addition, employ more teachers than the basic state salary appropriations would otherwise allow, 14 Del.C. Ann § 1705(b). The board and the voters may substantially determine the quality of the physical plant in the district as well, by exercising their power to exceed the standard formula used to determine the amount of state funds to be appropriated for construction purposes, 14 Del.C.Ann. § 2004. If the board and the voters do choose to exceed the standard formula, the board is empowered to issue bonds, 14 Del.C.Ann. § 2102, and the faith and credit standing behind those bonds is that of the district. 14 Del.C.Ann. § 2104.[20]
Of particular significance is the local district's power in that most important aspect of the educational process personnel. Apparently reflecting a legislative judgment that personnel matters are best handled at the local level, the local districts are vested with the authority to appoint personnel, 14 Del.C.Ann. § 1049(8) and, subject to state-imposed procedural requirements, to dismiss personnel, 14 Del.C.Ann. § 1401 et seq.[21] And, as previously noted, it is the local boards which are vested with the authority to bargain with, and enter into collective agreements with, associations of school employees. 14 Del.C.Ann. § 1401 et seq.
Turning to the questions of whether the District has the power to pay a judgment on its own initiative and whether payment would be made with state funds the questions which have generally been considered to be of critical importance, Urbano v. Board of Managers of New Jersey State Prison, supra; Whitten v. State University Construction Fund, 493 F.2d 177, 180 (1st Cir. 1974) the case for exclusion of the district from the Eleventh Amendment's shield becomes quite persuasive. As noted above, the local boards are empowered *205 to raise funds through local taxes for "school purposes". Given that the board has power to contract and may be sued on its contracts in state courts,[22] it logically follows that satisfaction of a contract suit judgment constitutes a "school purpose". Otherwise, the rights of the board's contractual obligees would be hollow, indeed. Thus, the Laurel School Board has the "power to satisfy" a judgment from local District funds without the necessity of action by the State Board of Education or the General Assembly. Based on this fact,[23] and the fact that the Laurel Board, like other Delaware Boards, possesses considerable autonomy of operation and power of initiative, the Court concludes that the Eleventh Amendment does not bar suit against the District on the collective bargaining agreement. See King v. Caesar Rodney School District, 396 F. Supp. 423 (D.Del.1975) (where, in addition to the Board's having the statutory authority to levy taxes to pay judgments, it appeared that the Board carried insurance, the premiums for which had been paid by local funds).[24]
B. The Merits Of Plaintiff's Contract Claims
The Court deems only three of plaintiff's contract claims worthy of discussion.[25]
Section C of Article IV of the contract provides:
No teacher shall be disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantage without just cause. Any such action asserted by the Board, or any agent or representative thereof, shall be subject to the grievance procedure herein set forth.
Plaintiff claims that her discharge was "without just cause" and occurred despite her demand that the matter be taken up under the contract grievance procedure which, among other things, ultimately terminates in arbitration.
If Article IV C were construed to be applicable to the non-renewal of the employment contract of a non-tenured teacher, I believe it would be of doubtful validity under Delaware law. The Delaware Court of Chancery has found a legislative *206 intent implicit in Delaware's tenure statutes, 14 Del.C. § 1401 et seq., "that the reason for not renewing a non-tenured teacher is something that a school board does not have to discuss or justify ...; rather, it is an area where the General Assembly intended the discretion of the school board to remain free from contractual commitment." Newman v. Board of Education, 325 A.2d 387, 390 (Del.Ch.1974). This Court need not pass on the validity of Article IV C, however, because it is satisfied that the parties did not contemplate its application to the current situation. A far clearer statement of intent would be required in order to lead this Court to the conclusion that the Board intended to delegate to an arbitration panel its statutory discretion on teacher contract renewal.
Section D of Article IV of the Agreement provides that whenever a teacher is required to appear before the Superintendent or the Board "concerning any matter which could adversely affect the continuation of that teacher in his ... employment ... then he shall be given prior written notice of the reasons for such meeting or interview and shall be entitled to have a representative of the Association present to advise ... and represent him." The Court agrees with plaintiff that the meeting of March 20, 1973 to which Miss Morris was peremptorily summoned by Mr. Hupp falls within the language of this contractual provision. In maintaining that this meeting nevertheless did not fall within the spirit and intent of Section D, defendants make three arguments: (1) the meeting was for informational purposes only and application of this provision to such a meeting would make the efficient day-to-day operation of a school impossible, (2) Miss Morris' employment could not have been adversely affected by the subject matter of this meeting because Mr. Hupp had already decided to recommend non-renewal and (3) the provision, as construed by plaintiff, would violate Delaware law.
It may be granted that Section D, if applied to all situations arguably within its literal sweep, would be unworkable and that a Court should not assume that the parties intended such a result. It seems to the Court, however, that if the events of March 20, 1973 were not held to bring Section D into play, that contractual provision would be deprived of all meaning. There is no question that Mr. Hupp felt the Mitchell letter might affect the continuation of Miss Morris' employment. He said so at the meeting. And, even accepting his assertion that he had made up his mind regarding his recommendation, the ultimate decision had not been made by the Board. Indeed the fair inference is that the Board expected Hupp to talk with Miss Morris about the matter and report back at the March 21st meeting. This would appear to be precisely the kind of situation in which the bargainers contemplated a teacher should have the opportunity to maturely consider the matter to be discussed and thoughtfully prepare his response. If such an opportunity had been afforded, Miss Morris might well have supplied information regarding Mr. Long's condition or her relationship with him which would have placed the Mitchell letter in a materially different light.
The District's argument concerning the validity of Article IV D is also without merit. While the collective bargaining statute does not impose a legal duty on school boards to bargain on matters other than "salaries, employee benefits and working conditions", Section 4006(b) seems clearly to permit the negotiators to bargain on other subjects during contract talks as long as the untimate agreement is not inconsistent with other Delaware statutes.
The Court sees nothing in those statutes which can fairly be said to be in conflict with the contract right plaintiff here asserts. It is one thing to say that the Delaware legislature intended school *207 boards to exercise unfettered discretion in deciding whether to renew contracts of untenured teachers, and quite another to attribute to that body an intention to preclude a school board from agreeing to afford a fair opportunity for the teacher to present her side of matters which may jeopardize her continued employment.
The Court also concludes that the District violated Miss Morris' rights under Article XVIII of the collective bargaining agreement which is entitled "Teacher Evaluation." Section C of that Article deals with the procedure to be followed in the event of "complaints regarding a teacher made to any member of the administration or by any parent ... which are or may be used in any manner in evaluating a teacher." Unmistakably, one function of this provision is to provide a means for amicably resolving community complaints concerning teachers. The provision is not designed solely for that purpose, however. As its title would indicate, teacher evaluation is the focus of all of the provisions of Article XVIII. The overall thrust of that Article is the promotion of fair evaluation of teachers through procedural safeguards.
The purpose of Section C, in particular, is to assure a teacher that if a parental complaint is received which may affect his or her evaluation, an effort will be made to resolve the problem reflected by the complaint so that it will not unfairly affect that evaluation. The prescribed procedure contemplates that so long as the teacher, after informal conferences at the principal level, continues to think the problem may unfairly affect evaluation, the matter will be brought before the superintendent for a recommendation. The procedure further contemplates that after the superintendent's recommendation, the Board will afford the teacher a hearing before it acts upon that recommendation.
While Mr. Hupp in effect by-passed the initial stages of the prescribed procedure and did not follow all of the provisions relating to the procedure at the superintendent level, the Court concludes that Section C was applicable to the situation in which the parties found themselves on March 21, 1973, and that the Board breached a contractual duty by failing to afford Miss Morris an opportunity to tell her side of the story. The Mitchell letter was clearly a complaint from a parent which held the potential of affecting Miss Morris' evaluation. The superintendent was apprised of it in writing and was well aware that it might affect the Board's evaluation of Miss Morris. The Board was informed in writing of the letter on March 19, 1973 and anticipated that Mr. Hupp would talk to Miss Morris and return to the March 21st Board meeting with a recommendation. As of the beginning of that meeting the Board had not yet conducted an evaluation but knew that one was imminent. Accordingly, it is difficult to imagine a situation more squarely within the intent of Section C.
It is true that each of the members of the Board testified that the Mitchell letter played no role in their termination decision. The Court believes this testimony. This does not, however, mean that relief should be denied on plaintiff's contract claims. Trying to assess the motivation of a diverse group of people in a trial many months after a decision is made is a difficult task at best and is precisely the kind of thing the contract provisions here in issue were designed to avoid. Plaintiff's Association bargained for procedural protections to avoid the risk of employment decisions based on one-sided evaluations. That risk was present in Miss Morris' case[26] and the Court should attempt to *208 fashion a remedy that will give her the benefit of the Association's bargain.
IV. THE DUE PROCESS CLAIM
Plaintiff also maintains that the individual defendants (other than Mr. Harrington[27]), while acting under color of state law, have deprived her of liberty and property without due process of law. In analyzing this claim, it is appropriate to first determine whether the interests which Miss Morris had at stake were "liberty" or "property" interests giving rise to rights under the Due Process Clause.
A. Property Interest
The guidelines for determining when a school teacher's interest in continued employment rises to the level of a "property" interest within the meaning of the Fourteenth Amendment were set forth by the Supreme Court in the Roth and Sindermann cases.[28] In Roth, the court stated that, in order to receive constitutional protection, the employee's interest must amount to more than a mere "unilateral expectation of [continued employment]." 408 U.S. at 577, 92 S.Ct. 2701. Rather, the employee must have a "legitimate claim of entitlement" to continued employment. Id.
In Roth the court cited three categories of cases in which such a "legitimate claim of entitlement" had been held to exist. The first category involved situations in which an express contract granted tenure or secured the right to employment for a term not yet expired. Id. at 576-77, 92 S.Ct. 2701. The second category involved situations where there was no express contract, but a "clearly implied promise of continued employment." Id. at 577, 92 S.Ct. at 2709. The final category involved situations where statutory or administrative standards defined eligibility for a benefit and a citizen had a legitimate claim that he or she was qualified for the benefit under those standards. Id. at 576, 92 S.Ct. 2701. In Sindermann, the court observed that the absence of "formal contractual or tenure security" was "highly relevant" to the plaintiff's due process claim but indicated that it would not in all instances be "dispositive" of such a claim. 408 U.S. at 599, 92 S.Ct. 2694. Referring to the law of implied contracts, the court noted that there were instances where "[e]xplicit contractual provisions may be supplemented by other agreements implied from `the promisor's words and conduct in light of the surrounding circumstances.'" Id. at 602, 92 S.Ct. at 2700, citing 3A Corbin on Contracts § 562. As an example, the court cited the field of collective bargaining where agreements are regularly supplemented by "the common law of a particular industry or of a particular plant." Id. The court then hypothesized a situation where there "might be an unwritten `common law' in a particular university that certain employees ... [would] have the equivalent of tenure," noting that this might be "particularly likely in a college or university" like the one before it, "that has no explicit tenure system even for senior members of its faculty." Id.
The court in both Roth and Sindermann stressed that property interests are not created by the Constitution. Rather, there must be an independent source in state or federal law. 408 U.S. at 583, 608, 92 S.Ct. 2701. The property interest claimed must thus be recognized by law and, while a teacher's expectation of continued employment need not be secured by "a formal contractual *209 provision", it must, at least, be "secured by a no less binding understanding fostered by the" school administration.
One further principle may be deduced from Roth and Sindermann. A teacher must be able to point to some objective criteria, however established and defined, by which the school administration has indicated a willingness to limit its discretion. Undoubtedly, all school administrators seek to give the impression to non-tenured teachers, as well as to new applicants for employment, that decisions on employment are not made in the district in an irrational manner. Accordingly, no teacher would be without a protected "property interest" if all that was required was a showing of an expectation that employment decisions would be made on the basis of the administration's perception of the qualifications of the teacher, the qualifications of others available for employment, and the needs of the school system. This Court thinks it clear from the opinions in Roth and Sindermann, and, in particular, from Roth's holding that the professor there involved had no property interest, that the Supreme Court did not intend such a result.
Miss Morris does not here contend that her written 1972-73 contract with the Laurel Board held forth any express promise of continued employment (and, coincidentally, tenure). Rather, she has alleged that "under defendants' evaluation procedures, non-tenured teachers in the District have a clear expectation of continued employment absent inadequate performance." The record said to support this allegation consists of testimony by two Board members and Mr. Hupp to the effect that teachers in the Laurel District are not non-renewed without a reason[29] and the testimony of an additional Board member that, unless something is wrong with a teacher, he or she is "generally" rehired. In addition, Miss Morris points to a letter circulated by the District prior to her non-renewal inquiring whether she intended to return the following year, her affirmative response, and Mr. Dodson's indication that he had recommended her reemployment. All this, it is said, created more than a unilateral expectancy.
In order to evaluate this claim, we must first turn to the Delaware statutes. Under Delaware law, teachers who have completed three years of service in the State cannot be terminated at any time except for certain specified reasons.[30] While teachers without three years of experience cannot be discharged during the school year except for statutorily-prescribed reasons,[31] no similar limitations are placed on the non-renewal of such teachers at the end of any school year. All that is required is an advance notice which need not specify the rationale of the termination decision. 14 Del.C. § 1410.
Arguably, the Delaware statutory law precludes a public school board from limiting its discretion where renewals of non-tenured teachers are concerned. Cf. Newman v. Board of Education, supra. That question has not been decided by *210 the Supreme Court of Delaware, however, and this Court finds it unnecessary to intrude into that area in order to resolve the case before it. Assuming that a Delaware school board can legally fetter its discretion, plaintiff's evidence nevertheless falls far short of establishing a mutual understanding in the Laurel District that a teacher in Miss Morris' position would have a "legitimate claim of entitlement" to continued employment as that concept is employed in Roth and Sindermann.
Because of the above-described statutory provisions, teachers in the Laurel District, as well as administrators and Board members, considered the renewal of a contract for a fourth year to be a highly significant event. It was thus recognized in the school community that teachers receive rights upon renewal for a fourth year which they did not previously have. While this is not in itself dispositive of the issue before the Court, the existence of detailed statutory tenure regulations which were clearly understood to distinguish a year-end termination of a teacher in Miss Morris' position from other terminations, indicates to the Court that Miss Morris could not have had an objective expectation of employment beyond the 1972-73 school year absent some unambiguous assurance of school authorities to that effect.[32] Yet there is no evidence in this case that the School Board engaged in any conduct which could be said to have communicated an assurance of this kind. The trial testimony to which plaintiff points does not indicate that the School Board fostered any understanding in the school community prior to Miss Morris' termination and, indeed, consists of nothing more than statements by school officials that employment decisions were not made on an arbitrary basis. The District's spring letter of inquiry appears to be nothing more than an attempt by the District to ascertain the interest of teachers in remaining with the District and was not a commitment to hire any teacher responding affirmatively. Neither, of course, does a principal's recommendation constitute an assurance of reemployment. Roseman v. Hassler, 382 F.Supp. 1328 (W.D.Pa.1974), aff'd., 520 F.2d 1364 (3rd Cir. 1975). The evidence in this case thus falls short of demonstrating that Miss Morris had a property interest protected under the Due Process Clause.
B. Liberty Interest
Plaintiff has demonstrated, however, that her discharge for persistent insubordination implicated a liberty interest. While a teacher's interest in a particular teaching job does not constitute a liberty interest, a teacher does have an interest in her ability to pursue her teaching career which is protected by the Due Process Clause. One acting under color of state law may not substantially impair that interest by action having no basis in fact; nor can such an impairment occur consistent with the Fourteenth Amendment absent procedures appropriate to the various interests involved. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L. Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L. Ed.2d 570 (1972).
In the Roth case, the Supreme Court recognized that a state cannot foreclose a range of employment opportunities in a manner that contravenes due process. Such a foreclosure may, of course, take the form of an absolute bar to a segment of government employment,[33] or the denial of a license to practice one's profession.[34] The foreclosure of employment opportunities *211 need not be as certain or as drastic as these examples, however. In Schell v. Board of Trustees, C.A. No. 4673 (Unreported Opinion of July 31, 1973) at p. 45, for example, this Court found a due process violation where the evidence showed that a school administrator's non-renewal for "insubordination and failing to fulfill administrative directives" would "substantially impair her ability to obtain subsequent employment in teaching and educational administration." Similarly, early this year, the Supreme Court found the Due Process Clause to be applicable in a situation where the suspension of a student for misconduct "could seriously ... interfere with later opportunity for higher education and employment." Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (emphasis supplied). See also Arnett v. Kennedy, 416 U.S. 134, 157, 94 S.Ct. 1633, 40 L. Ed.2d 15 (1974) (plurality opinion: liberty is offended "by a dismissal based on an unsupported charge which could wrongfully injure the reputation of an employee"); Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973); Carpenter v. School District, 358 F.Supp. 220 (E.D. Wis.1973).
The evidence in this case amply demonstrates that the interest infringed by the decision to terminate Miss Morris' employment was not merely her interest in her job with the Laurel District. The non-renewal of her contract for persistent failure to obey administrative directives held the potential for severely impairing her ability to pursue her profession. This was apparent from the testimony of the Board members, Mr. Harrington and a professional in the teacher placement field having experience with employment practices in Delaware and the surrounding states. This testimony satisfied the Court that the vast majority of school hiring officers, upon learning of a non-renewal for a reason of this kind, would not initiate an investigation of the matter and would give no further consideration to the application. In light of this fact, Miss Morris' discharge cannot be dismissed as merely a factor which "might make ... [her] somewhat less attractive to some other employers." See Board of Regents v. Roth, supra, 408 U.S. at p. 574, n. 13, 92 S.Ct. at p. 2708.
It is, of course, true that the Board members did not directly accuse Miss Morris of persistent insubordination by so stating in her notice of termination or in a filed report. Under the practice which prevailed in Laurel and other Delaware school districts, however, a district which had not renewed a teacher would be contacted before the teacher was hired by another district and the reason for the termination would be discussed. Members of the Laurel Board testified at trial that they would expect that districts making inquiries of this kind would be told the reasons for termination. In this case, we know that this expectation was justified; Mr. Hupp, in fact, told a prospective employer of Miss Morris' insubordination. Accordingly, when the Laurel School Board acted it must have appreciated the potential for injury to Miss Morris' career. That potential was made no less real or substantial by the fact that the reasons for termination would be disseminated orally in the natural course of events rather than in writing. See Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973).
C. The Merits Of The Due Process Claim
The Court thus concludes that Miss Morris had a liberty interest of which she could not be deprived without being accorded procedural and substantive due process. Concededly, she was terminated for persistent insubordination without being informed of the charge and without being given an opportunity to tell her side of the story. A violation of procedural due process has thus been established. In addition, the Court has found that the termination on this ground was without any basis in fact. Accordingly, a violation of substantive due process has also been established.
*212 V. THE REMEDY
A. Reinstatement
Plaintiff maintains that as a result of defendants' breaches of duty under the Fourteenth Amendment and the collective bargaining agreement she is entitled to reinstatement as a teacher in the Laurel District. In support of this contention she cites several cases in which this Court has found reinstatement to be an appropriate remedy for discharges found to violate the constitutional rights of a public employee. When these and the other cases in this area are analyzed, however, it becomes apparent that plaintiff's right to reinstatement is far from clear.
We must start with the proposition that a remedy must be fashioned with an eye to the protected interest which has been infringed. A court should not grant redress which accords more compensation to the plaintiff than is warranted by the interest giving rise to the claim for relief. These principles are well demonstrated by reference to those cases where the defendants were found guilty of a violation of the Due Process Clause.
Turning first to the "property interest" cases, where the plaintiff is a tenured teacher and, accordingly, has an objective expectation of reemployment year after year, reinstatement is ordinarily found to be necessary to give full protection to the property right infringed. See, e. g., King v. Caesar Rodney School District, 380 F.Supp. 1112 (D.Del.1974). Where a teacher is nontenured, however, and is discharged during the term of a contract limited in time, reinstatement after expiration of the contract term has been found to be inappropriate and relief has been limited to damages accruing during the contract term. In Skehan v. Board of Trustees, 501 F.2d 31 (3rd Cir. 1974), for example, the court addressed itself to a factual situation in which a number of bases for relief had been cited by a professor discharged in the middle of his contract term without a due process hearing. The court indicated that reinstatement might be appropriate if the discharge had been in violation of the plaintiff's First Amendment rights or his rights under an alleged contract between the college and its faculty, but not if his discharge violated his right to procedural due process only. 501 F.2d at 41.[35] See also Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (recognizing that proof of a property interest infringed in violation of due process does not necessarily entitle the plaintiff to reinstatement); Bhargave v. Cloer, 355 F.Supp. 1143 (N.D.Ga.1972); Bates v. Hinds, 334 F. Supp. 528 (N.D.Tex.1971).
The "liberty interest" cases also reveal an effort on the part of the courts to fashion relief in light of the character of the protected interest which has been infringed. In Board of Regents v. Roth, supra, the Supreme Court stated that one whose standing in his community or profession will be jeopardized by a discharge is entitled to notice and a hearing to refute the charges against him. It then added: "The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, remains free to deny him future employment for other reasons." 408 U.S. at 573 n. 12, 92 S.Ct. at 2707. Based on this observation, it has been held that where the sole interest protected by the Fourteenth Amendment is a liberty interest in one's professional reputation, the appropriate remedy for a due process violation is not reinstatement *213 but rather a hearing to afford an opportunity to clear the plaintiff's name. Wellner v. Minnesota State Junior College, 487 F.2d 153 (8th Cir. 1973); Cf. Burton v. Cascade School District, 512 F.2d 850 (9th Cir. 1975).
Insofar as Miss Morris' claim for relief rests upon her constitutionally-protected liberty interest in pursuing a teaching career, the Court believes that the remedy should be limited to an opportunity to "clear her name" and damages for any injury incurred between the time of discharge and the time when the burden on her right to pursue her teaching career has been lifted.[36] Moreover, it appears to the Court, in light of the findings which this Court has been required to make in order to dispose of the issues presented by the parties, that this lawsuit itself has provided Miss Morris an opportunity to clear her name and that she has done so in convincing fashion. That being so, I cannot see that an additional hearing before the Board on Mr. Hupp's charges of persistent insubordination would in any way add to the remedy that this decision has provided. Accordingly, insofar as the due process claims are concerned, the appropriate remedy is limited to damages.
The interest which the Teachers Association sought to protect for Miss Morris in the collective bargaining provisions is a different one, however, and its infringement calls for relief of a different stripe. This interest relates specifically to her continued employment in the Laurel District and not solely to her general interest in pursuing her career. What was bargained for were procedural rights to safeguard against unfair teacher evaluation in certain specified situations which did occur in Miss Morris' case. Under the contractual provisions breached, Miss Morris had a right to be considered for reemployment in an atmosphere uncontaminated by charges which she did not have a fair opportunity to rebut. Accordingly, it is this Court's duty to fashion a remedy which will result in her receiving the kind of consideration for reemployment to which she was entitled. While this is not an altogether easy task, the Court believes it can be accomplished.
*214 The consideration to be given reemployment of a teacher in Miss Morris' position should be given, if feasible, by the body responsible for the successful operation of the District's educational program. While cases can readily be conceived where reconsideration by the School Board would not be fair, this fortunately is not one of them. Not all present members of the School Board were serving in the Spring of 1973 and nothing that has happened in the course of this case indicates to the Court that the defendants who remain on the Board cannot be counted upon to exercise a good faith judgment based on the facts developed here, any other facts which Miss Morris may provide at a hearing, and such additional facts as they choose to solicit from the principals of the schools in which Miss Morris served.
Fashioning an adequate remedy in this case does involve a substantial problem relating to timing, however. When Miss Morris had a right to fair consideration for reemployment in the Spring of 1973, the School District was in a position to weigh its decision unfettered by any contractual commitments to other non-tenured teachers. Presumably, this is not true at the present time insofar as the 1975-76 school year is concerned. Obviously, it would be unfair to Miss Morris to require that she be given consideration for reemployment in a context in which the Board could justifiably reply that it had no place for her. Accordingly, the Court has concluded that the fairest resolution of the remedy problem is to require that the Board consider Miss Morris for reemployment when it makes its plans for the 1976-77 school year, that it afford her an opportunity to be heard at that time, and that damages on Miss Morris' breach of contract claim include her loss of earnings up until such time as a favorable decision could be implemented by putting her back on the payroll. If the Board so elects, however, it will be given an opportunity, prior to the entry of final judgment, to find a position for Miss Morris in the coming school year. If she is rehired for the 1975-76 school year, damages will be limited accordingly.
B. Damages
Defendants due process infractions have resulted in Miss Morris not being able to pursue her teaching career from the time of her non-renewal through the earliest date, subsequent to this Opinion, at which she could conceivably acquire a teaching job. Defendants' contract breaches have resulted in Miss Morris not receiving a fair evaluation from March of 1973 until such time as she can be fairly considered for reemployment. In each case, the damages are the same and consist of the difference between the salary Miss Morris could have made as a teacher and the salary she did, in fact, make at the alternative employments she was forced to accept. While the record is not as fully developed on the question of damages as one might expect, enough can be pieced together to support a damage award.
Miss Morris' annual salary during the 1972-73 school year was $8,326.00. Should she be reinstated this September, she would thus have lost the opportunity to earn twice that amount, or $16,652.00. Her actual earnings between the time of her non-renewal and this September would be as follows:
$1,820.00 26 wks. at 40 hrs./wk. Seamstress
at $1.75 per hr. (Oct. '73-Mar. '74)
$2,579.20 26 wks. at 40 hrs./wk. Hospital trainee
at $2.48 per hr. (Apr. '74-Sept. '74)
$6,067.00 48 wks. at 40 hrs./wk. Hospital trainee
at $3.16 per hr. (Oct. '74-present)
*215 The total of these actual earnings is $10,466.20. Thus, if Miss Morris is reinstated in September, she will have lost, and be entitled to an award of, $6,185.80.
Should Miss Morris not be reinstated this September, she will be entitled to a further year's damages computed as follows: $8,326.00 less $6,572.80 (52 wks. at 40 hrs./wk. at $3.16 per hr.) or $1,753.20.[37]
While the record thus supports an award of lost earnings, it will not support Miss Morris' claim for "humiliation and embarrassment". This claim is predicated upon the circulation of rumors in a community regarding the subject matter of the Mitchell letter and none of the defendants have been shown to be responsible for the circulation of those rumors.[38]
Turning from the quantum of damages to the liability of the various defendants based on the rationale set forth in the preceding discussion regarding reinstatement, judgment will be entered against the School District on plaintiff's contract claims in the amount of plaintiff's loss of earnings between September 1, 1973 and September 1, 1976, unless the Board determines to engage Miss Morris for the 1975-76 school year, in which event damages will cease as of September 1, 1975.
As far as the individual defendants are concerned, the Court finds that Mr. Hupp and the members of the Board stand in different positions. Mr. Hupp, acting under color of state law, made an accusation against Miss Morris which he knew to be without any basis in fact. He made this false charge knowing on the basis of past experience that the members of the Board would be content to rely solely on his word and that a discharge based on persistent insubordination would seriously injure Miss Morris' career. Based on these facts, Section 1983 requires that Mr. Hupp should be held liable, jointly and severally with the District, for Miss Morris' lost earnings. While his actions were not motivated by personal animus towards Miss Morris in the traditional sense, his deliberate inflection of injury precludes any holding that he acted in "good faith" as that concept is applied in the law of official immunity.[39] Moreover, the Court concludes that Mr. Hupp clearly knew that the position taken by him in defense of this case was meritless. That defense has, accordingly, been conducted in bad faith and has wrongfully required plaintiff to incur litigation expense in order to vindicate her rights. An award of attorneys' fees against Mr. Hupp is, therefore, appropriate.[40]
*216 The members of the School Board have also been found to have violated Miss Morris' rights under the Fourteenth Amendment while acting under the color of state law. Accordingly, they should also be held liable under Section 1983 unless they are protected by the doctrine of official immunity. The controlling law on this question was summarized by the Supreme Court in Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L.Ed.2d 214 (1975), which dealt with a school board's denial of the due process rights of students:
... The official must himself be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice.
... That is not to say that school board members are "charged with predicting the future course of constitutional law." ... A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.
95 S.Ct. at 1000.
The School Board members in this case were exercising discretionary functions; they acted in reliance on the integrity of Mr. Hupp which they had had no previous reason to doubt. The Court believes that in deciding not to renew Miss Morris' contract, they were acting sincerely in the belief that they were doing right. Accordingly, the only arguable basis for denying them official immunity would be if it could be said that they denied Miss Morris' procedural due process "with such disregard of ... [her] clearly established constitutional rights that [their] ... actions cannot be reasonably characterized as being in good faith." I cannot so hold, however. At the time the Board made its decision on renewal, the law regarding the existence of a liberty interest in factual circumstances like those confronting the Board was far from clear. While Roth had made it clear that total "foreclosure" of access to a segment of the employment market infringed a liberty interest, the Schell case had not been decided and the right to a hearing prior to a non-renewal on grounds of insubordination was not the kind of "clearly established" constitutional right spoken of in Wood v. Strickland. Accordingly, the members of the School Board will be included only in the injunctive section of the judgment.
The Court will confer with counsel regarding an appropriate form of final judgment.
NOTES
[1] Mr. Hupp testified that he also observed lack of "bench control" at the championship game but it is fair to say that any deficiency which may have existed in this regard was not considered serious at the time. Mr. Harrington did not mention bench control as an area of concern at the spring evaluation, see text infra, and Mr. Hupp did not cause any dissatisfaction he may have had to be followed up with Miss Morris during the remainder of that school year.
[2] Miss Morris had not been previously instructed about who was to be allowed on the bench and the rules of the Delaware Secondary Schools Athletic Association do not expressly cover the subject. The rules do, however, prohibit coaching by a non-teacher and Mr. Harrington was justifiably concerned lest Mr. Long's presence be misconstrued.
[3] Three other deficiencies were mentioned at trial but the Court is persuaded that they played no part in the decision not to renew Miss Morris' teaching contract for the 1973-74 school year. Mr. Harrington spoke with Miss Morris about a small indebtedness to W. T. Grant which she had not paid. In addition, in her first year Miss Morris did not have the basketball uniforms cleaned until the end of the softball season. This appears to have been the result of a failure of communication. Finally, towards the end of the 1971-72 school year, a problem arose regarding the sale of physical education uniforms. The other teacher involved in the coaching of girls' athletics took the major blame for the failure to have the girls promptly pay for the uniforms they had purchased and Miss Morris agreed to pay one-third of the collection deficiency since she was also involved in the physical education program. Mr. Hupp agreed that the situation was resolved amicably.
[4] T. 688.
[5] T. 708.
[6] On August 28, 1972, a meeting of coaches and administrators was held to discuss the athletic program for the coming year. Mr. Harrington had recommended that someone who was on the teaching staff at the senior high school coach varsity basketball because he felt that, to the extent possible, varsity coaches should be teaching on the staff of the high school. Based upon this recommendation, Miss Morris was asked if she would be willing to coach at the middle school. The other coach of girls' athletics did not like to coach varsity basketball, however, and refused to undertake this responsibility for the coming year. The matter was, accordingly, dropped. There was no criticism of Miss Morris' performance as a coach at this meeting.
[7] T. 124, 305.
[8] She was advised that funds were available to assist students unable to afford equipment.
[9] Mr. Dodson recommended Miss Morris for reemployment in the 1973-74 school year and also was surprised to learn that she had not been reemployed.
[10] Mr. Long had at one time been addicted to heroin. Approximately two years prior to Captain Mitchell's surveillance, however, he had started on a methadone maintenance program. His efforts to control his addiction were successful and he ceased participation in the program shortly after that investigation.
[11] T. 518, 519, 565-66, 994.
[12] T. 885.
[13] T. 885.
[14] Whaley Dep. 51.
[15] This was the gist of the meeting as described by Chairman King (T. 504-5) whom the Court found to be a fair and candid witness.
[16] T. 1074.
[17] While Mr. Doe's real name is, of course, a matter of public record in the Court's files, no useful purpose would be served, and unnecessary embarrassment might be caused, by printing it here.
[18] Compare Gordenstein v. University of Delaware, 381 F.Supp. 718, 723 (D.Del. 1974) and cases cited therein; see also United States Steel Corp. v. Multistate Tax Commission, 367 F.Supp. 107, 113 (S.D.N. Y.1973).
[19] Taxes raised locally, while paid over to the state treasurer, are kept in a segregated account, 14 Del.C.Ann. § 1917(b).
[20] The district's faith and credit may also be pledged behind borrowings in advance of local taxes, 14 Del.C.Ann. § 1922.
[21] It is noteworthy that the appeal process from personnel decisions of the local board runs to the Delaware Courts, 14 Del.C.Ann. § 1414, and not to the state board of education or any other legislatively-created authority.
[22] Under Delaware law, a legislative authorization to enter into contracts constitutes a pro tanto waiver of any state-law sovereign immunity defense. George & Lynch v. State, 197 A.2d 734 (Del.Supr.1964). While this fact would be determinative of the immunity question were this a suit in state court, it does not determine the Eleventh Amendment question. See Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Daye v. Commonwealth, 483 F.2d 294, 298 (3rd Cir. 1973).
[23] The District does not claim that it does not currently have local funds available to pay a judgment in this action although, as in the case of other judgment debtors, those funds would have to be diverted from other uses.
[24] Cf. Smith v. Concordia Parish School Board, 387 F.Supp. 887 (W.D.La.1975); Fabrizio & Martin, Inc. v. Board of Education, 290 F.Supp. 945 (S.D.N.Y.1968). The Court is aware of authority holding local school boards exempt from suit in federal court under the Eleventh Amendment. See, e.g. O'Neill v. Early, 208 F.2d 286 (4th Cir. 1953); Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962). These cases do not employ the Urbano analysis, however, and appear to place undue emphasis on the fact that the school boards were assisting in the performance of a state function. Moreover, while these cases indicate that the school districts concerned used state funds, these cases do not set forth the statutory scheme under which the schools involved were funded and, in particular, do not indicate whether the school boards in question had the power to raise funds to pay judgments through local levies. But see Harris v. Tooele County School District, 471 F.2d 218, 222 (10th Cir. 1973) (dissenting opinion). The cases which do so indicate (in the affirmative King, Smith, and Frabizio, supra) strike this Court as the more persuasive.
[25] Article IV, Section A of the Agreement provides in part that "the Board undertakes and agrees that it shall not directly or indirectly ... deprive ... any teacher in the enjoyment of any rights conferred ... by the Constitution of Delaware and the United States." Plaintiff does not press this provision as a basis for district liability in this case.
[26] Some of the members of the Board may have foreseen the same community pressure on the horizon as did Mr. Hupp. Indeed, some may well have been relieved when the Hupp recommendation obviated the necessity of considering the issues arguably raised by the Mitchell letter. Human nature being what it is, in this atmosphere the risk that the Mitchell letter might have some impact was clearly present.
[27] Plaintiff tacitly concedes in her brief that there is no record basis for a judgment against Mr. Harrington and this is clearly correct. Judgment will be entered in his favor.
[28] Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
[29] E.g.,
Q In each case, when a person is not renewed, contract is not renewed, there is a reason. You just wouldn't fire him or her or not renew him for no reason?
A That is right. (T. 586)
* * * * *
Q The board just doesn't dump somebody, there is a reason when they don't rehire them, isn't that correct, sir?
A There would have to be a reason, yes. (T. 543)
[30] "Immorality, misconduct in office, incompetency, disloyalty, neglect of duty, wilful and persistent insubordination, a reduction in the number of teachers required as a result of decreased enrollment or a decrease in educational services." 14 Del.C. § 1411. A reduction in enrollment or educational services will not justify a mid-year termination, however. 14 Del.C. § 1420.
[31] "Immorality, misconduct in office, incompetency, disloyalty, neglect of duty, or willful and persistent insubordination." 14 Del.C. § 1420.
[32] Compare Sindermann where the defendant institution had no formal tenure system and the plaintiff could point to statements in a "Faculty Guide" and an administrative "Policy Paper".
[33] Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L.Ed. 216 (1952).
[34] Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).
[35] The court found that back pay relief should be limited to the scope of the property interest, stating:
But assuming no more than the [procedural] due process violation which the district court found, backpay from ... [the date of discharge] to the end of the contract year would seem appropriate."
501 F.2d 31, 41 (3rd Cir. 1974).
[36] The Court recognizes that implicit in this conclusion is a rejection of plaintiff's argument that the right to substantive due process is not predicated on the existence of an property or liberty interest. The Supreme Court cases upon which plaintiff principally relies namely, Cafeteria Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) are explained in Roth and Sindermann as ones involving property or liberty interests. 408 U. S. at 573, 576-77, 92 S.Ct. 2701. While some commentators and at least one court have suggested that Supreme Court cases in areas outside the public employment field presage an extension of the substantive due process rights of public employees, the prevailing view after Roth and the view of this Court is that the Supreme Court has not indicated that a non-tenured teacher whose employment terminates without injury to her community or professional reputation, is entitled to a trial in a federal court solely on the claim that the termination decision was without basis in fact. See Buhr v. Buffalo Public School District, 509 F.2d 1196 (8th Cir.1974); Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1 (7th Cir. 1974); Case Comment, 87 Harv.L.Rev. 1842 (1974); Comment: Due Process and Public Employment in Perspective: Arbitrary Dismissals of Non-Civil Service Employees, 19 U.C.L.A.L.Rev. 1052 (1972); Comment: Substantive Due Process: The Extent of Public Employees' Protection from Arbitrary Dismissal, 122 U.Pa.L.Rev. 1647, 1648-9 (1974); Contra: Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973). While the holdings of Roth and Sindermann deal only with procedural due process rights, the Due Process Clause itself is limited to deprivations of life, liberty and property interests and, if a public employees' interest in a particular job does not constitute such an interest for the purposes of the procedural protections provided by that Clause, this Court fails to perceive a rational basis, in similar circumstances, for recognizing substantive rights which are conferred solely by that clause. See Pavlov v. Martin, 381 F.Supp. 707, 710 (D.Del.1974).
[37] In addition, Miss Morris also claims $25 in miscellaneous expenses incurred in seeking other employment. An award of this amount is appropriate.
[38] Plaintiff did not testify to any other humiliation or embarrassment or to any other damage arising from the interruption of her career.
[39] Despite this finding of bad faith for purposes of the official immunity doctrine, the Court does not believe this to be an appropriate case for an award of punitive damages against Mr. Hupp as suggested by plaintiff. While the Court does not condone the tactics of Mr. Hupp, it does appear that his misguided efforts had some relationship to his perception of the School District's problems. Moreover, the primary purpose for an award of punitive damages is to serve the public interest in deterring future illegal conduct by the defendants or others similarly situated. See, e. g., Davidson v. Dixon, 386 F.Supp. 482, 486 (D.Del.1974). The Court has determined that Miss Morris' non-renewal was not the result of any systematic practice, racial discrimination or other denial of constitutional rights. Rather, the decisions surrounding Miss Morris' non-renewal appear to have been made under pressure, and in the face of unusual factual circumstances. Accordingly, punitive damages seem unnecessary to prevent the recurrence of similar constitutional violations in the Laurel District or elsewhere.
[40] Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Goode v. Rizzo, 506 F.2d 542, 549 (3rd Cir. 1974) (award of attorneys' fees appropriate "where there has been bad faith, vexation or oppression"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604612/ | 810 So.2d 979 (2002)
Maria AMATO, Appellant,
v.
WINN DIXIE STORES/SEDGWICK JAMES, Appellee.
No. 1D00-4527.
District Court of Appeal of Florida, First District.
February 12, 2002.
Rehearing Denied March 26, 2002.
*980 David J. Gerhardt, Miami Shores, for Appellant.
Kara Berard Rockenbach, of Gaunt, Pratt, Radford & Methe, West Palm Beach, for Appellee.
BROWNING, J.
Maria Amato (Appellant), the claimant in this workers' compensation proceeding, appeals a preliminary order of the Judge of Compensation Claims (JCC) denying her motion for disqualification[1] and a final order on the merits denying her claims for supplemental benefits, permanent total disability benefits together with supplemental payments, treatment at a pain clinic, *981 and penalties and interest. Concluding that the motion to disqualify the JCC is legally sufficient and should have been granted, we reverse the final order on the merits and remand for further proceedings to be reassigned to another JCC. Fla. R. Work. Comp. P. 4.155(b).
Appellees, the Employer/Servicing Agent (E/SA), contend that the motion for disqualification was untimely filed; alternatively, the E/SA assert that if it was timely, the order is legally insufficient. Whether a motion to disqualify a trial judge was timely filed generally will involve a factual determination and, thus, is reviewed under the competent substantial evidence standard. Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). On the other hand, the motion's allegations are reviewed under the de novo standard as to whether the motion is legally sufficient as a matter of law, so that we need not defer to the trial court on questions of law. § 38.10, Florida Statutes (1999); Armstrong v. Harris, 773 So.2d 7 (Fla.2000); Sume, 773 So.2d at 602; Rittman v. Allstate Ins. Co., 727 So.2d 391 (Fla. 1st DCA 1999).
A motion for disqualification of a JCC is to be made and determined pursuant to Florida Rule of Judicial Administration 2.160. Fla. R. Work. Comp. P. 4.155(a). "Any party" can seek disqualification of the JCC assigned to the case "on grounds provided by rule, by statute, or by the Code of Judicial Conduct." Fla. R. Jud. Admin. 2.160(b). As to the issue of timeliness, the pertinent rule requires the motion to be made "within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and ... promptly presented to the court for an immediate ruling." Fla. R. Jud. Admin. 2.160(e).
The facts giving rise to the motion, as found by the JCC, are as follows. Following a final merits hearing on July 27, 2000, the JCC granted leave for the E/SA to take a post-hearing deposition of their vocational expert by September 1. Appellant was permitted to advise, by September 15, as to her intention to present rebuttal evidence. Before all the evidence had been presented (and before the vocational expert had been deposed), the JCC reviewed what evidence had been submitted and entered a final order on the merits August 23, denying Appellant's entire claim. Appellant's counsel did not receive a copy of that order from the JCC, apparently due to an error in the mail system. By letter of August 25, E/SA's counsel advised the JCC that the deposition of the vocational expert was scheduled for August 29, and the JCC was asked whether the final merits order should be vacated under the circumstances. The JCC vacated the premature final order on the merits on August 30. On September 6, Appellant's attorney received a faxed copy of the premature order from Appellant, who apparently had not advised her attorney earlier about receiving the order because she reasonably assumed that counsel had received a copy as well. In a sworn affidavit on September 9, Appellant stated that she had first become aware of the facts constituting grounds for a motion for disqualification of the JCC fewer than 10 days earlier. Appellant, who is an Italian national who immigrated to the United States, explained that she did not know how to read English and did not understand the pertinent legal documents until her lawyer explained them to her. Appellant's counsel filed the motion to disqualify the JCC on September 13. At the hearing on the motion for disqualification, counsel for the E/SA challenged the motion to disqualify initially on the ground of untimeliness. Acknowledging Appellant's difficulty with the English language and lack of legal sophistication, the JCC determined that the motion to disqualify was *982 timely filed after the discovery of the alleged facts constituting the basis of her motion. We agree that competent substantial evidence demonstrates the motion was timely filed under Rule 2.160(e).
As to the allegational requirements, the pertinent rule states that "[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." Fla. R. Jud. Admin. 2.160(d)(1). The instant motion alleged that because the JCC issued a purported final order on the merits before all the evidence had been presented, Appellant "reasonably believes that the JCC has prejudged the case"; and that despite the vacating of the premature order, Appellant "believes it is highly unlikely that a subsequent order by the same judge will be any different." Cf. LeBruno Aluminum Co., Inc. v. Lane, 436 So.2d 1039 (Fla. 1st DCA 1983) (deputy commissioner's remark, after hearing testimony of claimant but before hearing any of employer/carrier's evidence, that he already had made up his mind to award benefits and attorney's fees to claimant based on employer/carrier's bad-faith handling of claim, demonstrated lack of fair, impartial hearing and constituted reversible error). Appellant alleged that she "reasonably believes it would be futile to present evidence to rebut the e/sa's vocational expert when the JCC denied the entire claim without even considering that evidence in the first place." Likewise, Appellant contended it would be unavailing to respond to the E/SA's trial memorandum in light of the JCC's already having denied the claim without affording Appellant an opportunity to respond in writing. Nathanson v. Nathanson, 693 So.2d 1061 (Fla. 4th DCA 1997) (on mot. for reh'g) (granting petition for writ of prohibition to disqualify trial judge based on allegations that court began to rule against wife in dissolution proceeding without ever affording her an opportunity to respond). Appellant concluded that the sequence of events (the essential aspects of which are undisputed) "demonstrate prejudice because the JCC ruled against the claimant before hearing all of the evidence." On those grounds, Appellant claimed to have "a well-grounded fear that she will not receive a fair trial" in any further proceedings under that JCC. The motion was supported by Appellant's affidavit as well as her attorney's certification that the motion was made in good faith and not for the purpose of delay. Fla. R. Jud. Admin. 2.160(c).
The pertinent rule expressly limits the scope of review by the JCC against whom disqualification is directed under subdivision (d)(1):
(f) Determination____Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.
Fla. R. Jud. Admin. 2.160(f). Whether the motion is legally sufficient involves a determination as to whether the alleged facts would give a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. MacKenzie v. Super Kids Bargain Store, 565 So.2d 1332 (Fla. 1990). "The term `legal sufficiency' encompasses more than just technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would *983 prompt a reasonably prudent person to fear that he could not get a fair and impartial trial." Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981). "It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind, and the basis for such feeling." State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938). In the order denying the motion for disqualification, the JCC stated that the premature August 23 final order on the merits had been entered based on "the mistaken assumption that all evidence had been presented." The JCC concluded that his prior adverse ruling is not an adequate ground for disqualification. Accordingly, the motion was denied.
We conclude that Appellant's motion to disqualify the JCC is legally sufficient, i.e., the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial proceeding because the trial judge had prejudged the case before all the evidence was presented. Smith v. Santa Rosa Island Auth'ty, 729 So.2d 944 (Fla. 1st DCA 1998); Barnett v. Barnett, 727 So.2d 311 (Fla. 2d DCA 1999) (although a judge may form mental impressions and opinions in the course of hearing evidence, it is improper to prejudge the case). "The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983). The unusual and unfortunate sequence of events involved here, caused by the inadvertence of the JCC, encroached upon Appellant's fundamental right to due process of law, including the right to cross-examine witnesses and to present rebuttal evidence. Coxwell v. State, 361 So.2d 148 (Fla.1978). By prematurely ruling on the merits before the E/SA's vocational expert testified, and before the parties rested, the JCC effectively denied due process to Appellant, and the JCC's withdrawal of the final merits order did not remove such perceptions from Appellant's mind. While the E/SA note that the JCC eventually discounted some of the testimony that was intended to support the E/SA's position, and suggest that any error related to the premature ruling is harmless, this conclusion is based on hindsight that obviously was unavailable to Appellant when the motion to disqualify was filed and, thus, has no relevance to Appellant's fears at the time the motion was filed. Our conclusion should not be construed as adopting a per se rule mandating disqualification solely upon the allegation, by itself, that the trial court ruled on a matter without having heard from the other side. Hastings v. State, 788 So.2d 342 (Fla. 5th DCA 2001); Nathanson, 693 So.2d at 1062-63 (Stone, J., concurring specially); Rives v. Logan, 611 So.2d 599 (Fla. 2d DCA 1993); Gieseke v. Grossman, 418 So.2d 1055 (Fla. 4th DCA 1982). Given our ruling on the threshold issue of the motion for disqualification, we do not address the merits of the workers' compensation claim.
The final order on the merits is REVERSED, and the case REMANDED, with instructions that a different JCC be assigned to all further proceedings.
LEWIS, J., concurs; PADOVANO, J. dissents with opinion.
PADOVANO, J., dissenting.
I respectfully dissent. In my view, the claimant had no reason to suspect that the judge of compensation claims would be unfair to her.
The judge mistakenly ruled on the merits of the case before considering written evidence that was to be submitted after the hearing. Evidently, he overlooked the fact that he had previously granted the employer the right to submit a post-hearing *984 deposition of a vocational expert and that he had offered the claimant an opportunity to respond with additional written evidence. When the judge learned of his mistake he promptly vacated the order and prepared to consider the case again in light of the additional evidence.
A reasonable person would take this to mean that the judge was willing to start over with an open mind. That was not the case here. The claimant says that the error in rendering the decision prematurely reveals a potential bias on the part of the judge. It seems more likely to me, however, that this is an argument of convenience that merely capitalizes on the judge's error. What the claimant really wants is a chance to try the case before a judge who might be more receptive to her claim.
The majority has determined that the claimant had a reasonable fear that the judge could not be fair because he had "prejudged" the case. With all due respect, I think that this decision gives too little credit to trial judges. It assumes that trial judges are motivated by a desire to protect their initial conclusions about a case, and that they are incapable of changing those conclusions even when it becomes clear that they did not have all of the facts. The error in this assumption is demonstrated in our courts and administrative tribunals on a regular basis.
If the point made in the majority opinion were correct, a judge who grants a motion for rehearing in a civil case could easily be disqualified from presiding over the second trial. Someone would always be able to say that the judge having once announced a decision, has therefore shown a bias or predisposition before the final ruling. Yet, even the most opportunistic litigant would not seek to disqualify a judge who has granted rehearing. Litigants know that judges are professional fact finders. They expect them to reconsider decisions that were not fully informed and they trust them to do that fairly.
Lawyers and judges have this expectation, as well. When a trial court is reversed on appeal for improperly granting a summary judgment or for making an erroneous ruling in a nonjury trial, the appellate court does not ordinarily require that a new judge be assigned on remand. Instead, the original trial judge is presumed to be capable of setting aside previously held notions about the case, and deciding it fairly, once again. The same is true here. The litigants and the lawyers should have been able to assume that the judge was capable of treating them fairly once he discovered the mistake and decided to consider the case again.
Finally, it does not appear to me that the trial judge "prejudged" the case in the way that term is used in the majority opinion. The judge's actions do not show an unwillingness to hear all of the evidence or a desire to rule a particular way irrespective of the evidence that might be presented. To the contrary, his failure to consider all of the evidence was an inadvertent error which he corrected. This does not show prejudgment in the sense of a bias against a party or a particular argument.
For these reasons, I would hold that the motion for disqualification was correctly denied.
NOTES
[1] Although Appellant's motion was styled "motion to recuse," technically it is a motion for disqualification because it was not the trial judge who sought his own removal. Sume v. State, 773 So.2d 600, 602 (Fla. 1st DCA 2000); Black's Law Dictionary 485 & 1281 (7th ed.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604622/ | 130 N.W.2d 76 (1964)
LINDEN SCHOOL DISTRICT NO. 24, Plaintiff and Appellant,
v.
Clifton R. PORTER, and Una Porter, Defendants and Respondents.
No. 8040.
Supreme Court of North Dakota.
August 21, 1964.
*78 Price & LaQua, Langdon, for plaintiff and appellant.
Neil Thompson, Devils Lake, for defendants and respondents.
BURKE, Judge.
This is a statutory action to determine adverse claims brought by the plaintiff school board to evict the defendants from school property and recover damages both for the use of the property and for waste. In their answer to plaintiff's complaint the defendants alleged that their occupancy of plaintiff's property was pursuant to contract and counterclaimed for wages they alleged were due under employment contracts. At the time the action was tried the defendants had vacated plaintiff's property and the trial was limited to the claims of the respective parties for damages. The case was tried to the court without a jury. As a result of the trial the claims of the plaintiff and of the defendant, Clifton Porter, were disallowed and the claim of the defendant, Una Porter, was allowed. Judgment was entered accordingly and plaintiff has appealed and demanded a trial de novo in this court.
This controversy arose out of transactions between the defendants and Byron School District in Pembina County. Linden School District is the plaintiff herein, because, in February 1960, it annexed most of the Byron School District and as a result of the annexation, it acquired all of the assets, and assumed all of the liabilities, of Byron School District.
Una Porter had been the teacher in Byron School District for the school years 1957-1958 and 1958-1959. On April 14, 1959, her contract was renewed for the year 1959-1960. This contract contained the provision required by Section 15-25-09 NDCC that the school "may be discontinued when the attendance falls below 6 for 10 consecutive days, and that no compensation shall be received by said teacher from the date of such discontinuance." The defendant, Clifton Porter, husband of Una Porter, testified that, in September 1959, he was employed as janitor of the Byron School for the school year of 1959-1960; that he was to receive $70.00 a month wages, living quarters in the school house and electric light and telephone. The minutes of the Byron School Board make no mention of this employment. The minutes of October 7, 1959, and subsequent months specifically authorize the payment of the janitor's wages. The defendant, Clifton Porter, asked several times to have his contract reduced to writing. Finally, on December 12, 1959, a written document embodying the terms of the alleged contract was executed by Wayne McLean as President of Byron School District and Clifton Porter. This document was attested by Mrs. Phil Bottrell, Clerk of the School Board. There were three members of the School Board, Mr. Ronnie Romfo, Mr. Phil Bottrell and the president, Mr. Wayne McLean. Mr. McLean testified: "I had seen Ronnie Romfo (about the contract) and he didn't say one way or another, so then I went to see Mr. Bottrell and he said it was okay, so we had our clerk draw up the contract." The document was signed in Mr. Bottrell's home and in his presence. The next meeting of the school board was held on January 28, 1960. At that time all members of the Board were present and the matter of the written contract with the janitor was discussed. All members of the Board knew it had been executed. The minutes of the Board contain no specific ratification of the contract but they do authorize the payment of the janitor's wages. Mr. McLean testified that the written contract put into writing what the Board's agreement was with Porter at the beginning of the school year as to the amount of wages and other benefits.
At the time Mrs. Porter's contract for 1959-1960 was renewed it was anticipated that there would be at least six students in attendance at the Byron School during that year. However, no more than four students ever attended. In November 1959, a public meeting was held in Byron School *79 to discuss the possibility of annexation to another district. On December 7, 1959, the Byron District School Board and many of the Patrons of the Byron School District met with the School Board of Linden District to discuss a petition for annexation. The annexation of Byron School District to Linden School District became effective on February 2, 1960. As a result of the annexation Linden School District acquired the assets of Byron School District and assumed its liabilities.
The minutes of the Linden School Board of February 9, 1960, show the following:
"Clerk was instructed to notify Mrs. Clifton Porter that if the attendance remains at less than six, the Byron School will be closed February 15, 1960." Mrs. Porter was notified to that effect by a letter dated February 10, 1960.
The Linden School Board's minutes for February 24, 1960, shows the following:
"The clerk was instructed to notify Clifton A. Porter that the Byron School is to be vacated March 1, 1960, and that the utilities are to be cut off as of that date. Also that janitor's salary will be cut off as of the date of this notice."
A notice was served upon Clifton Porter in accordance with the instruction to the clerk.
No school was held in the Byron School subsequent to February 15, 1960, but the Porters continued to reside in the school building until the end of May 1960, during which time they heated the building with coal which belonged to the school board, and paid $40.21 for electric power and $23.07 for telephone.
This action was commenced in March 1960, but trial was delayed until after the question of possession had become moot and there remained for litigation only the claims of the respective parties for damages.
The first question for decision is whether the contract of Una Porter was legally terminated as of February 15, 1960. There can be no question but that the grounds for the termination were legal grounds. Section 15-25-09 NDCC provides:
"* * * any school may be discontinued when the average attendance of pupils therein shall be less than six for ten consecutive days, if proper and convenient school facilities for the pupils can be provided in some other school in the territory of the closed school * * *."
Section 15-25-08 NDCC requires:
"* * * Every contract for the employment of a teacher shall be in writing, and shall be executed before the teacher begins to teach in such school, and each such contract shall provide that in the event of a discontinuance of a school term for lack of attendance as provided in this chapter, no compensation shall be paid to the teacher from the date of such discontinuance. * * *."
Since at no time during the school year of 1959-1960, did the attendance ever exceed four, the Byron School term was legally subject to discontinuance at any time the Board made other arrangements for the four pupils in attendance.
The discontinuance is challenged on procedural grounds. It is urged:
(1) That the minutes of the Linden School Board show no formal resolution declaring the discontinuance; (2), That the record does not affirmatively show the arrangements for the placing of the pupils of Byron School in another school and (3), That reasonable notice of the closing of the Byron School was not served upon Una Porter.
In passing on the sufficiency of the minutes kept by a school board of a common school district consideration should be given to the fact that ordinarily the members of such a board and its clerk are not experts in the field of keeping records of *80 proceedings and that the meetings of such boards are to a large extent conducted informally. Such minutes will therefore not be given a technical construction and irregularities and informalities will be disregarded, where the minutes are sufficient to show the board's intention. Kinney v. Howard, 133 Iowa 94, 110 N.W. 282; Quisenberry v. School Dist. No. 6 of Hall County, et al., 75 Neb. 47, 105 N.W. 982. Montgomery, et al. v. Claybrooks, 213 Ky. 493, 281 S.W. 469.
As has been heretofore set forth, the minutes of Linden School District of Feb. 9, 1960, instructed the clerk to notify Una Porter that if the attendance remained at less than six until February 15, 1960, the school would be discontinued as of that date. Although the minutes of the Board do not show a subsequent resolution specifically declaring the discontinuance of the school, in view of the circumstances we see no need for such a resolution. The record shows that at no time during the school year, had the attendance at the Byron School been more than four. The members of the Board knew at the time, the instructions to the clerk were given, that there was no chance that the attendance would increase and the minutes of the Board clearly disclose the intent of the Board to discontinue the school on February 15. This was sufficient.
In support of her challenge to the action of the Linden School Board on the ground that the record does not affirmatively show that the Board had made arrangements for the education of the pupils of Byron School at another school, defendant, Una Porter, cites the case of McWithy v. Heart River School Dist. No. 22, 75 N.D. 744, 32 N.W.2d 886. In that case it was said that a school board which discontinued a school had the burden of showing by a preponderance of the evidence, that all of the statutory conditions precedent to discontinuance had been fulfilled. In that case, however, the record showed affirmatively that after the school board had voted a resolution of discontinuance the school remained open and was attended regularly by five pupils who were instructed by the teacher for the balance of the school term. There was thus evidence in the case from which it could be inferred that no adequate provision had been made to educate these five pupils at another school. In the instant case there is no such evidence. Section 31-11-03 NDCC which catalogs disputable presumptions, sets forth the presumption, "That official duty has been performed regularly." Since this is a disputable presumption, it follows that where there is evidence that official duty has not been regularly performed, the burden of going forward with the evidence is cast upon the officials whose acts are challenged. Where as in the instant case, there is no such evidence, the presumption as to regularity is prima facie satisfaction of the officials' burden of proof. Coulter v. Ramberg, 79 N.D. 208, 55 N.W.2d 516; Pine Tree Lumber Co. v. City of Fargo, 12 N.D. 360, 96 N.W. 357.
In the instant case defendant, Una Porter, was given five days notice of the discontinuance of the school. She says that this was not a reasonable notice. Neither the controlling statute (Section 15-25-09 NDCC, supra) nor the teacher's contract made pursuant to statute contain any provision for notice. In the McWithy case, supra, where no notice of discontinuance, at all, was given, we said that the teacher, whose school was discontinued was entitled to formal notice of discontinuance. Section 15-25-09, supra, clearly contemplates that a school board of a common school district may discontinue a school forthwith when the attendance has dropped below six pupils for ten consecutive days and arrangements have been made to educate the remaining pupils, elsewhere. Section 15-25-08, supra, prohibits the payment of salary to a teacher after the date of discontinuance. The teacher has notice from the statute and the teacher's contract and from the lack of attendance for a period of ten consecutive days that the school may *81 be closed at any time. The teacher is entitled to notice of the actual closing but not to notice that the school will be closed after the lapse of a given number of days. A holding to that effect would increase the number of consecutive days of lack of attendance, required for the discontinuance, beyond the ten day period provided by statute. In this case the notice was adequate.
For reasons above stated it is our view that the Byron School was legally discontinued and therefore the defendant, Una Porter, was not entitled to her teacher's salary after the date of closing.
Clifton Porter testified that he was hired by the Byron School Board as janitor of Byron School for the school year 1959-1960, in this he is corroborated by the President of the School Board. The minutes of the Board do not show this hiring and there was no written contract executed at the commencement of the employment. In December 1959, a written instrument was executed by Clifton Porter and Wayne McLean, president of the Board, which, according to McLean contained the terms of the oral agreement Porter had made with the School Board in September. McLean also testified that Porter had asked the Board for a written contract and that "it was just the fault of the School Board that he didn't get it sooner." Since the written agreement was authorized by two members of the Board, acting individually and not at a Board meeting, it was not binding upon the School District. Gillespie v. Common School Dist. No. 8, McLean County, 56 N.D. 194, 216 N.W. 564; Auran v. Mentor School Dist. No. 1, of Divide County, 60 N.D. 233, 233 N.W. 644.
The oral contract, which both McLean and the defendant, Clifton Porter, testified was agreed to by the Board at the beginning of the school term is challenged upon the grounds that it is not written and that it is not shown by the minutes of the Board. Certain school board contracts are required to be in writing. Section 15-25-08 NDCC provides, that teacher's contracts shall be in writing. Section 15-34-12 NDCC provides, the contracts for the transportation of pupils shall be in writing. We find no such statutory provision with respect to the employment of janitors. Our conclusion, from our examination of the statutes is that where the legislature intended written contracts, it has so provided and that, where no legislative requirement for a written contract exists, the general laws with respect to contracts apply. It follows that the objection that the janitor's contract is not in writing is not a valid objection.
With respect to whether a contract not shown by the minutes of a school board can be a valid contract, we find a contrariety of decision. Some of the decisions hold that it is the vote of the directors which is controlling and that if the clerk fails to record the action of the board in the minutes, such action may be proved by the testimony of any person who was present at the meeting. German Ins. Co. v. Independent School Dist., 49 U.S.App. 271, 80 F. 366, 25 C.C.A. 492; Decker v. School Dist. No. 2, 101 Mo. App. 115, 74 S.W. 390. Other decisions hold that a record is essential. Broussard v. Verret, 43 La.Ann. 929, 9 So. 905; Blodgett v. Seals, 78 Miss. 522, 29 So. 852, Anno. 12 A.L.R. 235.
For the purposes of this case, we shall assume without deciding that a record is essential. Upon this assumption it follows that no binding contract for the employment of the janitor came into existence at the beginning of the school term. However, a contract which is not binding upon the school district may be validated by subsequent ratification of the board, if the contract was one which the board had the power to make in the first instance. Gillespie v. Common School Dist. No. 8, McLean County, 56 N.D. 194, 216 N.W. 564; Beckman v. Belyea, 60 N.D. 738, 236 N.W. 361.
In the instant case the minutes of the School Board show that the janitor's salary was paid in October, November, December, January and February. It appears *82 therefore that some contract with the janitor was ratified. The only issue in the case with respect to the defendant, Clifton Porter's, contract was its duration. The trial judge found, since the minutes made no reference to duration and only showed a month by month payment, that the decision of this issue was controlled by Section 34-04-02 NDCC. This section in so far as it is applicable provides:
"Unless it is otherwise provided in the contract of employment, the length of time for which a servant is hired shall be presumed, if he is hired:
* * * * * *
"(3) at a monthly rate, to be for one month;
* * * * * *."
The court therefore held that Clifton Porter was employed upon a month to month basis.
In Gillespie v. Common School Dist. No. 8, McLean County, we held that the minutes which ratified the contract did not need to embody the terms of the contract. In that case the Board directed the payment $1,500.00 "according to contract," and this court said: "Clearly the board had in mind the contract of April, 1920, and just as clearly approved of that contract and recognized it as being effective and binding as against the district." Thus the question of what contract was ratified by the board was determined by reference to the contract of April 1920, which was irregularly executed and not binding on the school district.
In the instant case there is the testimony of Clifton Porter as to what the terms of his oral contract were. His testimony is corroborated by Wayne McLean, president of the Board. This testimony is that the duration of Porter's employment was for the school year 1959-1960. There is no evidence in the record to the contrary. The testimony as to the duration of Porter's employment is further corroborated by the irregularly executed written contract. Wayne McLean testified that this written contract was discussed at the meeting of the Board, subsequent to its execution. All members of the Board were aware of the terms of the oral contract. They were aware of the terms of the written contract. As we have said, some contract was ratified, and unless we assume that the members voted to approve the payments to Clifton Porter with unexpressed mental reservations, the contract ratified, was the oral contract made by the Board with Clifton Porter at the beginning of the school year. This contract was for the duration of the school year.
When the Linden School District assumed the obligations of Byron School District, it assumed Byron School District's obligations under this contract. We hold therefore that the defendant, Clifton Porter, is entitled to recover on his counterclaim for wages which were not paid from February 25, 1960, until the end of the school year, and for electric power and telephone bills in the sum of $40.21 and $23.07 respectively.
The judgment of the district court is reversed and the case remanded with instructions to enter judgment in accordance with this opinion. No costs will be allowed upon appeal.
MORRIS, C. J., and TEIGEN, J., concur.
STRUTZ, J., did not participate.
ERICKSTAD, J., not being a member of this Court at the time of submission of this case, did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604479/ | 25 Wis.2d 40 (1964)
ESTATE OF BLETSCH: BLETSCH, Appellant,
v.
BARTH, Executor, and another, Respondents.
Supreme Court of Wisconsin.
September 2, 1964.
September 29, 1964.
*43 For the appellant there were briefs and oral argument by Michael J. Dunn of Milwaukee, and Philip G. Brennan of Chicago, Illinois.
For the respondent Barth there was a brief by Randall, Zimmers, Randolph & Randall of Milwaukee, and oral argument by Wilke M. Zimmers.
For the respondent Shriners' Hospital for Crippled Children there was a brief by Mount & Keck of Milwaukee, and oral argument by Herbert L. Mount.
GORDON, J.
The trial court analyzed the evidence and determined that the testator's purpose was "to help crippled children through Masonic charitable organizations of the state of Illinois." The following conclusion of law was entered:
"That the only organization whose operations closely reflect the intent of the deceased is in the `Shriners Hospital for Crippled Children' located in Chicago, Illinois."
*44 The designated beneficiary in the instant case is nonexistent; this gave rise to a latent ambiguity which made it appropriate to examine the extrinsic evidence. In Estate of Gibbs (1961), 14 Wis. (2d) 490, 496, 111 N. W. (2d) 413, this court explained that there are two classes of latent ambiguity:
"One, where there are two or more persons or things exactly measuring up to the description in the will; the other where no person or thing exactly answers the declarations and descriptions of the will, but two or more persons or things answer the description imperfectly. Extrinsic evidence must be resorted to under these circumstances to identify which of the parties, unspecified with particularity in the will, was intended by the testator."
The trial court had before it the testimony of Mr. Koerner, who described the origins of the language which was later used by the testator in his will. The extrinsic evidence also included a description of the physical disability of the testator's daughter.
The appellant urges that the instant case is controlled by Tharp v. Seventh Day Adventist Church (1923), 182 Wis. 107, 195 N. W. 331. There the gift was to the "Seventh Day Adventist Church" for use in publishing and distributing literature of the church. Evidence was received in that case which demonstrated that the Seventh Day Adventists constituted a religious denomination with numerous "conferences." Although there were two incorporated "conferences" in Wisconsin holding title to church property, the testator was not a member of either. The court held that it was impossible to determine which group the testator had in mind, and therefore the bequest failed. Similarly, in the instant case, appellant argues that it is impossible to determine which group Jack Bletsch intended to benefit.
The findings of the trial court in the case at bar are different from those in the Tharp Case. Here the trial court *45 found that there was a distinct charitable purpose on the part of the testator and, using the will and the extrinsic evidence adduced, it found that the Shriners' Hospital for Crippled Children was the only one which closely reflected the testator's plan. In our opinion, this finding is not against the great weight or clear preponderance of the evidence.
The trial court applied the cy pres doctrine. That doctrine, as defined in Saletri v. Clark (1961), 13 Wis. (2d) 325, 329, 108 N. W. (2d) 548, is this:
"Very briefly stated, when a charitable purpose cannot be fulfilled according to its terms, equity will attempt to do the next-best similar charitable thing. That is the cy pres doctrine."
The appellant urges that the cy pres doctrine is not applicable in Wisconsin. We recognize that this contention is supported in a number of earlier Wisconsin decisions. For example, in the Tharp Case, Mr. Chief Justice VINJE stated flatly, at page 112: "In our state the doctrine of cy pres does not obtain." One of the cases relied upon in the Tharp Case is Harrington v. Pier (1900), 105 Wis. 485, 82 N. W. 345. The Harrington Case, however, falls considerably short of sustaining the broad, sweeping statement as to cy pres contained in the Tharp Case. In the Harrington Case, the court said, at page 503:
"When it is said that the doctrine of cy pres does not prevail in this state, that does not refer to those liberal rules of judicial construction of charitable trusts, by courts of equity, which prior to the statute of Elizabeth were applied in chancery, and of which such statute is only confirmatory, but to the prerogative power exercisable where such statute prevails. Courts here, as anciently, look with favor upon all donations to charitable uses, and give effect to them where it is possible to do so consistent with rules of law, ..."
*46 In England, at common law, there were two doctrines of cy pres. One was judicial cy pres; the other was known as prerogative cy pres. Under the latter doctrine, the king, in the exercise of his prerogative power, could, in certain cases, ignore a testator's intention and dispose of a man's property as the king wished. There was no duty on the part of the king (other than moral) to honor the testator's wishes. It is this prerogative doctrine of cy pres which has been disavowed in the United States.
The distinction between prerogative cy pres and judicial cy pres is significant because in the former the purposes to which the king might apply the property could be diametrically contrary to the intentions of the decedent; however, in judicial cy pres the court's principal burden was to effectuate as closely as possible the testator's plan. We doubt that the courts of Wisconsin ever truly intended to disavow judicial cy pres.
That the rejection of the cy pres doctrine was limited to the prerogative type of case is demonstrated by Mr. Chief Justice ROSENBERRY'S observations in First Wisconsin Trust Co. v. Board of Trustees (1937), 225 Wis. 34, 43, 272 N. W. 464:
"... in some of the earlier cases the cy pres doctrine was repudiated. It is quite clear that what was repudiated was the prerogative power exercised by the chancellor, not as a judge, but as a representative of the Crown."
Although it was not so denominated, judicial cy pres was, in effect, applied by the court in Estate of Briggs (1926), 189 Wis. 524, 208 N. W. 247. There, at page 534, the court wrestled with the Tharp Case and sought to distinguish it. That the cy pres concept was tacitly followed in the Briggs Case is implicit from the following portion, at page 529:
*47 "While it may be conceded that a bequest to a particularly denominated hospital might ordinarily be deemed lapsed where such hospital is in fact non-existent (which would also be true as to a given church or school under the same circumstances), nevertheless, if from all the surrounding facts and circumstances it can reasonably be gathered that the object of the testator was centered not in the aims of one hospital or one church or one school, but upon a general scheme to promote a given cause, then such named hospital, church, or school may be deemed a mere agency for administrative purposes, and if the agency fails, a chancellor will not permit the purpose to fail, but will supply a new agency in the form of a trustee, to carry out the testator's intention."
The hesitation reflected in the Wisconsin decisions to use cy pres openly while at the same time actually applying its doctrine was commented on in a note in 1947 Wisconsin Law Review, 467. In the note, the author, Thomas G. Godfrey, observed, at page 468:
"Although the trial court went to some length in establishing definitely that this was a charitable trust, the Supreme Court focused its attention upon the interpretation of the content and purpose of the trust. In so doing the court again demonstrated that, although it will not recognize or use the cy pres doctrine as it is used by the majority of other jurisdictions in the United States, when it utilizes the doctrine of liberal construction provided by statute, it is using basically the same theory."
The doctrine of cy pres is preserved in the American Law Institute's Restatement of Trusts. Restatement, 2 Trusts, p. 1208, sec. 399. See also 5 Page, Wills (Bowe-Parker rev.), p. 239, sec. 41.33.
While most of the descriptions of cy pres confine its operation to charitable "trusts," there is no sound reason for the requirement that there be a formal trust, as such. In our *48 opinion, it is sufficient if there is a bequest to a charity. In a sense, it can perhaps be said that a charity always receives the gift in trust for its purposes. In Estate of Briggs (1926), 189 Wis. 524, 208 N. W. 247, there was a gift to the "Young Women's Christian Association of Wisconsin." Although no express trust was created, the court treated the matter as a charitable trust. Instead of saying that gifts to charities are necessarily in trust, we deem it better to rule that the doctrine of judicial cy pres is available when there is a gift to a charitywithout requiring that there be a formal trust.
The Wisconsin legislature, in 1933, enacted sec. 231.11 (7) (d), Stats. This subsection reflects a legislative intention both to preserve the cy pres doctrine and also to apply it even though the gift to the charity is not expressly in trust. This subsection provides as follows:
"Where the fulfillment of the special purpose expressed in a trust or other gift for charitable or public purposes is or becomes impracticable, impossible or unlawful, it shall be the duty of the courts by a liberal construction of the trust or gift to ascertain the general purpose of the donor and to carry it into effect in the nearest practicable manner to the expressed special purpose; provided, however, that the right of visitation of a living donor shall not be held to be impaired by anything contained in this subsection."
We do not believe that a bequest to a charity must fail when those purposes are clearly evidenced and there is in existence an identifiable beneficiary whose charitable or public program and goals are reasonably close to those expressed by or attributable to the testator. Cy pres remains a sound and useful doctrine. We expressly withdraw the statement quoted above from the Tharp Case; we also consider as no longer controlling those cases which reject judicial cy pres as applied to charitable bequests.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645360/ | 994 So.2d 1104 (2008)
BROOKS
v.
STATE.
No. SC08-104.
Supreme Court of Florida.
September 10, 2008.
Decision without published opinion. Rev.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922399/ | 254 B.R. 253 (2000)
In re AQUARIUS DISK SERVICES, INC., Debtor.
No. 99-53928-MM.
United States Bankruptcy Court, N.D. California.
October 6, 2000.
*254 *255 Susan Sutton, The Sutton Law Group, San Jose, CA, for Don Carr and Lonne Carr.
Judith S. Suelzle, Attorney at Law, Cupertino, CA, for Mohamed Poonja, Chapter 7 Trustee.
OPINION
MARILYN MORGAN, Bankruptcy Judge.
I. INTRODUCTION
Don and Lonne Carr seek relief from the automatic stay in order to liquidate their claim and obtain a judgment against Aquarius Disk Services, Inc. ("Aquarius Disk") arising from a disputed lease agreement. They also request relief to enforce a prepetition attachment lien by executing on a writ of attachment. Specifically, execution would include turnover by the chapter 7 Trustee of levied funds and authority for the Carrs to collect Aquarius Disk's receivables.
This case presents an issue not yet resolved by the Ninth Circuit: Whether and under what circumstances a prejudgment attachment lienholder may obtain relief from the stay to perfect by judgment an interest in property seized under a writ of attachment. In its most recent decision regarding prejudgment attachment liens, the Ninth Circuit anticipated the issue, but left its resolution for another day. See Diamant v. Kasparian (In re Southern California Plastics, Inc.), 165 F.3d 1243, 1247-48 (9th Cir.1999).
For the reasons set forth below, relief from the automatic stay is granted to allow the Carrs to liquidate their claim in state court. If the Carrs are successful in obtaining a judgment, however, enforcement against the estate by executing on the writ is prohibited, absent further order.
II. BACKGROUND
In 1997, the Carrs and Aquarius Disk entered into a lease of the Carrs' commercial real property. The lease extended for the term from November 1997 through September 2007 and required monthly rental payments of $25,244.56. Aquarius Disk never took possession of the premises. It contends that it entered into the lease while its attorney was unavailable, in reliance on the Carrs' assurances that they would not enforce the lease if it did not receive attorney approval. The Carrs dispute this assertion. Aquarius Disk's attorney later determined that the lease was unacceptable for reasons not in the record. Although Aquarius Disk sought rescission, the Carrs refused to release it from the lease.
The Carrs sued Aquarius Disk and two of its officers in the Santa Clara County Superior Court, alleging breach of contract and fraud. The Carrs sought damages in the amount of $1,500,000 for improvements and unpaid rent. In July 1998, the Carrs obtained an ex parte prejudgment writ of attachment on all of Aquarius Disk's equipment, inventory, accounts receivable, and deposit accounts. California law provides *256 a defendant with an opportunity to contest a writ and affords expedited hearings for motions to quash ex parte writs of attachment. It is unclear from the record whether Aquarius Disk exercised its right under California law to a hearing to challenge the issuance of the writ. Pursuant to the writ, in July 1998, the Santa Clara County Sheriff's Department levied on deposited funds totaling $55,092.30.
The parties engaged in settlement negotiations, suspending further prosecution of the litigation. After settlement discussions subsided without resolution, Aquarius Disk filed its chapter 7 petition on June 7, 1999. The Carrs were precluded by the automatic stay from proceeding in the state court action. The Sheriff's Department has since turned over to the chapter 7 Trustee the funds seized pursuant to the writ of attachment.
III. DISCUSSION
A. Under California Law the Carrs' Prejudgment Attachment Lien is an Unperfected, Unsecured Interest.
1. State Law Determines the Nature of a Prejudgment Attachment Lien.
State law determines the validity and effect of liens in the bankruptcy context. Cool Fuel v. Board Equalization (In re Cool Fuel), 210 F.3d 999, 1007 (9th Cir.2000). Under California's Code of Civil Procedure § 485.210, a party may obtain a writ of attachment on an ex parte basis, as the Carrs have done in this case. In order to obtain the writ ex parte, the Carrs were required to establish the probable validity of their claim and that great or irreparable harm would result absent relief. Once the writ issued, the Sheriff's levy created an attachment lien on the property from the time of the levy until three years from the date the writ was issued. Following levy, an attachment lien has priority over any subsequent liens. A judgment arising from the same claim relates back to the date of the attachment lien, so that the attachment lien acts as a placemarker, ensuring the creditor's place in the priority line. See generally CAL.CIV. PROC.CODE chapters 485, 488 (1979 & West Supp.2000); see also 6 WITKIN, CALIFORNIA PROCEDURE, PROVISIONAL REMEDIES § 152 (3d ed.1985).
Perfection of an attachment lien occurs when the creditor obtains a judgment in the underlying action. See United States v. Security Trust & Savings Bank of San Diego, 340 U.S. 47, 50, 71 S.Ct. 111, 95 L.Ed. 53 (1950), superceded by statute as stated in In re Estate of Romani, 547 Pa. 41, 688 A.2d 703 (1997), aff'd, 523 U.S. 517, 118 S.Ct. 1478, 140 L.Ed.2d 710 (1998); Arcturus Mfg. Corp. v. Superior Court, 223 Cal.App.2d 187, 35 Cal.Rptr. 502, 505 (1964), superceded by statute as stated in Waffer Internat'l Corp. v. Khorsandi, 69 Cal.App.4th 1261, 82 Cal.Rptr.2d 241 (1999). A prejudgment, unperfected attachment lien, such as the Carrs', has been described as a contingent, inchoate, or potential right. See Security Trust, 340 U.S. at 50, 71 S.Ct. 111; Southern California Plastics, 165 F.3d at 1246; Bass v. Stodd, 357 F.2d 458, 464-65 (9th Cir.1966); Puissegur v. Yarbrough, 29 Cal.2d 409, 175 P.2d 830, 831 (1946).
While inchoate, an attachment lien differs from a mere unperfected interest in that it is not subject to a trustee's avoidance powers under §§ 544 and 547 if created outside the preference period. The Ninth Circuit has held that an attachment lien which has not been perfected by an underlying judgment is nonetheless not vulnerable to a trustee's avoidance powers. See Federal Deposit Insur. Corp. v. Jenson (In re Jenson), 980 F.2d 1254 (9th Cir.1992); Wind Power Systems v. Cannon Financial Group (In re Wind Power), 841 F.2d 288 (9th Cir.1988). Once the attachment creditor reduces its claim to judgment, the lien cannot be defeated by a subsequent judicial lien creditor. Southern California Plastics, 165 F.3d at 1246. The reason for the first lien's fortitude is *257 that the judgment relates back to the date of the attachment lien and has priority in time.
In Wind Power v. Cannon Financial Group, the Ninth Circuit held that the trustee could not avoid a California prejudgment attachment lien even though it was unperfected by judgment at the time the petition was filed. 841 F.2d at 292-93. The basis for the court's ruling was that the attachment lien related back to the date the temporary protective order was granted outside the preference period. The court did not decide whether the unperfected lien should be treated as secured, but noted its disagreement with other cases that had treated liens as unsecured under similar circumstances.
In Federal Deposit Insurance Corporation v. Jenson, the Ninth Circuit ruled that a Nevada prejudgment attachment lien need not be perfected by the petition date to be later treated as a secured claim. 980 F.2d at 1258. Nevada law, like California law, provides for relation back of a perfected attachment lien. Jenson differed from Wind Power because the creditor was in fact able to obtain a judgment in the underlying action during the pendency of the bankruptcy case. In that case, the federal district court presiding over the underlying litigation referred the trial of the matter to the bankruptcy court upon the agreement of the parties. The Ninth Circuit noted its willingness to permit attachment lien creditors to proceed to judgment in underlying actions. The court reiterated that, where the creditor prevails, the judgment relates back to the issuance of the writ and is immune from the trustee's strong arm powers pursuant to § 544. Jenson, 980 F.2d at 1259. Accord Wind Power, 841 F.2d at 293.
This caselaw establishes that the Carrs' attachment lien is inchoate. However, it is not vulnerable to the Trustee's avoidance powers because it arose prior to the commencement of the preference period. If perfected by a subsequent judgment in the state court action, the priority of the judgment would relate back to the date of the July 1998 attachment lien.
2. The Requirement of a Judgment for Perfection is Strictly Construed.
After Wind Power and Jenson, both the Bankruptcy Appellate Panel and the Ninth Circuit elaborated further on the nature of attachment liens under California law. Southern California Plastics, 165 F.3d 1243. The creditor in that case obtained a prejudgment attachment lien against the debtor's property, but the debtor filed a bankruptcy petition before the creditor could obtain a judgment on the underlying claim. The creditor filed a proof of claim in the debtor's bankruptcy, listing that portion of the claim based on the prejudgment attachment lien as secured. The bankruptcy court allowed the claim as secured, and the trustee appealed. On appeal, the trustee asserted that the claim was unsecured because the creditor had not yet perfected the lien with an underlying judgment. Because the underlying state court action had been closed, the trustee contended that it was impossible for the creditor to perfect its lien by judgment, and that under these circumstances, the claim must be treated as unsecured.
The Bankruptcy Appellate Panel ("BAP") affirmed the bankruptcy court, rejecting the trustee's argument that in order to perfect the lien, the creditor was required to obtain relief from stay to proceed to judgment. See Diamant v. Kasparian (In re Southern California Plastics), 208 B.R. 178 (9th Cir. BAP 1997), rev'd by 165 F.3d 1243 (9th Cir.1999). It concluded that a judgment in state court was not the exclusive method for perfecting a prejudgment attachment lien for bankruptcy purposes. Instead, it held that the allowance of a claim in bankruptcy was the equivalent of obtaining a judgment in the underlying action and served to perfect the lien. The BAP reasoned that holding otherwise would allow a bankruptcy court to defeat *258 an attachment lien simply by denying relief from stay.
The Ninth Circuit reversed the BAP, concluding that the allowance of a claim in bankruptcy is not the equivalent of obtaining a judgment. See Southern California Plastics, 165 F.3d at 1248. The Circuit agreed with the BAP that a judgment in state court was not the exclusive method for perfecting an attachment lien, recognizing that the underlying judgment could be issued by either a state or a federal court. It nevertheless concluded that differences between the claims allowance process and the procedure for obtaining a judgment, especially differences in the burdens of proof, precluded the claims allowance process from constituting a judgment for perfection purposes. The Court recognized the quandary that it created for the creditor in Southern California Plastics where the underlying state action had been closed. It also recognized that under its holding, bankruptcy courts would be able to defeat attachment liens simply by denying relief from stay. It nonetheless left open the question whether relief from stay should be granted in those circumstances. Unpersuaded that the closing of the state court action left the creditor without a remedy, the Court remanded the matter for further proceedings below.
Following Southern California Plastics, there is no question that the Carrs' claim is unsecured, and their attachment lien is unperfected absent a judgment in the underlying action. Accord In re Posner, 700 F.2d 1243, 1245 (9th Cir.1983), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983). The Carrs are required to perfect their attachment lien to have an enforceable secured claim in the bankruptcy case. Because of the debtor's bankruptcy case and the pending automatic stay, the Carrs must first obtain relief from stay in order to proceed to judgment in the state court action. If relief from the stay is denied, the Carrs may still liquidate their claim by invoking the claims allowance process, but their claim would be treated as unsecured in that circumstance.
B. The Carrs are Entitled to Relief from the Automatic Stay.
1. The Policies Supporting Creditors' Rights Under State Law Conflict With the Policies Underlying the Automatic Stay.
There is no uniformity nationwide as to granting relief from stay in these circumstances because the decisions turn on the various state laws affecting creditor's rights. Courts in other jurisdictions have determined, under other state law, that a prejudgment attachment lien is a secured, perfected interest for purposes of relief from stay. See In re Giordano, 188 B.R. 84, 89 (D.R.I.1995) (under Rhode Island law prejudgment attachment constitutes valid and perfected lien such that relief from stay was appropriate); In re Carlos A. Rivera, Inc., 130 B.R. 377, 383 (Bankr. D.P.R.1991) (same under Puerto Rican law). But see In re Savidge, 49 B.R. 429, 429-30 (Bankr.D.Del.1985) (under Delaware law prejudgment domestic attachment lien not perfected or secured where judgment not obtained at time of bankruptcy filing), aff'd, 57 B.R. 389 (D.Del. 1986), criticized in Wind Power, 841 F.2d at 293. The Giordano and Carlos Rivera courts granted relief from the stay to the creditors on adequate protection grounds. However, in the Ninth Circuit, the only guidance that exists is the Circuit's acknowledgment that under certain circumstances prepetition attachment lien creditors may proceed to judgment. See Wind Power, 841 F.2d at 293; Jenson, 980 F.2d at 1258.
In requesting relief from the stay in this case, the Carrs' motion implicates two fundamental, but competing policies of the bankruptcy system. This case juxtaposes the underlying purposes of the automatic stay against the Bankruptcy Code's respect for state laws that allow creditors to perfect interests by obtaining a judgment.
*259 Section 362(a) of the Bankruptcy Code provides that the filing of a petition invokes a stay that enjoins a broad range of creditor action. Section 362(a)(4) stays "any act to create, perfect, or enforce any lien against property of the estate." The stay arises automatically upon the filing of a petition, but there are exceptions contained in § 362(b). Furthermore, the stay may expire on its own terms as provided in § 362(c), and a party may establish appropriate grounds for terminating, annulling, modifying or conditioning the stay pursuant to § 362(d). The Ninth Circuit has recognized that the automatic stay plays a crucial role in the bankruptcy process, protecting both debtors and creditors. Benedor Corp. v. Conejo Enterprises (In re Conejo Enterprises), 96 F.3d 346, 351 (9th Cir.1996). It gives debtors breathing room from creditors, treats like creditors similarly, and is one of the fundamental debtor protections.
The automatic stay allows the bankruptcy court an opportunity to harmonize the interests of both debtor and creditors while preserving the debtor's assets. In re Gruntz, 202 F.3d 1074, 1081 (9th Cir.2000); MacDonald v. MacDonald (In re MacDonald), 755 F.2d 715, 717 (9th Cir.1985). It also assures that the debtor's other creditors are not racing to various courthouses to pursue independent remedies that would drain the estate's assets. Gruntz, 202 F.3d at 1081; Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755-56 (9th Cir.1995), cert. denied, 519 U.S. 863, 117 S.Ct. 169, 136 L.Ed.2d 111 (1996).
In counterbalance, there is the policy by which "the bankruptcy court rewards the timely and diligent creditor." See In re Wind Power, 841 F.2d at 291. In Wind Power, the Ninth Circuit found that the creditor had shown diligence where it brought its state court action and obtained a prejudgment writ of attachment outside of the preference period and nearly four and half months prior to the debtor's bankruptcy filing. In the instant case, the Carrs brought their state court action outside of the preference period, and obtained their writ of attachment nearly a year prior to the date the debtor filed its bankruptcy petition.
In addition to rewarding diligence, the Bankruptcy Code also accords deference to state law. For example, § 362(b)(3) provides an exception to the stay for "any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee's rights and powers are subject to such perfection under § 546." Under § 546(b)(1), if an interest holder against whom the trustee would have rights still has, under applicable nonbankruptcy law as of the date of the petition, the opportunity to perfect its lien against an intervening interest holder, then the lien may be perfected against the trustee. The purpose of § 546(b) is to "protect, in spite of the surprise intervention of a bankruptcy petition, those whom State law protects by allowing them to perfect their liens or interests as of an effective date that is earlier than the date of perfection." S.Rep. 989, 95th Cong., 2d Sess. 86-87 (1978); H.R.Rep. No. 595, 95th Cong., 1st Sess. 371-72 (1977), U.S.Code Cong. & Admin.News, 5787, 6327-28.
Section 546(b) mandates an alternative to seizing property or commencing a lawsuit to perfect or to continue perfection of an interest. Instead, it substitutes notice to the trustee as the exclusive means for perfection or continuation of perfection. In re Baldwin Builders, 232 B.R. 406, 411-13 (9th Cir. BAP 1999). However, §§ 546(b) and 362(b)(3) do not apply to this case since § 546(b)(2)(B) by its terms applies only to property that has not been seized and where an action has not been commenced before the petition date. See In re Savidge, 57 B.R. 389, 390 (D.Del.1986) (unperfected writ of domestic attachment lien is not type of "interest in property" subject to § 546(b)). Although § 546(b) does not apply to the continuation *260 of pending actions as in this case, the legislative purposes and the policies underlying those sections must be taken into consideration in any analysis of whether relief from the stay is appropriate.
2. The Carrs Meet the Standard for Relief from the Automatic Stay.
After balancing the competing policies under the facts of this case, I am persuaded that the policies supporting state law creditors' rights prevail. The objectives of treating like creditors similarly and deterring the race to the courthouse are simply not served by denying relief from the automatic stay under these circumstances. The Carrs are unlike other unsecured creditors because they hold an unavoidable attachment lien. The diligence exhibited in enforcing their state law remedies separates them from other unsecured interests. While the automatic stay dissuades creditors from racing to the courthouse, this policy applies only to races that occur within the preference period.
While the Bankruptcy Code does not preclude granting relief from the automatic stay in this case, it is still the Carrs' burden to establish that relief would be appropriate. As unsecured creditors, the Carrs are not entitled to relief from stay on the basis of lack of adequate protection. See In re Microwave Products of America, Inc., 94 B.R. 967, 970 n. 10 (Bankr. W.D.Tenn.1989). The issue then becomes whether other cause exists to warrant relief from the automatic stay. There is no clear definition for what constitutes cause for relief from stay, rather, it is determined on a case-by-case basis. See Conejo, 96 F.3d at 352; MacDonald, 755 F.2d 715, 717 (9th Cir.1985).
Cause, based on a balancing of factors, may warrant allowing a litigant to continue to pursue pending state court litigation against a debtor. See In re America West Airlines, 148 B.R. 920, 923 (Bankr.D.Ariz. 1993). The Ninth Circuit Bankruptcy Appellate Panel has cited with approval America West Airlines, which identified various factors a court may consider in deciding whether cause exits to lift the stay to allow a creditor to proceed with pending litigation. Id. at 923, cited with approval in In re Santa Clara County Fair Ass'n, 180 B.R. 564, 567 (9th Cir. BAP 1995).
Under the circumstances of this case, a review of the America West factors supports permitting the Carrs to continue prosecution of the state court action. One factor the Court must consider is public policy, which in the instant case favors allowing an attachment creditor to proceed to judgment on its claim. In Wind Power, the Ninth Circuit referred to "a strong line of cases in this court allowing prepreference creditors to proceed to judgment." 841 F.2d at 293 (citing In re LaFortune, 652 F.2d 842 (9th Cir.1981) (foreclosure sale pursuant to judgment lien not avoidable); Bass v. Stodd, 357 F.2d 458 (9th Cir.1966) (attachment lien not avoidable); Metcalf Bros. v. Barker, 187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122 (1902) (same)). To hold otherwise would provide an incentive for a strategic bankruptcy filing that would distort priorities among creditors from what would exist outside bankruptcy proceedings. Wind Power, 841 F.2d at 293.
Judicial economy also would be served by continuing litigation in the forum in which it has been pending since July 1998, thereby preserving resources that have been expended to date. The presence of other non-debtor parties in the litigation, and the risk of inconsistent results, also support granting relief from the stay. While the bankruptcy court has jurisdiction and the expertise to determine the substantive merits of the litigation, these claims are based solely on state law. That the Carrs were required to establish the probable validity of their claim in order to obtain the prejudgment writ of attachment suggests that they likely will succeed on the merits. Denying relief would in effect terminate an action against the debtor that *261 the Santa Clara County Superior Court has determined to be meritorious.
Lastly, the Carrs' claim must be liquidated in any event. The bankruptcy claims allowance procedure does not afford the Carrs the same rights they would have under state law. Their claim is at risk of being relegated permanently to unsecured status by the bankruptcy filing. Consideration of these factors militate in favor of granting relief to the Carrs to proceed to judgment in the state court action.
IV. CONCLUSION
The circumstances of this case warrant granting relief from the stay for cause pursuant to § 362(d) for the limited purpose of allowing the Carrs to liquidate their claim in the pending state court action. The Trustee shall retain possession of the levied funds and may continue to collect the estate's receivables until further order of the Court. Further relief is required before the Carrs may proceed with the enforcement of any judgment obtained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739562/ | 111 F.3d 137
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.Mary BYUN, an individual, Plaintiff-Appellant,v.NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee.
No. 96-55000.
United States Court of Appeals, Ninth Circuit.
Submitted April 7, 1997.*Decided April 22, 1997.
1
Before: O'SCANNLAIN and TASHIMA, Circuit Judges; WHALEY,** District Judge.
2
MEMORANDUM***
3
Mary Byun appeals an order of the district court granting summary judgment to New York Life Insurance Company ("New York Life") in this diversity jurisdiction suit to collect on her husband's two life insurance policies. The facts are known to the parties.
4
Byun raises two issues on appeal. First, she argues that the district court erred in applying California law by failing to require New York Life to demonstrate that her husband had the requisite intent to commit suicide. Secondly, she contends that she has raised genuine issues of material fact that preclude summary judgment in this case. Each contention will be dealt with in turn.
5
In order to enforce a suicide exclusion under California law the life insurance company has the burden of proving that death was caused by suicide. Searle v. Allstate Life Insurance Company, 696 P.2d 1308, 1315-1316 (Cal.1985). As part of this burden, the insurance company must demonstrate that the decedent committed an act of self-destruction with the intent of committing suicide; that is, that he "understood the physical nature and consequences of the act." Id. at 1315. Mrs. Byun argues that New York Life has not met this burden, and that she has presented sufficient evidence to raise a genuine issue regarding her husband's intent.
6
However, the evidence Mrs. Byun points to in support of her argument is not relevant to the legal question of intent. She relies on declarations and testimony that would indicate that Mr. Byun lacked a motive to commit suicide, but none which address the legal question of suicidal intent.
7
In regards to suicidal intent, New York Life has met its burden by introducing evidence showing that Mr. Byun was not mentally ill, was not under the influence of drugs or alcohol, and therefore understood the physical nature and consequences of his act when he shot himself. In addition, they introduced overwhelming evidence that his death was caused by suicide. None of Mrs. Byun's proffered evidence addresses nor contradicts the evidence upon which New York Life relies.
8
Secondly, Mrs. Byun argues that she has raised a genuine issue of material fact by pointing to the declaration of a witness who believed that she had seen Mr. Byun arguing with someone in his van several hours before his death. However, she does not indicate the relevance of this evidence in light of the overwhelming physical evidence that Mr. Byun killed himself.
9
Summary judgment is proper where the record taken as a whole could not lead a rational jury to find for the non-moving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Here the record includes the results of three separate investigations all concluding that Mr. Byun had committed suicide, and Mrs. Byun herself indicated that suicide was the cause of death on the insurance claim forms. Mrs. Byun has failed to bring forth any evidence that would allow a rational factfinder to rule in her behalf.
10
As the district court did not err in granting summary judgment, the order is AFFIRMED.
*
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4
**
The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1645634/ | 9 So. 3d 619 (2009)
MARTIN
v.
STEVENS.
No. 1D09-1549.
District Court of Appeal of Florida, First District.
May 21, 2009.
Decision without published opinion. Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441313/ | 972 S.W.2d 483 (1998)
John R. STRADFORD, Respondent,
v.
Vickey L. CAUDILLO, Appellant.
No. WD 54716.
Missouri Court of Appeals, Western District.
May 5, 1998.
Motion for Rehearing and/or Transfer to Denied June 30, 1998.
Application for Transfer Denied August 25, 1998.
*484 Richard F. Modin, Kansas City, for Appellant.
Dennis J.C. Owens, Kansas City, James W. Thompson, Raymore, for Respondent.
Before HOWARD, P.J., and BRECKENRIDGE and SPINDEN, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 1998.
HOWARD, Presiding Judge.
Vickey Caudillo appeals from the trial court's denial of her motion to set aside the default judgment against her pursuant to Rule 74.05 V.A.M.R. Caudillo raises two points on appeal. First, she contends that the trial court erred in failing to hold an evidentiary hearing on her motion. Second, she contends that the trial court erred in denying her motion because she showed good cause and she had a meritorious defense.
Affirmed.
Facts
On July 12, 1995, Vickey Caudillo lost control of her car when she slammed on her brakes trying to avoid cars in front of her. When she applied the brakes, her car went sideways into the lane in which John Stradford was driving. Caudillo's car collided with Stradford's pickup truck. The police report listed under "probable contributing circumstances" inattention by Caudillo. Both cars required repairs.
On September 16, 1996, Stradford filed a petition for damages, which was served upon Caudillo. However, Caudillo did not file an answer or any other responsive pleading. Caudillo failed to notify an attorney or her insurance company of the fact that she had been sued.
Long after the time to file an answer had passed, Stradford moved for an interlocutory order of default. On February 26, 1997, the circuit court granted the interlocutory default. A hearing concerning the issue of Stradford's damages was scheduled for March 10, 1997. Notice of that hearing and a copy of the interlocutory order were sent to Caudillo by certified mail on February 28, 1997.
On March 10, 1997, the hearing on damages was held. Stradford appeared, but Caudillo did not. At the hearing, Stradford testified as to the circumstances involving the collision, his injuries, subsequent medical treatment, and damages. Stradford testified that he initially did not have extreme pain. However, within a week of the accident, his back symptoms steadily progressed, and the suffering increased. He sought treatment from Dr. Mary Ricky, a chiropractor. He also sought treatment from Dr. Gracheck, a medical doctor. He received shots of painkilling medication and a prescription from *485 Dr. Gracheck. Despite the treatment from the two doctors, Stradford's pain persisted. Stradford then had an MRI performed on his back. The results of the MRI showed that he had a herniated disk and a bulging disk in the lower part of his back.
Stradford went to Dr. Edwin MacGee, a neurologist, for help. Dr. MacGee administered three epidural block treatments. Stradford testified that the blocks initially relieved the pain, but it returned shortly thereafter. Dr. MacGee performed a myelogram on Stradford's back in January 1996. From the results, Dr. MacGee recommended that Stradford have surgery. However, Stradford could not afford the surgery and has had to continue living with the pain.
Stradford is 41 years old and a concrete finisher by trade. He testified that a person in that profession made approximately $25.00 per hour. Prior to the accident, he had an income of $35,000.00 per year. Stradford testified he had lost approximately $25,000.00 in wages over the past year from his injuries.
The trial court awarded a judgment of $300,000.00 plus costs in Stradford's favor on March 13, 1997. Caudillo filed a motion to set aside the default judgment pursuant to Rule 74.05 on July 12, 1997. Stradford filed suggestions in opposition to the motion to set aside the default judgment on July 21, 1997. Caudillo filed a second set of suggestions in support of the motion on July 23, 1997. On July 29, 1997, the circuit court issued its order denying Caudillo's motion to set aside the default judgment. This appeal followed.
Point I
Caudillo's first point on appeal is that the trial court erred in refusing to hold an evidentiary hearing on her Rule 74.05 motion. Entitlement to an evidentiary hearing on a motion to set aside a default judgment depends on meeting the pleading requirements of Rule 74.05.[1]Bredeman v. Eno, 863 S.W.2d 24, 25 (Mo.App. W.D.1993). Under the explicit terms of Rule 74.05(d), a motion to set aside a default judgment must state facts constituting both a meritorious defense and good cause for the default. Id. For reasons that are discussed under Point II, it is our opinion that the trial court reasonably found that Caudillo's motion did not state facts constituting good cause. Therefore, Caudillo did not meet the pleading requirements of Rule 74.05(d), and she was not entitled to an evidentiary hearing.
Point II
Caudillo's second point on appeal is that the trial court erred in denying her motion because she showed good cause and she had a meritorious defense. Under Rule 74.05, a default judgment may be set aside upon a motion stating facts constituting a meritorious defense and for good cause shown. State ex rel. DFS v. Sutherland, 916 S.W.2d 818, 821 (Mo.App. W.D.1995). The trial court has the discretion to set aside a default judgment, and the trial court's decision in that regard will generally not be interfered with unless the record convincingly indicates an abuse of discretion. Id. However, the discretion not to set aside a default judgment is a good deal narrower than the discretion to set one aside, with the result that appellate courts are more likely to interfere when the trial court has denied such a request. Id.
In Great Southern Savings & Loan Association v. Wilburn, 887 S.W.2d 581, 584 (Mo. banc 1994), the Missouri Supreme Court applied the standard of Rule 74.05(d) and stated the rule to be that "[a] defaulted defendant shows good cause by proving that he or she did not recklessly or intentionally impede *486 the judicial process." In Great Southern, the court considered the trial court's denial of a motion to set aside a default judgment against two guarantors, Dan and Karen Wilburn, for $487,662.89, plus $14,000.00 in attorney fees. Id. at 583. By the end of her answer period, Karen Wilburn had hired an attorney who was trying to contact opposing counsel. Id. at 584. On the first possible morning, the trial court entered a default judgment against her. Id. Karen then moved promptly to set that judgment aside. Id. The Supreme Court found that the trial court erred in entering the default judgment against Karen. Id. Conversely, the Supreme Court found that the trial court did not err in overruling Dan Wilburn's motion to set aside the judgment. Id. The default judgment was entered on the fifth day after Dan's answer was due, and Dan had failed "even to hire a lawyer" by the end of his answer period. The Supreme Court held that on these facts, the trial court could have reasonably concluded that Dan recklessly or intentionally impeded the judicial process. Id.
In Robson v. Willers, 784 S.W.2d 893, 896 (Mo.App. W.D.1990), one of the appellants in an action to set aside the trial court's default judgment asserted as his excuse for failure to answer and appear that he paid no attention to the summons because he was busy, had family troubles and did not understand the meaning of a default judgment. The other appellant said she ignored the summons directed toward her because she had not had anything to do with the funds in question and did not understand the summons. Id. We held that the appellants' reasons for failing to answer and appear did not constitute good cause. Id. While we applied a negligence standard rather than a recklessness or intentional standard in that case, in a subsequent case we found that the conduct of the appellants in Robson, which amounted to a conscious choice to ignore the summons, could accurately be called recklessness. Bell v. Bell, 849 S.W.2d 194, 198 (Mo.App. W.D. 1993); see also Myers v. Pitney Bowes, Inc., 914 S.W.2d 835, 839 (Mo.App. S.D.1996) (the conduct of appellants in Robson amounted to a conscious choice to ignore the summons which amounted to recklessness).
As in Great Southern and Robson, the facts in this case indicate that Caudillo's conduct was recklessly designed to impede the judicial process. The default judgment was not entered until several months after Caudillo's answer was due, and Caudillo did not hire a lawyer until months after her answer period had ended. Caudillo offered several reasons for not participating in the proceeding. Her reasons included being a single parent of four children, not realizing that she could turn the matter over to her insurance company, worries about being laid off at her job, and the fact that she had no insurance, no money, and no attorney. Caudillo also suggested she did not participate in the proceeding because she did not believe the accident caused injury to Stradford and she did not believe the court would award Stradford such a high amount of damages. However, the trial court did not find that Caudillo's circumstances showed good cause for completely ignoring a judicial proceeding, and neither does this Court. When a litigant chooses to ignore or act in reckless disregard of the rules and procedures set out for the orderly administration of the judicial process, he cannot then be heard to complain when he receives no relief under its rules, particularly Rule 74.05(d). Crowe v. Clairday, 935 S.W.2d 343, 347 (Mo.App. S.D.1996).
Because we find that Caudillo did not show good cause, there is no need to discuss whether her motion stated facts constituting a meritorious defense. Brants v. Foster, 926 S.W.2d 534, 535 (Mo.App. W.D.1996).
The judgment of the trial court is affirmed.
All concur.
NOTES
[1] Rule 74.05 was amended in 1993. As a result, the former subsection c is the current subsection d. Rule 74.05(d) provides as follows:
Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney's fees and expenses incurred as a result of the default by the party who requested the default. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441315/ | 972 S.W.2d 906 (1998)
Rebecca L. CAMP, Appellant,
v.
Mary E. CAMP, Appellee.
No. 13-97-092-CV.
Court of Appeals of Texas, Corpus Christi.
July 9, 1998.
*907 Robert N. Carnahan, Corpus Christi, for Appellant.
Donald B. Dailey, Jr., Portland, for Appellee.
Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.
OPINION
YANEZ, Justice.
Rebecca Camp (hereinafter "Rebecca") appeals a summary judgment denying her the proceeds of her deceased husband's term life insurance policy. By one point of error, Rebecca alleges the trial court erred in applying the "inception of title" rule to award the life insurance proceeds to the beneficiary named in her husband's policy, which was purchased before his marriage to Rebecca. We affirm.
John Camp (hereinafter "John") received the life insurance policy at issue as an employment benefit while he was still single and without children. He named his mother, Mary E. Camp (hereinafter "Mary"), beneficiary of the policy. He did not change the insurance policy's beneficiary designation to wife Rebecca after they were married. Premiums from the policy were paid from John's employment earnings during the years of his marriage to Rebecca until his death in 1996.
On October 22, 1996, Rebecca petitioned the court for a declaratory judgment against Mary as to the ownership of the term life insurance policy. She claimed John's failure to name her as beneficiary under the policy constituted a constructive fraud on the community estate. She also requested attorneys' fees.
On November 26, 1996, Mary Camp filed a motion for summary judgment, wherein she argued that because all premiums of the life insurance policy were paid by John Camp's employer, no funds from the Camp community ever were actually expended to make any premium payments on the policy. She argued that because the policy was purchased before John married Rebecca, it is his separate property and she, as beneficiary, is now entitled to the entire proceeds of the policy. On this same date, Mary also filed a counterclaim for declaratory relief and attorneys' fees. By her response to the summary judgment motion, Rebecca argued there are "numerous disputed issues of material fact" which would preclude summary judgment. She alleged these facts in the written response, and attached a supporting personal affidavit in support of the allegations.
*908 On January 23, 1997, the court issued a partial summary judgment favoring Mary Camp. Citing the inception of title rule, the court found as follows: John Camp's life insurance policy is his separate property; it is a community asset which can be described as income; and Mary Camp, as beneficiary of the policy, is entitled to its entire proceeds, less reasonable reimbursement for the amount of community interest in the value of the life insurance premiums to Rebecca Camp.
On January 31, 1997, the court issued a final judgment in the cause, ordering that Mary Camp is entitled to the $35,000 proceeds of the life insurance policy, less $1568.88 to Rebecca Camp for the value of her community interest in the life insurance premiums.
In reviewing a summary judgment, the central inquiry is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the plaintiff's causes of action. Tex.R. Civ. P. 166a; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). The burden of proof is on the movant, and all doubts regarding material facts are resolved against the movant. Nixon, 690 S.W.2d at 548-49. Grounds supporting or opposing a summary judgment must be raised in the motion or written response to the motion before the trial court renders judgment. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). As the rules of civil procedure provide, "[i]ssues not expressly presented to the trial court by written motion shall not be considered on appeal as grounds for reversal." TEX.R. CIV. P. 166a(c). If a non-movant fails to present any answer or response to the summary judgment motion, the movant has not thereby established its entitlement to summary judgment; thus, on appeal the non-movant may challenge the legal sufficiency of the order, but is limited to this challenge. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 343 (Tex.1993).
By her sole point of error, Rebecca Camp claims the trial court erred in granting summary judgment, on the ground that it was not supported by "established Texas law." Rebecca makes two specific arguments in her brief: (1) John's failure to designate her as beneficiary constituted a "fraud on the community," and (2) because no cash value accumulates under a term life policy, application of the inception of title rule to this case is inapposite. Rebecca's response to Mary's summary judgment motion did not present either of these grounds in opposition to Mary's motion. The response only alleged "numerous disputed issues of material fact," to wit: during the marriage John Camp overcame an alcohol problem; their three children were hers from a previous marriage; she believed his failure to change beneficiary status of the disputed life insurance policy was mere oversight; because community funds were expended toward this policy, the proceeds are a community asset; when an agent for another insurance policy notified John that he still listed his mother as beneficiary, he immediately changed the beneficiary designation of that policy to Rebecca; his one other life insurance policy, worth $2500, named Rebecca beneficiary; they accumulated many debts during the marriage and lived paycheck to paycheck; while she (Rebecca) was admitted to the hospital for surgery, John hanged himself in a closet but left a suicide note saying how much he loved her and the children; she is now attempting to support the family on the basis of Social Security benefits and by babysitting in her home; funeral and other expenses remain unpaid; Mary Camp is gainfully employed. Thus, because Rebecca did not act to place her opposition to the motion in relation to her claim of recovery squarely before the trial court, it may be that neither of the grounds Rebecca wishes to argue on appeal were preserved for review. But because they arguably are legal sufficiency challenges to the grounds for summary judgment presented by Mary, we will assess them as such "in the interest of justice."
Mary contended that the inception of title rule[1] governs the disposition of this *909 case, i.e., because John acquired title to the insurance policy before his marriage to Rebecca, it is his separate property and his designation of his mother as beneficiary stands. It is undisputed that John acquired title to the insurance policy through his employment compensation prior to his marriage to Rebecca and that Mary is the named beneficiary. Texas case law supports the conclusions that the policy was his separate property with his wife entitled to reimbursement for her share of the premiums paid with community funds (John's earnings during the marriage). Cf. McCurdy v. McCurdy, 372 S.W.2d 381, 383-84 (Tex.Civ.App. Waco 1963, writ ref'd) (applying inception of title analysis and determining that proceeds from life insurance issued to husband before marriage and which named his estate as beneficiary belong entirely to his estate with right of reimbursement to community based on premiums paid from community funds during marriage).
Rebecca would argue that, as applied to the instant case, inception of title analysis is inapposite because term life insurance is too ephemeral to constitute property. Unlike other life insurance, she argues, term life insurance does not build up cash value; it merely pays upon the insured's death; thus it would not seem something which John could have acquired as property, especially separate property. Rebecca presents no Texas authority in support of this position. As per the government code, property contemplated by family code provisions relating to the characterization of marital property[2] must be understood to include not only life insurance policies, but also "the effects of life insurance policies." See TEX. GOV'T CODE ANN. § 312.011(13) (Vernon 1988 & Supp. 1998) (requiring a particular definition of property in the construction of Texas codes unless a different meaning is apparent from the context of the code). The undisputed effect of the term life policy John acquired was that it would pay $35,000 to a named beneficiary upon his (John's) death. Thus, even if it does not build up cash value, the term life insurance policy produces a tangible effect, and John's title to it relates back to a time prior to his marriage to Rebecca.
Because the insurance policy was his separate property, moreover, constructive fraud against the community cannot be presumed in relation to the proceeds of the policy (the $35,000). Fraud against the community arises only from a spouse disposing of the other spouse's interest in community property. See Zieba v. Martin, 928 S.W.2d 782, 789 (Tex.App.Hous. [14th Dist.] 1996, no writ); Givens v. Girard Life Ins. Co. of Am., 480 S.W.2d 421, 426 (Tex.Civ.App. Dallas 1972, writ ref'd n.r.e.). Community funds, of course, ultimately were expended toward the insurance policy premiums; but the trial court awarded Rebecca reimbursement for her community interest in the policy premiums.
Accordingly, we hold that the trial court did not err in granting summary judgment in favor of Mary. Rebecca's point of error is overruled.
The judgment of the trial court is AFFIRMED.
NOTES
[1] Community property consists of the property, other than separate property, acquired by either spouse during marriage. TEX. FAM.CODE ANN. § 3.002 (Vernon Pamph.1998). (We will cite to the most recent version of the family code because changes to provisions cited here subsequent to when the facts of this case developed have no bearing on the outcome of the case.) Separate property is that property owned by a spouse before marriage, acquired during the marriage by gift, devise, or descent, or as a recovery for personal injuries sustained during the marriage. TEX. FAM.CODE ANN. § 3.001 (Vernon Pamph.1998). The characterization of property as either "community" or "separate" is determined by the inception of title to the property. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, 532 (1940); Winkle v. Winkle, 951 S.W.2d 80, 88 (Tex.App.Corpus Christi 1997, writ denied). Inception of title occurs when a party first has right of claim to the property by virtue of which title is finally vested. Winkle, 951 S.W.2d at 88; Saldana v. Saldana, 791 S.W.2d 316, 319 (Tex. App.Corpus Christi 1990, no writ) (citing Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471 (1949)).
[2] TEX. FAM.CODE ANN. §§ 3.001 & 3.002 (Vernon Pamph.1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604774/ | 7 So. 3d 1068 (2008)
Troy Edward CONNELL
v.
STATE of Alabama.
CR-06-0668.
Court of Criminal Appeals of Alabama.
May 30, 2008.
Rehearing Denied August 15, 2008.
Certiorari Denied October 31, 2008 Alabama Supreme Court 1071610.
*1073 Angela L. Walker, Foley, for appellant.
Troy King, atty. gen., and Marc A. Starrett, asst. atty. gen., for appellee.
Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania, for amicus curiae National Juvenile Defender Center, South Juvenile Defender Center.
BASCHAB, Presiding Judge.
The appellant, Troy Edward Connell, was convicted of three counts of capital murder for the killing of Steven C. Spears, Jr. ("Steven") and one count of second-degree assault for the assault of Monica Spears ("Monica"), a violation of § 13A-6-21(a)(2), Ala.Code 1975. The murder was made capital because he committed it through the use of a deadly weapon while the victim was in a vehicle, a violation of § 13A-5-40(a)(17), Ala.Code 1975; because he committed it through the use of a deadly weapon fired from a vehicle, a violation of § 13A-5-40(a)(18), Ala.Code 1975; and because he committed it during the course of a first-degree robbery or an attempt thereof, a violation of § 13A-5-40(a)(2), Ala.Code 1975. The trial court sentenced him to imprisonment for life without the possibility of parole on the capital murder convictions and to serve a consecutive term of ten years in prison on the assault conviction. The appellant filed a "Motion to Hold Sentence of Life Without Parole Unconstitutional as Applied to Juvenile Defendant and To Resentence the Defendant," which the trial court summarily denied. This appeal followed.
Monica testified that she was married to Steven; that they attended a party on the evening of December 10, 2004, and started driving home around 11:00 p.m.; and that they stopped around 11:10 p.m. or 11:15 p.m. to get a drink and continued toward their home. She also testified that, while they were on Highway 139 at approximately 11:30 p.m., a vehicle drove up behind them quickly and appeared to have its bright lights on; that Steven slowed down several times, and the vehicle eventually tried to pass them; that, as the vehicle got beside their vehicle, she "heard a boom," and their vehicle started slowing down; that she saw that the vehicle's window had *1074 been shattered and Steven had his head down; that their vehicle came to a stop and was partially on the road and partially on the side of the road; and that she checked Steven and realized he had been shot. (R.406.)
Monica testified that she telephoned 911 and then flagged down a red sport utility vehicle; that she approached the passenger side of the vehicle, and the passenger side window was down; that she could see the driver, the passenger, and a third person in the back seat; that she told them what happened and asked for help; and that she got back into her own vehicle and telephoned 911 again. She also testified that the driver of the other vehicle approached Steven, and the passenger approached her; that she felt something hit her face and saw blood dripping; that she looked up and saw that the passenger was hitting her with a chain; that, as the passenger continued to hit her, she stepped out of her vehicle and tried to fight back; that she looked at the driver and Steven and saw the driver pull Steven part of the way out of the vehicle and take his wallet; that the driver and passenger got back into their vehicle and drove away; and that she telephoned her father for help. She further testified that Jimmy Lamar Killingsworth, Jr., was the person who was driving the red sport utility vehicle and who took Steven's wallet and that the appellant was the passenger in the sport utility vehicle who attacked her with a chain.
Brown Bolding, Monica's father, testified that Monica telephoned him at about 11:30 p.m. on December 10, 2004; that she asked him to come and help her; and that he went to the scene and discovered that Steven was dead.
Justin Killingsworth, Lamar's cousin, testified that Lamar came to his residence at approximately 4:00 a.m. on December 11, 2004; that Lamar telephoned the appellant; and that the appellant picked him up about twenty minutes later in a red Tahoe sport utility vehicle.
James Lee, the appellant's uncle, testified that he asked the appellant about the allegations against him and about what happened. The following occurred during his testimony:
"[LEE:] He told me that Lamar had them stop at a convenience store in Montevallo. Lamar went into the store. Mr. Spears was in the store at the time. Lamar was standing behind the gentleman acting like he was punching him in the back of the head. They leave the store. Troy and Lamar and them leave the store before they leave the store. Lamar has him to go to 139, pull off the shoulder of the road at 25 and 139 and wait on them until they pass by.
"[PROSECUTOR:] So Troy is driving?
"[LEE:] Yes, sir.
"[PROSECUTOR:] What else does he tell you?
"[LEE:] He told me that after they turn on to 139 that Lamar told him, follow them.
"....
"... He told me that Lamar told him and said get up behind them and start blowing the horn.
"....
"... Little Troy said he done that. And then Lamar told him ...
"....
"... Lamar told him, `[F]____ it, pass him.' Then he told me, when they went to pass is when he heard a loud boom. He looked over. He seen Lamar hanging out the window with the gun.
"[PROSECUTOR:] Did he tell you where Lamar was seated?
*1075 "[LEE:] Yes, sir.
"[PROSECUTOR:] Where was Lamar?
"[LEE:] Lamar and Mark had swapped seats when they was at the convenience store.
"[PROSECUTOR:] So Mark is where?
"[LEE:] In the right back side. Lamar was in the right front.
"[PROSECUTOR:] And Troy tells you that he is driving and Lamar does the shooting?
"[LEE:] Yes, sir.
"[PROSECUTOR:] Okay. And he doesn't mention anythinghe didn't mention anything on that date to you that Mark Jones did, did he?
"[LEE:] No, sir.
"....
"[PROSECUTOR:] Did Troy at any time tell you that he was so intoxicated he was passed out and didn't know what was going on?
"[LEE:] No, sir."
(R. 499-501.) Lee also testified that the appellant's vehicle was taken to a body shop and that the appellant stayed in a motel for a few nights shortly after the murder and assault occurred.
Brad Abbott, a coach at Jemison High School, testified that, on December 10, 2004, he and Coach Brent Hubbard were going home from Birmingham; that, around 10:00 p.m. or 10:30 p.m., while they were near Highway 139, a red sport utility vehicle pulled behind them at a high rate of speed and flashed its lights trying to get them to pull over; that they pulled into a church parking lot; and that the other vehicle pulled in at an angle toward the driver's side door, and its passenger side window was down. He also testified that the passenger, who he identified as the appellant, said he thought they were someone else; that they started to pull away, and the passenger asked them where they got their vehicle, as if in an attempt to keep them there; and that they drove away toward Highway 139, and the vehicle followed them, but they eventually lost sight of it.
Mark Jones testified that the appellant and Lamar picked him up shortly after dark on December 10, 2004; that the appellant was driving at that time; that they drove around for a few hours; that the appellant asked him if he wanted to spend the night with him and go hunting the next morning, he agreed, and they went to his house to get a shotgun; that, when he came out of his house, Lamar was in the driver's seat, and the appellant was in the passenger seat; and that he gave the shotgun to the appellant and got into the back seat. He also testified that they drove around for approximately one hour afterward; that they were using cocaine, but did not have enough for three people to get high; that they came to a vehicle and the appellant told Lamar to flash the lights, and Lamar did; that the vehicle pulled into a church parking lot, and the appellant spoke to the men in the vehicle; that the vehicle started driving away, and the appellant tried to stop it, but it drove away; and that they followed the vehicle for approximately one mile.
Jones testified that they saw the Spears' vehicle, and the appellant told Lamar to speed up and catch it; that they got very close to the Spears' vehicle, and the appellant told Lamar to speed up and act like he was going to pass it; that the appellant got a shell out of the console and loaded the shotgun; that the appellant rolled down the window and shot into the Spears' vehicle; and that, afterward, the appellant told Lamar to turn around and go back. He also testified that Lamar pulled behind the Spears' vehicle; that Monica approached *1076 their vehicle and asked for help and then returned to her vehicle; that Lamar told the appellant to take care of Monica while he got the wallet; that the appellant got a chain out of the console, went to Monica's vehicle, and started hitting her with the chain; that Lamar took the wallet from Steven, told the appellant he had the wallet, and said, "`[L]et's go'"; and that they got back into the vehicle and took the money out of the wallet. (R. 640.) He further testified that they threw out the chain and the wallet; that they went to Birmingham to buy more cocaine; and that the appellant and his mother later told him they would get rid of the shotgun.
Jones admitted that he had previously made a statement in which he said that Lamar had borrowed the appellant's vehicle and returned and told the appellant he had killed someone in it. However, he testified that he made the statement over the telephone from the appellant's mother's house and that the appellant and his mother were present when he made the statement and had told him to tell the story he told.
On December 20, 2004, the appellant made a statement in which he said that he, Jones, and Lamar drove around in his red Tahoe on the afternoon of December 10, 2004; that they went to Rodney Scurlock's house around 9:00 p.m.; that, around 11:00 p.m., he gave Lamar the key to his vehicle, and Lamar, Rodney, and someone named Matt left in the vehicle to get beer; that, as they were leaving, he noticed that Rodney had a sawed-off shotgun; and that he and Jones stayed at Rodney's house. He also stated that Lamar, Rodney, and Matt returned around midnight; that Lamar told him he had killed someone in his truck and apologized for having done so; that Lamar appeared to have blood on his shirt; and that he and Jones left and arrived at his house around 12:30 a.m. The appellant further stated that Lamar telephoned them around 2:00 a.m. and that they took him to his uncle's house and then took him home a few minutes later. Finally, he stated that, during that time, Lamar said he could not believe he shot someone; that he was sorry for having done so; that he drove beside a vehicle, shot a man, drove further down the road, and turned around and returned to the vehicle he had shot into; and that Rodney beat the woman who was riding in the vehicle with a chain.
Finally, the State presented evidence that the appellant's palm print was on the passenger side of the Spears' vehicle and that Steven's wallet was later found in a yard less than two miles from the crime scene.
I.
The appellant's first argument is that his sentence of imprisonment for life without the possibility of parole constitutes cruel and unusual punishment because he was a juvenile at the time of the offense. Specifically, he contends that, in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), the United States Supreme Court determined that it is unconstitutional to sentence a juvenile as an adult and that, therefore, a sentence of imprisonment for life without the possibility of parole for a juvenile such as he is constitutes cruel and/or unusual punishment under both the United States Constitution and the Alabama Constitution.[1]
*1077 In Roper, 543 U.S. at 578, 125 S.Ct. at 1200, the United States Supreme Court addressed the narrow question of whether the death penalty was disproportionate for juveniles and held that "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." The Supreme Court's decision in Roper applies only in limited circumstances, and we are not in a position to expand that decision as the appellant would have us do. See Jones v. State, 946 So. 2d 903 (Ala.Crim.App.2006); Benjamin v. State, 940 So. 2d 371 (Ala. Crim.App.2005). Therefore, the appellant's reliance on Roper is misplaced, and his argument is without merit.
II.
The appellant's second argument is that he was entitled to a jury trial on the issue of his competence to stand trial.
"When a person charged with a crime is before a circuit court, the defendant, the defendant's attorney, or the district attorney may petition for, or the court on its own motion may order, an examination to assist in the determination of the defendant's present mental condition and competency to stand trial."
Rule 11.2(a)(1), Ala. R.Crim. P.
"A motion filed pursuant to this rule shall state facts upon which the mental examination is sought, and such a motion filed by the defendant or the defendant's attorney must include a written demand for a jury in order to preserve the right to a jury in a subsequent competency hearing conducted pursuant to Rule 11.6; see also Rule 11.6(b)(1) and Rule 11.7(c)."
Rule 11.2(c), Ala. R.Crim. P.
"After the examinations have been completed and the reports have been submitted to the circuit court, the judge shall review the reports of the psychologists or psychiatrists and, if reasonable grounds exist to doubt the defendant's mental competency, the judge shall set a hearing not more than forty-two (42) days after the date the judge received the report or, where the judge has received more than one report, not more than forty-two (42) days after the date the judge received the last report, to determine if the defendant is incompetent to stand trial, as the term `incompetent' is defined in Rule 11.1. At this hearing all parties shall be prepared to address the issue of competency."
Rule 11.6(a), Ala. R.Crim. P.
"The circuit court shall notify the defendant, the defendant's attorney, and the district attorney, in writing, of the date and the time of the competency hearing. Unless the defendant or the defendant's attorney files a written demand for a jury trial, pursuant to Rule 11.2(c) or within seven (7) days after the defendant's attorney is notified that the competency issue has been raised by the court or by motion of the district attorney pursuant to 11.2(a), the circuit judge shall determine whether the defendant is competent to stand trial."
Rule 11.6(b)(1), Ala. R.Crim. P.
"Rule 11.6(a) authorizes the circuit court to make a preliminary determination that reasonable grounds exist to conduct a competency hearing, based on the reports submitted by examining psychologists and/or psychiatrists. Authorizing the court to make this initial determination will avoid mandating a competency hearing when reasonable grounds do not exist to doubt the defendant's competency to stand trial, as evidenced *1078 by the reports of the examining psychologists or psychiatrists. While this procedure safeguards valuable court time and resources, it also ensures that the defendant's right to a competency hearing before a judge or jury will be preserved when reasonable grounds exist to doubt the defendant's mental competency.
"After reviewing the reports, if the judge finds reasonable grounds to doubt the defendant's mental competency, the judge must schedule a competency hearing within forty-two (42) days after the date the last report is received."
Committee Comments to Rule 11.6, Ala. R.Crim. P.
We addressed and rejected an argument that was similar to the appellant's in Flowers v. State, 922 So. 2d 938, 945-46 (Ala. Crim.App.2005), as follows:
"Flowers next argues that under Rule 11.6, Ala. R.Crim. P., the circuit court erred in not holding a competency hearing after receiving the report of his mental evaluation from Dr. Robert DeFrancisco.
"At arraignment Flowers entered a plea of not guilty by reason of mental disease or defect, and he requested that he be permitted to undergo a mental evaluation. The circuit court granted the motion, and Flowers was sent to Taylor Hardin Secure Medical Facility, where he was evaluated by a clinical forensic psychologistDr. DeFrancisco. The report completed by Dr. DeFrancisco was filed in the circuit court. The report indicated that Flowers was not mentally incompetent to stand trial and that Dr. DeFrancisco did not believe that Flowers was mentally incompetent at the time of the murder. It was DeFrancisco's opinion that Flowers had no major mental disorder.
"Based on those findings the circuit court did not order a competency hearing. Rule 11.6(a), Ala. R.Crim. P., states, in part:
"`After the examinations have been completed and the reports have been submitted to the court, the judge shall review the reports of the psychologists or psychiatrists and, if reasonable grounds exist to doubt the defendant's mental competency, the judge shall set a hearing not more than forty-two (42) days after the date the judge received the report....'
"This Court in Tankersley v. State, 724 So. 2d 557 (Ala.Crim.App.1998), held that Rule 11.6, Ala. R.Crim. P., does not automatically require a competency hearing. We stated:
"`According to the appellant, he had a right pursuant to Rule 11.6(a), Ala. R.Crim. P., to a competency hearing within 42 days of the receipt of the report of his mental examination.... However, Rule 11.6(a) does not automatically require a competency hearing following the mental examination. Only when the judge finds after a review of the reports that "reasonable grounds exist to doubt the defendant's mental competency" is the judge required to set a competency hearing and that hearing must be held not more than 42 days after the judge receives the report. There is no indication that the trial judge in this case ever found reasonable grounds to doubt the defendant's mental competency. Therefore, the trial judge did not deviate from the procedure outlined in Rule 11.6(a).'
"724 So.2d at 565. As we also stated in Daniels v. State, 621 So. 2d 335 (Ala. Crim.App.1992):
"`Section 15-16-21, Code of Alabama 1975, states:
*1079 "`"If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity...."
"`(Emphasis added.)
"`This section places the initial burden on the trial court to determine whether there are "reasonable grounds" to doubt the accused's sanity. "The trial court is, thus, the `screening agent' for mental examination requests." Reese v. State, 549 So. 2d 148, 150 (Ala.Cr.App.1989). "`It is left to the discretion of the trial court as to whether there is a reasonable or bona fide doubt as to sanity, and thus, whether a further examination is required.'" 549 So.2d at 150. The trial court makes a preliminary determination "without the aid of a jury as to whether reasonable grounds existed to doubt the defendant's competency." Rule 11.3, A.R.Crim. P., Committee Comments.'
"621 So.2d at 337. After reviewing the competency report, the circuit court had no reasonable grounds to question Flowers's competency. Therefore, no hearing was necessary or required by Rule 11.6(a), Ala. R.Crim. P. The circuit court committed no error here."
The following timeline for this case is helpful to an understanding of this issue:
March 9, 2005 The appellant filed a "Notice of Issue Concerning Competency of Defendant,"
requested a jury determination of his competency, and submitted an evaluation
by Dr. Marianne Rosenzweig.
March 22, 2005 The trial court entered an "Order for Outpatient Evaluation of Competency to
Stand Trial Only."
March 24, 2005 The State filed a "State of Alabama's Response to Defendant's Notice of Issue
Concerning Defendant's Competency."
July 25, 2005 The forensic evaluation from Taylor Hardin Secure Medical Facility ("Taylor
Hardin") was filed with the trial court. Among other things, the examiner,
Brent R. Willis, Psy.D., concluded that the appellant was in need of further
evaluation and competency training.
July 28, 2005 The State filed a "Motion for Order of Commitment for Further Evaluation of
Defendant for Competency to Stand Trial and Mental State at the Time of the
Offense" based on Willis' recommendation.
August 10, 2005 The trial court entered an "Order of Commitment for Further Evaluation of
Competency to Stand Trial and Mental State at the Time of the Offense."
December 8, 2005 The trial court entered an "Order for Release from Custody of the Alabama
Department of Mental Health and Mental Retardation."
December 12, 2005 A second forensic evaluation from Taylor Hardin was filed with the trial court.
Among other things, the examiner, Brent R. Willis, Psy.D., concluded that the
appellant was malingering and was competent to stand trial.
July 19, 2006 The appellant filed a "Memorandum on Issue of Right to Jury Trial on
Question of Competency."
July 20, 2006 The State filed a "State's Brief Concerning Troy Connell's Competence To
Stand Trial."
August 9, 2006 Rosenzweig made a second forensic evaluation report.
*1080
August 23, 2006 The trial court entered an "Order for Outpatient Evaluation of Competency to
Stand Trial and Mental State at the Time of the Offense."
September 11, 2006 A third forensic evaluation from Taylor Hardin was filed with the trial court.
The examiner, Dr. Susan D. Gierok, concluded that the appellant was competent
to stand trial.
September 21, 2006 The trial court conducted a hearing to make a preliminary determination as to
whether the appellant was competent to stand trial.
October 18, 2006 The trial court entered an order in which it found that there were not any
reasonable grounds to doubt the appellant was competent to stand trial.
In its order in which it found that there were not any reasonable grounds to doubt the appellant was competent to stand trial, the trial court stated:
"This Court DENIES the Defendant's request for a jury trial on the issue of competence because the Defendant failed to meet his burden of proving `reasonable grounds exist to doubt the defendant's mental competency.' Ala. R.Crim. P. 11.6. Based on the facts and expert opinions presented, in addition to this Court's personal observations of the Defendant, this Court finds that no reasonable grounds exist to doubt whether the Defendant can assist his attorneys with a rational understanding of his legal situation.
"Both State experts found that the Defendant was competent to stand trial and any problems with memory or understanding legal concepts was most likely due to malingering. The Defendant's expert, Dr. Marianne Rosenzweig, initially found that `[o]ther than his low intellectual capacity, I am not aware of any other factors that would interfere with [the Defendant's] ability to function adequately as a criminal defendant.' Dr. Rosenzweig changed her opinion and stated in her second report that the Defendant was incompetent because he was mentally retarded; a determination she did not make in her first report. In an abundance of caution, this Court conducted a hearing to give the Defendant the opportunity to present Dr. Rosenzweig's testimony and the State the opportunity to rebut her testimony. At the hearing, Dr. Rosenzweig opined that the Defendant's alleged mental retardation was due to a possible brain injury and further testing should be conducted to determine whether such an injury existed. Dr. Susan Gierok, the State's neuropsychological expert, testified that the Defendant is competent to stand trial; there is no evidence he suffers from a severe brain injury; and further testing for a possible brain injury would not benefit this Court's competency determination.
"Under Rule 11.1, this Court (or a jury) may find that a Defendant is incompetent to stand trial only `if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.' Under this definition, to be entitled to a jury trial on the question of competence, the Defendant was required to show that `reasonable grounds exist to doubt' whether the Defendant can currently assist and consult with his attorney and whether he possess a rational understanding of the facts and legal proceedings now facing him. Ala. R.Crim. P. 11.6.
"In short, the Defendant attempted to prove reasonable grounds exist to doubt his competence by creating the question of whether he is mentally retarded and *1081 suffers from a severe brain injury. This theory misses the point of Rule 11. The Court of Criminal Appeals has held that `even if a serious mental illness causes a defendant to commit an offense, that defendant may still be competent to stand trial so long as he has sufficient understanding of the proceedings against him and an ability to aid his counsel in preparation for his defense.' Tankersley v. State, 724 So. 2d 557, 565 (Ala.Crim.App.1998). Indeed, Dr. Rosenzweig admitted during the hearing that a person with a low IQ, mental retardation, and/or a brain injury may still be competent to stand trial in a criminal case. In fact, Dr. Rosenzweig testified that a majority of persons who are mentally retarded are competent to stand trial. Consequently, even if this Court were to find `reasonable grounds' exist to believe the Defendant is mentally retarded and has suffered a brain injurywhich this Court does notthe Defendant still would not be entitled to a jury trial on the issue of competency.
"This Court finds no reasonable grounds exist to doubt that the Defendant has a rational understanding of his legal situation. This Court ordered the Defendant be sent to a competency training class. As Dr. Brent Willis reported, the Defendant was `uncooperative' and `did not put forth maximum effort' while taking this class. Upon being told his sessions were being terminated, the Defendant questioned how he could be sent back to jail `since he did not know the court stuff' and that he wanted to call his attorney.
"Regardless, as Dr. Gierok testified, the Defendant has shown the ability to answer competency-related questions when putting forth effort and/or when he is under the belief that it is to his benefit to do so. For example, the Defendant was able to successfully discuss with Dr. Gierok his current charge, possible pleas, the role of witnesses and the jury, and a general understanding of capital murder sentencing. The Defendant told Dr. Gierok `that when simple terminology was used, he was able to understand the information and that he had difficulty understanding the terminology used by his attorney.' During the occasions when the Defendant failed to correctly answer competency-related questions, he has frequently stated that he either does not know the answer or he has simply refused to try. As Dr. Willis stated in his report, the Defendant's on-and-off again ability to answer competency questions was likely `an attempt by Mr. Connell to malinger and avoid eventual prosecution.'
"This Court finds that it is not reasonable to believe that the Defendant does not have a rational understanding of the current legal proceedings. In fact, this Court finds that based on the facts presented and this Court's personal observations, the only `reasonable' explanation for the Defendant's fluctuating ability to understand the current legal proceedings is the opinion given by both State experts: The Defendant is intentionally malingering. Of course, this intentional malingering is further proof the Defendant understands the current legal proceedings and how to use them to his benefit.
"This Court also finds there are no reasonable grounds to doubt that the Defendant can assist his attorneys at trial. This Court has observed Mr. Connell on several occasions in a courtroom setting. Dr. Rosenzweig's opinion that Connell cannot remain calm or focused during trial is unreasonable, as Connell has consistently kept focus during his proceedings thus far; including the six hour hearing on his competency motion. *1082 Most tellingly, this Court observed the Defendant testify at the trial of his co-defendant. At that trial, the Defendant met with substitute counsel for the first time on the day of his testimony; yet, he was able to take cues from his attorney when to answer questions and when not to answer questions. Furthermore, the Defendant appeared to understand each question asked of him and responded correctly to each question he answered. Accordingly, there is no reasonable ground to doubt the Defendant can assist his attorneys in his defense or that the Defendant can maintain a proper demeanor in the courtroom during trial.
"Finally, while mental retardation and brain injuries alone do not provide reasonable grounds to doubt competence for the reasons stated above, this Court briefly addresses each of these defense theories. The Court finds that it is unreasonable to believe the Defendant is mentally retarded based on the facts presented. On his IQ tests administered before his arrest for capital murder, the Defendant garnered full-scale IQ scores of 84, 76, and 69, which refute a finding of mental retardation. It was only after the Defendant's arrest that his IQ scores dropped to 53 and 54. This Court finds that the Defendant's 31-point drop in IQ score does not reasonably prove retardation in the Defendant's cognitive ability. Instead, it provides further reason to believe the Defendant intentionally malingered on his IQ tests once charged with the present crime. Furthermore, the Defendant's abilities to drive vehicles and to pass the written/oral portion driver's license test after two hours of teaching provide reasons to believe the Defendant has adaptive ability. This Court specifically finds Dr. Rosenzweig's reliance on the Defendant's mother's (who is presently charged with hindering her son's prosecution) SIB-R score to prove a retarded adaptive functioning is unreasonable. Furthermore, because it is unreasonable to believe the Defendant is mentally retarded, Rosenzweig's reliance on the CAST-MR competency test, which is given to mentally retarded person, is also unreasonable.
"As for a possible brain injury, the Defendant provided nothing more than speculation and conjecture from an expert who admits to not being a neurophysiologist and to not administering an MRI or CAT-SCAN to the Defendant. This Court finds it unreasonable to believe that the Defendant suffered from a serious brain injury that might result in incompetence simply because the Defendant was involved in relatively normal childhood accidents. Most importantly, as Dr. Gierok testified, further testing to prove or disprove such speculation would not assist this Court in determining competency. Simply put, the events that caused this disputed and highly speculative brain injury happened prior to the charged crime and the Defendant has shown his competence to stand trial since those events occurred. Thus, even if a brain injury occurred, it has not affected the Defendant's competence, which is the only question before this Court.
"For the reasons stated above, this Court finds that `no reasonable grounds exist' to doubt the Defendant's competence to stand trial. Accordingly, this Court hereby DENIES the Defendant's request for a jury trial on the question of competence."
(C.R. 441-43.) The record supports the trial court's findings, and we adopt them as part of this opinion.
Pursuant to Rule 11.6(a), Ala. R.Crim. P., the trial court had the authority to make a preliminary determination regarding *1083 whether there were reasonable grounds to doubt that the appellant was competent to stand trial. In this case, the trial court received and considered several mental evaluations from both the State and the defense, conducted a hearing at which it allowed the parties to present evidence in support of their respective positions, and afterward made a preliminary determination that there were not any reasonable grounds to conduct a competency hearing. Because it determined that there were not any grounds to doubt that the appellant was competent to stand trial, the appellant was not entitled to a jury trial on the issue. See Flowers, supra. Therefore, the appellant's argument is without merit.
III.
The appellant's third argument is that the victim's in-court identification should have been suppressed due to an allegedly impermissibly suggestive pre-trial identification.
"`In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). This determination involves the application of a two-pronged test.
"`"[T]he required inquiry is two-pronged. The first question is whether the initial identification procedure was `unnecessarily' ... or `impermissibly' ... suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been `unnecessarily' or `impermissibly' suggestive was so `conducive to irreparable mistaken identification' ... or had such a tendency `to give rise to a very substantial likelihood of irreparable misidentification' ... that allowing the witness to make an in-court identification would be a denial of due process." United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.1970).'
"Brazell v. State, 369 So.2d at 28-29 (emphasis added). See also Donahoo v. State, 371 So. 2d 68, 72 (Ala.Crim.App. 1979). In evaluating the likelihood of misidentification, the court must consider the following factors:
"`[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness's degree of attention, [3] the accuracy of the witness's prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.'
"Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972) (emphasis added).... Nevertheless, `[t]he rule regarding the exclusion of pretrial identifications has been that evidence of a pretrial identification need not be excluded if the State can prove by clear and convincing evidence that the identification stems from a source independent of the unfair pretrial confrontation.' Ex parte Frazier, 729 So.2d [253,] 259 [(Ala.1998)]."
Ex parte Appleton, 828 So. 2d 894, 900 (Ala.2001).
"In the instant case there is some question as to whether the pretrial identification procedures were in fact impermissibly suggestive. `Each case is to be considered on its own facts in determining whether the photographic identification procedure was so impermissibly suggestive as to give rise to a very *1084 substantial likelihood of irreparable misidentification.' Fitchard v. State, 424 So. 2d 674, 676 (Ala.Cr.App.1982). See Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).... However, assuming that the pretrial identification procedures were in fact impermissibly suggestive, `when an in-court identification of the accused is shown to have a basis independent of any pre-trial identification, then it is properly admitted into evidence.' Mullis v. State, 545 So. 2d 205, 209 (Ala.Cr. App.1989); see also Coleman v. State, 487 So. 2d 1380 (Ala.Cr.App.1986), cert. denied, 499 U.S. 911, 111 S. Ct. 1118, 113 L. Ed. 2d 227 (1991); Jackson v. State, 414 So. 2d 1014 (Ala.Cr.App.1982); Matthews v. State, 401 So. 2d 241 (Ala.Cr. App.1981), cert. denied, 401 So. 2d 248 (Ala.1981). The identification is correctly received into evidence when it `stems from an independent source rather than the photographic lineup.' Hutchinson v. State, 516 So. 2d 889, 893 (Ala.Cr.App. 1987). `Reliability is the linchpin in determining the admissibility of identification testimony.' Mullis, 545 So.2d at 209."
Jenkins v. State, 627 So. 2d 1034, 1047 (Ala.Crim.App.1992), aff'd, 627 So. 2d 1054 (Ala.1993).
During a discussion about the appellant's motion to suppress Monica's identification of him, the following occurred:
"[DEFENSE COUNSEL]: Judge, we filed a motion to suppress identification of the Defendant by Monica Spears. I don't know if she would be making an in court identification or not.
"[PROSECUTOR]: Identification in what way, just her pointing and saying that's the person?
"[DEFENSE COUNSEL]: Yes.
"[PROSECUTOR]: That's the person that hit her with the chain?
"[DEFENSE COUNSEL]: Yes.
"[PROSECUTOR]: I don't see why she couldn't say that. She had personal knowledge.
"THE COURT: What's the basis of your motion?
"[DEFENSE COUNSEL]: The basis is she was unable to identify him out of a photograph lineup. We don't know at what point in time she was able to make an identification. If it was when he appeared in court, then we would submit that that's tantamount to an improper show up and that there would have to be an actual [hearing] before the Court to determine whether there was an independent basis to allow that identification to go forward.
"[PROSECUTOR]: Your Honor, that'sit's not credibility. Your Honor has heard the basis of her knowledge of where she
"[DEFENSE COUNSEL]: I haven't, Judge. If it was in another trial, it has got nothing to do with me.
"THE COURT: I understand. I think that the Court is going to deny the motion. And the information, your argument really would go rather to theI guess it would be more for impeachment purposes. So I think that would be more appropriate for impeachment purposes than it would be with regard to whether she can actually make that identification. There may be a perfectly good explanation."
(R. 352-53.)
During the trial, Monica testified that she approached the appellant's vehicle and could see the three occupants through the open passenger window; that the lights were on in that vehicle, and the lights from her vehicle also provided illumination; that she saw the faces of all three occupants of the vehicle; and that there was not anything *1085 blocking the appellant's face at that time. She also testified that she observed the appellant's face when he was beating her with the chain, both when she was in her vehicle and when she got out of her vehicle, and that there was not anything blocking his face at either of those times. Monica further testified that she was approximately one foot away from the appellant on at least three occasions and that she was sure the person she saw in court was the same person.
On cross-examination, Monica testified that she examined several photographic lineups; that she said the appellant looked familiar; and that she did not remember being asked to make a positive identification. Defense counsel also extensively cross-examined her about the prior lineups and the fact that she did not positively identify the appellant then; about the differences between the appellant's appearance and the appearance of the person in the sketch she helped a sketch artist compile; and the fact that she first identified the appellant after he was arrested and she saw him in court.
After Monica testified, the defense reasserted its challenge to her in-court identification. At that time, the trial court examined each of the factors set forth in Neil v. Biggers, supra, and rejected the defense's argument.
We agree with the trial court's decision. The evidence established that Monica had ample opportunity to observe the appellant from a distance of approximately one foot at least three separate times on the night of the murder and assault; that she paid sufficient attention to the appellant to identify him, even though she was upset; that she said the appellant looked familiar when she saw him in a photographic lineup a few days afterward; and that she indicated in court that she was sure the appellant was the person who assaulted her. Therefore, even if her pretrial identification was gained by impermissibly suggestive means, her trial testimony was clearly based on her independent recollection of the appellant and the events on the night of the murder and assault. Accordingly, the appellant's argument is without merit, and the trial court properly admitted the in-court identification into evidence.
IV.
The appellant's fourth argument is that "[i]t was error for the Court to allow evidence of a prior bad act to show character of the defendant in conformity therewith, particularly when no prior notice had been provided to [him] that the evidence was to be used for another purpose." (Appellant's brief at p. 43.) Specifically, he contends that the trial court improperly admitted evidence about the encounter with Abbott. Rule 404(b), Ala. R. Evid., provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
In Rowell v. State, 570 So. 2d 848, 852 (Ala.Crim.App.1990), we held that evidence regarding uncharged crimes or acts may properly be admitted under the following circumstances:
"`Evidence of the accused's commission of another crime is admissible if *1086 such other crime is inseparably connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the now-charged crime being parts of one continuous transaction or one continuous criminal occurrence.' C. Gamble, McElroy's Alabama Evidence (3d ed.1977), § 69.01(3). See also Orr v. State, 462 So. 2d 1013, 1015 (Ala.Cr.App. 1984). `Evidence of other crimes is properly admissible as part of the res gestae if all of the criminal acts are part of one continuous criminal adventure by the same party occurring within a matter of hours. Miller v. State, 405 So. 2d 41 (Ala.Crim.App.1981). See also Moseley v. State, 357 So. 2d 390 (Ala.Crim. App.1978); Summers v. State, 348 So. 2d 1126 (Ala.Crim.App.), cert. denied, 348 So. 2d 1136 (Ala.1977).' Pettaway v. State, 494 So. 2d 884, 886 (Ala.Cr.App. 1986). In the present case, this evidence `was intimately connected with the same transaction which is the basis of the State's case.... The decision whether to allow or not to allow evidence of collateral crimes or acts as part of the State's case-in-chief rests within the sound discretion of the trial judge.' Blanco v. State, 515 So. 2d 115, 120 (Ala. Cr.App.1987), and cases cited therein. `The trial court did not err in overruling appellant's objection to the admission of such evidence. No matter how many distinct crimes may be involved, all the details of one continuous criminal occurrence or adventure may be given as part of the offense with which the defendant is charged.' Coleman v. State, 487 So. 2d 1380, 1385 (Ala.Cr.App.1986) and cases cited therein."
Also, in Travis v. State, 776 So. 2d 819, 857-58 (Ala.Crim.App.1997), aff'd, 776 So. 2d 874 (Ala.2000), we stated:
"[A]s we held in Twilley v. State, 472 So. 2d 1130, 1135-37 (Ala.Cr.App.1985):
"`The rule has been stated many times by the appellate courts of this State that in a prosecution for homicide, evidence of connected acts and transactions leading up to and explanatory of the killing is admissible. Byrd v. State, 257 Ala. 100, 57 So. 2d 388 (1952); Keith v. State, 253 Ala. 670, 46 So. 2d 705 (1950); Levert v. State, 252 Ala. 308, 42 So. 2d 532 (1949); Stallings v. State, 249 Ala. 580, 32 So. 2d 236 (1947); McCoy v. State, 232 Ala. 104, 166 So. 769 (1936); Jordan v. State, 81 Ala. 20, 1 So. 577 (1886); Golden v. State, 39 Ala.App. 361, 103 So. 2d 52, reversed on other grounds, 267 Ala. 456, 103 So. 2d 62 (1958); Sexton v. State, 28 Ala.App. 59, 180 So. 729 (1937); Newman v. State, 25 Ala.App. 526, 149 So. 724 (1933); Roberts v. State, 25 Ala.App. 477, 149 So. 356 (1933).'
"In the present case, the collateral crimes involved were all part of one continuous criminal transaction, or res gestae, and the evidence relating to each offense was inseparable from evidence relating to the others."
In this case, the encounter with the coaches and the murder of Steven and assault of Monica were clearly part of one continuous transaction. In fact, Jones testified that they saw and started following the Spears' vehicle a short time after they followed the coaches as they left the church parking lot. Thus, the encounter with the coaches was inseparably connected to the murder of Steven and assault of Monica, and the evidence about that encounter was admissible.
Moreover, although the appellant argues about not receiving prior notice that the State would seek to introduce the evidence, the defense did not argue that it was not actually aware that the State *1087 would seek to introduce such evidence. In fact, based on the comments defense counsel made when he objected, it is obvious that the defense knew the gist of Abbott's testimony before the State introduced it. Also, although the appellant makes general allegations concerning the evidence about the encounter being improperly admitted, he has not shown how he was prejudiced by the admission of that evidence.
Finally, any error in the admission of the evidence was harmless because the evidence of the appellant's guilt was overwhelming. See Hocker v. State, 840 So. 2d 197 (Ala.Crim.App.2002).
V.
The appellant's fifth argument is that the State did not present sufficient evidence to support his conviction for the capital offense of robbery-murder. Specifically, he contends that "there was no Robbery planned, and the taking of the victim's wallet was an afterthought of the shooting." (Appellant's brief at p. 47.)
"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So. 2d 871 (Ala.Cr.App.1978), cert. denied, 368 So. 2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So. 2d 280 (Ala. Cr.App.), cert. denied, 387 So. 2d 283 (Ala.1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So. 2d 1020 (Ala.Cr. App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So. 2d 199 (Ala.Cr.App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So. 2d 843 (1969); Willis v. State."
Breckenridge v. State, 628 So. 2d 1012, 1018 (Ala.Crim.App.1993).
"`In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.' Faircloth v. State, 471 So. 2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
"`....
"`"The role of appellate courts is not to say what the facts are. Our role,... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury." Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So. 2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). "[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the *1088 defendant is in sharp conflict therewith and presents a substantial defense." Fuller v. State, 269 Ala. 312, 333, 113 So. 2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S. Ct. 380, 4 L. Ed. 2d 358 (1960).' Granger [v. State], 473 So.2d [1137,] 1139 [(Ala.Crim.App.1985)].
"... `Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.' White v. State, 294 Ala. 265, 272, 314 So. 2d 857, cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975). `Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.' Cochran v. State, 500 So. 2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So. 2d 1179 (Ala. 1985)."
White v. State, 546 So. 2d 1014, 1017 (Ala. Crim.App.1989). Also,
"`[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. Ward v. State, 557 So. 2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So. 2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979).'
"Ward, 610 So.2d at 1191-92."
Lockhart v. State, 715 So. 2d 895, 899 (Ala. Crim.App.1997).
Section 13A-5-40(a)(2), Ala. Code 1975, provides that a murder committed "by [a] defendant during a robbery in the first degree or an attempt thereof committed by the defendant" constitutes capital murder.
"A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
"(1) Is armed with a deadly weapon or dangerous instrument; or
"(2) Causes serious physical injury to another."
§ 13A-8-41(a), Ala.Code 1975.
"A person commits the crime of robbery in the third degree if in the course of committing a theft he:
"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."
§ 13A-8-43(a), Ala.Code 1975.
"To sustain a conviction under § 13A-5-40(a)(2) for capital robbery-murder, the state must prove beyond a reasonable doubt: (1) a `robbery in the first degree or an attempt thereof,' as defined by § 13A-8-41; (2) a `murder,' as defined by § 13A-6-2(a)(1); and (3) that the murder was committed `during' the robbery or attempted robbery, i.e., that the murder was committed `in the course of or in connection with the commission of, or in immediate flight from *1089 the commission of' the robbery or attempted robbery in the first degree, § 13A-5-39(2). Connolly v. State, 500 So. 2d 57 (Ala.Cr.App.1985), aff'd, 500 So. 2d 68 (Ala.1986). The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing. Davis v. State, 536 So. 2d 110 (Ala.Cr.App.1987); Magwood v. State, 494 So. 2d 124 (Ala.Cr.App. 1985), aff'd, Ex parte Magwood, 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986). The intentional murder must occur during the course of the robbery in question; however, the taking of the property of the victim need not occur prior to the killing. Clark v. State, 451 So. 2d 368 (Ala.Cr.App.), cert. denied, 451 So. 2d 368 (Ala.1984). While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. Thomas v. State, 460 So. 2d 207 (Ala.Cr.App.1983), aff'd, 460 So. 2d 216 (Ala.1984).
"`As the Alabama Supreme Court held in Cobern v. State, 273 Ala. 547, 142 So. 2d 869 (1962), "the fact that the victim was dead at the time the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events." Clements v. State, 370 So. 2d 708, 713 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So. 2d 723 (Ala.1979); Clark v. State, 451 So. 2d 368, 372 (Ala.Cr.App.1984). To sustain any other position "would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute." Thomas v. State, 460 So. 2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So. 2d 216 (Ala.1984).
"`Although a robbery committed as a "mere afterthought" and unrelated to the murder will not sustain a conviction under § 13A-5-40(a)(2) for the capital offense of murder-robbery, see Bufford v. State, supra, O'Pry v. State, supra [642 S.W.2d 748 (Tex.Cr.App. 1981)], the question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve. Crowe v. State, 435 So. 2d 1371, 1379 (Ala.Cr.App.1983). The jury may infer from the facts and circumstances that the robbery began when the accused attacked the victim and the capital offense was consummated when the defendant took the victim's property and fled. Cobern v. State, 273 Ala. 547, 550, 142 So. 2d 869, 871 (1962). The defendant's intent to rob the victim can be inferred where "[t]he intervening time, if any, between the killing and robbery was part of a continuous chain of events." Thomas v. State, 460 So. 2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So. 2d 216 (Ala.1984). See also Cobern v. State, 273 Ala. 547, 142 So. 2d 869 (1962); Crowe v. State, 435 So. 2d 1371 (Ala.Cr.App.1983); Bufford v. State, 382 So. 2d 1162 (Ala.Cr.App.), cert. denied, 382 So. 2d 1175 (Ala.1980); Clements v. State 370 So. 2d 708 (Ala.Cr. App.1978), affirmed in pertinent part, 370 So. 2d 723 (Ala.1979).'
"Connolly, 500 So.2d at 63."
Hallford v. State, 548 So. 2d 526, 534-35 (Ala.Crim.App.1988), aff'd, 548 So. 2d 547 (Ala.1989).
"It is sometimes said that a robbery committed as a `mere afterthought' and unrelated to the murder will not sustain *1090 a conviction for the capital offense of murder-robbery. Connolly v. State, 500 So. 2d 57 (Ala.Cr.App.1985), aff'd, 500 So. 2d 68 (Ala.1986). However, the appellant's intent to rob the victim may lawfully and correctly be inferred where the killing and the robbery were part of a continuous chain of events. Hallford v. State, 548 So. 2d 526 (Ala.Cr.App. 1988), aff'd, 548 So. 2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342 (1989)."
Harris v. State, 671 So. 2d 125, 126 (Ala. Crim.App.1995).
Alabama's accomplice liability statute provides:
"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"....
"(2) He aids or abets such other person in committing the offense...."
§ 13A-2-23, Ala.Code 1975.
"The words `aid and abet' encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [v. State, 494 So. 2d 936 (Ala.Crim.App.1986)]; Sanders v. State, 423 So. 2d 348 (Ala.Cr. App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. `The jury is to determine whether the appellant's participation exists and the extent of it from the conduct of the parties and all the testimony presented.' Walls v. State, 378 So. 2d 1186, 1191 (Ala.Cr.App.1979), cert. denied, Ex parte Walls, 378 So. 2d 1193 (Ala.1980). Such facts as the defendant's presence in connection with his companionship, and his conduct at, before and after the commission of the act, are potent circumstances from which participation may be inferred."
Henry v. State, 555 So. 2d 768, 769 (Ala. Crim.App.1989).
"Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal.... No particular acts are necessary to make one an aider and abettor; the common enterprise or adventure may have been entered into on the spur of the moment without prearrangement or participation."
Scott v. State, 374 So. 2d 316, 318-19 (Ala. 1979). And,
"`[w]here the evidence is conflicting as to the defendant's connection as an accomplice or co-conspirator, a jury question is presented.' Sanders v. State, [423 So. 2d 348 (Ala.Crim.App.1982)], citing Watkins v. State, 357 So. 2d 156, 160 (Ala.Crim.App.1977), cert. denied, 357 So. 2d 161 ([Ala.] 1978)."
Henry, 555 So.2d at 770. Finally,
"`[i]ntent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.' McCord v. State, 501 So. 2d 520, 528-529 (Ala.Cr.App.1986), quoting Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908)."
French v. State, 687 So. 2d 202, 204 (Ala. Crim.App.1995), aff'd in part, rev'd in part on other grounds, 687 So. 2d 205 (Ala.1996).
"`The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury. McMurphy v. State, 455 So. 2d 924 (Ala. *1091 Crim.App.1984); Craig v. State, 410 So. 2d 449 (Ala.Crim.App.1981), cert. denied, 410 So. 2d 449 (Ala.1982).' Loper v. State, 469 So. 2d 707, 710 (Ala.Cr.App. 1985)."
Oryang v. State, 642 So. 2d 989, 994 (Ala. Crim.App.1994).
Although the appellant argues that the robbery was a mere afterthought, intent was a question for the jury to resolve. In this case, the jury could have reasonably concluded from the facts and circumstances that the robbery began when the appellant and Lamar approached the victims; that the capital offense was consummated when Lamar took Steven's wallet and fled; that the killing and robbery were part of a continuous chain of events; that the appellant was an accomplice to the robbery; and that the robbery was intentional and was not a mere afterthought. Therefore, the appellant's argument is without merit.
VI.
The appellant's sixth argument is that the trial court improperly admitted into evidence State's Exhibits #39 and # 40, which were poster-sized photographs showing Steven's body before the autopsy. Specifically, he contends that they "were cumulative, possessed no probative value and tended only to inflame the jury." (Appellant's brief at p. 50.)
"`"Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence.... Finally photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors."'
"Gaddy v. State, 698 So. 2d 1100, 1148 (Ala.Cr.App.1995), aff'd, 698 So. 2d 1150 (Ala.1997) (quoting Ex parte Siebert, 555 So. 2d 780, 783-84 (Ala.1989)). Furthermore, photographs that depict the crime scene are relevant and therefore admissible. Aultman v. State, 621 So. 2d 353 (Ala.Cr.App.1992), cert. denied, 510 U.S. 954, 114 S. Ct. 407, 126 L. Ed. 2d 354 (1993); Ex parte Siebert, 555 So. 2d 780, 783-84 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S. Ct. 3297, 111 L. Ed. 2d 806 (1990); Hill v. State, 516 So. 2d 876 (Ala. Cr.App.1987). Finally, photographs may be admissible even if they are cumulative or demonstrate undisputed facts. Stanton v. State, 648 So. 2d 638 (Ala.Cr.App.1994); Hopkins v. State, 429 So. 2d 1146, 1157 (Ala.Cr.App.1983)."
Hyde v. State, 778 So. 2d 199, 234-35 (Ala. Crim.App.1998), aff'd, 778 So. 2d 237 (Ala. 2000).
"`[P]hotographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. Magwood [v. State], 494 So.2d [124, 141 (Ala.Cr.App.1985), affirmed, 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986)]. The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried. Id. Also, a photograph may be gruesome and ghastly, but this is not a reason to exclude it as long as the photograph is relevant to the proceedings, even if it tends to inflame the jury. Id.'
"Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991). Accord, Ex parte Siebert, 555 So. 2d 780, 783-84 (Ala.1989), cert. denied, [497] U.S. [1032], 110 S. Ct. 3297, *1092 111 L. Ed. 2d 806 (1990); McElroy's at § 207.01(2)."
Parker v. State, 587 So. 2d 1072, 1092-93 (Ala.Crim.App.1991), opinion extended after remand, 610 So. 2d 1171 (Ala.Crim. App.), aff'd, 610 So. 2d 1181 (Ala.1992). Finally,
"`"[p]hotographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors." Ex parte Siebert, 555 So. 2d 780, 784 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S. Ct. 3297, 111 L. Ed. 2d 806 (1990). See generally C. Gamble, McElroy's Alabama Evidence, § 207.01(2) (4th ed.1991). "The photographs of the victim were properly admitted into evidence. Photographic exhibits are admissible even though they may be cumulative, ... demonstrative of undisputed facts, ... or gruesome...." Williams v. State, 506 So. 2d 368, 371 (Ala.Cr.App.1986), cert. denied, 506 So. 2d 372 (Ala.1987).'
"DeBruce v. State, 651 So. 2d 599, 607 (Ala.Cr.App.1993). See also Ex parte Bankhead, 585 So. 2d 112 (Ala.1991). The court did not err in allowing photographs of the victim's body to be received into evidence."
Hutcherson v. State, 677 So. 2d 1174, 1200 (Ala.Crim.App.1994), rev'd on other grounds, 677 So. 2d 1205 (Ala.1996). See also Giles v. State, 632 So. 2d 568 (Ala. Crim.App.1992), aff'd, 632 So. 2d 577 (Ala. 1993); Haney v. State, 603 So. 2d 368 (Ala. Crim.App.1991), aff'd, 603 So. 2d 412 (Ala. 1992).
We have reviewed the photographs, and we find that they were neither unduly prejudicial nor inflammatory. Rather, they were relevant to depict the injuries Steven suffered and made it possible for the jury to view them. Therefore, the trial court did not err in admitting them into evidence.
VII.
The appellant's seventh argument is that the trial court should have granted a mistrial after the prosecutor allegedly commented, during his closing argument, on his failure to testify. Specifically, he challenges the following comment by the prosecutor:
"Is it reasonable to believe that when Troy Connell himself has lied over and over and over about this case and not one time, not one time has he ever said that Mark Jones had anything to do with it?"
(R. 750.)
During his opening statement, defense counsel stated:
"The State has told you what they expect the evidence to show. No one is going to stand here and tell you that there was not a horrid thing that happened that night. Certainly there was. But there are questions and issues about who did what. And I would submit to you, ladies and gentlemen, that you will hear evidence that there were four people in that vehicle that evening, earlier that evening. And that those four people were out, and they were drinking, and they were doing other things you might not particularly approve of. But that through most of that Troy Connell was passed out in the back seat of the vehicle, that he remained passed out in the back seat of the vehicle for an extended period of time and that sitting in the front seat were Lamar Killingsworth who was driving and Mark Jones who was riding in the front passenger seat. And I submit to you that there will be evidence that it was Mark Jones who was in that front passenger seat when that car went past Steven and Monica Spears, that it was Mark Jones who pulled that trigger and that it was Mark Jones who assaulted Monica Spears *1093 while Lamar Killingsworth went around and got the wallet of Steven Spears out of his pocket.
"I submit to you that there will be evidence that Troy Connell tried to stop Mark Jones. And at a point in time Mark pushed him as Mark was confronting Monica, that he pushed Troy and Troy fell back against the vehicle leaving a palm print there. I submit to you that Mark Jones shared in the proceeds, shared in the money that was taken in this case. But Mark Jones I submit to you the evidence will show found a way out of the most serious of these charges by pointing the blame at other people, people less able than he we would submit the evidence will show to defend themselves.
"So I ask you as you start down this path to hear the evidence, please keep an open mind and wait until you hear all of the evidence before you make any kind of a decision. That's what the law requires you to do because there is one other piece of evidence that is here with us now that is evidence and will continue to be evidence, and we talked about it earlier. And that is the presumption of innocence. Unless each and every one of you as you sit in that jury box at this moment views Troy Connell as not guilty in this case, then you are violating your oath as jurors. That is evidence in the case. As much as any evidence you will hear from the witness stand, any exhibits, it is evidence in this case. I submit to you that if you will keep an open mind until after you have heard all of the evidence, that there will be some serious questions in your mind as to who is where, what happened that night, and significant questions about the role and involvement of Mark Jones."
(R. 378-80.)
During his closing argument, the prosecutor stated:
"A couple of guys were doing drugs. They wanted some more, and they didn't care who they killed. They didn't care who they beat to have to get it, and that's exactly what they did. There is no grand conspiracy. There is no fourth person in the back of the red SUV. There is no heroic attempt by that man to save Monica Spears. This is the price that Steven Spears had to pay. It's the price that Monica Spears had to pay so that Troy Connell and his buddies could have five or six hundred dollars to do some more drugs....
"....
"So what did happen? Monica thought that help had finally arrived. She walks back to the car in a panic trying to call 911, gets in the seat. Lamar and Troy get out. Are they going to help her? That's what they wanted you to believe. Troy was there to save her. How does Troy decide that he is going to save Monica Spears? That was his idea. I am going to fight for her honor. I am going to stop someone from hurting her. He stopped her by taking a chain behind his back and beating her in the face for no reason other than to help his cousin, Lamar. Who goes to the other side of the car at the same time and does this? He yanks Steven out. He yanks Steven out, pulls his wallet, and the crime is complete. The prey is down; the money is taken. It's time to go. Monica fights Troy, gets back out of the car. But at that point it doesn't matter. There is nothing she can do. He and Lamar go back to the car.
"Now what was it that Troy did? He fought valiantly to stop Mark Jones. That's how his fingerprint got on the car, right, right there? No, of course not....
*1094 "....
"So let's think about the lies that Troy Connell told. What did he tell Mark Jones? I am going to kill myself before I go to prison. Why would an innocent person say that? If Mark Jones killed Steven Spears and Troy Connell tried to stop it, why is he worried that he's going to prison? Why instead doesn't he go to police and tell them that Mark Jones did it? You know why. Every one of you knows why.
"So what is the second lie? People start finding out. At this point it's time to take action and blame it on somebody else. So Diane Pate, Troy's own mom, takes Troy to see Johnny Tubbs sitting right here. They go to the police station voluntarily. They are going to tell the truth about what happened. Lie number two, Troy tells Johnny Tubbs Lamar took my car. And he and Rodney and Matt went off doing who knows what because we weren't there. Me and Mark weren't there. We were off at somebody else's house. And then when they came back, Lamar told me they done killed somebody. Him and Rodney had killed somebody. And that's what happened. Who is Rodney? Who is Matt?
"Did Johnny Tubbs hear that story again that day? He sure did. When Diane Pate and Troy Connell go home, they tell Mark Jones, we need to see you. And standing over Mark Jones making sure that he tells the same lie as close as I am to you, they make Mark Jones tell the same lie. You heard Mark say why he lied. He saw Troy Connell shoot someone in the head. He saw Troy Connell beat someone in the face. He has seen the measures that Troy and his mom will go to keep Troy out of trouble. And he knows what measures that can get to. So he lied because he felt he had no other choice.
"Lie number three, Jamie Lee, Troy's own cousin.... [W]hat did Troy tell Jamie Lee? Did he tell him that Matt, Rodney and Lamar did it? No. This time he says I was in the car, but I was just driving. Lamar did the shooting. Lamar did the beating and the stealing. I didn't do nothing. What did he say Mark Jones did? Nothing. He didn't say Mark Jones committed the murder. He didn't say Mark Jones did the beating. He said Lamar did it. It all unraveled when Mark Jones without the assistance of Troy Connell, without the assistance of Troy Connell's mom went to police and told them the truth.
"Now on December 24th while they were in another city in a hotel days after they had taken the red SUV to a body shop, they are found and arrested. And this week Troy Connell's attorneys have told you that he didn't do it. They have told you that Mark Jones did it. He got out of the car. He beat Monica. He shot Steven Spears while Troy Connell was laid out in the back seat. But apparently Troy Connell wakes up just minutes later to be a hero for Monica. I think you know that's not true either.
"....
"Every piece of evidence in this case leads you to one conclusion. Troy Connell is guilty beyond a reasonable doubt of committing all four of these counts. And in about three minutes I'm going to sit down, and Mr. Connell's attorneys are going to get up. And they are going to try to convince you that there is a reason, some reason to doubt that Troy Connell didn't do one or all of these. You have heard what their story was on Tuesday. Mark Jones did it all. Troy Connell is a hero. He tried to save Monica Spears. Is it reasonable to think that Mark Jones shot Steven *1095 Spears from the front seat of a car that he never sat in? Is it reasonable to think that Mark Jones was the person on the side of the Tahoe when the fingerprints show it was Troy Connell? Is it reasonable to think that Troy, that Mark Jones murdered Steven Spears and beat Monica Spears? Is it reasonable to believe that when Troy Connell himself has lied over and over and over about this case and not one time, not one time has he ever said that Mark Jones had anything to do with it?
"....
"There is only one reasonable conclusion here, that's that Troy Connell is guilty beyond any reasonable doubt of murdering Monica Spears' husband, Steven, and then beating Monica in the face with a chain. That's the only thing that is reasonable."
(R. 725-51.)
In denying the appellant's motion for a mistrial, the trial court stated:
"The Court finds that the context of the comment was regarding statements made by the Defendant outside of the courtroom on three or four different occasions during the investigation and did not necessarily reflect or was not a comment upon his inability to testify today or in the course of the last two or three days. So your motion for a mistrial will be denied."
(R. 791.)
"`[O]nce a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution.' Wherry v. State, 402 So. 2d 1130, 1133 (Ala.Cr.App.1981). `In determining if a prosecutorial remark impairs the integrity of the defendant's right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant's silence or was of such character that a jury would naturally and necessarily construe it as a comment on the defendant's silence.' United States v. LeQuire, 943 F.2d 1554, 1565 (11th Cir. 1991), cert. denied, 505 U.S. 1223, 112 S. Ct. 3037, 120 L. Ed. 2d 906 (1992)."
Ex parte Davis, 718 So. 2d 1166, 1173 (Ala. 1998). However,
"`[c]ounsel may comment on the failure of his adversary to produce evidence... when the comment is pertinent to answer an argument made by opposing counsel.' Jarrell v. State, 251 Ala. 50, 56, 36 So. 2d 336, 341 (1948). The prosecutor has a right to comment on and answer statements made by defense counsel in argument to the jury. Dollar v. State, 26 Ala.App. 361, 159 So. 704 (1935); Moragne v. State, 16 Ala.App. 26, 28, 74 So. 862, 864, reversed on other grounds, 200 Ala. 689, 77 So. 322 (1917). Counsel should be afforded wide latitude in responding to assertions made by opposing counsel in previous argument. York v. State, 34 Ala.App. 188, 190, 39 So. 2d 694, 696 (1948), cert. denied, 252 Ala. 158, 39 So. 2d 697 (1949). `Wide latitude is given the solicitor in making reply to argument previously made by appellant's counsel.' Moody v. State, 40 Ala.App. 373, 374, 113 So. 2d 787, 788 (1959). `Wide latitude is given a district attorney in making reply in kind, ... and the propriety of argument of counsel is largely within the trial court's discretion.' Jetton v. State, 435 So. 2d 167, 171 (Ala.Cr.App.1983)."
Dossey v. State, 489 So. 2d 662, 665 (Ala. Crim.App.1986).
"In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to *1096 view the allegedly improper acts in the abstract. Whitlow v. State, 509 So. 2d 252, 256 (Ala.Cr.App.1987); Wysinger v. State, 448 So. 2d 435, 438 (Ala.Cr.App. 1983); Carpenter v. State, 404 So. 2d 89, 97 (Ala.Cr.App.1980), cert. denied, 404 So. 2d 100 (Ala.1981). Moreover, this Court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Orr v. State, 462 So. 2d 1013, 1016 (Ala.Cr.App. 1984); Sanders v. State, 426 So. 2d 497, 509 (Ala.Cr.App.1982)."
Bankhead v. State, 585 So. 2d 97, 106-07 (Ala.Crim.App.1989), aff'd in relevant part, 585 So. 2d 112, 127 (Ala.1991), rev'd on other grounds, 625 So. 2d 1146 (Ala.1993). Finally,
"`[d]uring closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.' Rutledge v. State, 523 So. 2d 1087, 1100 (Ala. Cr.App.1987), rev'd on other grounds, 523 So. 2d 1118 (Ala.1988) (citation omitted). Wide discretion is allowed the trial court in regulating the arguments of counsel. Racine v. State, 290 Ala. 225, 275 So. 2d 655 (1973). `In evaluating allegedly prejudicial remarks by the prosecutor in closing argument, ... each case must be judged on its own merits,' Hooks v. State, 534 So. 2d 329, 354 (Ala. Cr.App.1987), aff'd, 534 So. 2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050, 109 S. Ct. 883, 102 L. Ed. 2d 1005 (1989) (citations omitted) (quoting Barnett v. State, 52 Ala.App. 260, 264, 291 So. 2d 353, 357 (1974)), and the remarks must be evaluated in the context of the whole trial, Duren v. State, 590 So. 2d 360 (Ala.Cr. App.1990), aff'd, 590 So. 2d 369 (Ala. 1991). `In order to constitute reversible error, improper argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury.' Mitchell v. State, 480 So. 2d 1254, 1257-58 (Ala.Cr.App.1985) (citations omitted). `To justify reversal because of an attorney's argument to the jury, this court must conclude that substantial prejudice has resulted.' Twilley v. State, 472 So. 2d 1130, 1139 (Ala.Cr. App.1985) (citations omitted)."
Coral v. State, 628 So. 2d 954, 985 (Ala. Crim.App.1992), aff'd, 628 So. 2d 1004 (Ala. 1993).
We have reviewed the complained-of comment in light of the entire trial, including the defense's opening argument and the prosecutor's closing argument. Viewed in that context, the prosecutor was obviously commenting on the appellant's previous inconsistent statements and on the fact that the evidence did not support the representations defense counsel made in his opening argument. Moreover, the prosecutor's comment was not "`of such character that a jury would naturally and necessarily construe it as a comment on the defendant's silence.'" Ex parte Davis, 718 So.2d at 1173. Therefore, the appellant's argument is without merit.
For the above-stated reasons, we affirm the trial court's judgment.
AFFIRMED.
McMILLAN and WISE, JJ., concur.
SHAW and WELCH, JJ., concur in the result.
NOTES
[1] The appellant raised additional arguments in his briefs and during oral arguments before this court. However, he did not first present those specific arguments to the trial court. "Specific grounds of objection waive all other grounds not specified at trial." Smith v. State, 602 So. 2d 470, 472 (Ala.Crim.App. 1992). Therefore, his additional arguments are not properly before this court. Moreover, many of the arguments the appellant and the amicus curiae make involve policy decisions that are best left to the Alabama Legislature. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038089/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-21-2008
In Re: Eliston George
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1441
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"In Re: Eliston George " (2008). 2008 Decisions. Paper 1163.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1163
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HLD-89 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1441
IN RE: ELISTON F. GEORGE,
Petitioner
On Petition for a Writ of Mandamus from the
District Court of the Virgin Islands
(Related to D.V.I. No. 07-cv-0055)
Submitted Pursuant to Rule 21, Fed. R. App. P.
March 31, 2008
Before: SCIRICA, Chief Judge, ALDISERT and GARTH, Circuit Judges.
(Filed: May 21, 2008)
OPINION OF THE COURT
PER CURIAM.
On March 21, 2007, George, a prisoner proceeding pro se, petitioned the District
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging ineffective
assistance of counsel and improper jury instructions. On February 12, 2008, George
petitioned this Court for a writ of mandamus, seeking an order compelling the District
Court to act upon his habeas corpus petition.
In the intervening time, on January 31, 2008, the District Court entered an order
dismissing George’s habeas corpus petition. The District Court construed George’s
petition as a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255
and dismissed it as a second or successive § 2255 motion filed without authorization from
the Court of Appeals.
Because the District Court has now provided George the relief he sought in his
mandamus petition to this Court, i.e., a ruling on his habeas corpus petition, we dismiss
his mandamus petition as moot.
2 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3339312/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (NO. 112)
The defendant, Town of Fairfield, filed a Motion for Summary Judgment (docket entry no. 112) on December 28, 2000. It is noted that this motion was filed at a time that required (pursuant to Practice Book § 17-44) a Motion for Leave to File (docket entry no. 110).1 The underlying action had a return date of November 25, 1997. The pleadings were closed by April, 1998. Allowing for all the vagaries of the practice of law, in a case where nothing new was learned or discovered after the close of pleadings, it is unreasonable for the summary judgment process to start more than eighteen months after the matter reached a ripe stage.
The significant court research resources required for a full and complete disposition of a summary judgment motion are scant, at best, and must be called upon at the earliest possible date. Counsel should always exert best efforts to address ripened, dispositive issues at the earliest date possible.
STATEMENT OF FACTS
The plaintiff, Carol Fumo, claims that the Town of Fairfield was negligent in its operation of Lake Mohegan, a Town owned facility. Fumo CT Page 5646 used the Lake Mohegan and claims that ". . . while walking to the food stand located on the premises she was bumped into by a boy (hereinafter referred to as "John Doe") with such force as to throw the plaintiff to the ground, causing her to suffer damages and injuries." The plaintiff claims that the Town was negligent in that it was the duty of the Town to maintain the premises and supervise the premises in a reasonable manner and to keep it safe for the public use. Specifically, the plaintiff claims the Town was negligent in one or more of the following ways:
• the Town failed to control the premises to ensure2 the safety of the public located on the grounds;
• the Town failed to provide adequate supervision on the premises to ensure the safety of the public;
• the Town failed to adequately inspect said premises and warn the plaintiff of the dangers of children playing and running about; and,
• that the Town failed to maintain said premises in a reasonable and safe condition.
The Town has asserted, in the instant motion, that the plaintiff's entire action is barred by the doctrine of municipal immunity.
Lake Mohegan is recreational property located in the Town of Fairfield. It consists of a fresh water lake with sand and other beach-like accouterments. It is open to the public. On July 10, 1996, the plaintiff was a user of Lake Mohegan. She alleges that, on the way to the food stand, she was bumped by an unknown and unidentified young boy and knocked to the ground. The fall to the ground allegedly caused her injuries.3
There are no other parties to this suit other than the Town of Fairfield. The plaintiff does not identify any town employee or officer for any allegedly negligent acts or omissions which may have caused her injuries. The defendant moves for summary judgment.
STANDARD OF REVIEW
"Summary judgment shall be rendered forthwith if the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Conn. Prac. Bk. § 17-49; Alvarez v. New Haven Register, Inc., 249 Conn. 709,714, 735 A.2d 306 (1999); Elliot v. Waterbury, 245 Conn. 385 (1998);Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481, 697 A.2d 680 (1997). The question of municipal or governmental immunity is a question of law CT Page 5647 and may be decided by a motion for summary judgment. Elliot v.Waterbury, 245 Conn. 385 (1998); Purzycki v. Town of Fairfield,244 Conn. 101, 108, 708 A.2d 937 (1998). The purpose of summary judgment is to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 273 A.2d 716
(1970); Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 253 A.2d 22.
MUNICIPAL IMMUNITY
Municipal immunity was codified, in part, by Conn. Gen. Stat. §52-557n. which provides in pertinent part:
"(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) the negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149.
(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
"The scope of municipal immunity is defined in Conn. Gen. Stat. §52-557n and in part by common law principles concerning such immunity."Elliot v. Waterbury, 245 Conn. 385, 407-8, 715 A.2d 27 (1998).4
In the instant case, the plaintiff has named only the Town as a defendant and makes no reference to any statute or provision which abrogates the general rule of municipal immunity. The Supreme Court inWilliams v. New Haven, 243 Conn. 763, 769, 707 A.2d 1251 (1998), CT Page 5648 precisely summarized the application of the doctrine of municipal immunity under these circumstances as follows:
"Because it is clear that a municipality enjoys governmental immunity for common-law negligence, unless a statute has limited or abrogated that immunity, the plaintiffs cannot prevail. The plaintiffs do not rely on any such statute, and they have failed to name an agent, officer or employee of the municipality and to invoke indemnification pursuant to § 7-465. The doctrine of governmental immunity, therefore, is fatal to their cause of action against the defendant."5
CONCLUSION
The dispositive issue in this motion is whether the plaintiff may maintain a negligence action against the defendant, in the absence of a statute expressly providing for such municipal liability.6
The answer is a clear negative. The defendant's Motion for Summary Judgment (docket entry no. 112) is granted. Judgment enters in favor of the defendant.
BRENNAN, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1604659/ | 8 So. 3d 364 (2009)
SANDERS
v.
SOLOMON TROPP LAW GROUP, P.A.
No. 2D09-174.
District Court of Appeal of Florida, Second District.
April 24, 2009.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605606/ | 416 So. 2d 778 (1982)
Gerald DAVID
v.
STATE of Alabama.
5 Div. 661.
Court of Criminal Appeals of Alabama.
June 29, 1982.
*779 Gerald David, pro se.
Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for State of Ala.
TYSON, Judge.
Gerald David appeals from the denial of two postconviction petitions, both filed in the Circuit Court of Lee County, Alabama, each seeking to attack a conviction for robbery, which conviction took place, it is alleged, on April 29, 1981. The circuit court denied both petitions without conducting a hearing on either of them.
I
The first petition in this record was a Petition for Writ of Habeas Corpus, which sought to challenge in state court the alleged "ineffective assistance of counsel" rendered at the time of the trial in the aforesaid robbery case. In denying the habeas corpus petition without conducting a hearing, the trial court was correct as the Alabama Appellate Courts have many times determined that a Petition for Writ of Habeas Corpus, which seeks to impeach a judgment valid on its face by parol testimony, may not be allowed in a habeas corpus proceeding. Vernon v. State, 240 Ala. 577, 200 So. 560 (1941). Moreover, a state habeas corpus petition may not impeach the validity of proceedings which are from a court of competent jurisdiction and which proceedings are regular on their face. In order to impeach such proceedings by parol testimony, the invalidity must appear on the face of the proceedings. Griffin v. State, 258 Ala. 557, 63 So. 2d 682 (1953); Lewter v. State, 401 So. 2d 328 (Ala.Crim. App.1981). We therefore affirm.
II
The second petition contained on this appeal was, however, a petition for Writ of Error Coram Nobis, which petition also sought to set aside the robbery conviction on the basis of the "ineffective assistance of trial counsel." This petition alleges that such counsel did fail to present "alibi witnesses" and did also "fail to subpoena witnesses" on behalf of the appellant. The petition also avers that the trial court did not allow the appellant to "contest" the statement of appellant given to police authorities, following his arrest, as being taken after denying him food or the advice of counsel.
This court recently in Ellison v. State, 406 So. 2d 439 (Ala.Crim.App.1981) and Kennedy v. State, 409 So. 2d 1010 (Ala.Crim.App. 1982) has determined that, where the effective assistance of counsel is challenged in a petition for error coram nobis, and such is denied by the circuit court without conducting an evidentiary hearing, that such must be reversed and remanded for an appropriate evidentiary hearing held in circuit court.
Accordingly, we have no alternative but to reverse and remand the denial of the coram nobis petition for a hearing in circuit court. See also Mylar v. State, 671 F.2d 1299 (U.S. 11th Cir. 1982).
AFFIRMED IN PART; REVERSED AND REMANDED IN PART WITH DIRECTIONS.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922369/ | 254 B.R. 289 (2000)
In re Herbert HOLLOWAY, Jr., Debtor.
Herbert Holloway, Jr., Plaintiff,
v.
Southeast Alabama Medical Center and Golden Peanut Company, Defendants.
Bankruptcy No. No. 94-1348-WRS. Adversary No. 00-12-WRS.
United States Bankruptcy Court, M.D. Alabama.
October 24, 2000.
Jack W. Smith, Dothan, AL, for debtor.
Steven K. Brackin, Dothan, AL, for Southeast Alabama Medical Center.
Joseph D. Whitehead, Dothan, AL, for Golden Peanut Co.
MEMORANDUM DECISION
WILLIAM R. SAWYER, Chief Judge.
This Adversary Proceeding came before the Court for trial on August 16, 2000. Plaintiff Herbert Holloway was present by counsel Jack W. Smith. Defendant Golden Peanut Company was present by counsel Joseph D. Whitehead. Counsel stipulated to the facts and made legal arguments. The question here is whether confirmation of the Debtor's Chapter 12 Plan voided the judgment lien of Golden Peanut Company.
*290 FINDINGS OF FACT
On April 7, 1994, Plaintiff Herbert Holloway filed a voluntary Petition in Bankruptcy pursuant to Chapter 12 of the Bankruptcy Code. On April 22, 1994 Defendant Golden Peanut Company (hereinafter Golden Peanut) filed a proof of claim in the amount of $8,898.52. Golden Peanut claimed that it was secured by virtue of a judgment entered and recorded in the Circuit Court of Coffee County, Alabama. (Claim No. 1). Holloway did not object to Golden Peanut's claim.
Holloway filed a Chapter 12 Plan with this Court on June 13, 1994. (Doc. 15 Main).[1] The Plan treated the claim of Golden Peanut as an unsecured claim. (Doc 15 Main). The Plan was amended on July 8, 1994 and again on August 1, 1994. Neither of these amendments had any effect upon the Plan's treatment of Golden Peanut's claim. The Debtor's Plan called for a distribution of 1% to unsecured creditors. Golden Peanut did not object to confirmation of Holloway's Chapter 12 Plan. On August 19, 1994, Holloway's Chapter 12 Plan was confirmed. (Doc. 26 Main). On November 4, 1999, this Court entered an order of discharge, finding that the Debtor had fulfilled all of the requirements of his Plan. (Doc. 119 Main).
It is of note that there were no proceedings of any kind, during the pendency of this Chapter 12 case, which related in any way to the judgment lien of Golden Peanut. Holloway did not object to Golden Peanut's claim, notwithstanding the fact that it was inconsistent with its treatment as an unsecured debt under the Plan. Moreover, Golden Peanut did not object to confirmation of the Plan, notwithstanding the fact that the Plan did not provide for its lien and proposed only the payment of a 1% dividend to unsecured creditors. In addition, neither party filed an adversary proceeding to determine whether the lien of Golden Peanut was valid or whether the lien had attached to any of Holloway's property.
On January 19, 2000, Holloway brought this Adversary Proceeding to determine whether the judgment of Golden Peanut had been discharged in his Chapter 12 case. (Doc. 1 AP). As set forth in the complaint, Golden Peanut was awarded a money judgment in the amount of $8,483.21, plus costs in the amount of $150.00, in a judgment which was recorded with the Judge of Probate for Coffee County, Alabama on March 25, 1993 at Judgment Book 13, Page 60. (Doc. 1 AP). At the time of the filing of this Chapter 12 case, Holloway owned 150 acres of farm land in Coffee County, Alabama which he valued at $75,000. The farm land was subject to a mortgage in favor of the Farmers Home Administration in the amount of $64,804.53.[2] Therefore, it appears that Holloway had equity in his real property in the amount of $10,195.47 at the time of filing. In addition, Holloway owned various items of personal property which he valued at $12,750.00. Holloway claimed that $3,000 of his personalty was exempt pursuant to Ala.Code Section 6-10-6 and 11 U.S.C. § 522 but made no claim of exemption with respect to the real property. See Schedule C (Doc. 2).
CONCLUSIONS OF LAW
This is an adversary proceeding to determine the validity, extent and priority of the judgment lien of Golden Peanut upon the property of Debtor Herbert Holloway. This Court has jurisdiction to hear this case pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K). The question before this Court is whether confirmation of the Holloway's Chapter 12 Plan voided the *291 judgment lien of Golden Peanut. For the reasons set forth below, the Court finds that it did not and that the property in question is still encumbered by the judgment lien.
The Debtor argues that this Court's confirmation of his Chapter 12 Plan bound Golden Peanut to accept its treatment as the holder of an unsecured claim. Holloway argues that the preclusive effect of the order of confirmation caused Golden Peanut to lose its lien. Golden Peanut, on the other hand, argues that it was only his personal liability which was discharged in the bankruptcy proceedings and that its property rights passed through Holloway's bankruptcy unaffected. This Adversary Proceeding illustrates the conflict between Section 1227 of the Bankruptcy Code (which provides for the binding effect of a confirmed Chapter 12 Plan) and the common law rule that liens pass through bankruptcy unaffected, unless some affirmative action is taken. See, e.g., Southtrust Bank of Alabama, N.A. v. Thomas (In re Thomas), 883 F.2d 991, 996 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S. Ct. 3245, 111 L. Ed. 2d 756 (1990). The Court will examine Section 1227 of the Bankruptcy Code and review the common law rule of Long v. Bullard. Having done this, this Court concludes that this case is controlled by the decision handed down by the Eleventh Circuit Court of Appeals in Thomas. This Court finds that confirmation of a Chapter 12 Plan, without more, does not divest a judgment lien creditor of his lien upon the Debtor's property, notwithstanding contrary provisions in the Plan.
A.
While Holloway does not dispute the proposition that Golden Peanut held a valid judgment lien upon his property at the time the petition in bankruptcy was filed, a brief review of the pertinent legal principles is in order. At the time Holloway filed his petition in bankruptcy, Golden Peanut held a valid money judgment against him. Alabama law provides that the holder of a judgment has a lien upon property of the Debtor's, which is subject to execution, upon recording the judgment, or a certificate of the judgment, with the Judge of Probate. See ALA.CODE § 6-9-211; see also Citibanc of Alabama/Tuskegee v. Potter, 379 So. 2d 553, 555 (Ala.1979) (properly recorded judgment lien had priority over construction lien which was recorded later in time). When Golden Peanut recorded its judgment with the Judge of Probate for Coffee County, Alabama, it acquired a valid lien upon Holloway's farm. The question then becomes what, if anything, happened to that lien in the Holloway bankruptcy proceeding.
B.
This analysis begins with a review of Section 1227 of the Bankruptcy Code, which provides as follows:
(a) Except as provided in section 1228(a) of this title, the provisions of a confirmed plan bind the debtor, each creditor, each equity security holder, and each general partner in the debtor, whether or not the claim of such creditor, such equity security holder, or such general partner in the debtor is provided for by the plan, and whether or not such creditor, such equity security holder, or such general partner in the debtor has objected to, has accepted, or rejected the plan.
(b) Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.
(c) Except as provided in section 1228(a) of this title and except as otherwise provided in the plan or in the order confirming the plan, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan.
11 U.S.C. § 1227. It does not appear that there is any authority, which is binding upon this Court, on the question of whether Section 1227 provides that confirmation *292 of a Chapter 12 Plan, by itself, operates to divest a judgment lien holder of his lien.
Section 1227(b) states that "confirmation of a plan vests all of the property of the estate in the debtor." 11 U.S.C. § 1227(b). Moreover, the property is "free and clear of any claim or interest of any creditor provided for by the plan." 11 U.S.C. § 1227(c). These provisions have been read in two different ways. One reading of this section yields the result that where, as here, a judgment lien creditor is "provided for" as an unsecured creditor, that the debtor would then take his property free and clear on the judgment lien. An alternate reading of the section yields the result that the lien holder's interest does not become property of the estate and therefore is not, simply by virtue of Section 1227, extinguished upon the confirmation of a Plan. See Thomas, 883 F.2d at 998, n. 13.
C.
Over a century ago, the United States Supreme Court announced a fundamental principle of bankruptcy law. A discharge in bankruptcy does not divest a lien holder of its lien upon the debtor's property. Long v. Bullard, 117 U.S. 617, 6 S. Ct. 917, 29 L. Ed. 1004 (1886); see also Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 582-83, 55 S. Ct. 854, 859-60, 79 L. Ed. 1593 (1935); United States Nat'l Bank v. Chase Nat'l Bank, 331 U.S. 28, 33, 67 S. Ct. 1041, 1044, 91 L. Ed. 1320 (1947) (dictum); In re Woodmar Realty Co., 307 F.2d 591, 594-95 (7th Cir.1962); Dizard & Getty, Inc. v. Wiley, 324 F.2d 77, 79-80 (9th Cir.1963); Clem v. Johnson, 185 F.2d 1011, 1012-14 (8th Cir. 1950); DeLaney v. City and County of Denver, 185 F.2d 246, 251 (10th Cir.1950); In re Bain, 527 F.2d 681, 685-86 (6th Cir.1975); In re Honaker, 4 B.R. 415, 416 and n. 3 (Bankr.E.D.Mich.1980); cf. In re Rebuelta, 27 B.R. 137 138-39 (Bankr. N.D.Ga.1983); In re Hines, 20 B.R. 44, 48 (Bankr.S.D.Ohio 1982). A discharge in bankruptcy relieves the debtor from his personal obligation to pay an indebtedness, however, any liens which were perfected as of the time the petition in bankruptcy is filed, remain attached to property. To state the proposition differently, a discharge in bankruptcy voids the in personam liability of the debtor but does not affect the creditor's in rem rights with respect to property. See Dewsnup v. Timm, 502 U.S. 410, 419, 112 S. Ct. 773, 779, 116 L. Ed. 2d 903 (1992). This adversary proceeding illustrates the tension of Section 1227 with the rule of Long v. Bullard.
The United States Court of Appeals for the Eleventh Circuit applied these principles to a factually analogous case under Chapter 13 of the Bankruptcy Code and found a lien was "not voided by the fact that the debtors passed the interest they had in the mobile home through bankruptcy." Thomas, 883 F.2d at 997 (following In re Tarnow, 749 F.2d 464, 465 (7th Cir. 1984)). While Thomas was a Chapter 13 case and the case at bar is under Chapter 12, the same rule applies as the two pertinent code sections are, for all practicable purposes, indistinguishable. Compare 11 U.S.C. § 1227 with 11 U.S.C. § 1327. In Thomas, a Chapter 13 Plan had provided for payment to SouthTrust Bank of its indebtedness which was secured by a mobile home. However, SouthTrust failed to file a proof of claim and for that reason was not paid. Thomas argued that the lien of SouthTrust was "provided for" by the plan and for that reason its indebtedness was discharged and its lien voided. The Eleventh Circuit held that a debtor could not, under these circumstances, improve its position. That is, a debtor cannot acquire any greater interest in property by virtue of confirmation of a Chapter 13 Plan than he had at the time he filed bankruptcy. Thomas, 883 F.2d at 998 (citing In re Honaker, 4 B.R. 415 (Bankr. E.D.Mich.1980)).
The Eleventh Circuit in Thomas rejected the debtors' claim that confirmation vested the mobile home in them free and *293 clear of the lien of SouthTrust. See Thomas, 883 F.2d at 997-98. The Court examined Section 1327 and found that the lien of SouthTrust had not been "provided for." As Section 1227 contains the virtually the same language, it is clear that Holloway in this case did not "provide for" the lien of Golden Peanut. Therefore, Holloway does not take his interest in the property free and clear of the judgment lien.
In two decisions handed down by the United States Court of Appeals for the Fourth Circuit, the Court held that confirmation of Chapter 13 Plans, without more, did not divest the holder of a lien of his rights in the collateral. See Deutchman v. Internal Revenue Service (In re Deutchman), 192 F.3d 457 (4th Cir.1999) and Cen-Pen Corporation v. Hanson (In re Hanson), 58 F.3d 89 (4th Cir.1995). In Deutchman, the Court held that:
"[a] bankruptcy discharge extinguishes only in personam claims against the debtor(s), but generally has no effect on an in rem claim against the debtor's property." (citation omitted). In order to extinguish or modify a lien, the debtor must take some affirmative step toward that end. As we have observed in the past "unless the debtor takes appropriate affirmative action to avoid a security interest in property of the estate, that property will remain subject to the security interest following confirmation." (citation omitted).
Deutchman, 192 F.3d at 460 (citing Cen-Pen Corp., 58 F.3d at 92).
The Fourth Circuit held in Deutchman that the debtor had not taken sufficient affirmative steps to divest the Government of its tax lien, specifically noting that it had not filed a pre-confirmation adversary proceeding or objected to the Government's secured tax claim. The Court disparaged the debtor's attempt to "camouflage" his treatment of the tax lien by way of the language in the Chapter 13 Plan. Deutchman, 192 F.3d at 460.
The facts in Deutchman are similar to the facts of this case in two important respects. First, Deutchman involved a Federal tax lien, which is a non-consensual statutory lien, and which is general in nature, that is it not specific to one parcel of property. This is much more closely analogous to a judgment lien which is also nonconsensual, statutory and general in nature, as opposed to a mortgage, which is consensual and specific to one given parcel of real property. The holding in Deutchman makes clear that the lien in question need not be a consensual security interest. In Thomas, the Eleventh Circuit described, in some detail, the property interest held by the Bank. See Thomas, 883 F.2d at 995-96. As Alabama is a "title theory" and not a "lien theory" state, a mortgage holder has legal title to the property, subject only to the debtor's equity of redemption. However, this discussion by the Court in Thomas does not suggest that a creditor who holds a statutory or non-consensual lien as opposed to a mortgage would be treated differently for purposes of the analysis here. Regardless of the underlying theory by which the holder of a lien obtains its interest in the property of a debtor, the analysis of its treatment of the secured claim under the Bankruptcy Code is the same. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989) (consensual liens treated like nonconsensual liens for purposes the entitlement to interest under Section 506).
Second, the Government in Deutchman filed a proof of claim to which no objection was filed, which is the same as the situation here. Filing a claim in a Chapter 13 case is not, by itself, sufficient participation to cause a secured creditor to lose its lien. The Court in Deutchman faced the same scenario as is presented here. The creditor filed a secured claim and the debtor did not object. On the other hand, the creditor in Deutchman, as here, failed to object to confirmation of the Plan. Both debtor and creditor are equally culpable for failing to resolve the inconsistency between a properly filed secured claim, *294 which is allowed if no objection is filed, 11 U.S.C. § 502(a), and a Plan which does not provide for the creditor's lien. It is this paradox which must be resolved here.
The Fourth Circuit in Cen-Pen held that "because an unchallenged lien survives the bankruptcy discharge of a debtor, however, a creditor with a loan secured by a lien on the debtor's property is free to ignore the bankruptcy proceeding and look solely to the lien for satisfaction of the debt." Cen-Pen Corp., 58 F.3d at 94.
The fact that Cen-Pen was listed as an unsecured creditor in the bankruptcy schedules does not suffice to avoid its liens. (citation omitted). "Even where confirmed without objection, a plan will not eliminate a lien simply by failing or refusing to acknowledge it or by calling the creditor unsecured." (citation omitted). The Hansons should not be entitled to eliminate otherwise valid liens on their residence simply by characterizing Cen-Pen's claims in the plan as unsecured.
Id. Holloway simply ignored the judgment lien of Golden Peanut in his Chapter 12 Plan and likewise ignored its proof of claim, which had claimed a lien by virtue of its judgment, the validity of which Holloway does not dispute. It would be easy to fault Holloway for not providing for the judgment lien in his Plan and failing to object to Golden Peanut's proof of claim. On the other hand, it would have been a simple matter for Golden Peanut to have objected to confirmation of the Chapter 12 Plan and raised its concerns prior to confirmation of the Plan. As no contested matter or adversary proceeding was brought, the judgment lien of Golden Peanut survived confirmation of the Chapter 12 Plan. See FED.R.BANKR.P. 7001 and 9014 (providing procedural rules for the litigation of contested matter and adversary proceedings).
The United States Court of Appeals for the Fifth Circuit held that a construction lien of a plumber could not be avoided through the expediency of listing his claim as disputed and unsecured and treating the plumber as the holder of an unsecured claim in a Chapter 13 plan. See Simmons v. Savell (In re Simmons), 765 F.2d 547 (5th Cir.1985). "It would be anomalous indeed were we to permit Simmons a windfall for his mischaracterization of Savell's claim in the plan as unsecured." Simmons, 765 F.2d at 555-56. The same can be said here. Holloway should have treated Golden Peanut as the holder of a secured claim.[3] His failure to do so should not result in a windfall.
The United States Court of Appeals for the Seventh Circuit, in a case under Chapter 11, held that "participation" by the secured creditor was sufficient to divest it of its lien. See In re Penrod, 50 F.3d 459 (7th Cir.1995). In Penrod, a secured creditor filed a proof of claim but did not object to confirmation of the debtor's Chapter 11 Plan. The Seventh Circuit found that this "participation" was sufficient to cause the "extinction" of the creditor's lien. Penrod, 50 F.3d at 462-63. The Court in Penrod did not require the initiation of an adversary proceeding or a contested matter. The Seventh Circuit in Penrod voided the lien of a creditor who had filed a proof of claim in a case under Chapter 11 while the Fourth Circuit in Cen-Pen and Deutchman would require something more in a case under Chapter 13. At least one Bankruptcy Court has attempted to reconcile the two lines of cases on the basis of the differences between Sections 1327 and 1141. See In re Regional Building Systems, 251 B.R. 274 (Bankr.D.Md.2000) (contrasts the language of "dealt with" in Section 1141(c) and "provided for" in section 1327(c) and notes that Chapter 11 cases are larger and more complex than cases under Chapter 13 and, in addition, that Chapter 11 of the Code calls for the *295 creditors to vote for a plan while there is no like provision in Chapter 13).
A recent decision from a Bankruptcy Court in Wisconsin held that the initiation of a contested matter was a sufficient affirmative step to result in the divestment of a second mortgage in a case under Chapter 12. See Zabel v. Schroeder Oil, Inc. (In re Zabel), 249 B.R. 764 (Bankr.E.D.Wis.2000). In Zabel, the debtor filed a motion, pursuant to 11 U.S.C. § 506, seeking a determination that Schroeder Oil did not have a valid lien upon his property. In addition, Schroeder Oil filed an objection to confirmation of the Debtors' Chapter 12 Plan. The Bankruptcy Court held that this was sufficient participation to divest the lien. Zabel, 249 B.R. at 769. In the instant Adversary Proceeding, Holloway did not file such a motion, nor did Golden Peanut file an objection to confirmation of the Plan. As there was no adversary proceeding or contested matter in which the lien of Golden Peanut was in issue, there was no proceeding which could have caused the judgment lien to be removed.
In conclusion, this Court holds that confirmation of the Debtor's Plan here did not divest Golden Peanut of its judgment lien. Golden Peanut had an interest in the Debtor's property at the time the petition in bankruptcy was filed. The Debtor's Plan did not provide for the judgment lien and therefore it survived the discharge in bankruptcy. A separate order of judgment consistent with this memorandum decision will be entered by the Court.
NOTES
[1] Documents in the main case file will be designated with the suffix "Main" while documents in the Adversary Proceeding file with be designated with the suffix "AP."
[2] The schedules reported a balance due $63,384.93 but the Plan provided for $64,804.53. The difference between these two figures is not material here.
[3] Golden Peanut does not fault Holloway for not recognizing its lien in his Chapter 12 Plan. It is not clear that Holloway knew of that the judgment had been recorded at the time the Chapter 12 bankruptcy case was pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604737/ | 810 So. 2d 1008 (2002)
Fernando L. APONTE, Appellant,
v.
STATE of Florida, Appellee.
No. 4D01-2476.
District Court of Appeal of Florida, Fourth District.
March 6, 2002.
*1009 Fernando L. Aponte, Polk City, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
HAZOURI, J.
Fernando Aponte pled nolo contendre to two counts of lewd, lascivious or indecent acts upon a minor and was sentenced on May 5, 1998. The plea agreement called for a downward departure sentence of probation. Victim injury points were not assessed because of the agreement for the downward departure sentence.
After Aponte violated probation, the trial court revoked his probation and sentenced him to nine years and eight months in the Department of Corrections. Aponte then filed a rule 3.800(a) Motion to Correct Illegal Sentence. The trial court denied the motion without prejudice to file a rule 3.850 motion for postconviction relief. Aponte appeals from an order dated May 23, 2001, which summarily denied his rule 3.850 Motion for Postconviction Relief.[1] Aponte raises six points on appeal but only two points warrant discussion.
At his sentencing for violation of probation, the trial court used a scoresheet that included victim injury points (sex penetration). Aponte asserts that he should be resentenced because the court improperly assessed victim injury points which were omitted at his original sentencing hearing through a plea agreement with the state. In its response, the state cites to Merkt v. State, 764 So. 2d 865 (Fla. 4th DCA 2000), in support of its contention that upon a violation of probation, the trial court may assess victim injury points for the underlying offense even if the trial court did not assess such points at the time of the entry of the plea pursuant to the plea agreement.
In Merkt, the defendant pled guilty to two felonies, including lewd and lascivious assault on a minor. Id. at 866. The plea agreement called for two years in prison followed by two years community control and ten years probation. Id. No victim injury points were assessed on the scoresheet. Id. Subsequently, the court revoked the defendant's community control upon a violation and assessed victim injury points after an evidentiary hearing regarding victim injury. Id. The defendant challenged the assessment of the victim injury points and this court held that the trial court could properly assess the victim injury points. Id. at 866-67. However, Merkt makes no mention of a plea agreement excluding victim injury points. Aponte asserts that Merkt fails to address whether the trial court may assess victim injury *1010 points at the revocation proceeding when the plea agreement for the underlying offense specifically called for no assessment of injury points. Aponte contends under these circumstances, upon violation of probation, a sentencing court is constrained by the terms of the plea agreement for the original offense. The trial court, however, is not so restrained. See Mulder v. State, 356 So. 2d 870 (Fla. 4th DCA 1978).
In Mulder, the appellant entered a plea of guilty pursuant to a plea agreement that he would not receive more than two years in prison. Id. at 871. The trial court sentenced him to three years probation. Id. Upon violation of probation, the trial court sentenced the appellant to three years in prison. Id. In affirming the sentence, this court relied on section 948.06(1), Florida Statutes (1975), which states that after revocation of probation, the court may impose any sentence it may have imposed before placing the defendant on probation. Id. The Florida Supreme Court approved Mulder. See State v. Segarra, 388 So. 2d 1017, 1018 (Fla.1980).
In Segarra, the defendant was charged with burglary, a second degree felony carrying a maximum sentence of fifteen years. Id. at 1017. Plea negotiations resulted in a plea of guilty with a five-year cap on the sentence. Id. After presentence investigation, the trial court sentenced the defendant to five years probation with two conditions, one of which the defendant violated. Id. The trial court revoked the defendant's probation and sentenced the defendant to fifteen years. Id. The Third District Court of Appeal reversed the trial court and held that the maximum sentence which the court could impose upon violation of probation was five years. Id. The district court pointed out that there had been an agreed maximum sentence of five years as a part of a plea negotiation which was accepted and approved by the defendant, the prosecutor and the judge. Id.
The supreme court noted the conflict between the third district's decision in Segarra and this court's opinion in Mulder. Id. at 1018. In quashing the third district decision, the court quoted the following language taken from the second district's decision in Johnson v. State, 378 So. 2d 335 (Fla. 2d DCA 1980):
As between the two views, we opt for the position taken by the fourth district court of appeal. So long as the order of probation was within the terms of the agreement, the court has fulfilled the plea bargain. The events which bring about a revocation open a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime.
Id. (quoting Johnson, 378 So.2d at 335-36). The supreme court held that when a defendant pleads guilty pursuant to a plea bargain and the trial court places him on probation, if he violates his probation, the trial court can sentence him to a term in excess of provisions of the original bargain. Id. Thus, as the state asserts, a trial court may assess victim injury points under these circumstances.
Unlike the concurring opinion, we find that the decisions in Kingsley v. State, 682 So. 2d 641 (Fla. 5th DCA 1996) and Estrada v. State, 787 So. 2d 94 (Fla. 2d DCA 2001) are distinguishable from our holding in the instant case. In Kingsley, the defendant appealed a final judgment and sentence entered following a violation of probation. 682 So. 2d 641. The fifth district affirmed the conviction, but reversed and remanded for resentencing because a revised sentencing guideline scoresheet which reflected 40 points for severe victim injury was utilized rather than the original sentencing guideline scoresheet, which allotted only four points for slight victim *1011 injury. Id. at 641-42. This case is distinguishable from Kingsley, because in the instant case the trial court did not address the issue of victim injury points at the original sentencing hearing.
In Estrada, the defendant appealed a summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. 787 So.2d at 95. Estrada pled guilty to armed trafficking in amphetamine and conspiracy to traffic in amphetamine and was sentenced under the 1995 sentencing guidelines. Id. He alleged in his motion that he was entitled to be resentenced pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). Id. Heggs holds that a defendant is entitled to resentencing if the sentence imposed under the unconstitutional 1995 guidelines would constitute an impermissible departure sentence under the 1994 guidelines. Therefore, Estrada would not be entitled to resentencing under Heggs if he could receive the same sentence under the 1994 sentencing guidelines without a departure, as he received under the 1995 sentencing guidelines. At the original sentencing hearing the trial court declined to apply the 1.5 multiplier for drug trafficking permissible under Florida Rule of Criminal Procedure 3.702(14). Id. at 96. The second district held that the trial court was not authorized to add the discretionary multiplier that it originally declined to impose in order to avoid the resentencing requirements of Heggs. Id. The instant case is distinguishable from Estrada. Whereas in Estrada, the trial court at the original sentencing hearing made the determination that the discretionary multiplier was not appropriate and declined to assess it, in the instant case the trial court at the original sentencing hearing did not determine whether the victim injury points should be assessed.
In the concurring opinion, Judge Klein opines that the plain meaning of section 948.06(1), Florida Statutes (2001) prohibits adding points after probation is revoked. To support his interpretation, he suggests that in Roberts v. State, 644 So. 2d 81 (Fla. 1994), the Florida Supreme Court validated his narrow interpretation of section 948.06(1) when it determined that upon a violation of probation an original scoresheet may not be revised but carved out one exception, i.e., prior convictions which were mistakenly omitted from the original scoresheet. There is nothing in Roberts to suggest that the Florida Supreme Court, in Roberts, considered every reason a trial court might have to revise an original scoresheet and that the one exception addressed was the only exception. The mere fact that the supreme court found that it was permissible to add points for prior convictions that were mistakenly omitted, does not lead to the conclusion that it would be impermissible to add points for any other possible reason.
There is no doubt that in the instant case, the trial court could have assessed victim injury points at the original sentencing hearing had the state presented evidence to support victim injury points. Therefore, we see no reason why the plain reading of section 948.06(1) does not permit the same victim injury points to be assessed upon a violation of probation.
The second issue that warrants discussion deals with Aponte's claim that he is entitled to resentencing under Heggs, because he was erroneously sentenced under the unconstitutional 1995 guidelines. The state concedes that Aponte falls within the Heggs window. However, the state argues that when penetration points are included in the 1994 scoresheet, Aponte could receive the sentence that was imposed without a departure, and thus, he is not entitled to Heggs relief.
The state's position is correct. If the victim injury points are assessed, Aponte is not entitled to resentencing under Heggs. However, before victim injury *1012 points can be assessed, the trial court must hold an evidentiary hearing regarding facts which support the extent and nature of the victim injury. See Marrs v. State, 770 So. 2d 277, 279 (Fla. 4th DCA 2000); Echols v. State, 660 So. 2d 782, 785 (Fla. 4th DCA 1995). An examination of the record fails to reflect an evidentiary hearing was ever held regarding victim injury before the victim injury points were assessed. Therefore, we reverse the sentence and remand to the trial court to hold an evidentiary hearing to determine the appropriateness of imposing victim injury points. Should the evidence adduced at the evidentiary hearing fail to support the imposition of victim injury points, the trial court is directed to resentence Aponte under the 1994 guidelines without victim injury points. If the evidence adduced does support the assessment of victim injury points for sex penetration then the sentence which is the subject of this appeal may be reimposed. As to the remaining points raised on appeal by Aponte, we affirm.
Affirmed in part and reversed in part.
STONE, J., concurs.
KLEIN, J., concurs specially with opinion.
KLEIN, J., specially concurring.
I question whether victim injury points can be added to an original guidelines scoresheet when a defendant is sentenced for violating probation. I am agreeing with the result because of precedent from this court; however, as a member of one of the panels that established that precedent, I have now concluded that we should not have done so.
The trial court's authority to impose a stiffer sentence after a violation of probation comes from section 948.06(1), Florida Statutes (2001) which provides:
If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. (emphasis added).
In my opinion the plain meaning of section 948.06(1) prohibits adding points after probation is revoked.
The Florida Supreme Court has carved out one exception to the statute, which is that a trial court can add prior convictions to the original scoresheet, where the prior convictions were mistakenly omitted from the original scoresheet. Roberts v. State, 644 So. 2d 81 (Fla.1994). The rationale of Roberts was that: "Neither the rules nor the substantive law justifies a defendant receiving the largesse of a judicial error." Id. at 82 (quoting from Roberts v. State, 611 So. 2d 58, 59 (Fla. 3d DCA 1992)). Prior to Roberts, the majority of our district courts of appeal had held that prior convictions mistakenly omitted from the original scoresheet could not be added when sentencing for violation of probation.[2]
Although neither our supreme court nor any other district courts of appeal have authorized victim injury points to be added to the scoresheet on revocation, this court has done so in several cases, the first of which was Echols v. State, 660 So. 2d 782 (Fla. 4th DCA 1995).[3] In Echols, the defendant *1013 was also being resentenced after a reversal of his sentence under Karchesky v. State, 591 So. 2d 930 (Fla.1992).
There is a significant distinction between a resentencing following a reversal of a sentence and a sentencing on revocation of probation. A resentencing after reversal of a sentence is a de novo proceeding in which both the state or the defendant can put on additional evidence and raise issues which were not raised at the original sentencing hearing. Altman v. State, 756 So. 2d 148 (Fla. 4th DCA 2000); Doggett v. State, 584 So. 2d 116 (Fla. 1st DCA 1991); Phillips v. State, 705 So. 2d 1320 (Fla.1997)(resentencing in a death penalty case is an entirely new proceeding). This does not violate the prohibition against double jeopardy. Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). Nor is a resentencing after reversal of a sentence limited by section 948.06(1), which applies only to sentences imposed on revocation of probation.
In Kingsley v. State, 682 So. 2d 641 (Fla. 5th DCA 1996) the defendant's scoresheet at the original sentencing contained four points for slight victim injury, but on revocation of his probation the scoresheet was revised to include forty points for severe victim injury. The fifth district reversed and held that the trial court had to use the original scoresheet. See also Trotter v. State, 801 So. 2d 1041 (Fla. 5th DCA 2001)(additional scoresheet points can be considered upon a Heggs re-sentencing, but not where sentencing is based on a violation of probation, as that would raise a double jeopardy problem).
In Estrada v. State, 787 So. 2d 94 (Fla. 2d DCA 2001), the court held that a discretionary multiplier for drug trafficking could not be added to a defendant's scoresheet when he was being sentenced for violating probation, because it would violate double jeopardy.[4]
Although the Trotter and Estrada courts expressed concerns about double jeopardy when points are added to the original scoresheet, the results of my research are inconclusive as to whether it is double jeopardy. In Roberts, in which the Florida Supreme Court held that prior convictions mistakenly omitted from the original scoresheet could be added, the court decided that double jeopardy did not prohibit it. If double jeopardy does not prohibit what was done in Roberts, it may not prohibit what is being done in this case. I remain of the opinion, however, that it violates section 948.06(1).
NOTES
[1] Aponte also filed a direct appeal of the judgment and sentence, which this court affirmed per curiam.
[2] Manuel v. State, 582 So. 2d 823 (Fla. 2d DCA 1991); Pfeiffer v. State, 568 So. 2d 530 (Fla. 1st DCA 1990); Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990).
[3] The other cases are Marrs v. State, 770 So. 2d 277 (Fla. 4th DCA 2000), Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000), and Merkt v. State, 764 So. 2d 865 (Fla. 4th DCA 2000).
[4] In Estrada the defendant was also entitled to be resentenced under Heggs, but the second district did not distinguish between a resentencing under Heggs and a probation violation resentencing. The fifth district recognized in Trotter that there is a distinction between a resentencing on reversal and a probation violation resentencing. The Trotter court certified conflict with Estrada on the issue of whether a discretionary multiplier for drug trafficking could be applied to a scoresheet after a reversal of the defendant's sentence under Heggs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575143/ | 308 S.W.3d 331 (2010)
Dona SHIFFLETTE, Appellant,
v.
MISSOURI DEPARTMENT OF NATURAL RESOURCES, Respondent.
No. WD 71716.
Missouri Court of Appeals, Western District.
April 27, 2010.
*332 Randy C. Alberhasky, for Appellant.
Emily A. Dodge, for Respondent.
Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
VICTOR C. HOWARD, Judge.
Dona Shifflette appeals the summary judgment entered in favor of the Missouri Department of Natural Resources (DNR) in her personal injury action. She contends that genuine issues of material fact existed regarding the dangerous condition exception to sovereign immunity. The judgment of the trial court is affirmed.
Ms. Shifflette sued the DNR alleging that she injured her left shoulder when she tripped and fell while exiting a building owned by the DNR. The DNR filed a motion for summary judgment invoking sovereign immunity. Ms. Shifflette responded that sovereign immunity was waived under section 537.600.1(2),[1] the dangerous condition of public property exception. The following facts were uncontroverted.
On May 14, 2006, Ms. Shifflette worked at the restaurant in the dining lodge at Bennett Springs State Park. The building in which the restaurant was located was owned by the DNR. When Ms. Shifflette *333 worked at the restaurant, she parked behind the building and usually entered the building through the back door. The back door was open that day. Inside the back door of the building was a hallway with a cement floor. Outside the back door were two steps down to a sidewalk that sloped downward. The steps and sidewalk did not have a handrail. There was a half inch difference in height between the left side of the step and the right side of the step. There was a boulder and an air conditioning unit in the dirt and gravel next to the sidewalk outside the back door.
As Ms. Shifflette was walking in the hallway toward the back door at the end of her workday, she tripped and began to fall. She did not know why she tripped in the hallway or what she tripped on. She admitted that the hallway floor was not in disrepair and that it was not slippery. She did not notice anything that day about the condition of the hallway or floor that she thought caused her to fall. As she began falling, she remembered thinking that she did not want to land on the sidewalk "because I realized the fall was going through [outside the building], and my theory was I could catch myself on the boulder." She tried to fall more in the direction of the boulder than the sidewalk because the back door was open and "[b]ecause I knew there was no stopping me, there was nothing to hold on to, I was going." She did not land on the sidewalk but generally between the boulder and the air conditioner.
The trial court ruled that Ms. Shifflette failed to establish the second element for waiver of sovereign immunity because her injury did not result from a dangerous condition of public property. This appeal by Ms. Shifflette followed.
In her sole point on appeal, Ms. Shifflette contends that the trial court erred in entering summary judgment in favor of the DNR on the ground that her claim was barred by sovereign immunity. She contends that genuine issues of material fact existed regarding the dangerous condition exception.
Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id.
A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 381. Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions *334 on file to demonstrate the existence of a genuine issue for trial. Id.
Sovereign immunity shields public entities from suit. § 537.600.1; State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). It is waived, however, for cases involving injuries caused by a dangerous condition of public property. § 537.600.1(2); Dierker, 961 S.W.2d at 60. Sovereign immunity is not an affirmative defense but is part of the plaintiff's prima facie case. Townsend v. E. Chem. Waste Sys., 234 S.W.3d 452, 470 (Mo.App. W.D. 2007). To state a claim under the dangerous condition exception, the plaintiff must allege facts that show: (1) a dangerous condition of public property; (2) the injury directly resulted from the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred; and (4) the public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the condition. § 537.600.1(2); Dierker, 961 S.W.2d at 60; Thomas v. Clay County Election Bd., 261 S.W.3d 574, 577-78 (Mo.App. W.D.2008). "The sovereign immunity statute must be strictly construed." Dierker, 961 S.W.2d at 61.
In granting summary judgment in favor of the DNR, the trial court found that Ms. Shifflette could not establish the second element of the dangerous condition exception, namely that her injury directly resulted from the dangerous condition. The phrase "directly resulted from" in the second requirement of section 537.600.1(2) is synonymous with "proximate cause." Id. at 60. "The general test for proximate cause is whether the injury is the natural and probable consequence of the defendant's negligence." Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo. banc 1999). Each case must be decided on its own facts. Id. "Proximate cause cannot be based on pure speculation and conjecture." Id.
In her response to the DNR's motion for summary judgment and statement of uncontroverted facts, Ms. Shifflette did not dispute that she tripped in the hallway, that she did not know why she tripped or what she tripped on, and that the hallway was not physically defective or dangerous at the time of her fall. She contended, however, that the lack of a handrail on the doorway step caused her to fall after she tripped because she was unable to catch herself and prevent herself from falling. She further contends in her brief on appeal that the uneven step and sloping sidewalk also contributed to her loss of balance and inability to catch herself. But Ms. Shifflette's injury did not directly result from the step or sidewalk. The undisputed facts revealed that she did not trip or fall on the steps or the sidewalk. Furthermore, speculation and conjecture would have been required to find that she would have been able to catch herself after falling through the hall and doorway, and before landing on the ground between the boulder and air conditioner, if a handrail had been installed on the steps. The record is devoid of a factual basis to support a finding that Ms. Shifflette's injury was the natural and probable consequence of lack of a handrail on the doorway steps. See Payne v. City of St. Joseph, 135 S.W.3d 444, 451 (Mo.App. W.D.2004)(where no evidence was presented from which it could be inferred that the failure of the city to barricade a landfill transfer station caused plaintiff to fall out his employer's truck and into the dumpsters below, plaintiff failed to make submissible case on issue of causation); Necker ex rel. Necker v. City of Bridgeton, 938 S.W.2d 651, 655 (Mo. App. E.D.1997)(allegations that city failed *335 to make an otherwise non-defective balance beam safe by warnings or signs, barricades, mats, or supervision did not state a claim under dangerous condition exception because intangible acts such as inadequate supervision, lack of warnings or signs, and lack of barricades do not create a dangerous condition). Thus, the trial court correctly entered summary judgment in favor of the DNR. The point is denied.
The judgment is affirmed.
All concur.
NOTES
[1] All statutory references are to RSMo Cum. Supp.2009 unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605574/ | 416 So.2d 166 (1982)
The CECO CORPORATION
v.
R & M INDUSTRIES, INC., Robert P. Guilbault, and Michael C. Guilbault.
No. 12133.
Court of Appeal of Louisiana, Fourth Circuit.
May 11, 1982.
Rehearing Denied July 16, 1982.
John L. Hantel, New Orleans, for plaintiff-appellee.
Reed & Reed, Bruce G. Reed, New Orleans, for defendants-appellants.
Before GULOTTA, GARRISON and BARRY, JJ.
GARRISON, Judge.
This is an appeal from a judgment of the district court granting to plaintiff, the Ceco Corporation, the amount of $4,500.00, plus legal interest from date of judicial demand and costs. From that judgment, which we rescind, set aside and recast, defendants appeal.
On appeal, defendants, Robert and Michael Guilbaut, argue that the trial judge erred in piercing the corporate veil and rendering judgment against them personally instead of against the corporate entity, R & M Industries, Inc. (hereinafter, R & M). We agree.
The $4,500.00 debt arose from the sale on open account of aluminum doors and frames in 1974. Robert Guilbault, the father of Michael Guilbault, owned 60% of R & M and Michael Guilbault owned 40% until his resignation from the corporation in 1975-76. Thereafter, Robert Guilbault operated the corporation and was its sole shareholder until the assets of R & M were transferred to a new corporation, R. P. Guilbault Co., Inc. The new corporation issued checks in payment of the debt to plaintiff. There have been no allegations of fraud or deceit and the trial judge specifically found that no fraud or deceit has occurred. In his reasons for judgment, the trial judge stated:
*167 "... the conclusion is inescapable that the defendants operated the business as a `father and son', and not as a separate corporate entity. If the `cash flow' warranted it, the father paid himself a salary out of the business bank account. If not, he waited until the cash flow improved... However, the father also considered the possibility that the business might need additional `cash'. If he ... determined that new cash was needed, he (the father) merely drew funds out of his personal account and placed said funds in the business account ... he never called a stockholders meeting. No Board of Directors meeting was ever called. No minutes were kept. No corporate authority was granted for his actions. No policy was ever established governing personnel. The corporate entity took no action whatsoever, during its entire existence."
The factors listed by the trial judge are insufficient to allow the piercing of the corporate veil. Robert Guilbault, as President of the corporation, held certain inherent powers of the office of President. The president of a corporation who decides to forego a salary where drawing a salary might cause financial instability in the corporation is taking the proper action. Likewise, an interest free loan to a corporation is in the corporation's best interest, is not a perversion of corporate opportunity, and is not grounds for piercing the veil. While an annual shareholders meeting, board meeting and written minutes are required under the Louisiana Business Corporate Act, these factors alone, where there is a sole shareholder, and no fraud or deceit and where the corporation maintained separate checking accounts and separate books and records, are insufficient to allow piercing of the corporate veil to occur.
By issuing payment on its corporate account, R. P. Guilbault Co., Inc. has acknowledged the debt and assumed it in the nature of a stipulation pour autri. Accordingly, we find that this corporation should have been included in the judgment rendered below.
Proper demand was made pursuant to R.S. 9:2781 such that attorney's fees in the amount of 10%, or $450.00, should have been awarded.
For the reasons discussed, the judgment of the district court is rescinded, set aside and recast as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be and hereby is judgment herein in favor of the plaintiffs, The Ceco Corporation, and against the defendants, R & M Industries, Inc. and R. P. Guilbault Co., Inc., jointly, severally, and in solido in the full sum of Four Thousand Five Hundred and No/100 Dollars ($4,500.00), together with legal interest from the date of judicial demand until paid, attorney's fees in the amount of Four Hundred Fifty and No/100 Dollars ($450.00), and for all costs of these proceedings.
RESCINDED, SET ASIDE AND RECAST. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604704/ | 810 So. 2d 1179 (2002)
STATE of Louisiana, Appellee,
v.
Larry Stinson SHARP, Appellant.
No. 35,714-KA.
Court of Appeal of Louisiana, Second Circuit.
February 27, 2002.
Rehearing Denied March 28, 2002.
*1183 Louisiana Appellate Project, by J. Wilson Rambo, Monroe, for Appellant.
Larry Stinson Sharp, In Proper Person.
Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Traci Ann Moore, Assistant District Attorneys, for Appellee.
Before NORRIS, KOSTELKA and DREW, JJ.
KOSTELKA, J.
After an eleven-one jury convicted Larry Stinson Sharp ("Sharp") as charged with second degree murder, La. R.S. 14:30.1, he received a mandatory life sentence at hard labor without benefit of parole, probation or suspension of sentence.[1] He appeals his conviction and sentence.[2] We affirm.
FACTS
On March 12, 2000, Marcio Stanford ("Marcio") and Joni[3] Bumgarner Sanders ("Joni") visited the Vivian, Louisiana home of Ada Stanford ("Ada"), Marcio's mother, where they assisted her with chores. Joni and Sharp were involved in a romantic relationship until January of 2000 when she began dating Marcio. In the late afternoon of March 12th, as Ada and Marcio were working on a fence, and Joni was doing laundry, Sharp drove up. After a very brief conversation, Sharp asked Marcio if Joni was there and if he could talk to her. After Marcio responded affirmatively, Sharp drove to the back of the house to a location where Marcio and Ada could not see him. Thereafter, Marcio and Ada heard two gunshots and began running toward the back of the house. At that point, Sharp began backing out of the driveway as Ada yelled at him to stop. When Sharp stopped the truck, Ada saw him point a shotgun out of the window. Sharp then fired at Marcio and Ada, hitting Marcio's truck. Marcio retrieved a gun from his truck and returned fire toward Sharp as Sharp backed out of the driveway onto the main roadway. Ada and Marcio hurried to find Joni who had been fatally shot. She was lying face down in water running from hot water pipes which had been hit by Sharp's gunfire. Marcio pulled her from the water flow and covered her with a sheet.
Later the same evening, the Caddo Parish Sheriff's office received a report of a gunshot fired in the vicinity of a nearby bar. When deputies arrived, they found Sharp lying near a pay phone with a self-inflicted gunshot wound to the chest. Sharp was arrested and transported to LSU Medical Center for treatment.
DISCUSSION
Sharp first contends that the evidence was insufficient to convict him of second degree murder.[4]
*1184 A claim of insufficient evidence is better addressed by a motion for post-verdict judgment of acquittal filed in the trial court. See, La.C.Cr.P. art. 821. However, this court has held that it may also be raised by assignment of error on appeal. State v. McKinney, 31,611 (La. App.2d Cir.02/24/99), 728 So. 2d 1009.[5]
Under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), the proper standard of appellate review for a sufficiency-of-evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So. 2d 347, writ denied, 97-1203 (La.10/17/97), 701 So. 2d 1333.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So. 2d 471 (La.1983).
This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson and does not extend to credibility determinations made by the trier of fact. State v. Williams, 448 So. 2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. Bosley, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Bellamy, 599 So. 2d 326 (La.App. 2d Cir.1992), writ denied, 605 So. 2d 1089 (La.1992).
Second degree murder is the killing of a human being with the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1.
Manslaughter is a homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. The existence of sudden passion and heat of blood are not elements of the crime of manslaughter, but, rather, are factors in the nature of a defense which may reduce the grade of homicide. State v. Mackens, 35,350 (La.App.2d Cir.12/28/01), 803 So. 2d 454. A defendant who shows by a preponderance of the evidence that these mitigatory factors are present is entitled to a manslaughter verdict. State v. Jackson, 34,076 (La.App.2d Cir.12/06/00), 774 So. 2d 1046. However, the defendant is not obligated to establish the factors affirmatively; instead the jury may infer them from the overall evidence presented. Id. The reviewing court's function is to determine whether a rational trier of fact, viewing the evidence in the light most favorable to the state, could have found that the mitigatory factors were not established by a preponderance of the evidence. Id.
*1185 On appeal, Sharp does not contest the fact that he shot Joni. He contends, however, that his mental condition caused him to act in a state of rage or sudden passion which deprived him of his self-control and cool reflection so as to support only a manslaughter conviction.[6]
At trial, the jury heard evidence from the deputies who investigated the case. On the evening of March 12, 2000, Sergeant Gary Frake ("Frake") received a call regarding a man with a gunshot wound. He and Caddo Sheriff's Office investigator, John May ("May"), went to the scene where they discovered a white male lying on the ground. Deputy James McLamb, II ("McLamb") had previously arrived at the scene and informed May and Frake that the individual was Sharp and that he had a chest wound. Earlier, at 6:00 p.m., May had been called to the scene of Joni's shooting where he had learned of Sharp's involvement. Accordingly, May advised Sharp of his Miranda rights and asked him if he had shot Joni and himself. Sharp responded affirmatively to both questions and further explained that he had shot Joni because she ran off with his best friend. Sharp also indicated that he had attempted to shoot himself with the same gun that he had used to shoot Joni. Frake indicated that he found the gun approximately 200 feet from Sharp's location. It was a 12-gauge pump shotgun. He also retrieved several notes from Sharp's pockets. The deputies located the truck Sharp drove in the vicinity of the bar where Sharp was found. It had several bullet holes in the bed of the truck and a hose connected to the tailpipe.
While Sharp remained in the hospital for treatment, May obtained two statements from him on March 14th and 16th. May taped only the March 16th statement after advising Sharp of his rights. The jury heard the recorded statement in which Sharp stated the following: That on the Friday night before the shooting, Joni called him and wanted him to meet her at the Malibu Beach Club in Shreveport because she needed to see him. From his caller identification device, Sharp realized that Joni was calling him from Marcio's house. He had known that she was seeing someone and this confirmed that it was Marciohis friend. Although he did not meet Joni on that night, he got up on Saturday morning and went to Nacogodoches, Texas, to visit Sarah Gresham ("Gresham"), a girlfriend. He helped Gresham do yard work and then went to a club to have a few beers. He returned to Gresham's at approximately 12:30 a.m. and tried to sleep. During the night, Sharp decided to kill himself because he loved Joni. He got up the next morning and told Gresham that he was going to get breakfast. Instead, Sharp went to Marshall, Texas to the home of a friend named Jeff Palmer ("Palmer") who Sharp knew was not at home. He entered Palmer's back door and stole a shotgun. Thereafter, Sharp went to a deer lease camp where he planned on killing himself. On the way there, he decided he needed to talk to Marcio and Joni. Sharp then called his friend, Tim Cloninger ("Cloninger"), and asked if he could borrow his truck. As Sharp waited for Cloninger at the deer camp, he wrote notes to his ex-wife and daughter. Sharp explained that he wanted somebody else's truck because he was driving without a license and feared that authorities would recognize his truck and take him to jail. Because Sharp did not know where Marcio lived, he drove to *1186 Smithland and Jefferson, Texas, where he obtained a can of gasoline. He parked down the road from Joni's mother's house and made sure no one was home. He then doused the house with gasoline and set it afire. Sharp hid the gas can and went back to the truck. He drove back to Smithland and asked several people where Marcio lived. He eventually found Ada's home and saw Marcio and Ada in the yard. Sharp also saw Joni going to the back of the house. He entered the yard and asked Marcio why he had not returned his telephone calls. Sharp indicated that he told Marcio he was not angry with him. Sharp admitted that when Marcio responded that he did not have time to return his telephone calls, he then wanted to kill Marcio but did not because Ada was standing next to Marcio. Sharp stated that he had consumed six or seven Valium tablets at about 2:00 that afternoon. When he saw Joni go toward the back of the house, he decided that he was going to kill her, Marcio and himself. Sharp went to the back of the house, opened the door to a screened porch where Joni was located and shot her twice. As Ada and Marcio ran back toward Sharp, he shot at Marcio. Marcio then fired several shots at Sharp as he left, hitting the truck Sharp was driving. A short time later, Sharp attached a piece of hose, which he had obtained at Palmer's house, to the tailpipe of the truck and started the truck in an attempt to commit suicide. When the radiator overheated, however, the truck stopped. Sharp then walked to the bar where he was later found. He intended to use a phone there to call his daughter to tell her goodbye but did not because it was too close to the road. He attempted to place the shotgun under his throat but could not reach the trigger. He then found a stick and used it to pull the trigger. The gun prematurely fired, striking him in the chest and knocking him backwards.
May indicated that in the March 14th statement, Sharp stated that he had decided to kill Mario and Joni while he waited for Cloninger to arrive at the deer lease. May confirmed that a hose was hooked up to the truck.
The jury also heard the testimony of Ada and Marcio which corroborated Sharp's statements and the deputies' testimony as it related to the events leading up to and following Joni's death. At trial, Gresham's testimony was also consistent with these accounts of the events.
The jury also listened to expert testimony regarding Sharp's mental condition at the time of the shooting. Dr. Mark Vigen ("Dr.Vigen") was qualified as an expert in general and forensic psychology. Dr. Vigen opined that Sharp suffered from a mental disorder called narcissistic personality disorder and chemical dependency on drugs and alcohol. Dr. Vigen explained that personality disorders are deeply ingrained patterns of maladaptive behavior which cause distressing and dysfunctional relationships. He testified that in his opinion, Sharp felt lonely and rejected. This was caused by the lack of affirmation or emotional connection early in life. Dr. Vigen explained that the narcissistic personality becomes very hurt by rejection and felt that Sharp was surprised, shocked, hurt and enraged by Joni's behavior with Marcio. The doctor opined that Sharp's killing of Joni was a product of his rage and characterized Sharp's behavior at the time of the murder as "stimulus overload." He opined that Sharp was in a state of confusion, overloaded with anxiety, fear, anger, panic and despondency. He characterized Sharp's state as "emotionally labile," and "cognitively" and "emotionally" confused. At the time of the killing, Sharp's ability to control his impulses was poor. Vigen stated that Sharp was able to at times distinguish between *1187 right and wrong but explained that at the time of the shooting, his judgment and impulse control were impaired and he was disinhibited. At the time of the shooting, Dr. Vigen could not state that Sharp was in a psychotic state or responding to delusions to the point that he did not know right from wrong. He explained that Sharp's state was analagous to the reaction of a car driver when bees or wasps enter the car through a window. He stated that this is an example of stimulus overload and that although the person is in a state of anxiety and panic, he may still be able to execute his functions.
Similarly, Dr. George Seiden ("Dr.Seiden"), an expert in psychiatry and forensic psychiatry, diagnosed Sharp with alcohol dependence and adjustment disorder with depressed mood. He agreed that Sharp suffered from narcissistic personality disorder. However, Dr. Seiden testified that the anger resulting from the disorder did not diminish Sharp's capacity to control his behavior. He felt that Sharp had carried out his acts over an extended period of time and calculated his actions. Dr. Seiden felt that this was demonstrated by Sharp's failure to shoot Marcio because Marcio's mother was nearby. He felt that Sharp did not harm Marcio's mother because she was not the object of Sharp's rage. Dr. Seiden testified that he did not feel Sharp was in a senseless rage, but that "[h]e was angry and he was going to get the people he was angry at." Dr. Sieden concluded that Sharp engaged in calculated thinking and reasoning behavior. He felt that Sharp experienced rage when, shortly before he killed Joni, he found out about the relationship between Marcio and Joni. Sharp's rage persisted over time as he laid out his planto get a gun and a truck, set fire to Joni's mother's house and find Marcio and Joni. He disagreed with Dr. Vigen because he felt that Sharp's actions demonstrated calculated, reasoned behavior and that Sharp could distinguish between right and wrong. He concluded that although Sharp's thinking was unreasonable to the normal person, he was capable of understanding the consequences of his thoughts and actions and could have decided not to shoot Joni.
We find the verdict supported by this evidence and testimony. In concluding that Sharp had failed to prove the mitigating factors of sudden passion or heat of blood by a preponderance of the evidence, the jury obviously accepted the expert testimony of Dr. Seiden and rejected Dr. Vigen's view. Of course, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Williams, XXXX-XXXX (La.App. 1st Cir.12/28/01), 804 So. 2d 932. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness. State v. Ratliff, 35,144 (La. App.2d Cir.09/26/01), 796 So. 2d 101. From Dr. Seiden's testimony that Sharp's disorder did not diminish his capacity to control his behavior, the jury's conclusion was a reasonable one. With that testimony and the evidence showing Sharp's day long search for Joni and Marcio, which included burning Joni's mother's house, breaking into a house to steal a gun, trading vehicles to avoid detection, and his calm conversation with Marcio before driving to the back of the house and confronting Joni with a loaded shotgun, the jury could have also reasonably concluded that the state proved beyond a reasonable doubt Sharp actively desired to kill Joni rather than killing himself in front of her. In these circumstances, the evidence is sufficient to support the second degree murder verdict.
Motion to Suppress
Sharp secondly contends that the trial court erred in denying his motion to suppress his March 12th and 14th statements and that this court erred in reversing the *1188 trial court regarding his March 16, 2002 statement.
The record shows that on June 1, 2000, Sharp filed a motion to suppress the statements made by him on March 12, 2000, at the time of his arrest, and on March 14th and 16th while he was hospitalized for his chest wound. Specifically, Sharp contended that the first two statements should have been suppressed because they were obtained without a clear waiver of his rights to remain silent and to have counsel present during questioning. He also argues that because he was either suffering from the effects of a gunshot wound or under the influence of prescription drugs, alcohol and suffering from depression, he was unable to knowingly and voluntarily waive his rights. He claims the third statement was obtained in violation of his Sixth Amendment right to the assistance of counsel.
After a hearing on the motion to suppress, the trial court denied the motion as to the March 12, 2000 and March 14, 2000 statements to police but took the issue of suppression of the March 16, 2000 statement under advisement. In a written ruling on October 17, 2000, the trial court again found the March 12, 2000 and the March 14, 2000 statements to the police admissible but suppressed the March 16, 2000 statement after concluding Sharp had invoked his right to counsel prior to giving the statement.
On November 2, 2000, this court exercised supervisory review and reversed the ruling of the trial court regarding the March 16, 2000 statement finding that "[t]he district court erred in ordering suppression of defendant's recorded statement of March 16, 2000."
March 16th Statement
At the hearing on the motion to suppress, the following evidence was presented regarding the March 16th statement. On March 16, 2000, investigator May and Caddo Parish District Attorney's Office investigator Ricky McDonald ("McDonald") went to Sharp's hospital room for a second time to conduct a taped interview. At that time, Sharp was awake and alert and the investigators informed him that they were there to make a recorded statement. Sharp indicated that his lawyer had been there the day before and "he wanted to give a statement but his lawyer wanted to meet with him first." Sharp provided the investigators with the name of a lawyer from Marshall, Texas.
When May called the lawyer's office, he was not in. Instead, May spoke with Jennifer Jeffries ("Jeffries"), another lawyer in the firm who told him that the other lawyer represented Sharp in a Texas civil matter but that they had not been retained to represent him on the criminal charges pending in Louisiana. May testified that Jeffries told him that he could interview Sharp if Sharp was willing to talk to him.
Jeffries testified that she had met with Sharp on March 15, 2000 regarding his Texas divorce. She knew he had been charged with homicide. Jeffries testified that she told May she did not know whether her firm represented Sharp in the Louisiana criminal matter. She acknowledged that neither she nor the other attorney were licensed to practice law in the state of Louisiana. Jeffries further testified that on March 16, 2000, May called her firm looking for the other attorney and that she took the call. She testified that May was trying to determine if the other attorney would be representing Sharp in the Louisiana criminal proceedings. She told May that she did not represent the defendant and that she did not know if the other lawyer had intentions to try to aid Sharp. Jeffries testified that she did not tell May that it was okay to talk to Sharp if Sharp was willing to do so. Instead, she recalled telling the investigator that if *1189 Sharp had asked for an attorney, May knew the ramifications of going forward with questioning. Notably, Jeffries did not tell May to withhold questioning Sharp or ask to speak to Sharp before questioning.
After talking to Jeffries, May went back into the hospital room and told Sharp that counsel had said Sharp could talk to them if he wanted to. Sharp then gave the deputies the March 16, 2000 detailed recorded statement.
Both in his motion to suppress and on appeal, Sharp contends that the March 16, 2000 statement was obtained in violation of his constitutional rights because he had invoked his Sixth Amendment right to counsel prior to giving the statement. Of course, pursuant to our supervisory review power, we have previously reversed the trial court suppression of the March 16, 2000 statement. Nevertheless, this issue can appropriately be reconsidered on appeal. The standard of review was stated by the Louisiana Supreme Court in State v. Humphrey, 412 So. 2d 507 (La.1982):
When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result....
A review of the subsequent trial record reveals no additional evidence regarding the taking of the March 16th statement than that which was reviewed by this court upon the writ application. In these circumstances, we conclude that Sharp has failed to demonstrate that the previous ruling was patently erroneous or produced an unjust result. It is therefore appropriate for us to accord great deference to our previous ruling and affirm that determination.
March 12th Statement
Sharp also contends that the March 12th and 14th statements should have been suppressed because the state failed to show a knowing, voluntary and intelligent waiver of his rights.
Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. Mackens, supra. A trial court's findings regarding the admissibility of a confession are entitled to great weight and will not be disturbed unless unsupported by the evidence. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was freely and voluntarily given. Id. Police testimony may overcome a defendant's claim that his statement was involuntary, because he suffered from a wound or lack of sleep. Id.
Although on appeal Sharp makes no specific argument for the suppression of the March 12th statement, in his motion to suppress, he claimed that the statement should not be admissible because at the time of the statement, he was suffering from the effects of the gunshot wound for which he was receiving treatment, under *1190 the influence of prescription drugs and alcohol and fearful of dying. At the hearing on the motion to suppress and at trial, May testified that he read Sharp his Miranda warnings prior to asking him any questions. He further indicated that Sharp expressed an understanding of his rights, was able to talk and was alert and conscious, although he was in pain. His tone of voice was normal. Sharp never lost consciousness. His speech was clear and he did not invoke any of his rights at that time. May indicated that McLamb had arrived before he did and had a towel applied to the wound. At the time of his arrival, May remembered that Sharp kept asking to let him die. May testified that no promises or threats were made to Sharp in order to secure a confession. May asked Sharp if he shot Joni and Sharp admitted to doing so because she left him for his best friend, Marcio. He also asked him if he had shot himself and Sharp said yes.
McLamb stated that when he arrived at the scene Sharp was conscious and coherent. He was able to and showed no hesitation in answering May's questions. McLamb recalled that Sharp told him he had a note in his pocketMcLamb found several. By shaking his head, Sharp indicated that he understood the rights May read to him.
Caddo Parish Sheriff's deputy Malcolm Laing ("Laing") was also at the scene of the first statement. Sharp was able to tell the officers who he was. Laing stated that he was able to understand Sharp who was alert and conscious. When Laing asked Sharp about the location of the gun, Sharp told him it was behind the bar. Laing heard McLamb ask Sharp what had happened and Sharp told him that he had shot himself in the chest. Sharp explained how the gun slipped and fired.
Frake was also present at the scene. He testified both at the hearing on the motion to suppress and trial that Sharp was conscious and alert and could answer each question posed to him. Frake heard May read Sharp his rights and Sharp respond that he understood them. Frake also heard May ask Sharp if he shot Joni and Sharp's affirmative response. He heard Sharp indicate that he used the same gun to shoot himself and Joni. When May asked Sharp why he had done it, Frake heard Sharp respond that he had done it because Joni ran off with his best friend. No threats were made to Sharp nor did the officers interfere with his treatment.
Connie Alamond ("Alamond"), a paramedic who assisted transporting Sharp to the hospital, testified that Sharp was able to talk and answer questions although he was upset. His vital signs and the cardiac monitor showed no signs of shock. He was given no prescription medication.
We conclude that this evidence is sufficient to demonstrate that Sharp's March 12, 2000 statement was freely and voluntarily given. The overwhelming testimony, including that of the interviewing officers, indicates that at all times Sharp was alert, conscious and could answer questions. The independent testimony of Alamond corroborated the officers' testimony regarding Sharp's consciousness and ability to understand questions and respond accordingly despite his pain from the chest wound. Moreover, Alamond's testimony shows that at no time was Sharp given prescription medication at the scene of the accident nor did he experience shock. His ability to answer questions appropriately and with clear speech otherwise demonstrates no incapacitating intoxication either from drugs or alcohol. In these circumstances, we find no error in the trial court's conclusion.
*1191 March 14th Statement
Regarding this statement, too, Sharp makes no specific argument on appeal in support of the suppression of this statement. In his motion to suppress the statement, he claimed that the statement was not freely and voluntarily given because at the time he had just undergone surgery and was under the influence of strong pain medication and was in a depressed state.
McDonald testified at the hearing on the motion to suppress and was also present at the taking of the March 14th statement. He stated that prior to taking the statement from Sharp, May once again read him his Miranda rights. At that time also, Sharp indicated an understanding of his rights. McDonald stated that based upon his experience with the sheriff's office, he did not feel Sharp was under the influence of medication at the time of the statement. In fact, McDonald knew that Sharp had refused some medication although he did not know what kind. McDonald testified Sharp was promised nothing in return for the statement, nor was he coerced or threatened.
May testified that he read Sharp his rights prior to taking his March 14th statement. Based upon his experience with the sheriff's office, he also did not believe that Sharp was under the influence of medication. Sharp's speech was very coherent, and although he appeared tired, he was able to give very detailed answers to May's questions. At no time during the interview did Sharp invoke his rights. May did not coerce or promise Sharp anything in exchange for the statement.[7] May felt that the statement was freely and voluntarily given.
We likewise find no error in the trial court's determination that this statement was admissible. The two interviewing officers' testimony supports the conclusion that Sharp was alert when questioned and gave specific and coherent responses to the questions asked of him. With Sharp presenting no evidence to show his being under the influence of pain medication, we conclude that the officers' testimony is sufficient to overcome Sharp's claim that the March 14th statement was not freely and voluntarily given because of the effects of prescription drugs. We, therefore, reject this argument.
Jury Instruction
Sharp argues that the trial court erred in failing to give the jury a proposed jury instruction which read as follows:
You the jury have the option to convict the defendant of a lesser offense, even though the evidence clearly and overwhelmingly supports a conviction of the charged offense. In all trials for murder, you may find a verdict of manslaughter.
The state and defendant have the right before argument to submit to the court special written charges for the jury. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807.
We find no error in the court's rejection of Sharp's special jury instruction. In State v. Porter, 93-1106 (La.07/05/94), 639 So. 2d 1137, the court discussed the law of responsive verdicts as the statutory right to have the jury characterize a defendant's *1192 conduct as a lesser crime. The court further explained:
Treating the jury's prerogative to return a responsive verdict similar to the jury's power of nullification [a recognized practice which allows the jury to disregard uncontradicted evidence and instructions by the judge], this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.
Clearly, the first portion of the special instruction requested by Sharp was an attempt to reiterate more specifically the law of responsive verdicts to the jury, i.e., even if the evidence supports second degree murder, you can return a manslaughter verdict. Although arguably a technically correct statement, it is one which is integrated within the responsive verdict law. The jury was clearly instructed that it could return a verdict of guilty to the lesser included offense of manslaughter. To expound the responsive verdict law in the way that Sharp suggests would, in our opinion, require, at the very least, qualification and certainly explanation. There is no Louisiana jurisprudence supporting an argument that it is proper to instruct a jury that it can disobey law and reach a verdict inconsistent with the evidence. In this case, the general instruction was adequate to instruct the jury on this point. The trial judge obviously agreed. Finally, with the general instructions clearly listing manslaughter as a lesser included verdict to second degree murder, Sharp's request to inform the jury that in any second degree murder case you may return a verdict of manslaughter would have been redundant.
Excessive Sentence
In his excessive sentence claim, Sharp contends that the mandatory life sentence imposed upon him is excessive and that the trial court failed to adequately comply with La.C.Cr.P. art. 894.1.
The record shows that Sharp failed to file a motion to reconsider the imposed sentence. Accordingly, his sentence review is limited to the bare claim that the sentence is unconstitutionally excessive. State v. Mims, 619 So. 2d 1059 (La.1993). In these circumstances, Sharp is precluded from raising the issue of the trial court's compliance with La.C.Cr.P. art. 894.1. Moreover, because the trial court imposed a mandatory sentence, a La. C.Cr.P. art. 894.1 articulation is not mandated and would be an exercise in futility. State v. Clem, 33,686 (La.App.2d Cir.11/01/00), 779 So. 2d 763, writ denied, XXXX-XXXX (La.10/05/01), 798 So. 2d 964; State v. Sims, 32,461 (La.App.2d Cir.10/27/99), 745 So. 2d 151, writ denied, 99-3384 (La.05/12/00), 762 So. 2d 11.
Of course, Sharp was convicted of second degree murder, La. R.S. 14:30.1, which carries a mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.
In State v. Johnson, 97-1906 (La.03/04/98), 709 So. 2d 672, in the context of habitual offender sentencing, the supreme court stated:
[T]o rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
It is the legislature's prerogative to determine the length of a sentence imposed *1193 for the crimes classified as felonies, and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Armstrong, 32,279 (La.App.2d Cir.09/22/99), 743 So. 2d 284, writ denied, 99-3151 (La.04/07/00), 759 So. 2d 92. Moreover, this court has afforded great deference to the legislature's determination of an appropriate minimum sentence. State v. Ruffins, 32,870 (La.App.2d Cir.12/10/99), 748 So. 2d 614.
The argument set forth by Sharp that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So. 2d 545 (La.1982); State v. Brooks, 350 So. 2d 1174 (La.1977); Ruffins, supra; Armstrong, supra; State v. Hereford, 518 So. 2d 515 (La.App. 3d Cir.1987).
Moreover, in brief, Sharp makes no argument supporting the position that his particular circumstances present an exception to the constitutional application of this mandatory sentence. Accordingly, we cannot say that he has shown by clear and convincing evidence that he is the "exceptional" defendant for which downward departure from the mandatory provisions are required. The record shows that Sharp planned, calculated and carried out a brutal attack on an innocent, unarmed victim. In light of the crime committed, we cannot say that the imposed sentence shocks the sense of justice or is a needless or senseless imposition of pain and suffering. We, therefore, reject this argument.
Sharp's Pro Se Arguments
In his pro se brief, Sharp argues that the provisions of La. C.Cr.P. art. 782 and La. Const. art. 1, § 17 are unconstitutional because they prejudice those who have charges reduced from first degree to second degree murder.
La.C.Cr.P. art. 782 provides, in pertinent part:
A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict....
La. Const. art. 1, § 17 provides, in pertinent part:
(A) Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict....
In this case, the jury verdict was eleven to one in favor of the second degree murder conviction. Sharp argues that if he had been tried under his original charge of first degree murder, all twelve jurors would have had to concur in order to convict him. Because his charges were reduced to second degree murder, only ten of twelve had to concur to convict. This circumstance, Sharp argues, violates his right to due process and he requests that this court declare both La.C.Cr.P. art. 782 and La. Const. art. 1, § 17 unconstitutional.
Nevertheless, in Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972) and Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972), the United States Supreme Court upheld the validity of non-unanimous jury verdicts for twelve-person juries. Moreover, the Louisiana Supreme Court has consistently held La.C.Cr.P. art. 782 does not violate the Sixth or Fourteenth Amendments to *1194 the United States Constitution. See, State v. Green, 390 So. 2d 1253 (La.1980); State v. Hodges, 349 So. 2d 250 (La.1977), cert. denied, 434 U.S. 1074, 98 S. Ct. 1262, 55 L. Ed. 2d 779 (1978); State v. Morgan, 315 So. 2d 632 (La.1975). We, therefore, reject this claim.
Incomplete Record
Sharp contends that the trial transcript is incomplete because the voir dire transcript and the reading of the indictment has not been furnished.[8] Specifically, Sharp claims he is prejudiced by not having the voir dire transcript because his "[t]rial [c]ounsel used all peremptory challenges and had objected to several jurors that were allowed to remain on the jury." He also claims that without the transcript he cannot prepare his assignments of error. Sharp requests this court to supply or order a complete copy of the transcript including the voir dire.
We decline to grant this request. La.C.Cr.P. art. 914.1 provides in pertinent part that a transcript of the proceedings which does not relate to anticipated assignment of errors shall not be furnished to a party for purposes of appeal. Moreover, a defendant is not entitled to supplement the record on appeal unless he shows the court of appeal that the requested record is related to specific assignments of error. See, State v. Williams, XXXX-XXXX (La.App. 4th Cir.05/09/01), 788 So. 2d 515. Neither Sharp nor his attorney have assigned as error any issues dealing with the jury voir dire. Sharp's generic allegations that his counsel used all of his peremptory challenges and his need for the transcript to prepare his assignments of error amounts to a fishing expedition and is insufficient to require a supplementation of the record.
Prejudicial Statements
Sharp next contends that the state made several prejudicial remarks in questions to the experts that improperly influenced the jury to reject his claim that he acted in "heat of passion." In brief, Sharp makes two specific claims of prejudice. The first refers to questioning by the state of Dr. Vigen and in context reads as follows:
Would you say that the way he was treated and his reaction to that would be in any way analogous to the kids who did the damage at Columbinethe trench coat Maffia kidswould they have been treated in the same manner that Mr. Sharp was and that's what led them to do what they did at Columbine High School?
The second refers to questioning directed to Dr. Seiden which presented a hypothetical question regarding the mental state of a rapist and his ability to control his behavior.
The remarks fail to fall within the mandatory mistrial provisions of La.C.Cr.P. art. 770. Nor are we convinced that the remarks influenced the jury and contributed to the verdict so as to warrant reversal of the conviction under La.C.Cr.P. art. 771. State v. Morris, 404 So. 2d 1186 (La.1981). In context, both of these questions were raised as hypothetical situations to challenge Sharp's claim that he was not guilty by reason of insanity, or that because of mental disorders, he acted in sudden passion or heat of blood and was unable to control his behavior. Regarding the Columbine students, Dr. Vigen declined to express an opinion. Therefore, any prejudice caused by the question was cured by this response.
*1195 Nor has Sharp alleged or demonstrated how the hypothetical nature of the rapist question posed to Dr. Seiden specifically prejudiced his case. Without any specific allegation of prejudice or demonstration of how the statement affected substantial rights, we are without authority to reverse the conviction. La.C.Cr.P. art. 921.
Ineffective Assistance of Counsel
Sharp raises seven instances in support of his claim of ineffective assistance of counsel.
Ordinarily, claims of ineffective assistance of counsel are more properly presented by application for post-conviction relief. State v. Milligan, 28,660 (La. App.2d Cir.12/11/96), 685 So. 2d 1127, writ denied, 97-0379 (La.06/30/97), 696 So. 2d 1005; State v. Gipson, 28,113 (La.App.2d Cir.06/26/96), 677 So. 2d 544, writ denied, 96-2303 (La.01/31/97), 687 So. 2d 402. In the interest of judicial economy, however, the issues may be resolved on direct appeal if the record contains sufficient evidence pertaining to the matter. Id.
In alleging ineffective assistance of counsel, a defendant must satisfy a two-pronged test by showing, first, his attorney's performance to be so deficient as to deny him the counsel guaranteed by the Sixth Amendment; and second, that those errors are so serious as to deprive the accused of a fair trial, i.e., one with a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In order to prevail under the Strickland test, Sharp must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Gipson, supra. Also, a reviewing court must give great deference to the trial attorney's judgment, tactical decisions and strategy, strongly presuming the accordance of reasonable professional assistance. Strickland, supra; Gipson, supra.
After a review of the record before us, we conclude that we are unable to address four of Sharp's seven claims of ineffective assistance of counsel because the record contains little or no information regarding the allegations. These include his claims regarding the failure of defense counsel to call as witnesses Dr. Paul Ware, a Dr. Herrin and a Westy Meisenheimer and the claimed omission by his trial counsel regarding an intoxication defense.
Nevertheless, the record is adequate to review the remaining three claims. Initially, Sharp contends that his counsel's failure to file writs to the supreme court relevant to the admissibility of the March 16th, 2000 statement violated his right to the effective assistance of counsel. We cannot agree. Obviously, trial counsel made the decision not to pursue the issue of the admissibility of the March 16th statement beyond the ruling of this court. However, even had the supreme court reversed this court and found the statement inadmissible, the remaining evidence was sufficient to support the jury verdict. This evidence included Sharp's two remaining statements as well as expert testimony. Under these circumstances, we cannot conclude that the exclusion of the March 16th statement would have produced a different verdict. Accordingly, any error in counsel's decision was harmless.
Sharp also contends that his trial counsel's failure to object to the introduction of other crimes evidence, namely arson, resulted in ineffective assistance of counsel. We are constrained, however, to reject this argument. Although generally inadmissible, evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Coates, *1196 27,287 (La.App.2d Cir.09/27/95), 661 So. 2d 571, writ denied, 95-2613 (La.02/28/95), 668 So. 2d 365. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man but rather to complete the story of the crime on trial by proving the immediate context of happenings near in time and place. State v. Colomb, 98-2813 (La.10/01/99), 747 So. 2d 1074. The concomitant other crimes do not affect the accused's character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. State v. Wafer, 31,078 (La.App.2d Cir.09/23/98), 719 So. 2d 156, writ denied, 99-1114 (La.10/01/99), 747 So. 2d 1137. In this case, the alleged arson clearly formed an integral part of the event leading up to Joni's killing. Accordingly, counsel's failure to object to its mention in Sharp's statements was supported by this jurisprudence and an appropriate trial strategy.
Sharp also raises the issue of his trial counsel's failure to object to the personal opinions of Dr. Seiden in violation of La. C.E. art. 704. Indeed, La. C.E. art. 704 provides that an expert witness shall not express an opinion as to the guilt or innocence of the accused. Nevertheless, that provision also allows testimony in the form of an opinion which embraces an ultimate issue to be decided by the trier of fact. Moreover, La. C.E. art. 704 allows an expert to render an opinion to assist the trier of fact to understand the evidence or determine a fact at issue. We have reviewed the seven responses from Dr. Seiden which Sharp contends violate the provisions of La. C.E. art. 704 and conclude that the statements formed integral parts of his ultimate opinion as to the mental state of Sharp at the time of the shooting and his ability to control his behavior and understand the consequences of that behavior. This opinion evidence was essential to prove the issue of Sharp's sanity at the time of the offense and even his manslaughter claim and were, therefore, appropriately admitted into evidence. Accordingly, we find no merit to this portion of the claim.
CONCLUSION
For the foregoing reasons, we affirm Sharp's conviction and sentence.
AFFIRMED.
NORRIS, C.J., concurs with written reasons.
NORRIS, C.J., concurring.
I respectfully concur, questioning only the majority's treatment of the March 16 statement to Deputy May.
To establish the admissibility of a statement made by the accused during custodial interrogation, the State must prove that he was advised of his Miranda rights and that he waived them. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Brooks, 505 So. 2d 714 (La.1987), cert. denied 484 U.S. 947, 108 S. Ct. 337, 98 L. Ed. 2d 363 (1987). The determination that a statement is admissible is within the trial court's discretion, and it should not be disturbed on appeal unless it is not supported by the evidence. State v. Brooks, supra; State v. Koon, 31,177 (La.App. 2 Cir. 2/24/99), 730 So. 2d 503.
The trial judge received conflicting testimony as to whether Sharp waived his right to counsel on March 16. From his hospital bed, Sharp told Deputy May that he was represented by a Texas attorney named Moran. Deputy May testified that he then tried to phone Moran but reached Moran's associate, Ms. Jeffries. According to May, Ms. Jeffries said he could interview Sharp *1197 if Sharp was willing to talk. However, Ms. Jeffries testified that when May phoned, she replied she did not know if Moran was representing Sharp in the criminal matter; that she needed to ascertain this from Moran; and that her "understanding" was that May would not question Sharp until she got this information and relayed it to May. On this conflicting evidence, I would defer to the trial court's finding that Sharp did not waive his right to counsel and that this statement should be suppressed.
Nonetheless, the erroneous admission of a confession into evidence is a trial error which is subject to harmless error analysis. State v. Tart, 93-0772 (La.2/9/96), 672 So. 2d 116, cert. denied 519 U.S. 934, 117 S. Ct. 310, 136 L. Ed. 2d 227; State v. Coates, 27,287 (La.App. 2 Cir. 9/27/95), 661 So. 2d 571, writ denied 95-2613 (La.2/28/96), 668 So. 2d 365. The evidence of Sharp's guilt is overwhelming, including two other incriminating statements, the eyewitness testimony of the Stanfords, and expert testimony of Drs. Seiden and Vigen. There is no reasonable possibility that admitting the March 16 statement contributed to the verdict. For these reasons, I concur.
APPLICATION FOR REHEARING
Before NORRIS, C.J., BROWN, STEWART, KOSTELKA and DREW, JJ.
Rehearing denied.
NOTES
[1] The record shows that Sharp was initially charged by grand jury indictment with first degree murder. However, a judgment quashing that indictment resulted in the present charges.
[2] On appeal, both Sharp and his counsel have filed briefs.
[3] Also spelled Joanie in the record transcript.
[4] Of course, when issues of both sufficiency of the evidence and trial errors are raised on appeal, the reviewing court should first address the sufficiency of the evidence claim. State v. Hearold, 603 So. 2d 731 (La.1992).
[5] The record also shows that Sharp neglected to assert an insufficient evidence claim in his Motion for New Trial.
[6] On January 25, 2001, Sharp changed his not guilty plea to include not guilty by reason of insanity. On that same day, the court granted the state's motion for an independent mental examination which was conducted by Dr. George Seiden. Sharp does not assign as error the jury's failure to find him not guilty by reason of insanity.
[7] We note that May readily acceded to Sharp's request to delay taking a recorded statement.
[8] The record reveals that the indictment and Sharp's plea to same were indeed read to the jury at the start of trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604760/ | 46 Wis. 2d 519 (1970)
175 N.W.2d 230
BURNSIDE, Appellant,
v.
EVANGELICAL DEACONESS HOSPITAL and others, Respondents.
No. 187.
Supreme Court of Wisconsin.
Argued March 6, 1970.
Decided March 31, 1970.
*521 For the appellant there were briefs and oral argument by John A. Udovc of Milwaukee.
For the respondents there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Donald R. Peterson of counsel, all of Milwaukee, and oral argument by Mr. Peterson.
HALLOWS, C. J.
Burnside, thirty-five years old and a machinist for fifteen years, first experienced pain in his back in 1951 and has had continual back trouble since 1955. In the spring of 1966, he consulted several doctors but treatment failed to relieve the pain. In September of 1966, he was referred to the defendant Dr. Jack D. Spankus, an orthopedic surgeon who on September 11, 1966, performed a laminectomy and discectomy on a herniated disc between the fourth and fifth lumbar vertebrae. The purpose of this operation was to remove the disc or fragments thereof which were pressing on the nerve root. Instead of being a soft, spongy cushion, Burnside's disc was hardened. When Dr. Spankus finished removing the parts of the disc and before closing the opening he could see no remaining loose pieces of the disc.
Burnside's recovery from the operation for some months was uneventful and satisfactory. On December 15, 1966, he consulted Dr. Spankus and complained that the back and leg pain had resumed and that some two weeks prior he had had flu and a cold. A second laminectomy and discectomy was performed by Dr. Spankus on *522 January 5, 1967. The operative record dictated by Dr. Spankus states that "an extruded disc was found under the L-4 nerve root. Apparently it was a fragment of the previous disc taken out. This fragment under the nerve root was not present at the previous operation."
Burnside argues the disc fragment removed in the second operation from under the nerve root was left behind in the first operation through negligence of Dr. Spankus. The defense contends a fragmentation of the remaining portion of the degenerated disc occurred subsequent to the first operation and was caused by Burnside's sneezing, coughing, and hacking, when he had the flu; and further, that even if Dr. Spankus had left a fragment upon the completion of the first operation, he was not negligent because he used that degree of skill and care which orthopedic specialists in the Milwaukee area used in such an operation. Burnside's damages which are not in dispute consist of loss of wages, permanent disability in the use of his right foot, numbness, pain, and more frequent urination.
On this appeal from a directed verdict this court must make the assumption the fragment was left behind from the first operation because the evidence must be viewed in the light most favorable to Burnside. Schumacher v. Klabunde (1963), 19 Wis. 2d 83, 119 N.W.2d 457; United States Fidelity & Guaranty Co. v. Milwaukee & Suburban Transport Corp. (1962), 18 Wis. 2d 1, 117 N.W.2d 708.
When a physician exercises that degree of care, judgment, and skill which physicians in good standing of the same school of medicine usually exercise in the same or similar localities under like or similar circumstances, having due regard to the advanced state of medical science at the time, he has discharged his legal duty to his patient. Ahola v. Sincock (1959), 6 Wis. 2d 332, 348, 94 N.W.2d 566; Kuehnemann v. Boyd (1927), 193 Wis. 588, 591, 214 N.W. 326, 215 N.W. 455; Jaeger v. Stratton *523 (1920), 170 Wis. 579, 581, 176 N.W. 61; McManus v. Donlin (1964), 23 Wis. 2d 289, 127 N.W.2d 22.
Prior to 1963, the doctrine of res ipsa loquitur was not applicable to medical malpractice cases. In Fehrman v. Smirl (1963), 20 Wis. 2d 1, 121 N.W.2d 255, 122 N.W.2d 439, this court overruled prior cases and adopted the general rule that res ipsa loquitur may be invoked in medical malpractice actions when a layman is able to say as a matter of common knowledge that the consequences of the professional treatment are not those which ordinarily result if due care is exercised. This court also adopted the minority rule that when there is no basis of common knowledge for such a conclusion, an instruction embodying res ipsa loquitur may be grounded on expert medical testimony. Shurpit v. Brah (1966), 30 Wis. 2d 388, 141 N.W.2d 266; Fehrman v. Smirl, supra; see Knief v. Sargent (1968), 40 Wis. 2d 4, 161 N.W.2d 232.
Prosser in his Law of Torts (2d ed.), pp. 210, 211, sec. 42, gives examples of situations in which the common knowledge of a layman affords the proper basis for invoking the doctrine such as a sponge left in the patient's interior, removal or injury to an inappropriate part of his anatomy, a tooth dropped down his windpipe, a serious burn from a hot water bottle, or instruments not sterilized. In these situations it is common knowledge the thing speaks for itself and does not need the aid of an expert's opinion.
Is it within the field of common knowledge of laymen that a piece of herniated disc is not ordinarily left unremoved in an operation if due care is exercised by the surgeon performing the laminectomy and discectomy? Or, to put it another way, does common knowledge of lay persons justify the drawing of an inference of negligence from circumstantial evidence?
A herniated disc operation is performed by the surgeon looking down on top of the back toward the anterior *524 part of the body and with small instruments removing the tiny pieces of bone from each side of a small V-shaped bony bridge in an area about one-half inch in diameter to permit a view of the spinal cord and the nerve roots which come out sideways. Then a special retractor, about an eighth of an inch wide, is placed behind the nerve root which is pulled back to get a bulge off to the side so the surgeon can look underneath and around the nerve root for the disc material. This is grizzly, crabtail material which is tickled out with a tweezers. The surgeon with small instruments then reaches inside the hole, which is about the size of a tip of a regular pencil, and trys to remove as much of the disc material as possible without going through the ligament or into the blood vessel or damaging the nerve cord. When this was done and Dr. Spankus was ready to close up the operation, he testified he could see no remaining loose pieces of disc.
There is no question of the standard of care. The court took judicial notice of the standard spelled out in Lewis, Practice of Surgery, as independent substantive evidence. Lewandowski v. Preferred Risk Mut. Ins. Co. (1966), 33 Wis. 2d 69, 146 N.W.2d 505. Dr. Spankus testified a thorough search for loose fragments in the area before closing the incision is a standard of skill and care used by orthopedic surgeons in such operations. He also testified "if I had not searched for a loose fragment and had left a loose fragment behind, I would have departed from that standard of skill and care" and that it is nearly impossible to get all the disc fragments out in such an operation and second operations are necessary in three percent to five percent of the cases.
There is no evidence that Dr. Spankus did not look and make a thorough search to remove all the disc fragments as he testified except the unexplained presence of the fragment itself. It is argued this loose or separated fragment of the disc was firmly imbedded in scar tissue and was so large it was removed in three *525 pieces and therefore any doctor should have seen it during the first operation. There was no medical testimony that in this type of operation if a fragment was left behind it would be because the surgeon was negligent.
Consequently, unless this is a situation where a layman from common knowledge may be permitted to draw an inference of negligence in performing the first operation from the fact there was a disc fragment pressing on a nerve when the second operation was performed four months after the first operation, the burden of proof has not been met. We think that because of the complicated nature of the operation and its surgical difficulties that it is not within the common knowledge of a layman that leaving a part of the disc is not an ordinary result if due care is exercised by the surgeon. A layman does not know whether in a laminectomy and discectomy of a herniated disc all the disc should be removed or only the extruded part or only the loose fragments. This is not analogous to a surgeon leaving a surgical instrument or sponge or other foreign object in the area of the operation.
After the second operation Dr. Spankus ordered a catheterization. Both the respondents, Drs. Raymond Chi-Ta-Tse and R. R. Brazy, tried unsuccessfully in the recovery room to catheterize Burnside. Brazy testified there was some kind of an obstruction which stopped the catheter. After about an hour Dr. Spankus was contacted who told them to desist. During this procedure Burnside passed approximately 60 milliliters of urine and clotted blood. Brazy testified this was a significant but small amount of liquid (about two fluid ounces). After Burnside came out of the anesthesia his penis was sore and swollen and he had severe pain during urination. However, the following morning he voided about 10 fluid ounces of urine which was clear of blood although urination was painful.
*526 Burnside contends the discharge of this blood and the great pain during urination are not expected results of an operation on a back and any layman is competent to conclude from common knowledge that such results should not happen if there has been proper skill and care used in the back operation. There is only a superficial resemblance of these facts to Beaudoin v. Watertown Memorial Hospital (1966), 32 Wis. 2d 132, 145 N.W.2d 166. In that case a layman was able to conclude as a matter of common knowledge that the second-degree burns on the plaintiff's body not directly related to the operative procedure did not ordinarily result if due care was used. Nor are the facts comparable to Ybarra v. Spangard (1944), 25 Cal. 2d 486, 154 P.2d 687, in which the California Court held the plaintiff was entitled to the doctrine of res ipsa loquitur where a traumatic shoulder injury occurred while under anesthesia during an appendectomy.
In the instant case the blood and pain were caused by the attempted catheterization not by the back operation, and there is no expert testimony establishing the community standards for doctors in performing a catheterization. Dr. Brazy did testify that 60 milliliters of liquid and clotted blood was not a usual or expected result from catheterization but the finding of blood is an expected result when the catheter meets with an obstruction. While a layman might speculate upon the skill and competence of the doctors who attempted the catheterization, we do not think this procedure is so well known and understood by lay people that it permits a jury to infer negligence on the part of the doctors from any fact of common knowledge possessed by laymen.
It is further argued that the amount of bleeding was an unusual or rare result and a layman ought to be permitted to infer negligence from such a result. This argument was rejected in McManus v. Donlin (1964), 23 Wis. 2d 289, 127 N.W.2d 22, and in Fehrman v. Smirl, supra, *527 when this court refused to extend res ipsa loquitur to incorporate the so-called "rarity" test in malpractice cases. We again state that "rarity" is an insufficient basis on which to predicate negligence.
The court has considered the other points raised but they need not be commented upon and they do not constitute grounds for a new trial in the interest of justice.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739647/ | 111 F.3d 140
97 CJ C.A.R. 620
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Madyun ABDULHASEEB, Petitioner-Appellant,v.Steve HARGETT, Respondent-Appellee.
No. 96-6348.(D.C.No. CIV-96-379-A)
United States Court of Appeals, Tenth Circuit.
April 23, 1997.
Before BRORBY, EBEL and KELLY, Circuit Judges.
ORDER AND JUDGMENT*
BRORBY, Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Petitioner Madyun Abdulhaseeb seeks to appeal the the United States District Court for the Western District of Oklahoma's denial of his petition for a writ of habeas corpus. In 1981, Mr. Abdulhaseeb was convicted in Oklahoma County District Court for second degree burglary after the former conviction of two or more felonies and first degree rape after the former conviction of two or more felonies. See Thomas v. Oklahoma, 675 P.2d 1016, 1018 (Okla.Crim.App.), cert. denied, 466 U.S. 942 (1984).1 The court sentenced Mr. Abdulhaseeb to twenty-five years imprisonment and 150 years imprisonment on the respective counts, the sentences to run consecutively. Id.
3
Although Mr. Abdulhaseeb appealed his convictions, the Oklahoma Court of Criminal Appeals affirmed, see id. at 1023, and the United States Supreme Court denied certiorari. Thomas v. Oklahoma, 466 U.S. 942 (1984). Mr. Abdulhaseeb then filed two motions for post-conviction relief with the Oklahoma County District Court. The Oklahoma County District Court denied both motions. Thereafter, in 1991, Mr. Abdulhaseeb filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma.2 See Thomas v. Cowley, No. 92-6267, 1993 WL 220607, at * 2-5 (10th Cir. June 22, 1993) (unpublished disposition), cert. denied, 510 U.S. 1126 (1994). The district court denied the petition, and the Tenth Circuit Court of Appeals affirmed the judgment of the district court. Id. at * 1, * 5.
4
In March 1996, Mr. Abdulhaseeb filed his present, second, federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Mr. Abdulhaseeb argues his 1981 convictions for second degree burglary and first degree rape are invalid because he was denied the effective assistance of counsel3 and because the prior convictions used to enhance his sentence were unconstitutionally treated as adult convictions, though he was a juvenile at the time of the prior convictions.
5
On September 26, 1996, the district court dismissed Mr. Abdulhaseeb's petition as an abusive filing. The district court also denied Mr. Abdulhaseeb a certificate of appealability. Mr. Abdulhaseeb then filed a Notice of Appeal with this court.
II. CERTIFICATE OF APPEALABILITY
6
Mr. Abdulhaseeb seeks to appeal the district court's denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2253(c)(1) (1997) provides "an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court" unless a circuit judge issues a certificate of appealability.4 "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
7
Mr. Abdulhaseeb raises two principle arguments in his current petition. First, he contends his 1981 convictions are improper because the former felony convictions used to enhance his sentences were unconstitutionally treated as adult convictions. Second, Mr. Abdulhaseeb argues his 1981 convictions were obtained in violation of the Due Process Clause of the Fourteenth Amendment because he was deprived of the effective assistance of counsel at his jury trial and on direct appeal.
8
Before determining whether Mr. Abdulhaseeb's contentions amount to a "substantial showing of the denial of a constitutional right" so as to warrant issuance of a certificate of appealability, we must first ascertain whether the district court properly determined Mr. Abdulhaseeb's petition should be dismissed for abuse of the writ. If Mr. Abdulhaseeb has abused the writ with respect to the two claims he seeks to raise in his habeas petition, his appeal cannot proceed, and we must deny a certificate of appealability. In general, the abuse-of-the-writ doctrine "prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding."5 McCleskey v. Zant, 499 U.S. 467, 490 (1991).
9
When a prisoner files a second or subsequent [habeas corpus] application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom....
10
Id. at 494. To establish cause, the petitioner must show " 'some objective factor external to the defense impeded [the defendant's] efforts' to raise the claim" in the first petition.6 Id. at 493 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). If the petitioner can establish cause, he must then show "actual prejudice" resulted from the error of which he complains. Id. at 494.
11
In the present case, the government filed a motion in the district court citing Mr. Abdulhaseeb's prior writ history. Although the government's motion sought to compel Mr. Abdulhaseeb to comply with the 1996 amendments to 28 U.S.C. § 2244(b), we believe the motion sufficiently raised abuse of the writ. Thus, we must determine whether Mr. Abdulhaseeb can establish cause and prejudice for his failure to raise each of his claims in his prior petition.
12
First, we turn to Mr. Abdulhaseeb's contention that his 1981 convictions are invalid because the former felony convictions used to enhance his punishment are unconstitutional. Assuming, without deciding, Mr. Abdulhaseeb can establish cause for failure to raise this claim,7 we do not believe he can show actual prejudice. While under eighteen years of age, Mr. Abdulhaseeb was convicted twice in 1962 as an adult of second degree burglary (Case Nos. 27876 and 27984) and convicted once in 1964 as an adult of second-degree rape (Case No. 29664). Thomas, 675 P.2d at 1020 n. 6. Thereafter, in 1972, the Tenth Circuit Court of Appeals declared unconstitutional the statute under which Mr. Abdulhaseeb was tried as an adult. See Lamb v. Brown, 456 F.2d 18 (10th Cir.1972).
13
In 1980, when Mr. Abdulhaseeb was charged with second degree burglary and first degree rape, the state filed an information listing the 1962 and 1964 convictions as grounds for an enhancement of punishment. Thomas, 675 P.2d at 1020. However, prior to trial, the state amended the information to delete the two 1962 convictions and to add a 1972 conviction for robbery with a firearm and a 1973 conviction for carrying a firearm. Id. Thus, two valid prior felonies support Mr. Abdulhaseeb's 1981 sentence enhancements--the 1972 conviction and the 1973 conviction. Because only two prior convictions are necessary under Oklahoma law for the punishment enhancement Mr. Abdulhaseeb received, see Okla. Stat. tit. 21 § 51, Mr. Abdulhaseeb's 1981 convictions and sentences can be sustained even if the 1964 conviction alleged in the amended information was unconstitutional. See Webster v. Estelle, 505 F.2d 926, 931 (5th Cir.1974) ("[w]here enhancement could have been based on other convictions, reliance on an invalid one is harmless"), cert. denied, 421 U.S. 918 (1975); Gerberding v. Swenson, 435 F.2d 368 (8th Cir.1970) (because only one prior felony was necessary to support enhancement, court affirmed conviction where one of three prior felonies admitted on enhancement issue was retroactively invalid), cert. denied, 403 U.S. 906 (1971); Beavers v. Alford, 582 F.Supp. 1504, 1506 (W.D.Okla.1984) (sentencing court's reliance on invalid conviction is harmless when enhancement could be based upon petitioner's other convictions). We therefore conclude Mr. Abdulhaseeb cannot establish prejudice for failure to assert his first claim in a prior petition.8
14
Next, we must determine whether Mr. Abdulhaseeb has abused the writ with respect to his ineffective assistance of counsel claim. Mr. Abdulhaseeb appears to argue his trial counsel and appellate counsel were ineffective because they failed to raise the issue of an improper jury instruction regarding the burden of proof and presumption of innocence. Mr. Abdulhaseeb contends an "intervening/supervening" change in the law provides "cause" for his failure to assert this claim in his prior petition. Mr. Abdulhaseeb cites a number of cases that he contends are "intervening/ supervening decisions," including United States v. Gaudin, 115 S.Ct. 2310 (1995), Sullivan v. Louisiana, 508 U.S. 275 (1993); United States v. Wiles, 102 F.3d 1043 (10th Cir.1996); and Harmon v. Marshall, 69 F.3d 963 (9th Cir.1995).
15
Our review of the cases cited by Mr. Abdulhaseeb does not lead us to conclude there has been an intervening change of law with respect to Mr. Abdulhaseeb's ineffective assistance of counsel claim. Thus, we conclude Mr. Abdulhaseeb cannot establish cause for his failure to have previously raised this claim. Having determined Mr. Abdulhaseeb cannot establish cause, we need not address the prejudice inquiry.9 Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir.1995). We therefore conclude Mr. Abdulhaseeb has abused the writ with respect to his ineffective assistance of counsel claim.
II. CONCLUSION
16
Because Mr. Abdulhaseeb has abused the writ with respect to each of his claims, his appeal cannot proceed and we have no need to determine whether Mr. Abdulhaseeb has not made a substantial showing of the denial of a constitutional right. We hereby deny Mr. Abdulhaseeb a certificate of appealability, and we DISMISS Mr. Abdulhaseeb's petition for a writ of habeas corpus.
*
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
At the time of his 1981 convictions, Mr. Abdulhaseeb apparently was named Jerry Lewis Thomas. See id
2
In his 1996 petition for a writ of habeas corpus, Mr. Abdulhaseeb conspicuously fails to allege that he filed a previous habeas corpus petition in federal court
3
Mr. Abdulhaseeb also raised an ineffective assistance of counsel claim in his first habeas petition. See Thomas, 1993 WL at * 3-4. However, it appears the ineffective assistance of counsel claim raised in the earlier petition was predicated on different grounds than the ineffective assistance of counsel claim asserted in the present petition. In the 1991 petition, Mr. Abdulhaseeb apparently argued he was denied effective assistance of counsel due to a conflict of interest and due to his trial counsel's failure to subpoena certain witnesses. Id. In the 1996 petition, Mr. Abdulhaseeb argues his trial counsel and appellate counsel were ineffective because they failed to raise the issue of an improper jury instruction regarding the burden of proof and presumption of innocence
4
28 U.S.C. § 2253(c) applies to all notices of appeal filed after April 24, 1996, the date on which the President signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. See Houchin v. Zavaras, 107 F.3d 1465, 1468 (10th Cir.1997) (applying § 2253 to notice of appeal filed April 26, 1996). Because Mr. Abdulhaseeb filed his Notice of Appeal on October 3, 1996, 28 U.S.C. § 2253(c) is applicable to this appeal
5
We recognize the Antiterrorism and Effective Death Penalty Act of 1996 established new standards for evaluating second or successive habeas corpus petitions. See 28 U.S.C. § 2244(b); Hatch v. Oklahoma, 92 F.3d 1012, 1014 (10th Cir.1996). However, because Mr. Abdulhaseeb filed this habeas petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act, we assume the new standards do not apply to Mr. Abdulhaseeb's petition. See United States v. Fykes, No. 96-1138, 1996 WL 699762, at * 1 n. 1 (10th Cir. Dec. 5, 1996) (unpublished disposition) (holding the successive petition provisions of Antiterrorism and Effective Death Penalty Act are inapplicable to case filed before date of enactment); Williams v. Calderon, 83 F.3d 281, 285 (9th Cir.1996) (holding amendments to 28 U.S.C. § 2244(b) do not apply to petition filed two days prior to enactment of Antiterrorism and Effective Death Penalty Act). Even if we were to apply the more restrictive successive petition standards contained in the Antiterrorism and Effective Death Penalty Act, see Reid v. Oklahoma, 101 F.3d 628, 629 n. 2 (10th Cir.1996), petition for cert. filed, (March 13, 1997) (No. 96-8211), we would conclude that review of Mr. Abdulhaseeb's petition is barred under amended § 2244(b)
6
A petitioner need not establish cause if he can show a fundamental miscarriage of justice would result from a failure to decide the claim. McCleskey, 499 U.S. at 494-95. In other words, we will excuse cause where the petitioner makes a " 'colorable showing of factual innocence.' " Id. at 495 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986))
7
Citing a number of cases, Mr. Abdulhaseeb ostensibly contends an intervening/supervening change in the law is the "cause" for his failure to raise the claim in his prior petition
8
Mr. Abdulhaseeb also alleges the Oklahoma trial court was without jurisdiction to enter a 1980 "Consent Decree for Orders Granting Post-Conviction Relief." The consent decree, inter alia, voided one of Mr. Abdulhaseeb's 1962 convictions and modified the sentences for Mr. Abdulhaseeb's 1972 and 1973 convictions. Thomas, 675 P.2d at 1020 n. 6. Assuming, without deciding, Mr. Abdulhaseeb is correct and the court did not have jurisdiction to enter the decree, this would not render the 1972 and 1973 convictions invalid, as Mr. Abdulhaseeb appears to argue. See Apt's brief at 7 ("those two convictions ... were filed illegal.")). Nor would it entitle Mr. Abdulhaseeb to any relief under 28 U.S.C. § 2254. Hence, we need not determine whether the trial court had jurisdiction to enter the 1980 consent decree
9
We also note Mr. Abdulhaseeb has made no showing of factual innocence. Consequently, we may not excuse the "cause" requirement in this case. See McCleskey, 499 U.S. at 495 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1604763/ | 21 Mich. App. 596 (1970)
175 N.W.2d 870
PEOPLE
v.
BYNUM
Docket No. 6,767.
Michigan Court of Appeals.
Decided February 5, 1970.
Leave to appeal denied April 2, 1970.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow (Defenders' Office Legal Aid and Defender Association of Detroit), for defendant on appeal.
*598 Before: LESINSKI, C.J., and J.H. GILLIS and QUINN, JJ.
Leave to appeal denied April 2, 1970. 383 Mich. 776.
LESINSKI, C.J.
Defendant Terry Louis Bynum was tried and convicted of manslaughter[1] by a Detroit recorder's court jury. He appeals alleging various errors. We affirm.
On the evening of November 21, 1966, Terry Bynum was riding in a car with his brother-in-law, Rudolph Rogers. Apparently Rogers was searching for his wife. When she was discovered, Rogers jumped out of the car and began beating her. The defendant also left the car and then became embroiled in a fight with Rogers. During the altercation Rogers sustained fatal knife wounds. The police subsequently arrested Bynum and conveyed him to police headquarters where he made a statement. At trial the plaintiff offered the statement of defendant into evidence. A Walker[2] hearing revealed that the defendant was advised of his constitutional rights[3] in the language of a so-called Miranda card the Detroit police department's "Constitutional Rights Certificate of Notification." The trial court admitted the statement over defense counsel's objection.
Defendant argues that the warnings given by the police interrogators failed to conform to the guidelines set down in Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974). The certificate reads as follows:
*599 "DETROIT POLICE DEPARTMENT
"CONSTITUTIONAL RIGHTS
"CERTIFICATE OF NOTIFICATION
"I understand that:
"1. I have a right to remain silent and that I do not have to answer any questions put to me or make any statements.
"2. Any statement I make or anything I say can be used against me in a Court of Law.
"3. I have the right to have an attorney (lawyer) present before I answer any questions or make any statement.
"4. If I cannot afford an attorney (lawyer), one will be appointed for me by the Court prior to any questioning.
"5. I can decide at any time to exercise my rights and not answer any questions or make any statement.
"I understand that these are my rights under the law. I have not been threatened or promised anything, and I now desire and agree to answer any questions put to me or to make a statement.
"In the presence of:
/s/ Det. Thomas McManus /s/ Terry L. Bynum
"Witness Signature
/s/ Det. Henry LaHousse 11-21-66 4:15 a
"Witness Date Time
"[✓] This certificate of notification was read to the suspect, and he/she had an opportunity to read it. Further, the suspect was given an opportunity to ask any questions that he/she might have concerning this certificate and his/her rights.
"[] Suspect is illiterate. He/she has had the rights under the law, as defined above, explained to him/her, and has agreed to answer questions or make a statement.
*600 "[] Suspect can read and write. The rights, as defined above, have been explained to him/her, and he/she has agreed to make a voluntary statement but has refused to sign this form.
"REMARKS 4:15 a 11-21-66 Bynum turned over a 3" Brown & white Brown handle knife our Evid tag # 633403
/s/ Det. T. McManus
11-21-66 4:15 a
"Date Time
/s/ Det. Thomas McManus, Homicide
Officer DPD Unit
Homicide Bureau
"Place /s/ Det. Henry LaHousse, Homicide
Officer DPD Unit"
It is defendant's contention that the certificate neglects to inform him of his right to have an attorney present during interrogation. Although the certificate could be more precise in this regard, the import of warnings 3, 4 and 5 is to that effect. We find compliance with the Miranda rule. The statement was properly admitted.[4]
Defendant's second claim of error concerns a statement the trial judge made during the Walker hearing. After the police officer testified as to the circumstances surrounding the interrogation, the trial court ruled the statement admissible. However, the court then withdrew its finding with the following statement in order to allow the defendant to rebut the officer's testimony:
"No. No, he has a right to take the stand. What he says can't be used against him. If he takes the *601 stand later it can be used, but if he doesn't take the stand you can't mention it at all. Get his answers here now, he can meet this now at the Walker hearing so I am going to withdraw my finding. If you want to give him an opportunity, we have voluntariness and also direct at the trial even though I ruled that it is voluntarily admissible, as I read the case he has not had the opportunity to take the stand."
The defendant argues that this was not a correct statement of the rule controlling the use to which Walker hearing testimony can be put. We disagree. People v. Walker (On Rehearing, 1965), 374 Mich. 331, states:
"We therefore release our jurisdiction of the cause and direct the recorder's court to assume jurisdiction to make a determination upon a separate record upon the issue of the voluntariness of the confession only. At this hearing, we hold the defendant may take the stand and testify for the limited purpose of making of record his version of the facts and circumstances under which the confession was obtained. We hold further that by so doing defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered. Neither does he waive any of the other rights stemming from his choice not to testify. This we believe comports with the apparent intention of Jackson (v. Denno [1964], 378 U.S. 368 [84 S. Ct. 1774, 12 L. Ed. 2d 908]) to require the issue of the voluntariness of a confession to be determined completely apart from and independent of the consideration of that issue by the jury which is considering guilt or innocence under established procedures."
The trial judge said nothing inconsistent with the above language. The defendant is under no obligation to take the stand at trial. However, once he does he is subject to cross-examination the same as *602 any other witness. People v. Lloyd (1967), 5 Mich. App. 717.
Defendant's third claim of error concerns the charge to the jury. No objections were raised below. People v. Keys (1968), 9 Mich. App. 482. However, we exercise our prerogative in searching for evidence of a clear miscarriage of justice. We find none here. Reading the instructions as a whole, we find they present a full, fair and impartial statement of the law of the case.
Defendant's final claim of error is that the verdict was against the great weight of the evidence. We repeat what we stated in People v. Washington (1966), 4 Mich. App. 453, 456:
"`The last assignment of error reiterates an incorrect standard of proof, asserting the verdict is against the great weight of evidence. The correct standard in a criminal appeal is evidence sufficient to convince beyond a reasonable doubt.' People v. Williams (1962), 368 Mich. 494."
See, also, People v. Weems (1969), 19 Mich. App. 553. Reviewing the record, we find there was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Fred W. Thomas (1967), 7 Mich. App. 519.
Affirmed.
All concurred.
NOTES
[1] MCLA § 750.321 (Stat Ann 1954 Rev § 28.553).
[2] People v. Walker (On Rehearing, 1965), 374 Mich. 331.
[3] See Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974).
[4] Compare People v. Ansley (1969), 18 Mich. App. 659, where the record of the Walker hearing revealed Miranda warnings substantially less complete than those in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604780/ | 416 So. 2d 1127 (1982)
In re RULE 9.331, DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC, FLORIDA RULES OF APPELLATE PROCEDURE.
No. 50409-D.
Supreme Court of Florida.
June 24, 1982.
E.R. Mills, Jr., Chairman of the Conference of Judges of District Courts of Appeal, Tallahassee, and John R. Beranek, Chairman of the Florida Appellate Court Rules Committee of The Florida Bar, West Palm Beach, for petitioners.
OVERTON, Justice.
The Florida Conference of District Court of Appeal Judges has petitioned this Court to consider an emergency rule change to address practical problems which have arisen in the en banc decisional process under the en banc rule, Florida Rule of Appellate Procedure 9.331. We accept jurisdiction pursuant to Florida Rule of Judicial Administration 2.130(a) and (f).
The problems presented in the petition for our solution concern the number of judges of a district court of appeal necessary to constitute a "majority" in terms of an en banc panel. An additional issue presented by the chief judges of the district courts concerns whether one three-judge panel can expressly overrule or recede from a prior opinion of another three-judge panel of the same district upon the same point of law. We find that rule 9.331 and its commentary should be modified.
First and foremost, we must emphasize that a direct and important interrelationship exists between the en banc rule and the new constitutional amendment which limits Supreme Court jurisdiction. See art. V, § 3, Fla. Const. The amendment substantially strengthened the position of the district courts of appeal as final appellate courts. The en banc rule is an essential part of the philosophy of the constitutional scheme embodied in the new amendment because the Supreme Court no longer has jurisdiction under the amendment to review intra-district conflict.
The appellate structure commission, which this Court established to study the efficiency of Florida appellate structure, recommended that intra-district conflict be resolved by the district courts of appeal sitting en banc, rather than by this Court. The commission also recommended that such an en banc procedure be implemented by court rule. In its study,[1] the commission considered any possible constitutional infirmity of such a rule and concluded that no constitutional impediment existed. The commission also noted that the federal courts had given a similar construction and interpretation to almost identical language in the congressional act which established the United States Circuit Courts of Appeals *1128 and the resulting authority for each circuit to proceed en banc.[2]
This Court agreed with the commission and concluded that an en banc rule as part of Florida's appellate structural scheme was appropriate and constitutional, particularly under the philosophy that the district courts should, to the extent possible, be final appellate courts. See In Re Rule 9.331, Determination by a District Court of Appeal En Banc, 374 So. 2d 992, modified, 377 So. 2d 700 (Fla. 1979). Justice Boyd disagreed with the majority and expressed his dissent on constitutional grounds. Id. at 994-95 (Boyd, J., dissenting). The constitutional amendment was thereafter presented to the legislature and, in turn, to the electorate of the state with the understanding that the district courts of appeal could sit en banc to resolve intra-district conflict. In fact, under the new amendment, if intra-district conflict is not resolved within the district courts by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the state of law. The new appellate structural scheme, including the en banc process, was intended to solve that problem and to provide litigants with a clear statement of the law within any given district.
This historical discussion leads to the question raised by the chief judges of the district courts, whether one three-judge panel can expressly overrule or recede from a prior decision of a three-judge panel of the same court on the same point of law. Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole. The view that one district court panel is independent of other panels on the same court could possibly be a proper constitutional interpretation if our constitution provided that district courts were merely intermediate courts, with this Court, as the state's highest court, having full discretionary jurisdiction to review all intermediate court decisions. This was not, however, the type of appellate structural scheme adopted by the electorate. In fact, the suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.
Although we agree that, to carry out the purpose behind our new appellate structure, a three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law, we cannot accept the chief judges' suggestion that we should prohibit that action by court rule. Without addressing possible constitutional problems, we find that a strict rule of procedure would be unworkable and inappropriate under the circumstances. We recognize that in many instances factual circumstances are different and cases may be distinguishable on that basis. In addition, the issues raised and argued in a prior case may not be the same as issues raised and argued in the case under review.
We have full confidence that the district court of appeal judges, with a full understanding of our new appellate structural scheme, will endeavor to carry out their responsibility to make the law consistent within their district in accordance with that intent. We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing. As an alternative, the district court panel could, of course, certify the issue to this Court for resolution. Consistency of law within a district is essential to avoid unnecessary and costly litigation. We conclude that the district court judges, through their opinions, will adopt principles to ensure this result.[3]
*1129 The next item for our determination requires a definition of the term "majority of the district court" as applied in en banc proceedings. This issue, in essence, poses two questions for our review. The first is whether the term "majority of the district court" contemplates an absolute majority of all the active judges of a district court to grant an en banc hearing or whether it contemplates only a majority of those judges actually participating in the en banc hearing request. The second is whether the term contemplates an absolute majority of the active judges of the district court to render an en banc opinion on the merits or whether a simple majority of those active judges actually participating on the case is sufficient.
It is our opinion that a simple majority of the active judges actually participating and voting on a case, without regard to illness or recusal, is all that should be necessary to call an en banc hearing as well as to reach a decision on the merits. We reject the argument that we should require a majority of the active judges on the entire court, whether participating or not. The asserted justification for the latter view is that, because the decision will bind the district court as a whole, a majority of the actual number of the active judges should be required to both call an en banc hearing and to reach a decision on the merits of the issues presented. That view, however, could punish the litigants by possibly requiring an extraordinary number of judges to call an en banc hearing or, if called, to vote in favor of an opinion to reach a decision in the case. For instance, on an eight-judge court, if only five are sitting (e.g., two disqualified and one ill), an extraordinary vote of all five of the sitting judges would be required to both call an en banc hearing and to reach a decision on the merits. This, we believe, is unfair to the litigants who have no control over the disqualification or illness of judges in active service. Further, such a rule would be contrary to the philosophy of establishing finality and consistency in the law of each district with the prompt resolution of intra-district conflict. Failure to reach an en banc decision simply because of illness or recusal of one or more judges could leave intra-district conflict with no suitable means for resolution within the district court. For this reason, we conclude that only a majority of the actual sitting members of the court is necessary both to call and to reach an en banc decision.
The final issue concerns the effect of a tie vote by an en banc panel when considering the merits of the case.[4] We conclude that an evenly split vote on the merits after an en banc hearing leaves the panel decision of the district court standing, and, in the event that there is no panel decision, the trial court decision must be affirmed. In either case, the divergent views culminating in a tie vote of the en banc court render the matter one which suggests that the district court should certify the issue to this Court for resolution.
In accordance with the views expressed in this opinion and the policy decisions made, the en banc rule, Rule of Appellate Procedure 9.331, is modified as follows:
(a) En Banc Proceedings: Generally. A majority of the judges of a district court of appeal participating may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court's decisions. The en banc decision shall be by a majority of the active judges actually participating and voting *1130 on the case. In the event of a tie vote, the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision.
(b) Hearings En Banc. A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken.
(c) Rehearings En Banc.
(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court's decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.
(2) Required Statement for Rehearing En Banc. A rehearing en banc is an extraordinary proceeding. In every case the duty of counsel is discharged without filing a motion for rehearing en banc unless the ground set forth in (1) is clearly met. When filed by an attorney, the motion shall contain the following statement:
I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court: (citing specifically the case or cases).
/s/ _______________
(3) Formal Order on Motion for Rehearing En Banc. An order on a motion for rehearing en banc shall be deemed denied upon a denial of rehearing or a grant of rehearing without en banc consideration. If rehearing en banc is granted, the court may limit the issues to be reheard, require the filing of additional briefs, and may require additional argument.
COMMENTARY
This rule is patterned in part after the en banc rule of the United States Court of Appeals for the Fifth and Eleventh Circuits. The rule is an essential part of the philosophy of our present appellate structure because the supreme court no longer has jurisdiction to review intra-district conflict. The new appellate structural scheme requires the district courts of appeal to resolve conflict within their respective districts through the en banc process. By so doing, this should result in a clear statement of the law applicable to that particular district.
Subsection (a) provides that a majority vote of the active and participating members of the district court is necessary to set a case for hearing en banc or rehearing en banc. The issues on the merits will be decided by a simple majority of the judges actually participating in the en banc process, without regard to recusals or a judge's absence for illness. All judges in regular active service, not excluded for cause, will constitute the en banc panel. Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court's decisions, is the equivalent of decisional conflict as developed by supreme court precedent in the exercise of its conflict jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity. The effect of an en banc tie vote is self-explanatory, but such a vote does suggest that the matter is one which should be certified to the supreme court for resolution.
*1131 Subsection (b) provides that hearings en banc may not be sought by the litigants; such hearings may be ordered only by the district court sua sponte.
Subsection (c)(1) governs rehearings en banc. A litigant may apply for an en banc rehearing only on the ground that intra-district conflict of decisions exists, and then only in conjunction with a timely filed motion for rehearing under Rule 9.330. The en banc rule does not allow for a separate motion for an en banc rehearing nor does it require the district court to enter a separate order on such request. Once a timely motion for rehearing en banc is filed in conjunction with a traditional petition for rehearing, the three judges on the initial panel must consider the motion. A vote of the entire court may be initiated by any single judge on the panel. Any other judge on the court may also trigger a vote by the entire court. Nonpanel judges are not required to review petitions for rehearing en banc until a vote is requested by another judge, although all petitions for rehearing en banc should be circulated to nonpanel judges. The court may on its own motion order a rehearing en banc.
Subsection (c)(2) requires a signed statement of counsel certifying a bona fide belief that an en banc hearing is necessary to ensure decisional harmony within the district.
Subsection (c)(3) is intended to prevent baseless motions for en banc rehearings from absorbing excessive judicial time and labor. The district courts will not enter orders denying motions for en banc rehearings. If a rehearing en banc is granted, the court may order briefs from the parties and set the case for oral argument.
The Florida Bar is directed to publish this rule change in the Florida Bar News by July 15, 1982, so that interested parties may have the opportunity to object to the modification of this rule and respond to this Court on or before September 1, 1982. Barring further amendment or modification as a result of the responses received, the rule shall become effective on October 1, 1982, at 12:01 a.m.
It is so ordered.
SUNDBERG, C.J., and ADKINS, ALDERMAN, McDONALD and EHRLICH, JJ., concur.
BOYD, J., dissents.
NOTES
[1] See Report of the Supreme Court Commission on the Florida Appellate Structure, 53 Fla. B.J. 274, 279 (1979).
[2] See id. at 292 (Appendix A); Textile Mills Sec. Corp. v. Commissioner, 314 U.S. 326, 62 S. Ct. 272, 86 L. Ed. 249 (1941).
[3] See, e.g., United States v. Adamson, 665 F.2d 649 (5th Cir.1982); Board of Educ. v. Hufstedler, 641 F.2d 68 (2d Cir.1981); Caldwell v. Ogden Sea Transp., Inc., 618 F.2d 1037 (4th Cir.1980); Timmreck v. United States, 577 F.2d 372 (6th Cir.1978), rev'd, 441 U.S. 780, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979); United States v. Bryant, 471 F.2d 1040 (D.C. Cir.1972), cert. denied, 409 U.S. 1112, 93 S. Ct. 923, 34 L. Ed. 2d 693 (1973); Etcheverry v. United States, 320 F.2d 873 (9th Cir.), cert. denied, 375 U.S. 930, 84 S. Ct. 331, 11 L. Ed. 2d 263 (1963).
[4] A tie vote on whether to call an en banc hearing is not at issue because a majority vote is necessary to have an en banc hearing. | 01-03-2023 | 10-30-2013 |
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