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https://www.courtlistener.com/api/rest/v3/opinions/1605454/ | 416 So. 2d 82 (1982)
STATE of Louisiana ex rel. Larry LaFLEUR
v.
Jack DONNELLY, Warden, Dixon Correctional Institute.
No. 81-KH-2654.
Supreme Court of Louisiana.
June 21, 1982.
*83 William G. Carmichael, Clinton, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pucheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-respondent.
DIXON, Chief Justice.
We granted relator's petition to review the claim that his guilty plea was not knowingly and intelligently entered.
Larry LaFleur was charged with simple burglary and theft that occurred on September 3, 1980, simple burglary committed September 4, 1980 and possession of a firearm by a convicted felon on September 4, 1980. After an initial plea of not guilty, he entered pleas of guilty to all charges pursuant to a plea bargain agreement. Defendant was sentenced to six years on each count of simple burglary, six years on the theft charge and five years on the firearm possession charge, all sentences to run concurrently. R.S. 14:95.1 provides the five year sentence for firearm possession to be served without benefit of parole, probation or suspension of sentence.
Clyde Fontenot, defendant's attorney at the time he entered the guilty pleas, testified that he had bargained with the district attorney for concurrent sentences of nine years each on the theft charge and the two simple burglary charges. Fontenot told defendant he would be eligible for parole after three years. Defendant refused the offer, and said he would go to trial before he would plead guilty in exchange for a nine year sentence.
Defendant then made a deal through the chief deputy of the Evangeline Parish sheriff's office. Deputy McGee arranged for six year concurrent sentences on the three charges and an additional five year concurrent sentence on the firearm possession charge. Mr. Fontenot was not involved in the second plea bargain other than to have the district attorney agree not to treat defendant as an habitual offender and to be present when the guilty pleas were entered.
The record substantiates defendant's assertion that he would not have pleaded guilty if he had known he would be ineligible for probation or parole on the sentence he would receive under the firearms statute. Although Clyde Fontenot emphatically denied that he made any promises to defendant regarding parole, he admitted that the question of parole or probation probably came up. He and defendant had discussed parole concerning the nine year sentence, and he told defendant he would be eligible after three years. Fontenot "... guess[ed] there was some discussion about, you know, eligible or not eligible for parole, you know, or two years, you know, after six you're eligible after two, usually." Defendant testified Fontenot told him the decision would be made by the parole board, but that he would be eligible for parole after two years if he accepted the six year plea bargain.
At the sentencing hearing on April 10, 1981 the state noted "[p]lea bargain was six years. To run concurrent with the possible revocation of parole."[1] The trial judge sentenced defendant to six years on each count of simple burglary and six years for the theft charge, sentences to run concurrently, and five years for possession of a firearm, also to run concurrently with the *84 aforementioned sentences. The trial court stated defendant was to be given credit for all time served to work toward his record for parole or probation purposes. The transcript of the sentencing hearing contains no reference to the ineligibility for parole, probation or suspension of sentence on the firearm charge. In fact, the defendant was unaware that he was to receive three six year sentences and one five year sentence to be served concurrently. When the sentencing judge asked defendant if he understood the sentences were to be concurrent, defendant replied that "I didn't know anything about concurrent." Only at the sentencing hearing did defendant learn that he was receiving separate sentences to be served at the same time. At the post conviction hearing defendant said that "as far as I knew was that I was pleading guilty to 6 years to all of them put together." He did not know that he was being charged under the "gun act," meaning the firearms possession statute.
"... while an understanding of the triad of rights may be the sine qua non for the acceptance of a guilty plea, it is also true that other factors may have a bearing on the validity of the plea. A mere recitation of rights does not always insure the intelligent and voluntary nature of the plea. See, e.g., State v. Galliano, 396 So. 2d 1288 (La.1981); State v. Beatty, 391 So. 2d 828 (La.1980)." State v. Halsell, 403 So. 2d 688, 690 (La.1981).
It is important to explain to the accused the elements of the offenses with which he is charged and the rights he is waiving by pleading guilty thereto. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) and State ex rel. Jackson v. Henderson, 260 La. 90, 255 So. 2d 85 (1971). However, it is probably much more important to the defendant's decision (about whether to plead guilty) that he understand the maximum penalty exposure.
In this case a detailed account of the possible sentences by the trial court could have prevented any misunderstanding with regard to parole eligibility on the firearms charge. A full explanation of the sentence provided for an offense by the legislature seems particularly important when, as part of the penalty for the offense, parole eligibility is denied, because the accused may be far more concerned about the possibilities for early release than any abstract right to confront his accusers at trial.
In State v. Galliano, 396 So. 2d 1288 (La. 1981), this court upheld the vacating of a plea by the trial judge on grounds that all parties concerned had mistakenly believed at the time of the plea colloquy that suspension of sentence was available under the applicable statute. Defendant in this case justifiably believed that he would be eligible for parole in two years, and pleaded guilty, in part, on that basis. The guilty plea was made voluntarily, but it was not knowingly and intelligently entered. See also State v. Jones, 398 So. 2d 1049 (La. 1981).
For the foregoing reasons, defendant's convictions and sentences are reversed and set aside, and the case is remanded for further proceedings not inconsistent with this opinion.
DENNIS, J., concurs with reasons.
LEMMON, J., concurs and assigns reasons.
WATSON, J., dissents.
LEMMON, Justice, concurring.
Compliance with the three-right articulation rule of State ex rel Jackson v. Henderson, above, is not the equivalent of a constitutionally valid guilty plea. A guilty plea which complies with the per se rule of Jackson, but which does not comply with Boykin `s constitutional mandate that the record show the plea was entered knowingly and intelligently, must be set aside. Conversely, a guilty plea which does not comply with the per se rule of Jackson, but which is constitutionally valid because it was clearly shown to have been entered knowingly and intelligently, should be affirmed. The key inquiry is whether the record (consisting of both the evidence at the time of the plea and the evidence at the postconviction attack on the plea) establishes that defendant *85 entered the plea knowingly and voluntarily.[1]McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 901, 39 L. Ed. 2d 102.
On this record, defendant is clearly entitled to have his plea to firearm possession set aside. Because that plea was part of a package deal, the state may insist that the entire plea be set aside.[2]
DENNIS, Justice, concurring.
I respectfully concur.
I cannot join in the majority's speculation as to which was more important to this defendant's decision to plead guilty, his understanding of his constitutional rights or of his maximum penalty exposure. It is unnecessary and will probably not be understood in the way it is intended.
NOTES
[1] The record contains no other reference to defendant being subject to parole revocation. When defendant was asked whether he was on parole at the time of the sentencing hearing he responded in the negative.
[1] As a matter of fact, virtually all of the recent pleas which come before this court are in compliance both with Jackson's per se rule and Boykin's constitutional mandate. The problems occur primarily in older pleas, which were entered before trial judges began making the painstaking efforts they do today to insure that a guilty plea is valid.
Older pleas are now coming before this court generally as predicate offenses used for enhancement of recent crimes. Because the state frequently is prejudiced by stale postconviction attacks on pleas, the record of older pleas should be examined using a standard of substantial compliance, and the unexplained delay in raising the issue should be considered as one factor in the totality of circumstances in the determination of whether to set aside the plea. State v. Cusher, 400 So. 2d 601 (La.1981); State v. Bosworth, 415 So. 2d 912 (La.1982).
[2] It is interesting to note that defendant's success in setting aside the plea may work to his detriment. If the state's evidence is still intact, and if defendant is tried and convicted, he will probably be sentenced without the benefits of a very favorable bargain (in which the district attorney agreed not to bill him as a multiple offender). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605640/ | 310 N.W.2d 581 (1981)
Harold SCHNEIDER, Sheriff of Stark County, Petitioner,
v.
Thomas D. EWING, Judge of the Stark County Court with Increased Jurisdiction, Respondent.
Civ. No. 10075.
Supreme Court of North Dakota.
October 6, 1981.
*582 Greenwood, Greenwood & Greenwood, Dickinson, for petitioner; argued by Mark L. Greenwood, Dickinson.
Thomas D. Ewing, respondent pro se.
PAULSON, Justice.
Petitioner, Harold Schneider, Sheriff of Stark County, invoked the original jurisdiction of the North Dakota Supreme Court for an alternative writ of prohibition to stay the proceedings of the State of North Dakota v. Stark County Prisoners et al., and State of North Dakota v. Harold Schneider, Sheriff of Stark County. We grant the writ.
This petition arises from the following facts:
On several occasions prior to December 3, 1980, respondent, Thomas D. Ewing, Judge of the Stark County Court of Increased Jurisdiction, had spoken with Sheriff Schneider and various members of the Stark County state's attorney's staff concerning the overcrowded conditions of the Stark County jail. The overcrowding also gave rise to problems in segregating pre-trial detainees from post-conviction detainees.
The Stark County jail facility consists of two sections: the "women's side" with two cells, and the "men's side" with seven cells and a day room. Each cell has individual toilet facilities. When the population of the men's side exceeds seven, the occupant of cell one must leave his cell open to access by any inmate who is not assigned a cell.
The State Jail Register shows that the population of the jail varied from a low of six on November 6, 1980, to a high of eighteen on November 21, 1980. Mattresses were laid out on the steel floor of the day room to accommodate those persons not assigned to one of the seven cells.
After Judge Ewing was advised of these conditions, he entered a continuing order, sua sponte, in an effort to correct the overcrowding and segregation problems at the jail. The order required the Stark County sheriff to transport sufficient numbers of post-conviction male detainees to the Burleigh County jail to keep the population of the Stark County jail at a maximum of seven.[1] The original order was captioned with the State of North Dakota as plaintiff and Stark County Prisoners, et al., as defendants. This order was not made in open court or upon the record in any action.
On July 23, 1981, Judge Ewing was informed that the sheriff was not complying with the continuing order of December 3, 1980. The State Jail Register indicated jail populations as high as sixteen inmates as late as April 26, 1981. Judge Ewing therefore issued, sua sponte, an order to show cause dated July 27, 1981, directing Sheriff Schneider to appear before him on August 4, 1981, to show cause why he should not be held in contempt. This order was captioned *583 with the State of North Dakota as plaintiff and Harold Schneider, Sheriff of Stark County, as defendant. Subsequently, the date for the hearing was changed to August 10, 1981, and was further continued to September 14, 1981, after Sheriff Schneider entered his response to the order to show cause, which alleged that the Stark County Court of Increased Jurisdiction had no jurisdiction over the parties or the subject matter because the order was not served by a disinterested party.
On September 4, 1981, Sheriff Schneider filed an application with the North Dakota Supreme Court requesting that a writ of prohibition be issued against Judge Ewing restraining him from further proceedings in this matter. The North Dakota Supreme Court, on September 4, 1981, issued its order to Judge Ewing to refrain from further proceedings in this matter until further order by the Supreme Court of North Dakota. This court further ordered Judge Ewing to appear before it on September 10, 1981, to show cause why it should not issue a writ permanently enjoining proceedings in this matter.
The issues for consideration by the court are as follows:
1. Whether the Stark County Court of Increased Jurisdiction has jurisdiction over the subject matter.
2. Whether the Stark County Court of Increased Jurisdiction has jurisdiction over the petitioner, Sheriff Schneider.
3. Should a writ of prohibition be issued by this court:
We first discuss the issue of whether or not the Stark County Court of Increased Jurisdiction had jurisdiction over the subject matter of this action.
Although Judge Ewing's intentions were commendable, his actions were procedurally misdirected from the outset. He initiated both the continuing order of December 3, 1980, and the order to show cause of July 27, 1981, sua sponte, in the name of the State of North Dakota. The continuing order named as defendants Stark County Prisoners, et al., and the order to show cause named as defendant Harold Schneider, Sheriff of Stark County. Neither the Stark County state's attorney nor the attorney general nor his assistants have instituted an action against Sheriff Schneider nor against the general categoryStark County Prisoners, et al.
In State v. Stepp, 45 N.D. 516, 178 N.W. 951 (1920), the Supreme Court stated that the attorney general, his assistants, and the state's attorneys are the only public prosecutors in all cases where the State is a party to the action.
At oral argument, Judge Ewing stated that he discussed the problem with the state's attorney for Stark County, as well as with the Stark County board of county commissioners. The board of county commissioners was apparently unresponsive and the state's attorney took no action in this matter for reasons of an apparent conflict of interest.[2]
Assuming that the state's attorney would have been able to initiate an appropriate action in this matter, Judge Ewing should have brought the matter to the attention of the district court for action, pursuant to § 11-16-06, N.D.C.C., which allows the district court to request the attorney general or an assistant attorney general to take charge or to appoint an attorney to take charge when the state's attorney refuses or is unable to take action. Judge Ewing stated at oral argument, however, that he did not seek help from the district court or from the attorney general, but, rather, initiated these actions sua sponte.
Therefore, the continuing order and the order to show cause were not initiated by the proper public prosecutors. As a result, those actions were not properly before the court.
*584 We conclude that no legal actions have been properly brought by the State of North Dakota against the Stark County prisoners or the sheriff of Stark County. There being no legal actions in existence, the Stark County Court of Increased Jurisdiction has no jurisdiction over the subject matter nor of the person of the petitioner.
The continuing order of December 3, 1980, cannot be said to be issued pursuant to any particular legal action involving defendants who were arrested pursuant to a warrant signed by Judge Ewing, or who were tried before him or otherwise detained by him. The continuing order was a blanket order covering all of the Stark County prisoners with no attempt to distinguish whether they were detained pursuant to legal actions in Judge Ewing's court, or in any other court. What authority Judge Ewing had over particular detainees in the Stark County jail was clearly exceeded by the blanket order. The blanket order is, in effect, an attempt to effectuate jail reform through a sua sponte court order.
In his oral argument, Judge Ewing focused basically on Rule 46(i) of the North Dakota Rules of Criminal Procedure as the basis for his jurisdiction. The Rule states:
"(i) Supervision of detention pending trial. The court ordering defendants or witnesses detained shall exercise supervision over the detention of those defendants and witnesses pending trial, for the purpose of eliminating all unnecessary detention."
The Explanatory Note to Rule 46(i), N.D.R. Crim.P., governing Release from Custody, states in the Criminal Rules Manual that:
"Subdivision (i) provides that where the court is unable to release a defendant or witness under any of the provisions of this Rule, it shall be responsible to insure a swift disposition of the case with a minimum of preconviction detention."
This Rule gives the court the specific responsibility of a swift disposition of the action against the defendant.
We will not, however, extend the Rule beyond its intended scope. The blanket order issued by Judge Ewing included detainees who were not under his supervision, pursuant to Rule 46(i), N.D.R.Crim.P. To permit such an extension of the Rule would merely serve to insert judicial interference into the administration of jails without regard to our statutory scheme for jail administration and supervision provided by Chapter 12-44.1, N.D.C.C.
Chapter 12-44, N.D.C.C., was repealed by S.L.1979, Chapter 172, § 29 effective July 1, 1980, and was replaced by Chapter 12-44.1, N.D.C.C. Under Chapter 12-44 the judges of the district courts were to prescribe rules for jails. This rule-making authority, however, is now the responsibility of the attorney general under § 12-44.1-24, N.D.C.C. The apparent intent behind this change is to allow district court judges to act as courts and not as legislative or administrative bodies when they hear cases involving jail problems.
Section 12-44.1-13, N.D.C.C., provides that inmates are to be supervised by trained jail staffs. Inmates' rights are to be ensured by the governing body of each jail, § 12-44.1-14, N.D.C.C., in this case the Stark County board of county commissioners. Of particular importance in the present case is § 12-44.1-14(1) and (2), N.D. C.C., which provide that the attorney general is responsible for prescribing rules and regulations for construction, maintenance, and operation of jails, as well as for the care and treatment of inmates. He is also responsible for appointing a jail inspector who is to inspect each jail at least once a year to determine if the rules and regulations have been complied with. § 12-44.1-24(4), N.D.C.C. The jail inspector is required by § 12-44.1-25, N.D.C.C., to make written annual reports to be submitted to the attorney general and the governing body of the jail. The report is to specify deficiencies or noncompliance with minimum standards and to set time limits within which they are to be remedied.
Corrective action or enforcement of the inspection report is provided for in § 12-44.1-27, N.D.C.C. Subsection 2 of that section is the portion applicable to the facts of this case, and states that if the governing body *585 of a jail fails to take corrective action, the attorney general is authorized to petition the district court of the judicial district within which the jail is located to order the initiation of corrective action or the closure of the facility.
When Judge Ewing realized that the conditions in the Stark County jail were in need of improvement, he had the following courses of action to pursue.
The first option Judge Ewing could have exercised would have been a conference with the state's attorney, the board of county commissioners, and the sheriff, in order to work out a solution. A part of the solution could have been to take further advantage of the contract between Stark County and Burleigh County which allows Stark County to use the jail facilities in Burleigh County when necessary. The record and oral arguments indicate that there were some informal discussions to this effect, but not of a nature indicating a firm resolve by all of the parties to seriously address the problem with the intent to finally solve it.
A second course of action would have been for Judge Ewing to have made a written request to the attorney general to exercise his rulemaking authority or to cause an inspection to have been made, pursuant to § 12-44.1-24 and § 12-44.1-25, N.D.C.C., respectively. If the attorney general were to refuse to act on this matter, an ex relatione action brought by the judge on behalf of the people of the State would be appropriate. See State ex rel. Agnew v. Schneider, 253 N.W.2d 184 (N.D.1977).
A less desirable alternative would be to seek the advice of the state's attorney to explore the possibility of an appropriate action brought by the state's attorney against the sheriff as chief administrator of the jail or against the board of county commissioners as the jail's governing body. If the state's attorney were to refuse to perform or was unable to do so, resort could be had to the district court by way of § 11-16-06, N.D.C.C., to seek intervention by the attorney general or an appointed attorney.
As we have already stated, Judge Ewing's intentions and concern for the detainees in the Stark County jail are certainly laudable. Nevertheless, our statutes provide for a system of jail supervision and administration which requires changes and reforms to be the responsibility of the attorney general with enforcement through the district courts. The Code seeks a more uniform statewide system of jail administration by the rules being promulgated from one central office, that of the attorney general. To allow the courts to insert their judgment into the operation and administration of jails would be, in effect, to revert back to the old system of jail supervision by the district courts under Chapter 12-44, N.D.C.C., which chapter was replaced by Chapter 12-44.1, N.D.C.C. The apparent intent of the change was to remove the judiciary from responsibility for jail rule-making and supervision.
The next issue for our determination is whether or not we should issue a writ of prohibition. Article VI, § 2 of the North Dakota Constitution, states, in part, that the supreme court
"shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction."
Section 28-31-07, N.D.C.C., provides to the North Dakota Supreme Court original jurisdiction to direct an alternative writ to be issued by the clerk.
Chapter 32-35, N.D.C.C., governs the application for and issuance of writs of prohibitions. The writ is defined in § 32-35-01, N.D.C.C., in part, as:
"the counterpart of the writ of mandamus. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person".
The writ of prohibition is not a writ of right, but is available only when an inferior court, body, or tribunal is about to act without *586 or in excess of jurisdiction. Sunbehm Gas, Inc. v. Lesmeister, 308 N.W.2d 555, 558 (N.D.1981).
In Davis v. O'Keefe, 283 N.W.2d 73, 76 (N.D.1979), in denying a writ of prohibition, this court stated:
"The authority vested in our court to issue original writs is a discretionary power, and an original writ will be granted at the request of a private party only in exceptional cases. State v. O'Connell, 151 N.W.2d 758, 761 (N.D.1967). A writ of prohibition is to be used sparingly and only in cases where there is an inadequate remedy by appeal, or in those cases where other equitable principles justify its use. Section 32-35-01, NDCC; State v. Hanson, 252 N.W.2d 872, 875 (N.D. 1977)."
The Davis v. O'Keefe case, supra, involved an Indian who sought a writ of prohibition to restrain the district court from prosecuting him for a criminal offense, alleging that his arrest within the external boundaries of a reservation was unlawful because county officials did not comply with a tribal extradition ordinance. This court held that prohibition was not appropriate because the defendant had not shown that he would be irreparably injured as a result of continued prosecution or that he could not ultimately avail himself of the right to appeal in the event of a conviction.
The present case, however, is distinguishable from Davis v. O'Keefe, supra. The primary difference in the present case is that Judge Ewing initiated these proceedings, sua sponte, albeit in the name of the State of North Dakota. He has particular knowledge of the facts and personal involvement in the proceedings. The judge's interest in this cause indicates that Sheriff Schneider would not be provided with an appropriately objective determination of contempt. The defendant in Davis v. O'Keefe, supra, on the other hand, faced his charges in a disinterested forum with the possibility of an acquittal based on the facts. We believe that the differences between this case and Davis v. O'Keefe, supra, make it appropriate for us to grant a writ of prohibition rather than to require an appeal.
In the instant case, Sheriff Schneider is the subject of an order to show cause why he should not be held in contempt for his failure to comply with Judge Ewing's continuing order dated December 3, 1980, which we have decided was void ab initio. The sheriff made no attempt to appeal the continuing order but seeks a writ of prohibition to enjoin the contempt proceeding, in Judge Ewing's court, which was initiated to enforce the continuing order. Because the Stark County Court of Increased Jurisdiction was without jurisdiction to issue the continuing order as well as the order to show cause, and because of Judge Ewing's involvement and interest in the proceedings, our grant of a writ of prohibition is appropriate. We will not require Sheriff Schneider to be subjected to a contempt hearing for failure to comply with a void continuing order and require him to subsequently appeal the order and probable contempt determination.
For reasons stated in this opinion, the writ of prohibition is granted. Because the matter under consideration is one of great public concern, no costs are assessed against either party. The clerk of this court is requested to serve a copy of this opinion upon the Attorney General of this State at the earliest opportunity.
ERICKSTAD, C. J., and PEDERSON, VANDE WALLE and SAND, JJ., concur.
VANDE WALLE, Justice, concurring specially.
I agree with the opinion written for the court by Justice Paulson. I write this special concurrence merely to note that it is unfortunate that this matter arose only after issuance of the order requiring Sheriff Schneider to show cause why he should not be held in contempt. The same issues that were presented to this court by Sheriff Schneider in the application for a writ of prohibition were present at the time Judge Ewing issued his continuing order, sua sponte, on December 3, 1980. I believe that *587 was the most appropriate time to raise the issues.
As Justice Paulson notes, the sheriff made no attempt to appeal the continuing order. Had some action to contest the validity of the order been taken at that time, the options discussed in the majority opinion might have been instituted more rapidly and the apparently serious condition which exists in the Stark County jail might be more readily rectified. It is not wise to simply ignore an order of the court which the parties believe to be invalid, but it does not appear that the situation which exists in the Stark County jail will be corrected by legal action among the parties. Rather, it would seem that the cooperation of those persons concerned with the conditions existing at the jail is essential to rectify those conditions.
NOTES
[1] Burleigh and Stark Counties already had a contract in effect whereby Stark County could transport prisoners to Burleigh County jail if necessary.
[2] The state's attorney wrote to the attorney general requesting intervention because he was concerned about the necessity of maintaining a close working relationship with both sides and also because of a possibility of being called as a witness. The attorney general's response to this request, however, is unknown to either of the parties to this action and this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605459/ | 416 So. 2d 475 (1982)
Jack W. CLARK and Sandra Clark, Husband and Wife, Appellants,
v.
TAMPA ELECTRIC COMPANY, Appellee.
No. 81-1808.
District Court of Appeal of Florida, Second District.
June 4, 1982.
Rehearing Denied July 12, 1982.
*476 Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellants.
Julian Clarkson and Suzanne S. Barber of Holland & Knight, Tampa, for appellee.
BOARDMAN, Acting Chief Judge.
Plaintiffs Jack W. and Sandra Clark appeal a final judgment against them in their action against defendant/appellee Tampa Electric Company. We reverse.
Appellants filed a complaint against appellee seeking damages for Jack Clark's injuries sustained in a fall from a ladder while doing an electrical inspection of a building.
After trial by jury, the jury returned a verdict finding appellee not negligent. Appellants' motion for new trial was denied. Final judgment was subsequently entered in favor of appellee. This appeal followed timely.
Dr. Elliott, Clark's psychiatrist, was asked on cross-examination about secondary gain. Elliott testified that he saw no reason to doubt that Clark was telling him the truth and that he did not find secondary gain. Appellee asked if Clark ever complained about finances. Elliott said Clark had complained about finances because he and his family had to live on less than before the accident. Appellee then asked whether it would make any difference in his opinion if he knew Clark was making more money now that he was disabled than when he was employed. Appellants' objection to this question was overruled. The doctor answered, "It might." Appellee then asked Elliott how much money Clark said he was making before the accident. Elliott testified that Clark had told him he had earned in excess of $100,000. Appellee then asked what income Clark was now receiving and from what sources. Appellants again objected. Appellee argued that the evidence was admissible on the issue of whether Clark was malingering for financial gain to collect disability income, social security, and workers' compensation. Appellants moved for a mistrial. When the motion was denied, appellants' counsel, finding himself between a rock and a hard place, requested the court to give an instruction on the collateral source rule, which the court did. Later in the trial, the court again instructed the jury on collateral sources at appellants' request.
After a recess, appellants again moved for a mistrial. The trial court denied the motion. In proffered testimony, Elliott testified that he had considered in making his diagnosis and expressing his opinion that Clark was making less money after the accident than before. However, he testified that it was not a factor in his opinion. Appellee then dropped the issue.
Cook v. Eney, 277 So. 2d 848 (Fla. 3d DCA), cert. denied, 285 So. 2d 414 (Fla. 1973), held that allowing defense counsel to question the plaintiff in a medical malpractice suit with respect to his receipt of social security and workers' compensation benefits was error, notwithstanding the contention that such evidence was offered for the limited purpose of rebutting or impeaching the plaintiff's earlier testimony concerning his motivation and desire to return to work. The court held that this error was prejudicial, notwithstanding the contention that such error did not affect the plaintiff's substantial rights since introduction of collateral benefits could affect only the question of recoverable damages, a question on which the jury apparently did not pass inasmuch as no liability was found on the defendant's part. The court held that it could not be said with any degree of certainty that the jury did not determine that since the plaintiff was otherwise being taken care of, there should be no recovery against the defendant and that the admission of the evidence of receipt of other benefits may have led the jury to believe that the plaintiff was trying to obtain a double or triple payment for one injury. Cook relied on Eichel v. New York Central R. Co., 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307 (1963), which stated:
*477 In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. .. . It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner's receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact.
375 U.S. at 255, 84 S.Ct. at 317. Accordingly, the Cook court held that the plaintiff was entitled to a new trial. Williams v. Pincombe, 309 So. 2d 10 (Fla. 4th DCA 1975), involving welfare benefits, and Grossman v. Beard, 410 So. 2d 175 (Fla. 2d DCA 1982), involving workers' compensation benefits, followed Cook.
Knight-Ridder Newspapers, Inc. v. Sosa, 407 So. 2d 916 (Fla. 3d DCA 1981) (one dissent), affirmed the trial court's order granting a new trial where defense counsel argued to the jury that plaintiff had received workers' compensation benefits, even though no evidence had been adduced which would have supported this argument.
Here no collateral source evidence was actually adduced, nor did appellee make an improper argument to the jury. However, a series of damaging and impermissible questions was asked which very probably prejudiced appellants' case by leading the jury to believe that Clark was currently receiving more than the $100,000 per year he had allegedly been earning prior to his accident, which was not true; appellee's counsel appears to have been laboring under a misconception concerning Clark's prior income. In any event, as in Cook, the jury may well have concluded that appellants were already quite financially well off and needed no additional recovery from appellee. The collateral source instruction, which it should not have been necessary for appellants to request in the first place, was too little and too late to undo the damage done by the series of questions and answers concerning Clark's finances, which this court and others have clearly and unequivocally held to be impermissible.[1]
Accordingly, the final judgment against appellants is REVERSED and the cause REMANDED for a new trial.
RYDER and DANAHY, JJ., concur.
NOTES
[1] The trial court and the attorneys did not have the benefit of this court's opinion in Grossman v. Beard, which was decided subsequent to trial of the instant case, and we do not suggest that appellee's counsel was acting in bad faith in asking these questions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605482/ | 416 So. 2d 520 (1982)
Merlo WINLAND, Appellant,
v.
Henrietta WINLAND, Appellee.
No. 81-2148.
District Court of Appeal of Florida, Second District.
July 9, 1982.
Herb Blessing, Bradenton, for appellant.
Scott M. Brownell of Brownell & Farrance and William H. Garland, Bradenton, for appellee.
DANAHY, Judge.
The husband appeals from a final judgment adopting and establishing, as Florida judgments, two orders entered in Ohio divorce proceedings pertaining to the husband and the wife. We reverse as to one of the Ohio orders but not as to the other.
The husband and wife were married and resided in Ohio. In 1972, the wife instituted divorce proceedings in Ohio. In those proceedings, an order was entered in 1972 directing the husband to pay $35.00 per week to the wife for her support.
The husband moved to Florida in December of 1972 and has resided here since that time. Up until the time the instant proceedings were instituted, the husband had made no support payments as required by the 1972 Ohio order.
*521 The husband filed a dissolution of marriage action in Florida and obtained a final judgment dissolving the parties' marriage in January of 1978. The wife was not personally served with process in that action and did not appear.
On February 23, 1981, the wife obtained a judgment or order in Ohio establishing arrearages of $14,500 under the 1972 Ohio order.[1] In March of 1981, the wife filed this action to establish the two Ohio orders as Florida judgments. The husband raised defenses of the statute of limitations and laches. The trial judge rejected those defenses and entered a final judgment adopting and establishing both the 1972 and 1981 Ohio orders as Florida judgments. This appeal by the husband followed.
The husband challenges the final judgment on two grounds. First, he argues that both the 1972 and 1981 orders of the Ohio court are barred by limitations or laches under the provisions of section 95.11(2)(a), Florida Statutes (1981). That statute requires that an action on a judgment or decree of another state must be commenced within five years. Recognizing that, as to the 1972 Ohio order, the matter is one cognizable in equity, the husband calls our attention to subsection (6) of section 95.11. That section provides that laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter. As to the 1981 Ohio order, the husband argues that it merely represents a calculation based on the 1972 order and should be barred by limitations or laches because the 1972 order is so barred.
The husband also argues that the 1972 Ohio order cannot survive the dissolution of the parties' marriage obtained by the husband in Florida. That point has been decided squarely against the husband by the Florida Supreme Court in Kruvand v. Kruvand, 59 So. 2d 857 (Fla. 1952). We find no merit in the husband's position in this respect.
We agree with the husband, however, that the 1972 Ohio order is barred by Florida's statute of limitation or laches. Accordingly, we reverse the final judgment to the extent that it established the 1972 order as a Florida judgment.
With respect to the 1981 Ohio order, the result is different. That order clearly is not barred by section 95.11(2)(a). We reject the husband's argument that the 1981 order should be barred because the 1972 order is barred. Florida courts are required to give full faith and credit to judgments of courts of other states, including judgments for arrearages in alimony. Sackler v. Sackler, 47 So. 2d 292 (Fla. 1950). Full faith and credit is required even though the cause of action underlying the judgment of the sister state would be barred under the statute of limitations or laches of the forum state. Broday v. Broday, 360 So. 2d 645 (La. Ct. App. 1978). Thus, the 1981 Ohio order is entitled to recognition in this state notwithstanding that it is based on a prior Ohio order which is barred by our statute of limitations or laches.
For the foregoing reasons, we reverse that part of the final judgment establishing the 1972 Ohio order as a Florida judgment. We affirm that part of the final judgment establishing the 1981 Ohio order as a Florida judgment.
REVERSED in part, AFFIRMED in part, and REMANDED.
GRIMES, A.C.J., and SCHEB, J., concur.
NOTES
[1] We note that the husband was represented in the Ohio proceedings which produced the 1981 order, as well as in the 1972 proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605474/ | 416 So. 2d 914 (1982)
STATE of Louisiana
v.
Hilton WILLIAMS & Terry Barnes.
No. 81-KA-2912.
Supreme Court of Louisiana.
June 21, 1982.
*915 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, Jr., Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
Edward J. Lopez, Opelousas, for Hilton Williams.
Robert F. DeJean, Jr., Opelousas, for Terry Barnes.
H. CHARLES GAUDIN, Justice Pro Tem.[*]
Appellants Hilton Williams and Terry Barnes were jointly charged with the crime of attempted second degree murder.[1] They were tried before a 12-person jury, which unanimously found both defendants guilty of aggravated battery.[2]
Williams was sentenced to five years at hard labor while Barnes received eight years.
They are before this Court with two identical assignments of error:
(1) That they should have been granted a severance and tried separately; and
(2) That the trial court erred in admitting an oral inculpatory statement made by Williams to an investigating police officer.
We cannot agree with either contention.
ASSIGNMENT OF ERROR NO. 1
After selection of the jury but prior to opening statements, both defendants filed motions to sever, alleging antagonistic defenses.
LSA-C.Cr.P. Art. 704 provides:
"Jointly indicted defendants shall be tried jointly unless:
(1) The State elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance."
The trial judge held a severance hearing, during which four witnesses testified. They were Johnny Edmunds, as eyewitness to the altercation between appellants and the victim; both attorneys, Edward Lopez for Williams and Robert Dejean for Barnes; and Williams.
Each attorney said that his client blamed the other defendant for the injuries inflicted on Kenneth Johnson. The bill of information charged Williams and Barnes with an attempt to murder Johnson "... in the second degree."
Edmunds described a confrontation between Williams and Johnson that started in an Opelousas lounge. After being cut in the hand by Johnson, Williams armed himself with "... a piece of plank ..." and started chasing Johnson, with Barnes also in pursuit. Barnes had "... picked up two bricks in front of the nightclub and ran behind Mr. Williams ..."
Finally, Johnson stopped and "... had his knife out again, and he was jabbing at Williams ..." while Williams "... was swinging the plank at him ... Barnes then cut across the yard with a brick in his hands, and he threw the brick, and the brick caught Mr. Johnson ... he just spun around and he dropped."
While Johnson was on the ground, Barnes struck him again with a brick.
Before the chase started, Williams said, he had thrown a brick at Johnson and it had "... glanced him on the shoulder."
At a motion to sever, the burden is on the defendants to satisfy the trial judge that "... justice requires a severance." Mere allegations will not suffice.[3]
In a sense, Williams' defense is antagonistic to Barnes', and vice versa, inasmuch *916 as each pointed a finger at the other, but this does not make the defenses automatically antagonistic. Prejudice must be shown if the defendants are to receive separate trials.
This Court, in State v. Simmons, 381 So. 2d 803, stated:
"While the confessions of these defendants do purport to shift the blame for the shooting to the other, the defenses are not by reasons thereof rendered antagonistic. Both confessions involve both defendants as principals. Only the extent of participation is contradictory. The degree of blame each seeks to cast upon the other does not suffice to warrant severance."
In State v. McGraw, 366 So. 2d 1278 (La. 1978), this Court discussed fully and in historical detail the problems related to antagonistic defenses, beginning with the first reported case reversing a conviction because a severance was denied.[4]
Neither Art. 704 nor its predecessor article[5] provides the trial judge with a precise standard with which to exercise his authority, but a series of cases have developed the so-called "antagonistic defenses" test which, if and when satisfied, would require a severance. To meet the test, a defendant must show that a joint trial would be prejudicial to his interests.
Here, neither Williams nor Barnes could convince the trial judge of any possible prejudice, and the motions to sever were denied.
The trial judge's granting or denial of a severance rests in his sound discretion; and absent a showing of clear abuse, his ruling will not be reversed. See State v. Jenkins, 340 So. 2d 157 (La.1979), cited favorably in State v. Whitt, 404 So. 2d 254 (1981).
Considering the testimony taken at the motion to sever, it is clear that the trial judge's denial was not abusive.
Looking back at the trial itself, it is difficult to visualize prejudice to either defendant. The majority of the testimony involves both Williams and/or Barnes; only the extent of participation is occasionally contradictory.
The evidence overwhelmingly supports the verdicts apart from the testimony by appellants; and even in retrospect, neither Williams nor Barnes can demonstrate that he would not have been convicted had he been granted a separate trial.
It should be noted that a policy consideration implicit in Art. 704 situations is the reasonableness of presenting the entire case at one time.
From State v. Bradford, supra:
"Where a crime involves more than one actor, the need arises to balance the interest of the State in trial economy against the rights of defendants to separate trials. Joinder expedites the administration of justice, reduces the congestion of the trial dockets, conserves judicial time, lessens the burdens upon citizens who must sacrifice both time and money to serve on juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once."
ASSIGNMENT OF ERROR NO. 2
Defendants allege that the trial court erred in admitting into evidence an inculpatory statement made by Williams to a policeman without the State providing prior written notice.
LSA-C.Cr.P. Art. 768 reads:
"If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence."
Approximately three weeks in advance of trial, written notice of the intent to use *917 Williams' statement was mistakenly sent to Barnes' counsel. On the day before opening statements, a hearing was conducted on the voluntariness of both defendants' statements to the police officer, and Williams' statement was found to be voluntary.
At trial, the State offered the statement into evidence and it was received over objection by Williams.
In State v. Sneed, 316 So. 2d 372 (La.1975), this Court held that even in the absence of the written notice required by Art. 768, a defendant is not prejudiced by the admission of statements if he has had actual notice by other means. The hearing on the free and voluntary nature of defendant's statement, just as a hearing on a motion to suppress, affords adequate compliance with the notice requirements of Art. 768. Accordingly, Williams and Barnes were not taken by surprise nor were they in any way prejudiced by the trial court's admission of the statement.
Finally, even if the admission of the inculpatory statement was without prior written notice, the evidence of both defendants' guilt was so strong that the failure to meet the Art. 768 requirement constituted harmless error, as in State v. Smith, 401 So. 2d 1179 (1981).
This assignment of error, like the first, lacks merit and we affirm the convictions.
NOTES
[*] Judge H. Charles Guadin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.
[1] LSA-R.S. 14:27, 14:30.1.
[2] Verdicts responsive to attempted second degree murder are: (a) Guilty, (b) Guilty of attempted manslaughter, (c) Guilty of aggravated battery and (d) Not guilty.
[3] State v. Bradbury, 367 So. 2d 745 (La.1978).
[4] State v. Desroche, 47 La.Ann. 651, 17 So. 209 (1895).
[5] Article 316 of the 1928 Code of Criminal Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605465/ | 310 N.W.2d 766 (1981)
SUNBEHM GAS, INC., A. G. Golden, and Deka Minerals, a partnership, Plaintiffs and Appellants,
v.
Kent CONRAD, Tax Commissioner, Defendant and Appellee.
Civ. No. 10013.
Supreme Court of North Dakota.
October 7, 1981.
*767 Nilles, Hansen, Selbo, Magill & Davies, Fargo, for plaintiffs and appellants; argued by Frank J. Magill, Fargo.
Kenneth M. Jakes & Robert W. Wirtz, Asst. Attys. Gen., State Tax Dept., Bismarck, for defendant and appellee; argued by Jakes, Bismarck.
ERICKSTAD, Chief Justice.
This is an appeal by the plaintiffs, Sun-Behm Gas, Inc., A. G. Golden, and Deka Minerals, a partnership (hereinafter the Taxpayers), from an order of the District Court of Stark County, dated May 12, 1981, denying the Taxpayers' request for a writ of prohibition against the defendant, Kent Conrad, State Tax Commissioner, to restrain him from collecting oil extraction taxes under Initiated Measure No. 6 [approved by the voters on November 4, 1980 (S.L.1981, Chapter 649), and amended by the Forty-Seventh Session of the North Dakota Legislature].[1]
On appeal the Taxpayers, asserting that Initiated Measure No. 6 violates certain provisions of the North Dakota Constitution, have raised the following issues:
*768 (1) Whether or not Initiated Measure No. 6 appropriates public moneys and thereby interferes with the legislature's appropriation authority in violation of Article X, Section 12(1) of the North Dakota Constitution;
(2) Whether or not Initiated Measure No. 6 "hampers, restricts, or impairs" the legislature's power of appropriation in violation of Article III, Section 1 of the North Dakota Constitution; and
(3) Whether or not Initiated Measure No. 6 "embraces more than one subject" in violation of Article IV, Section 33 of the North Dakota Constitution.
*769 The Taxpayers assert that the measure appropriates oil extraction tax moneys and thereby interferes with the legislature's authority to appropriate public funds in violation of Article X, Section 12(1) of the North Dakota Constitution, which provides in relevant part:
"All public moneys, from whatever source derived, shall be paid over monthly by the public official, employee, agent, director, manager, board, bureau, or institution of the state receiving the same, to the state treasurer, and deposited by him to the credit of the state, and shall be paid out and disbursed only pursuant to appropriation first made by the legislature..." [Emphasis added.]
We disagree with the Taxpayers' assertion that the measure appropriates public funds. Our Court has defined the term "appropriation" as used within Article X, Section 12(1) [numbered Section 186 prior to the legislative council's renumbering of the State Constitution pursuant to Section 46-03-11.1, N.D.C.C.] as:
"the setting apart of a definite sum for a specific purpose in such a way that public officials may use the amount appropriated, and no more than the amount appropriated."
City of Fargo, Cass County v. State, 260 N.W.2d 333 (N.D.1977); Menz v. Coyle, 117 N.W.2d 290 (N.D.1962); Campbell v. Towner County, 71 N.D. 616, 3 N.W.2d 822 (1942).
Although Initiated Measure No. 6 provides a percentage allocation or division of oil extraction tax moneys among the state school aid program, a special trust fund, and the state's general fund it does not make any appropriation of such moneys for expenditure by public officials. The measure leaves for the legislature the appropriation of definite sums to accomplish the purposes of the measure:
"... The moneys accumulated in such fund [the oil extraction tax development fund] shall be allocated as provided in this Act and the legislative assembly shall make any appropriation of money that may be necessary to accomplish the purposes of this Act.
* * * * * *
"It is the mandate of the electors that this Act will be appropriately funded by the legislative assembly." Initiated Measure No. 6, §§ 6 & 11.
Although the initiated measure uses the term "mandate" to urge the legislature to provide appropriate funding, the actual process of appropriating funds to accomplish the measure's objectives is left to the legislature.
The distinction between the allocation and the appropriation of funds is illustrated by State v. Jones, 74 N.D. 465, 23 N.W.2d 54 (1946), which involved an initiated measure authorizing the State Highway Department to finance a highway construction program by the issuance of revenue anticipation certificates. The initiated measure provided that moneys received from the certificates were to be credited to a "state highway construction fund" and that "the same are hereby appropriated and shall be used and expended only for the construction and reconstruction of such highways and bridges...." The constitutionality of the measure was challenged, among other things, on the ground that it appropriated funds in violation of Section 186 of the North Dakota Constitution (currently Article X, Section 12(1), N.D.Const.) that, "all public moneys ... shall be paid out and disbursed only pursuant to appropriation first made by the legislature...".
Section 186, North Dakota Constitution, provided a standing appropriation for various departments and activities of the state including the State Highway Department:
"provided, however, that there is hereby appropriated ... the funds allocated under the law to the state highway department and the various counties for the construction, reconstruction, and maintenance of public roads." Section 186, N.D. Const.
In view of the foregoing provision of Section 186, this Court made the following determination:
"This section of the constitution did not specify the amount of the fund, nor its *770 source; but it did determine that whatever money was allocated to the Highway Department could be expended without legislative appropriation. The Legislature, and the people in the exercise of the power of initiative, could determine the extent of these funds.
"This court holds that the provisions of sections 15 and 16 of the initiative measure `appropriating' the funds so raised are not in violation of section 186 of the constitution. It is true this section 186 provides that all public moneys from any source whatever must be paid to the state treasurer and cannot be paid out of the treasury except by legislative appropriation; but there is the express exception in case of money allocated to the state highway department and this money is `appropriated' by the constitutional provision. No further `appropriation' is necessary, nor may the legislature prevent it." 23 N.W.2d at 63. [Emphasis added.]
Jones, supra, is readily distinguishable from the instant case because there is no standing appropriation for the expenditure of oil extraction tax moneys allocated under the initiated measure to the state school aid program, the special trust fund, and the state general fund. The significance of Jones, supra, to the instant case is its illustration of the distinction between an allocation and an appropriation. Although the initiated measure in Jones, supra, allocated funds for use by the highway department it was the standing appropriation of Section 186 of the State Constitution which authorized the expenditure of such funds. Although Initiated Measure No. 6 allocates or divides oil extraction tax funds among the various objectives of the measure, it leaves the appropriation of such funds for legislative action.
We conclude that Initiated Measure No. 6 does not appropriate public moneys and does not violate Article X, Section 12(1), of the North Dakota Constitution. In reaching this conclusion we make no determination as to whether or not Article X, Section 12(1), North Dakota Constitution, places the exclusive power of appropriation in the legislature thereby prohibiting the people from appropriating public moneys.
The Taxpayers also assert that the measure "hampers, restricts, or impairs" the legislature's power of appropriation in violation of Article III, Section 1 of the North Dakota Constitution, which provides:
"Section 1. While the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives, the people reserve the power to propose and enact laws by the initiative, including the call for a constitutional convention; to approve or reject legislative Acts, or parts thereof, by the referendum; to propose and adopt constitutional amendments by the initiative; and to recall certain elected officials. This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers." [Emphasis added.]
The Taxpayers urge us to construe the last sentence of the foregoing provision as prohibiting the people from hampering, restricting, or impairing the legislature's power. They assert that the legislature's appropriation power is hampered, restricted, and impaired by the initiated measure's allocation of oil extraction tax funds for specified purposes and by its mandate for the legislature to make necessary appropriations to accomplish the stated objectives of the measure. They further assert that the measure interferes with the legislature's power because its provisions cannot be amended or repealed by the legislature for seven years except by a two-thirds vote of each house pursuant to Article III, Section 8 of the North Dakota Constitution.
On November 7, 1978, the people repealed Section 25 of the constitution which consisted of 14 paragraphs dealing with the creation and implementation of the initiative and referendum powers reserved in the people. On this date, the people also approved the creation of a new article to the constitution (Article III, N.D.Const.) to reserve in the people the powers of initiative, referendum, and recall.
*771 Section 25, prior to its repeal, included the following sentence:
"Laws may be enacted to facilitate its operation, but no laws shall be enacted to hamper, restrict or impair the exercise of the rights herein reserved to the people."
That provision was construed by this Court to prohibit the legislature from passing a law which would in any way hamper, restrict, or impair the initiative and referendum powers reserved by the people. Hernett v. Meier, 173 N.W.2d 907 (N.D.1970). The foregoing sentence was revised and included within Section 1 of the newly created Article III:
"Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers."
The Taxpayers assert that the revision of the language of this sentence deleting the phrase "the exercise of the rights herein reserved to the people" and substituting the phrase "these powers" was to prohibit the people from hampering, restricting, or impairing "the legislative power." They assert that this interpretation is justified by construing the phrase "these powers" under Article III, Section 1, North Dakota Constitution, as encompassing "the legislative power" in addition to encompassing the powers reserved in the people under that provision. We disagree.
The entire focus of Article III, as its title declares, is on the "powers reserved to the people." Section 1 of Article III reserves in the people "the power to propose and enact laws by the initiative," "the power ... to approve or reject legislative Acts, or parts thereof, by the referendum;" "the power... to propose and adopt constitutional amendments by the initiative;" and "the power ... to recall certain elected officials." The reservation of such powers by the people precludes the legislature from possessing an autonomous or exclusive power to legislate. In that sense the legislature's power is hampered, restricted, and impaired by the peoplesuch result is inherent in the concept of the people reserving unto themselves legislative powers.[2] To adopt the Taxpayers interpretation of Section 1 of Article III, as prohibiting the people from hampering, restricting, or impairing the legislature's power would be contrary to the concept of reserving legislative powers in the people. That interpretation would be an unreasonable and absurd construction of the provision in violation of the rule that a statute or constitutional provision must be construed to avoid ludicrous and absurd results. Skoog v. City of Grand Forks, 301 N.W.2d 404 (N.D.1981).
We have been unable to find, and neither has brought to our attention, any matters surrounding the creation of Article III and the concurrent repeal of Section 25 of our constitution which would indicate that the substantive change urged by the Taxpayers was intended. We conclude that the Article III revision of the last sentence of paragraph 14 of Section 25 constituted an attempt to provide an improved and abbreviated phrasing of that sentence without substantive change. Accordingly, we construe the term "these powers" located in the last sentence of Article III, Section 1, North Dakota Constitution, as referring only to the powers reserved in the people under that section so as to prohibit any law which would hamper, restrict, or impair the powers reserved in the people. We conclude, therefore, that Initiated Measure No. 6 does not violate Article III, Section 1 of the North Dakota Constitution.
The Taxpayers also assert that Initiated Measure No. 6 "embraces more than one subject" in violation of Article IV, Section 33 of the North Dakota Constitution which provides:
"Section 33. No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated *772 thereby only as to so much thereof as shall not be so expressed."
The Taxpayers concede that Sections 2 through 5 of the measure, which pertain to the imposition and administration of the oil extraction tax, do not violate the one-subject requirement under Article IV, Section 33, North Dakota Constitution. They contend, however, that those provisions which pertain to the establishment of the oil extraction tax development fund, the allocation of oil extraction tax moneys received, and the provision of tax credits encompass multiple subjects in violation of Article IV, Section 33, North Dakota Constitution. We disagree.
This Court has interpreted the one-subject requirement under Article IV, Section 33 [numbered Article II, Section 61, prior to the legislative council's renumbering of the constitution pursuant to Section 46-03-11.1, N.D.C.C.] as requiring that all matters treated by one piece of legislation be reasonably germane to one general subject or purpose. City of Mandan v. Nichols, 62 N.D. 322, 243 N.W. 740 (1932); Great Northern Ry. Co. v. Duncan, 42 N.D. 346, 176 N.W. 992 (1919).
In Nichols, supra, this Court held that an act involving various matters related to the general subject of "revenue and taxation" met the one-subject requirement under our constitution.
In Duncan, supra, a legislative bill dealing with tax levies, debt limits, and salaries of county officials was attacked as violating the one-subject requirement of our constitution. In upholding the legislation, this Court stated:
"It is a rule of construction applicable to such constitutional provisions that they should be liberally construed to uphold proper legislation where all parts are reasonably germane to a central object or purpose.
* * * * * *
"It is only by legislation of the character of the act in question that the legislative desire could be accomplished, unless each subject thus related to the general purpose were made the subject of a separate bill. But the constitutional provision in question does not require legislation by piecemeal." 176 N.W. at 996-997.
The cases of City of Beaumont v. Gulf States Utilities Co., 163 S.W.2d 426 (Tex. Civ.App.1942), and North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978) are persuasive authority that measures dealing with various matters relating to taxation do not offend a state constitution's one-subject requirement.
The Texas Court of Civil Appeals in Beaumont, supra, upheld a general revenue measure against a claim that it violated the one-subject requirement of the Texas Constitution, a provision similar to our Article IV, Section 33, North Dakota Constitution, providing that "no bill ... shall contain more than one subject." In upholding the revenue measure, the Texas Court stated in relevant part:
"While it [the Omnibus Tax Law] embraces many subjects, it is clearly a general revenue measure. The purpose of the law is to raise revenue for the payment of old age assistance, aid to destitute children, aid to needy blind, obligations of the State under the Teachers' Retirement Act, Vernon's Ann.Civ.St. art. 2922-1 et seq., and to pay other expenses and obligations of the State. It reaches out and lays its hand upon various sources of revenue. The machinery is set up for the enforcement of the Act in detail. It is divided into twenty-one articles. Nineteen of these articles levy a different character of tax on different designated persons, businesses, corporations, industries and transactions within the State of Texas. It is the contention of appellant that each of these various tax matters referred to in the general scope of the Act is a separate and distinct subject matter within the language of Article III, Sec. 35 of the Constitution.
* * * * * *
"On the authorities cited, a general revenue measure may cover the entire field of assessing revenue; it may set up the machinery for collecting it; it may *773 allocate the revenue thus provided for to different state purposes; and it may make all necessary provisions incidental to, related to, or having any bearing upon the general subject of revenue collection. So, we overrule appellant's point that the Omnibus Tax Law violates Section 35 of Article III of our Constitution." 163 S.W.2d at 430-432.
In upholding a taxing statute against a challenge that it violated the one-subject requirement of the Alaska Constitution, the Alaska Supreme Court in Sohio, supra, stated:
"State taxation is not an unduly broad category under the one subject rule. Just as taxation has been held to be the single subject of a statute imposing different kinds of taxes upon different things, it is also the subject of a statute granting various tax credits and exemptions and clarifying the circumstances under which taxes may be levied." 585 P.2d at 545. [Footnotes omitted.]
We believe that Initiated Measure No. 6, like the measures upheld in Beaumont, supra, and Sohio, supra, encompasses only one general subject in compliance with the one-subject requirement under our constitution. Each section under the measure deals with matters which are related to or are in consequence of the imposition of the oil extraction tax. Sections 2 through 5 involve the imposition and administration of the oil extraction tax; Sections 6 and 7 involve the collection and allocation of the tax; Sections 8 through 10 involve the providing of tax credits as a consequence of the imposition of the tax; and Section 11 involves a mandate for the appropriation of moneys by the legislature to accomplish the purposes of the measure. Each provision deals with a matter which is germane to the imposition of the oil extraction tax and the consequences thereof. Accordingly, we conclude that Initiated Measure No. 6 does not violate the one-subject requirement under Article IV, Section 33 of the North Dakota Constitution.
In accordance with this opinion the order of the district court denying the Taxpayer's request for a writ of prohibition is hereby affirmed.
SAND, PAULSON and PEDERSON, JJ., and KERIAN, District Judge, concur.
KERIAN, D. J., sitting in place of VANDE WALLE, J., disqualified.
NOTES
[1] The relevant portions of Initiated Measure No. 6 as approved by the people on November 4, 1980, provide:
"SECTION 2. IMPOSITION OF OIL EXTRACTION TAX. There is hereby imposed an excise tax, to be known as the `oil extraction tax', upon the activity in this state of extracting oil from the earth, and every owner, including any royalty owner, of any part of the oil extracted shall be deemed for the purposes of this Act to be engaged in the activity of extracting that oil. The rate of tax shall be six and one-half percent of the gross value at the well of the oil extracted.
* * * * * *
"SECTION 6. OIL EXTRACTION TAX DEVELOPMENT FUND ESTABLISHED.
The tax imposed by section 2 of this Act shall be paid to the state treasurer when collected by the state tax commissioner and shall be credited to a special fund in the state treasury, to be known as the oil extraction tax development fund. The moneys accumulated in such fund shall be allocated as provided in this Act and the legislative assembly shall make any appropriation of money that may be necessary to accomplish the purposes of this Act.
"SECTION 7. ALLOCATION OF MONEYS IN OIL EXTRACTION TAX DEVELOPMENT FUND. Moneys deposited in the oil extraction tax development fund shall be apportioned quarterly by the state treasurer as follows:
1. Forty-five percent shall be allocated to the state school aid program for use in accordance with the provisions of chapter 15-40.1 of the North Dakota Century Code. It is the intent of the electors that other appropriations made by the legislative assembly for state aid to schools in accordance with chapter 15-40.1 of the North Dakota Century Code when added to the amount allocated under this subsection shall provide at least seventy percent of the funds required to meet the educational cost per pupil in elementary and secondary education as determined under the provisions of that chapter.
2. Ten percent shall be allocated and credited to a special trust fund to be established in the state treasury and shall be deposited and invested as are other state funds to earn the maximum amount permitted by law; provided that the first fifteen million dollars allocated and credited to this special trust fund shall be appropriated by the legislative assembly for Grafton state school for the remodeling or reconstruction and equipping of existing buildings and other facilities, for the construction and equipping of new buildings and other facilities, and for providing additional staffing for that institution, as shall be provided by the legislative assembly. The principal of this special trust fund shall not be used for any other purpose, but the income therefrom shall be administered by the state industrial commission pursuant to appropriations made by the legislative assembly for the following: the funding of programs for development of energy conservation and renewable energy sources; for studies for development of cogeneration systems that increase the capacity of a system to produce more than one kind of energy from the same fuel; for studies for development of waste products utilization; and for the making of grants and loans in connection therewith. Any income earned by the special trust fund that is not appropriated by the legislative assembly, or if appropriated but not expended or loaned by the state industrial commission by the end of a fiscal biennium, shall be transferred to the state's general fund.
3. Forty-five percent shall be allocated and credited to the state's general fund for general state purposes and as an offset for the reduction in income tax revenue and for the replacement of the county twenty-one mill property tax credit for schools as provided in section 10 of this Act.
* * * * * *
"SECTION 11. APPROPRIATIONS. It is the mandate of the electors that this Act will be appropriately funded by the legislative assembly."
Neither Section 2 (codified as 57-51.1-02, N.D.C.C.) or Section 6 (codified as 57-51.1-06, N.D.C.C.) of the initiated measure were substantively amended by the legislature. Section 11 of the initiated measure, although not amended or repealed by the legislature, was not codified as part of the North Dakota Century Code. Section 7 of the initiated measure (codified as Section 57-51.1-07, N.D.C.C.) was amended by the legislature to provide as follows:
"57-51.1-07. Allocation of moneys in oil extraction tax development fund. Moneys deposited in the oil extraction tax development fund shall be apportioned quarterly by the state treasurer as follows:
1. Sixty percent shall be allocated to the state school aid program for use in accordance with the provisions of chapter 15-40.1. It is the intent of the electors and the legislative assembly that the allocation made by this subsection shall not exceed seventy percent of the educational cost per pupil in public elementary and secondary education as determined under the provisions of chapter 15-40.1. Should the allocation exceed seventy percent, the balance of the allocation above seventy percent shall be deposited in the general fund. Should the allocation not exceed seventy percent, it is the intent of the electors and the legislative assembly that other appropriations made by the legislative assembly for state aid to schools in accordance with chapter 15-40.1, when added to the amount allocated under this subsection, shall provide at least seventy percent of the funds required to meet the educational cost per pupil in public elementary and secondary education as determined under the provisions of chapter 15-40.1.
2. Ten percent shall be allocated and credited to a special trust fund, to be known as the resources trust fund, to be established in the state treasury and shall be deposited and invested as are other state funds to earn the maximum amount permitted by law which income shall be deposited in the resources trust fund. Provided, the first fifteen million dollars allocated and credited to the resources trust fund shall be appropriated by the legislative assembly for Grafton state school for the remodeling or reconstruction and equipping of existing buildings and other facilities, for the construction and equipping of new buildings and other facilities, and for providing additional staffing for that institution, as shall be provided by the legislative assembly. The principal and income of the resources trust fund may be expended only pursuant to legislative appropriation and shall be available to:
a. The state water conservation commission for planning for and construction of water supply facilities; and
b. The industrial commission for the funding of programs for development of energy conservation and renewable energy sources; for studies for development of cogeneration systems that increase the capacity of a system to produce more than one kind of energy from the same fuel; for studies for development of waste products utilization; and for the making of grants and loans in connection therewith.
3. Thirty percent shall be allocated and credited to the state's general fund for general state purposes."
[2] Consistent with the people reserving these powers unto themselves is Art. I, § 2, N.D. Const., which reads:
"Section 2. All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860301/ | cv5-701.DAVIS
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00701-CV
Rhonda Davis, Appellant
v.
City of Robinson, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 94-12562, HONORABLE SCOTT MCCOWN, JUDGE PRESIDING
PER CURIAM
At issue in this cause is the trial court's determination by summary judgment that
certain public financing measures taken by the City of Robinson are valid and enforceable. (1) By
one point of error, fifty-seven individuals (the "intervenors") contend that, as a matter of law,
these public financing measures are invalid and unenforceable because the city did not obtain the
procedurally required number of votes to pass the ordinances related to the public financing
measures at issue. By cross-point, the city contends that the trial court abused its discretion by
not awarding it attorney fees of $32,000. We will affirm the trial court's judgment.
BACKGROUND
At a city council meeting on September 6, 1994, the mayor and the five elected
aldermen discussed and voted on two ordinances related to the public financing measures at issue.
Regarding the ordinances related to both measures, three aldermen voted "For" the financing
measures, two aldermen and the mayor abstained, and the ordinances passed. In October 1994,
the city filed a petition asking the trial court to declare valid the public financing measures as well
as all of the city's actions regarding the two ordinances related to the public financing measures.
See Tex. Rev. Civ. Stat. Ann. art. 717m-1 (West Supp. 1996) (statutory provision for declaratory
judgment proceeding that addresses validity of public agency securities). The intervenors
responded and filed counterclaims against the city. See Tex. Civ. Prac. & Rem. Code Ann. §§
37.001-.011 (West 1986 & Supp. 1996). The intervenors asked the trial court to declare these
public financing measures invalid, to enjoin the city from issuing the public financing measures,
and to award them their attorney fees. The city answered the intervenors' counterclaims and
sought recovery of its attorney fees incurred in defending against the intervenors' counterclaims.
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1986).
The city moved for a partial summary judgment, claiming that, as a matter of law,
the public financing measures at issue were valid and enforceable. In January 1995, the trial court
granted the city's motion and declared the public financing measures valid and enforceable. In
July 1995, the parties tried the remaining issues to the court. The parties stipulated that each had
incurred $32,000 in attorney fees in preparing the cause. The trial court, while ruling in
favor of the city on the substantive issues, ruled that the city was not entitled to recover its
attorney fees incurred in defending against the intervenors' counterclaims from the intervenors.
Both parties appeal.
VALIDITY OF ORDINANCES
The intervenors appeal by a sole point of error, contending that, as a matter of law,
the undisputed evidence shows conclusively that the city did not have the requisite number of
votes to pass the ordinances related to the public financing measures, and thus, the associated
public financing measures are invalid and unenforceable. The intervenors contend that, because
the financing measures levied a tax, a two-thirds majority vote, four affirmative votes, of the city
council was needed to pass the ordinances authorizing the public financing measures at issue.
The intervenors argue that the controlling statutory provision is repealed Texas
Revised Civil Statute article 1033. (2) While the intervenors recognize that article 1033 was repealed
in 1987, they contend that the Texas Tax Code section 302.101 implicitly contains a two-thirds
vote requirement for the imposition of property taxes. Tax Code section 302.101 provides:
(a) The governing body of a municipality, other than a Type C general-law
municipality having 200 or fewer inhabitants, may impose and collect
occupation taxes.
(b) A license required by a Type A general-law municipality may not extend to
more than one establishment or apply to more than one occupation, business,
or calling and may not be imposed except by a vote of two-thirds of the
elected aldermen.
Tex. Tax Code Ann. § 302.101 (West 1992) (emphasis added). This provision, as well as
repealed article 1033, apply specifically to occupation taxes. Since the public financing measures
at issue are not occupation taxes, section 302.101 and repealed article 1033 are inapplicable to this
cause.
The city is a Type-A General-Law municipality that is governed by the statutes
located in Texas Local Government Code chapter 22. The city argues that because it has a
municipal form of government and is governed by a city council consisting of five members and
a mayor, in accordance with Texas Local Government Code section 22.031, the controlling
statutory provision is Texas Local Government Code section 22.039 that provides:
A majority of the number of aldermen established by Section 22.031 for the
municipality constitutes a quorum. However, at a called meeting or at a meeting
to consider the imposition of taxes, two-thirds of the number of aldermen
established by that section constitutes a quorum unless provided otherwise.
Tex. Local Gov't Code Ann. § 22.039 (West 1988). The city contends, correctly, that generally
a public body quorum is a majority of the number of members fixed by statute. Tex. Gov't Code
Ann. § 311.013(b) (West 1988). The city argues that when the council is meeting to consider the
imposition of taxes, section 22.039 requires a quorum consisting of two-thirds of the number of
aldermen established by section 22.031 rather than only a majority of the number of members set
by statute. The city contends that, consequently, pursuant to section 22.039, to enact a law or
ordinance regarding a levy or imposition of a tax, a majority vote of a two-thirds quorum is
required. We agree.
Based on the facts in this cause, the number of aldermen required to be present at
the September 6 meeting was four in order to meet the section 22.039 requirement of a two-thirds
quorum. The summary judgment evidence reflects that the five aldermen and the mayor were
present at the meeting. The city council, thus, had a proper two-thirds quorum for addressing the
public financing measures. Under the form of government adopted by the city, the mayor
presides at all city council meetings and votes on issues only in the event of a tie. Tex. Local
Gov't Code Ann. § 22.037 (West 1988). Therefore, the three affirmative votes at the September
6 council meeting were sufficient to pass the ordinances addressing the two public financing
measures at issue. We are unaware of a statutory provision, and none has been cited to us, that
would in this instance have required a two-thirds majority vote by the aldermen at the September
6 meeting. We overrule the intervenors' point of error.
ATTORNEY FEES
By a sole cross-point of error, the city contends that the trial court abused its
discretion by failing to award it attorney fees in the stipulated sum of $32,000, that the city
incurred in preparing its defense to the intervenors' counterclaims.
The allowance of attorney fees rests within the sound discretion of the trial court
and will not be reversed without a showing of an abuse of that discretion. Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990). Reversal for an abuse of
discretion is justified only when the trial court's decision was arbitrary and unreasonable.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 233, 236 (Tex. 1991); Simon v. New York Crane
& Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).
The city initiated these proceedings seeking a declaratory judgment that the public
financing measures it had approved in its city council meeting, as well as any actions the council
had taken associated with the measures, were proper and enforceable. The city's burden to show
the trial court that its actions regarding the public financing measures were valid on its own claims
in its petition was essentially the same showing necessary to defend against the intervenors'
counterclaims. We conclude that the trial court did not act arbitrarily and unreasonably by
denying the city recovery of its attorney fees and ruling that the city and the intervenors must each
bear the costs of their respective legal representations. We overrule the city's cross-point of
error.
MOTION FOR REHEARING
Finally, the city asks this Court to either deny the intervenors their right to file a
motion for rehearing or shorten their time for filing, "in which case the intervenors need not file
any motion for rehearing as a prerequisite to any review available in the Supreme Court of
Texas." A motion for rehearing in the appellate court is a procedural jurisdictional prerequisite
to filing an application for writ of error to the Supreme Court of Texas. See Tex. R. App. P.
131(e); State v. Morales, 869 S.W.2d 941, 942 n.5 (Tex. 1994); Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 643 n.6 (Tex. 1989) (Ray, J. concurring). Whether the matter
complained of to the supreme court originated in the trial court or the court of appeals, it must
be assigned as error in a motion for rehearing in the court of appeals. Tex. R. App. P. 131(e).
This Court will not deny the intervenors their right to file a motion for rehearing with this Court
nor will we shorten the time specified by Texas Rule of Appellate Procedure 100 during which
the intervenors may file a motion for rehearing.
CONCLUSION
We affirm the trial-court judgment.
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed: April 3, 1996
Publish
1. The public financing measures at issue are certain Combination Tax and Revenue
Certificates of Obligation, Series 1994, and certain Combination Tax and Revenue
Refunding Bonds, Series 1994, that the city pursued to raise revenue for city waterworks.
2. Article 1033 provided:
The city council shall have power to provide by ordinance for the assessing
and collecting of said taxes, and to determine when taxes shall be paid by
corporations, and when by the individual corporators. No tax shall be levied
unless by consent of two-thirds of the aldermen elected.
Tex. Rev. Civ. Stat. Ann. art. 1033 (since repealed and codified at Tex. Tax Code Ann.
§ 302.101 (West 1992)). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922351/ | 254 B.R. 910 (2000)
In re Russell Edward PUCKETT, Jr. and Gina Marie Puckett, Debtors.
No. 00-01801.
United States Bankruptcy Court, D. Idaho.
November 3, 2000.
*911 Jed Manwaring, Boise, ID, for Lois K. Murphy, trustee.
George Essma, Twin Falls, ID, for Debtors.
SUMMARY ORDER
JIM D. PAPPAS, Chief Judge.
Background
Russell and Gina Puckett ("Debtors") filed for bankruptcy under Chapter 7 of the Bankruptcy Code on July 20, 2000. Lois K. Murphy ("Trustee") was appointed the Chapter 7 trustee. Debtors listed a "Stock option bonus plan through employer" on Schedule B as having no cash value. On their Schedule C Debtors claimed a "Stock option bonus plan through" as exempt in full under Idaho Code § 11-604A(3) again representing the plan as having no cash value. The meeting of the creditors under 11 U.S.C. § 341 was held in this case on August 25, 2000.
On October 16, 2000 Trustee objected to Debtors' claim of exemption of the stock option plan. Debtors argue Trustee's objection to their claim of exemption is time barred. A hearing was held October 26, 2000. The Court will, as counsel for the parties suggested, treat Trustee's objection to claim of exemption as a motion to enlarge the time period under which Trustee may object to Debtors' claim of exemption. At the hearing, Trustee's counsel asked the Court to allow Trustee's late objection because of excusable neglect.
Discussion
11 U.S.C. § 522(l) requires a debtor or a dependent of the debtor to file a list of property claimed as exempt. "Unless a party in interest objects, the property claimed as exempt on such list is exempt." 11 U.S.C. § 522(l). Fed. R. Bankr.P. 4003(b) provides:
The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of the creditors . . . or the filing of any amendment to the list or supplemented schedules unless, within such period, further time is granted by the court.
Fed. R. Bankr.P. 9006(b)(1) provides:
Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the *912 period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Rule 9006(b)(3) provides "[t]he court may enlarge the time for taking action under Rules 1006(b)(2), . . . 4003(b), . . . and 9033, only to the extent and under the conditions stated in those rules" (emphasis added). As quoted above, Rule 4003(b) allows enlargement of the 30 day period in which a party in interest may make objections to claims of exemption only if an amendment or supplemental schedule is filed or if the court grants enlargement prior to the end of the 30 day period. Excusable neglect is not listed as a ground for enlargement of the 30 day period in Rule 4003(b). Under the plain language of these rules, Trustee cannot seek to enlarge the 30 day period in which to object to claims of exemption because of excusable neglect.
The United States Supreme Court has held that enforcement of the 30 day deadline in Rule 4003(b) must be strict. Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (1992). "Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality." Id. at 643, 112 S. Ct. 1644. Also, other courts have refused to enlarge the time available to object to claims of exemption based on the language in Rule 9006(b)(3) and Rule 4003(b). "Rule 9006(b) usually allows a court to enlarge the time limit prescribed in bankruptcy rules if failure to meet a deadline was the result of `excusable neglect.' However, Rule 9006(b)(3) explicitly limits a court's ability to [enlarge the objection period] under Rule 4003(b)." Towers v. Boyd (In re Boyd), 243 B.R. 756, 761 (N.D.Cal.2000). "Although Rule 9006(b) generally allows for enlargement of the time for action prescribed by the Bankruptcy Rules based on excusable neglect (Rule 9006(b)(1)), it excepts from the general enlargement provision those time periods detailed in the Rules listed in Rule 9006(b)(2) and (3)." In re Granzow, 210 B.R. 989, 991 (E.D.Mich.1997). Based on the rules and case law discussed above, it is clear Trustee cannot move to enlarge the time period allowed for excusable neglect.
Trustee asserts her attention was not focused on Debtors' claim of exemption because Debtors' Schedule C was vague. It is true Schedule C did not identify an employer and listed the options as having no cash value. In addition, Trustee points out that Debtors' counsel did not frankly communicate with Trustee regarding the details of the claim of exemption. Unfortunately, the Court cannot accept these assertions as a basis for excusable neglect. Although Schedule C does not clearly state who the employer is, Debtors' Schedule I does indicate that Mr. Puckett is employed by Micron Technology as a System Engineer. Debtors' listing of "no cash value" as the current market value for the stock plan is also less than an accurate description of the stock option plan. However, this description was clarified by information given to Trustee well before the 30 day deadline. Debtors faxed information to Trustee's office on September 11, nearly two weeks before the deadline, which clearly explained the details and shed light on the value of Debtors' stock options. Trustee's Exhibit 4. As to any alleged failure by Debtors' attorney to clear up the confusion, it seems Trustee directed her inquiries regarding the stock option plan to the Debtors themselves, not to counsel. See Trustee's Exhibit 1; Trustee's Exhibit 6. Unfortunately for the creditors in this case, while Trustee had time within which to file a timely objection, she offers no good reason for her failure to do so.
Trustee also asserts there was no legal basis for Debtors' claim that their stock option plan as exempt. The Court can not under these circumstances consider the merits of Debtors' claim of exemption. As quoted above, under section *913 522(l), if no objection is made to a claim of exemption, the property is exempt. In Taylor, the Supreme Court flatly rejected the argument that the trustee is not subject to the 30 day period where the debtor has no colorable statutory basis for claiming an exemption. 503 U.S. at 643-44, 112 S. Ct. 1644.
For these reasons, Trustee's motion to enlarge the time period for objection to Debtors' claims of exemption is hereby DENIED, and Trustee's objection to Debtors' claim of exemption as to the stock plan is OVERRULED.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605611/ | 416 So. 2d 1132 (1981)
STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant,
v.
Wesley A. DAVIS, Appellee.
No. YY-191.
District Court of Appeal of Florida, First District.
December 18, 1981.
As Clarified February 16, 1982.
Luke G. Galant of Dawson, Galant, Madox, Sulik & Nichols, Jacksonville, for appellant.
Bette Towers Miller and Gary I. Christian of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.
PER CURIAM.
This cause is before us on appeal by the employer/carrier from a Deputy Commissioner's order finding that social security benefits paid to the claimant's dependents as a result of his December 22, 1978, accident could not be offset pursuant to Florida Statutes, § 440.15(10)(a),[1] as amended in 1979. The basis of the Deputy's holding was that the change in the statute to permit consideration of dependents' benefits was substantive and, therefore, could not be applied to an accident occurring prior to the new statute's effective date. We reverse in light of our decisions in Modern Plating Co. v. Whitton, 394 So. 2d 515 (Fla. 1st DCA 1981), and General Development Corp. v. Price, 404 So. 2d 859 (Fla. 1st DCA 1981), which held the change *1133 to be procedural and applicable regardless of the date of the accident.
Both parties have also pointed out that, if the offset for the dependents' benefits is permitted, this court must decide whether Florida Statutes, § 440.12(2)[2] still mandates that claimant receive minimum workers' compensation benefits of $20 per week even though social security benefits payable to him and his wife and son exceed 80 percent of his average weekly wage, the maximum compensation permitted by § 440.15(10)(a), supra. There is no decisional precedent directly on point.[3]
The purpose and application of § 440.12(2) remains, as with predecessor provisions commencing with the original enactment of the Workmen's Compensation Act,[4] to provide a legislatively mandated minimum "compensation," a term defined in § 440.02(11)[5] of the present Act. Because § 440.12(2) provides a minimum for "compensation," and because compensation is defined by § 440.02(11) as money payable "as provided for in this chapter," we conclude that money payable under social security laws is not money payable under Chapter 440 or provided for therein. The prescribed minimum and offset provisions must in our opinion be thus construed consistent with the statutory maximum on compensation to affirm the order in this case on this point.
Accordingly, the order below is REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent herewith.
BOOTH, SHAW and WENTWORTH, JJ., concur.
ON MOTION FOR CLARIFICATION
PER CURIAM.
Because money payable under social security laws is not "compensation" as defined by § 440.02(11), the minimum compensation provision of § 440.12(2) is unaffected by the receipt of social security benefits. Claimant is entitled to the § 440.12(2) minimum compensation payments despite any § 440.15(10)(a) offset which would otherwise be applicable.
BOOTH, SHAW and WENTWORTH, JJ., concur.
NOTES
[1] Florida Statutes, § 440.15(10)(a):
Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. § 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee and his dependents,[[*]] had such employee not been entitled to benefits under this chapter, under 42 U.S.C. §§ 423 and 402, does not exceed 80 percent of the employee's average weekly wage... . [emphasis supplied]
[*] The words "and his dependents" were added by the 1979 amendments.
[2] Florida Statutes, § 440.12(2):
Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week... .
[3] See, American Bankers Insurance Co. v. Little, 393 So. 2d 1063 (Fla. 1980), wherein claimant's workers' compensation benefits were reduced to four cents per week after offset for social security benefits, but § 440.12(2) was, apparently, not considered.
[4] Laws of Florida, 1935, c. 17481, § 12.
[5] Florida Statutes, § 440.02(11):
"Compensation" means the money allowance payable to an employee or to his dependents as provided for in this chapter. [e.s.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605638/ | 416 So. 2d 590 (1982)
Mrs. Sharon Riedlinger, Wife of/and Joseph M. GUTHRIE, Jr.
v.
RUDY BROWN BUILDERS, INC., Don Garland and Mr. and Mrs. Ralph Ragusa.
Nos. 5-33, 5-34.
Court of Appeal of Louisiana, Fifth Circuit.
June 8, 1982.
*591 McCann, McCann, Schroeder & Mirabile, James A. McCann, New Orleans, for plaintiff, appellant & appellee.
Taylor, Raggio & Sutherland, John H. Taylor, Baton Rouge, for defendant, appellee & appellant.
Amato & Creely, Terrence J. Lestelle, Gretna, for defendant & appellee.
Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
GRISBAUM, Judge.
This case is concerned with the issues of damages for mental anguish and attorney's fees in an action styled as redhibition or "quanti minoris" involving a surveying error on the part of a builder-vendor's surveyor. The survey did not note the improper placement of a house in violation of parish ordinances and the subdivision's restrictive covenants. Relying on the erroneous survey, one home owner built a fence on his neighbor's property.
Plaintiffs in this case, Sharon and Joseph M. Guthrie, Jr., initially sought to have the trial court enjoin defendants, Mr. and Mrs. Ralph Ragusa, from maintaining and occupying the Ragusa residence at 5108 Tusa Drive, Marrero, Louisiana, alleging that the Ragusa house was placed such that it was in violation of parish ordinances and subdivision restrictive covenants. They also requested the Ragusas remove a fence they had erected which allegedly encroached on the Guthries' property. A preliminary injunction was granted by the trial court on March 27, 1979.
This action for injunction was followed by a "Petition for Damages" brought by plaintiffs, Mr. and Mrs. Guthrie, against the Ragusas, Rudy Brown Builders, Inc. (their vendor) and Don Garland (the surveyor of both the Guthrie and Ragusa property). The defendants, Ragusas, filed a "Third-Party Demand" against Rudy Brown Builders, Inc. and Don Garland. Rudy Brown Builders, Inc. also filed a "Third-Party Demand" against the Ragusas and Don Garland.
*592 Prior to the trial on the merits the following stipulations were made: (1) Since the gutter of the Ragusa house encroached on the property of the Guthries, a resubdivision of the property between the parties was agreed upon which would cure the encroachment; (2) Rudy Brown Builders, Inc. would pay the sum of $525.00 to the Guthries, on behalf of the Ragusas, to purchase a portion of the Guthries' property in order to cure the encroachment; (3) Rudy Brown Builders, Inc. would pay for the cost of effecting said resubdivision and transfer.
The only issues to be resolved at trial were that of damages for mental anguish and attorney's fees. After trial on the merits, the trial judge confirmed the stipulation made prior to trial and answered a judgment in favor of Mr. and Mrs. Guthrie and against Rudy Brown Builders, Inc. in the sum of $775.00, and in favor of Mr. and Mrs. Ralph Ragusa and against Rudy Brown Builders, Inc. in the sum of $500.00. Judgment was further entered in favor of Rudy Brown Builders, Inc. over against third-party defendant, Don Garland, in the amount of $1,275.00. The court held that there was a good faith error in surveying by Mr. Garland, the surveyor of the properties in question, which was imputed to Rudy Brown Builders, Inc., therefore, no attorney's fees were granted. The claim of the Guthries and Ragusas for mental anguish was not allowed by Judge Eason who cited the Supreme Court decision in Meador v. Toyota of Jefferson, Inc., 332 So. 2d 433 (La.1976) to support his denial.
The Guthries and Ragusas have appealed from that part of the trial court's decision which denies damages for mental anguish and attorney's fees.
FACTS
Plaintiffs-appellants, Mr. and Mrs. Guthrie, purchased a house and lot from defendant-appellee, Rudy Brown Builders, Inc., in October of 1977. Their neighbors, Mr. and Mrs. Ragusa, also bought their home from Rudy Brown Builders, Inc. some five months before in May of 1977. Rudy Brown was the builder as well as vendor of both of these homes. Don Garland, defendant in this suit, was hired by Rudy Brown and had prepared the surveys used at the respective acts of sale.
In approximately June of 1977, Mr. Ragusa attempted to fence his lot in accordance with the Don Garland survey dated December 3, 1976, which was used in the act of sale of his property. Testimony at trial is conflicting, but it seems that while constructing the fence Mr. Ragusa ran into difficulty when his measurements did not agree with stakes placed on his property. Mr. Ragusa testified that he informed the office of Rudy Brown Builders, Inc. of this discrepancy and Rudy Brown spoke to his wife by telephone. Rudy Brown testified he went out to the Ragusa property and advised Mr. Ragusa that the stakes on the Ragusa property designated the correct property line and that Mr. Ragusa's fence was incorrectly placed. In any case, the fence was completed using the Don Garland survey for reference.
After purchasing the adjoining lot and house in October 1977, Mr. and Mrs. Guthrie also attempted to construct a fence. While measuring his property, Mr. Guthrie found the Ragusa fence seemed to encroach upon his property. The Guthries hired a surveyor who discovered that a second Don Garland survey made July 20, 1977 did not reflect the incorrect placement of the Ragusa fence and a gutter encroachment on the Guthrie property. It seems Rudy Brown Builders, Inc. had incorrectly placed the Ragusa house upon its lot. This placement caused the gutter encroachment and violated the subdivision's restrictive covenants and the parish ordinances. The Don Garland survey in December 1976 did not reflect the actual placement of the Ragusa home but instead indicated the house was situated approximately five feet from the property line. The monumentation aspect by Don Garland on the Ragusa property was correct; the actual drawing which Mr. Garland signed as the survey was incorrect; thus, by relying upon this incorrect survey made in December 1976, Mr. Ragusa constructed his fence upon property which *593 would eventually become that of the Guthries. The second Don Garland survey (made in July 1977) used in the Guthrie sale also contained this error. The trial court determined Rudy Brown, president of Rudy Brown Builders, Inc., had no knowledge of this survey error before the sale of the adjoining property to the Guthries.
ATTORNEY'S FEES AND MENTAL ANGUISH DAMAGES
The Guthries and Ragusas attempt to base their claims for attorney's fees by characterizing their respective claims against Rudy Brown Builders, Inc. as actions in redhibition (La.C.C. Article 2520) or "quanti minoris" (La.C.C. Article 2541). Under these actions attorney's fees are recoverable when it can be shown that the vendor had prior knowledge of the latent defect and did not reveal the existence of the defect to his vendee. La.C.C. Article 2545. Specifically, the Guthries claim Rudy Brown Builders, Inc. is a manufacturer, and, therefore, is presumed to know of the defect. Rey v. Cuccia, 298 So. 2d 840 (La. 1974). In the alternative, they contend if Rudy Brown Builders, Inc. is not found to be a manufacturer Rudy Brown, its president, had prior knowledge of at least one vice in the thing sold (the fence encroachment) but sold the property to the Guthries without informing them of this latent defect. Similarly, the Ragusas contend Rudy Brown Builders, Inc. is a manufacturer and thus had knowledge; therefore, they claim under La.C.C. Article 2545 they should receive attorney's fees. We find that the Guthries and Ragusas do not have actions in redhibition or "quanti minoris." Instead, their actions are more properly characterized as actions for breach of warranty against eviction.
As a seller Rudy Brown Builders, Inc. has two principal obligations, that of delivering and that of warranting the thing which he sells. La.C.C. Article 2475. It is primarily the breach of the second obligation that of "warranting" the thing which is sold that is the concern of this suit. Article 2476 states:
"The warranty respecting the seller has two objects; the first is the buyer's peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices." (Emphasis added)
The central question is whether the improper placement of a home on its lot causing a gutter encroachment and a fence encroachment upon the adjacent property is covered by Articles 2500 through 2519 which deal with warranty against eviction or whether the improper placement of the house should be considered a "vice" in the thing sold and thereby covered by Articles 2520 through 2548. We find the improper placement of a house on a lot which causes encroachments upon adjoining property is more appropriately covered by the articles on warranty against eviction.
The articles under the eviction section of the Code contemplate two types of eviction; the first is the "loss suffered" from acts of third persons. Article 2500 and 2501 state respectively:
"Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person."
"Although at the time of the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale."
Under the facts of this case, the Guthrie claim is covered by these articles and Article 2514 on partial eviction which states:
"If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale."
The Ragusa fence and gutter have caused them to suffer a "loss" of a portion of their property. It is this situation, namely the *594 loss of a portion of the Guthries' property caused by the fence and gutter encroachments, that the eviction articles were designed to cover. The Ragusa fence has thus interrupted their peaceful possession of their property.
The second type of eviction found in Article 2504 is that of the "loss suffered" from acts of the vendor. This article states:
"Although it be agreed that the seller is not subject to warranty, he is, however, accountable for what results from his personal act; and any contrary agreement is void." (Emphasis added)
The Ragusa claim is in essence a claim against their vendor, Rudy Brown Builders, Inc., for eviction. By improperly placing their home and by providing them with an improper survey drawing, Rudy Brown Builders, Inc. exposed the Ragusas to suit by the adjoining landowners and thus to the requirement of either removing the fence and gutter encroachments or buying that portion of the Guthrie property that had these encroachments. This factual situation is similar to that of Katz v. Katz Realty Co., 228 La. 1008, 84 So. 2d 802 (1955). In that case plaintiffs were reimbursed by their vendor for the amount they paid to purchase a portion of an adjoining landowner's property which had encroachments of their walls and foundation upon it. The Katz court analogized the reimbursement demand in that case to similar factual situations presented in earlier cases which allowed "reimbursement." See Katz, 84 So. 2d 802, 804-05. Similarly, the reimbursement under eviction articles that Katz allows has been effected by the pre-trial stipulation that provides for the Ragusa purchase of that portion of the Guthrie property with the fence and gutter encroachments and reimbursement for that amount from Rudy Brown Builders, Inc.
Since both the claims of the Guthries and Ragusas are eviction claims, attorney's fees are not considered part of the "costs occasioned by the eviction" and cannot be recovered. La.C.C. Article 2506.3; Calvary Tabernacle v. Louisiana Central Bank, 393 So. 2d 708, 710 (La.1981).
With respect to mental anguish damages, the obligation of warranty is one "to do", i.e. to come to the vendee's rescue. La.C.C. Article 1926 states:
"On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section."
In the following section Article 1934.3 is applicable; it states in part:
"Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for work of some of the fine arts, are objects and examples of this rule."
Article 1934.3 has been interpreted by the Louisiana Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So. 2d 433, 437 (La.1976) to mean that:
"Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.
On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable."
*595 Applying these principles to the instant case, we find that the Guthries and Ragusas are not entitled to recover damages for mental anguish. Although some aesthetic enjoyment may be important, the object of the contract of sale of a house is primarily physical gratification. According to Webster's New Collegiate Dictionary a "house" is "a building that serves as living quarters ... a shelter or refuge ..." Like the automobile repair in Meador, the primary purpose in purchasing the houses and lots involved in this suit was the procurement of living quarters and, thus, the "utility" of these structures or physical gratification was the principal object of the contracts. See Meador, 332 So. 2d 433, 437-38. Nonpecuniary damages, therefore, are not recoverable.
For the reasons assigned, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellants.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605636/ | 778 F. Supp. 527 (1991)
Robert T. HELD and Louise K. Held, Plaintiffs,
v.
Yosef DAVIS, individually, and as a general partner of D & E Limited, Morris Esformes, individually, and as a general partner of D & E Limited, D & E Limited, a limited partnership, Samuel Sonnenschine, individually, and as a general partner of Ten Oaks Limited, Alan N. Mirwis, individually and as a general partner of Ten Oaks Limited, and Ten Oaks Limited, a limited partnership, Defendants.
Yosef DAVIS, Morris Esformes, and D & E Limited, Third Party Plaintiffs,
v.
Wes SAMUELS, et al., Third Party Defendants.
No. 89-6684-CIV.
United States District Court, S.D. Florida.
November 19, 1991.
Mara Beth Sommers and Richard H. Critchlow, McDermott, Will & Emery, Miami, Fla., for plaintiffs Robert T. Held and Louise K. Held.
Steven M. Harris, Miami, Fla., and Lawerence S. Feld, Tenzer, Greenblatt, Fallon & Kaplan, New York City, for defendants Samuel Sonnenschine and Ten Oaks, Ltd.
Gary M. Dunkel, Lewis, Vegosen, Rosenbach & Fitzgerald, West Palm Beach, Fla., and Renan I. Sugarman, Fishman & Merrick, Chicago, Ill., for defendants Yosef Davis, Morris Esformes and D & E Ltd.
Thomas Tew, Tew & Garcia-Pedrosa, Miami, Fla., for defendant Alan N. Mirwis.
ORDER
GONZALEZ, District Judge.
THIS CAUSE has come before the Court upon the Motion To Vacate Stay On Ruling On Pending Motion To Dismiss And Upon Said Vacatur Granting the Motion. The parties have fully briefed the motion and the motion is now ripe for ruling. For the reasons explained below, the Court will vacate the current stay and will proceed to rule on the pending motions to dismiss.
I. Factual Allegations
At some point in time, in or around December of 1983, the defendants Yosef Davis and Morris Esformes formed the defendant *528 limited partnership D & E Limited. Amended Complaint at ¶ 12. At about the same time, the defendant Samuel Sonnenschine and Alan Mirwis formed the defendant limited partnership Ten Oaks Limited. Id. Purportedly, the individual defendants created D & E and Ten Oaks for the purpose of forming a joint venture to acquire the Ten Oaks Apartments Complex, a residential apartment complex in Clayton County, Georgia. Id. In the fall of 1984, third party defendant Art Goodsite, allegedly on behalf of the defendants, and in an effort to gain additional financing for Ten Oaks, asked the plaintiff Robert Held to make an investment in D & E. Id. at ¶ 18. Having decided to invest in D & E in November of 1984, id. at ¶ 21, Held executed and mailed two checks to D & E, one during November of 1984 in the amount of $125,000 and the other in December of 1984 in the amount of $325,000. Id. at ¶¶ 21-22. At some point in December of 1984, Held also executed a promissory note in the amount of $396,055 payable to D & E. Id. at ¶ 23.
Held believed his investment purchased 62.25% of the total interest in D & E. Id. at ¶ 24-25. At some point after Held invested in the venture, the defendants fraudulently diluted the plaintiffs' interest in D & E from 62.25% to 12.252%. Id. at ¶ 29-30. This dilution of their interest, the plaintiffs allege, was in furtherance of the defendants' plan to conceal from Held the true state of affairs regarding the project i.e., that the efforts to raise capital had been unsuccessful; that, at the time of the plaintiffs' contribution, the project was on the verge of foreclosure; that the plaintiffs' contribution was essential to prevent foreclosure; and that significant capital shortages still existed with respect to the Ten Oaks venture. Id. at ¶ 30.
II. Procedural Background
On September 5, 1984, Robert T. Held and Louise K. Held filed suit against Davis, Esformes, D & E Limited, Sonnenschine, Mirwis, and Ten Oaks Limited. The plaintiffs filed an Amended Complaint on December 22, 1990. The Amended Complaint alleges a violation of § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), and a violation of Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5 (1990), as well as various pendent state claims, all arising out of the plaintiffs' purchase of the limited partnership interests. Davis, Esformes, and D & E Limited then filed a third party complaint against Wes Samuels, Art Goodsite, and the accounting firm of Frost, Ruthenberg & Rothblatt, P.C.
On February 14, 1990, the defendants Sonnenschine, Mirwis, and Ten Oaks Limited filed an Omnibus Motion To Dismiss the Amended Complaint. On the same day, the defendants Davis, Esformes, and D & E Limited also filed a motion to dismiss the Amended Complaint. As relevant here, the defendants moved to dismiss the Amended Complaint on the ground that the plaintiffs' federal securities claims are time barred. The parties also asked the Court to dismiss the plaintiffs' pendent state claims on the ground that, if the Court did dismiss the federal securities claims, there would be no independent basis of federal jurisdiction to support the pendent claims. The third party defendants also have filed a motion to dismiss the third party complaint.
On November 27, 1990, the Court stayed ruling on the pending motions to dismiss because the Supreme Court of the United States granted certiorari to resolve a conflict which had emerged among the federal courts over the proper limitation period applicable to claims arising under § 10(b) and Rule 10b-5.
III. The Lampf Decision
In Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, ___ U.S. ___, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991), the Supreme Court resolved the inter-circuit conflict and held that litigants must commence all § 10(b) and Rule 10b-5 claims within one year after the discovery of the facts constituting the violation and within three years after the violation. Id. 111 S.Ct. at 2782. Essentially, the Court announced a one year discovery rule and a three year period of repose after which no claims may be brought no matter when the plaintiff *529 discovered the underlying facts. Moreover, the Court held that this three year period of repose is not subject to equitable tolling. Id. Significantly, the Supreme Court applied the newly announced limitation period retroactively in Lampf and found the plaintiffs' claims therein to be untimely under the rule. Id.
IV. Discussion
A. Motions To Dismiss
Because the Supreme Court has ruled in Lampf, the defendants have filed a motion asking the Court to vacate the current stay and then grant the pending motions to dismiss. With regard to the motions to dismiss, the defendants ask the Court initially to dismiss the federal securities claims on the ground that those claims are barred by the limitation period announced in Lampf. Once the Court dismisses the federal claims, the defendants contend, the Court then should dismiss the pendent state claims for lack of an independent basis of federal jurisdiction.
The plaintiffs have filed a Response in which they essentially concede that if the new rule applies to their case, the federal claims would be barred. They attempt to argue, however, that the retroactivity of the new rule was not announced expressly in the body of the Court's Lampf opinion and that applying the decision retroactively would, as Justice O'Connor noted in dissent, be against established doctrine concerning the retroactivity of new court decisions. In addition, the plaintiffs ask that, if the Court does grant the motion to dismiss, the Court also stay dismissal of the pendent state claims for a period of twenty days so that the plaintiffs may refile the claims in state court.
B. Retroactivity of Lampf
The threshold, and potentially dispositive, issue the Court must tackle here is whether the limitation period announced in Lampf is to be applied retroactively. As noted previously, the Supreme Court applied the new limitation period retroactively in Lampf. Significantly, the Supreme Court applied the new limitation period retroactively without analyzing the new rule under the factors announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971). In fact, beyond the Court cryptically applying the new rule to the Lampf litigants in the penultimate sentence of the majority opinion, there is no discussion of retroactivity in the opinion.
Contrary to the Helds' suggestion in their Response, the lack of discussion in the majority opinion does not by any means indicate that the Court did not intend the new rule to apply retroactively. Instead, the Court's intention appears quite to the contrary. As Justice O'Connor candidly points out in her dissent in Lampf, the majority's failure to address the retroactivity issue could not have been a mere oversight because the parties fully briefed the retroactivity issue in the Supreme Court. Lampf, 111 S.Ct. at 2787 (O'Connor, J., dissenting). This Court finds it hard to believe that the Supreme Court intended the new limitation period only to apply prospectively, or even that the Court intended some kind of selective prospectivity, in light of the parties in Lampf having fully briefed the retroactivity issue, in light of Justice O'Connor vigorously arguing against retroactive application of the new limitation period in her dissent, and in light of the majority applying the new limitation period to bar the plaintiffs' claims in Lampf.
Moreover, the Court's decision in James B. Beam Distilling Co. v. Georgia, ___ U.S. ___, 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991), issued on the same day the Court issued its decision in Lampf, further militates in favor of retroactive application of the new limitation period. In Jim Beam, the Supreme Court of the United States had to decide if the Georgia Supreme Court had erred by declining to apply retroactively the new constitutional rule announced in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S. Ct. 3049, 82 L. Ed. 2d 200 (1984). Significantly, the Georgia Supreme Court had declined to apply the new rule retroactively after engaging in a Chevron analysis. The Supreme Court of the United States reversed stating that "when the Court has applied a rule of law to the *530 litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata." Jim Beam, 111 S.Ct. at 2448.[1] The Court found that the Georgia Supreme Court erred in refusing "to apply a rule of federal law retroactively after the case announcing the rule has already done so." Id. 111 S.Ct. at 2446. The Court reasoned that "[o]nce retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application." Id. 111 S.Ct. at 2447-48. Although Jim Beam addressed the retroactive application of a new constitutional rule, the Court's reasoning has been extended to the question of whether a new limitation period is to be retroactively applied. Barr v. McGraw-Hill, 770 F. Supp. 855 (S.D.N.Y.1991).
After careful consideration of the issue, this Court agrees with those federal courts which have applied the limitation period announced in Lampf retroactively. See, e.g., Welch v. Cadre Capital, 946 F.2d 185, (2nd Cir., 1991); Boudreau v. Deloitte, Haskins & Sells, 942 F.2d 497 (8th Cir. 1991); Anixter v. Home-Stake Prod. Co., 939 F.2d 1420 (10th Cir.1991); Bank of Denver v. Southeastern Capital Group, Inc., 770 F. Supp. 595 (D.Colo.1991); Barr v. McGraw-Hill, 770 F. Supp. 855 (S.D.N.Y.1991). Moreover, because the Supreme Court itself applied the new limitation period to the litigants in Lampf, this Court finds that it is unnecessary to engage in a Chevron analysis to resolve the retroactivity issue. See Jim Beam, ___ U.S. ___, 111 S. Ct. 2439; Bank of Denver, 770 F.Supp. at 596; Barr, 770 F.Supp. at 861. Accordingly, the Court holds that the limitation period announced in Lampf applies retroactively to all claims not finally adjudicated on the date the Supreme Court of the United States decided Lampf, including the plaintiffs' claims in count V of the Amended Complaint herein.
C. Application of Lampf Limitation Period
Having determined that the Lampf limitation period applies to the plaintiffs' federal claims, it remains to be determined whether the plaintiffs' claims are in fact time-barred under the new rule. After careful examination, the Court finds that it is clear from the face of the Amended Complaint that the plaintiffs' federal claims are barred by the limitation period announced in Lampf.[2]
The acts which constitute the violations of § 10(b) and Rule 10b-5 allegedly occurred, at the latest, in December of 1984. The Amended Complaint is wholly devoid of any allegation that the defendants solicited an investment from Held, or that Held made an additional investment in D & E, after December of 1984. Accordingly, the Court finds that it is clear on the face of the plaintiffs' Amended Complaint that their claims arose no later than December 31, 1984.
The plaintiffs filed their initial complaint in this case on September 5, 1989. Applying the three year period of repose, the federal claims are obviously untimely. Accordingly, the Court will grant the defendants' motions to dismiss and will dismiss count V of the Amended Complaint. Because the plaintiffs do not allege that there is a basis for the Court retaining jurisdiction over counts I, II, III, and IV based on the diverse citizenship of the parties indeed they cannot because the plaintiffs and the defendant Ten Oaks each are alleged to *531 be citizens of Florida the Court will dismiss the remaining counts of the Amended Complaint for lack of an independent basis of federal jurisdiction.
Further, because the Court will dismiss all the plaintiffs' claims in the Amended Complaint, the Court also will grant the third party defendants' motion to dismiss and will dismiss the third party complaint filed by the defendants Davis, Esformes, and D & E for failure to state a claim. Finally, the Court rejects the plaintiffs' request to stay dismissal of the pendent state claims as unnecessary.
Accordingly, having reviewed the motions and the record, and being otherwise duly advised, it is hereby:
ORDERED and ADJUDGED as follows:
(1) The defendants' Motion To Vacate Stay On Ruling On Pending Motion To Dismiss And Upon Said Vacatur Granting The Motion is GRANTED. The previously imposed stay is hereby VACATED.
(2) The Omnibus Motion To Dismiss The Amended Complaint Of Defendants Samuel Sonnenschine, Alan N. Mirwis, and Ten Oaks Limited is GRANTED.
(3) The Motion To Dismiss Of Defendants And Third-Party Plaintiffs Yosef Davis, Morris Esformes, and D & E Limited is GRANTED.
(4) Count V of the plaintiffs' Amended Complaint is DISMISSED on the ground that the claims stated therein are barred by the applicable statute of limitations. Counts I, II, III, and IV of the plaintiffs' Amended Complaint are DISMISSED for lack of jurisdiction.
(5) The third party defendants' Motion To Dismiss Third Party Complaint is GRANTED. The third party complaint is DISMISSED.
(6) The Clerk of the Court is DIRECTED to close this case.
DONE AND ORDERED.
NOTES
[1] Although only Justice Stevens joined Justice Souter's opinion for the Court in Jim Beam, six Justices favored retroactivity. See Barr v. McGraw-Hill, 770 F. Supp. 855, 860 n. 4 (S.D.N.Y.1991). In fact, the opinions of the four concurring Justices reveal that a majority of the Supreme Court will give full retroactive effect to a new rule of civil law when the new rule is applied to the litigants in the case in which the Court fashions the rule. See Boudreau v. Deloitte, Haskins & Sells, 942 F.2d 497, 498 n. 1 (8th Cir.1991).
[2] Although the lapsing of a limitation period is an affirmative defense which technically cannot be raised in a motion to dismiss, see Concordia v. Bendekovic, 693 F.2d 1073 (11th Cir.1982), a court may consider such an affirmative defense in a motion to dismiss where the existence of the defense clearly appears on the face of the complaint. Id. at 1075; Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S. Ct. 1992, 90 L. Ed. 2d 673 (1986); Mann v. Adams Realty Co., Inc., 556 F.2d 288, 293 (5th Cir.1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2480920/ | 945 N.E.2d 693 (2007)
375 Ill. App. 3d 1134
IN RE MARRIAGE OF GEORGE
Nos. 1-06-1803, 1-06-2444.
Appellate Court of Illinois, First District
September 28, 2007.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553097/ | 37 B.R. 36 (1983)
In re Kenneth Bruce MIDDLETON and Lynda Anne Middleton, Debtors.
Kenneth Bruce MIDDLETON and Lynda Anne Middleton, Plaintiffs,
v.
FARMERS STATE BANK OF FOSSTON, Defendant.
Bankruptcy No. 3-83-00505, Adv. No. 83-7218.
United States Bankruptcy Court, D. Minnesota, Sixth Division.
December 19, 1983.
*37 John Winters, Crookston, Minn., for plaintiffs.
Edwin Odland, Crookston, Minn., for defendant.
MEMORANDUM AND ORDER
WILLIAM A. HILL, Bankruptcy Judge.
The Debtors, on May 24, 1983, commenced an action to avoid an alleged non-possessory, non-purchase money security interest in certain items alleged to constitute "implements or tools of the trade". The property as to which the Debtors seek to avoid the Defendant's security interest are those items listed in Schedule B-2(i) (with the exception of a John Deere Disc and John Deere Field Cultivator) filed with their voluntary petition on April 5, 1983. The list of equipment and value claimed as exempt (with the exception of the Disc and Cultivator) is as follows:
Hillsboro Gooseneck Trailer $1,500
Leyland Tractor 2,000
Melroe Drill 800
Brillion Seeder 1,000
John Deere Plow 50
Melroe Drag 300
John Deere Flight Conveyor 500
I.H. Mower-Conditioner 900
John Deere Rake 1,200
John Deere Bale Wagon 50
2 Bale Mowers 200
Misc. Livestock Equipment 1,500
_______
$10,000
In claiming the foregoing items as exempt, the Debtors invoke section 522(d)(5) and section 522(d)(6) which state:
"(d) The following property may be exempted under subsection (b)(1) of this section:
(5) The debtor's aggregate interest, not to exceed in value $400 plus any unused amount of the exemption provided under paragraph (1) of this subsection, in any property.
(6) The debtor's aggregate interest, not to exceed $750 in value, in any implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor."
Farmers State Bank of Fosston's (BANK) challenge to these exemptions is four-fold. It contends that it has a valid purchase money security interest in the subject property which cannot be avoided under section 522(f). It contends that the subject property is not included in the definition of "implements, professional books, or tools, of the trade". It contends that the Debtors may not increase the amount of the lien to be avoided by reliance upon sections 522(d)(5) and (6) but, rather, must be limited to the particular categories set out in section 522(d) which are identical to those set forth in section 522(f). Finally, the Bank argues that section 522(f) cannot be applied retroactively to its lien which was perfected prior to November 6, 1978, the enactual date of the Bankruptcy Reform Act.
The matter came on for trial before the Court on November 11, 1983. The following *38 summary constitutes the Court's findings of fact:
FINDINGS OF FACT
Middleton and his wife moved to Fosston, Minnesota, in 1974 and commenced farming at that time. Concurrent with beginning farming, the Debtors started doing business with the Bank. Over the years, the Bank loaned the Debtors various sums and from 1974 through November 1982 had been involved in some 40 loan transactions with them. In 1978 the Debtors lowest outstanding indebtedness with the Bank was $25,000, and it continued to increase. At the time the petition was filed, this indebtedness stood at $69,000. In 1977, the Debtors extended to the Bank a security interest in "all livestock and farm machinery now owned or hereafter acquired". This security interest was first perfected on October 26, 1977, and continued on May 20, 1982. There is no evidence establishing how much money was loaned to the Debtors in 1977 when the security interest was first taken, nor is there any evidence of precisely what the Debtors did with the proceeds. This is also true of the numerous individual loans which followed through November of 1982. The only testimony on this point was from the Bank's cashier who felt that because Middleton was not engaged in farming prior to 1974 he must have purchased all his farming equipment with proceeds from the various bank loans. The two promissory notes received into evidence do not clarify this point. On August 20, 1982, the Debtors gave the Bank a promissory note in the principal sum of $72,425.16 and on its face stated the purpose to be "farm operating expenses". At trial, the bank cashier said he assumed this note was a combination or renewal of various earlier notes. The note itself does not indicate that it is a renewal. The last promissory note given was sometime in November 1982 for the sum of $68,377.74. This note also bears the notation, "farm operating expense". With respect to this note, the bank's cashier said it was a combination of several past due notes, but he was not sure whether at the time the Debtors also received a cash advance. The latter note does bear the notation that it is a renewal of the August 20, 1982, note. Both notes indicate they are secured.
The cashier stated that over the years the Debtors did make substantial cash payments to the Bank, but he was unable to determine whether these payments occurred by reason of various note renewals or actual cash payments.
The equipment listed on Schedule B-2(i) was acquired by the Debtors between 1973 and 1978.
It was agreed between the parties that this property would be sold at auction with the proceeds being held in escrow by the Bank until resolution of the instant adversary case. An auction was held on June 4, 1983, and the equipment in question was sold along with other items of personal property. The total amount realized from the sale of the equipment listed on Schedule B-2(i) (with the exception of the Disc and Cultivator) was $10,938.00. The other items of personal property brought another $8,136.50. The expense of conducting the auction was $1,609.54.
CONCLUSIONS OF LAW
1.
The Bank argues it has a continuing purchase money security interest in the various B-2(i) scheduled items by virtue of the fact that all of this equipment was acquired during the time period in which the Bank was making loans to the Debtors and that prior to doing business with the Bank the Debtors had no farming equipment.
A purchase money security interest under section 9-107 of the Uniform Commercial Code (M.S.A. 336.9-107) is a security interest taken by an entity who, by making advances, gives value to the debtor to acquire rights in the collateral, if in fact such value is so used. Courts have stated as a general proposition that a refinancing arrangement alone extinguishes the purchase money character of the security interest. Rosen v. Associates Financial Services Co., *39 17 B.R. 436 (D.C.S.C.1982); Matter of Luczak, 16 B.R. 743 (Bkrtcy.W.D.Wis.1982). The reason often put forth for this position is the near impossibility of determining to what extent each item of collateral secures its purchase money and also the problem in attempting to apportion subsequent payments among the various items of collateral. It has been argued that an exception should exist when the facts are such that it is easy to distinguish between the original purchase money loan and subsequent refinancing advances. See: In re Slay, 8 B.R. 355 (Bkrtcy.E.D.Tenn.1980) and In re Conn, 16 B.R. 454 (Bkrtcy.W.D.Ky.1982). The court in In re Conn read 9-107 as not requiring that purchase money status be denied in its entirety just because an item may secure its own price as well as antecedent debts or future advances. The court goes on to suggest that if a secured debt is capable of being apportioned between purchase money and later advances, then purchase money status should be preserved to the extent of the unpaid purchase price. This Court would be inclined to follow the minority position; however, even if it were to do so, it is our opinion that apportionment is impossible in the instant case. From the evidence, it is unclear whether all the items of equipment were in fact purchased with bank loan proceeds. Some may have been paid for directly from farm income. Furthermore, there are in evidence no originating notes as to any of these items. The notes that were introduced state their purpose to be farm operating expense. From this notation the Court cannot, with any degree of certainty, conclude that the purpose was to purchase specific items of equipment. Also defeating the Bank's purchase-money interest claim is the fact that the August 20, 1982, note does not reflect anywhere on its face that it is a renewal of any prior obligation. Although the Bank's cashier stated it to be a consolidation, he also inferred that the Debtors may have received, as well, a cash advance of an unknown amount.
Therefore, it is the opinion of the Court that the security interest held in the subject collateral is a non-purchase money security interest avoidable insofar as those items come within the purview of section 522(f).
2.
Relying upon section 522(f)(2)(B), the Debtors argue that the farm equipment listed in Schedule B-2(i) is included in the definition of "implements" and "tools of the trade". If so, and because the Bank's security is a non-purchase money interest, then the Bank's lien in such equipment may be avoided. This is the central issue in this case, and its resolution will be dispositive.
Courts which have construed the meaning of "implements" and "tools of the trade" within the context of section 522(f)(2)(B) have generally held that the definition of "implements" and "tools of the trade" does not include farm machinery or implements. These courts have gone back to the legislative history and determined that congressional intent at the passage of section 522(f) was to protect property of a nominal commercial value but which could be used by a creditor to coerce payment. In re Sweeney, 7 B.R. 814 (Bkrtcy.E.D.Wis.1980). There is nothing in the legislative history of the statute nor subsequent case law which indicates that Congress intended § 522(f)(2)(B) to allow the avoidance of large items of farm equipment. See: In re Metzig, 33 B.R. 620, 11 B.C.D. 77 (Bkrtcy.N.D.Tex. 1983); In re O'Neil, 20 B.R. 13 (Bkrtcy.E.D. Mo.1982); In re Yparrea, 16 B.R. 33 (Bkrtcy.D.N.M.1981). The Debtors placed reliance upon In re Liming, 22 B.R. 740 (Bkrtcy.W.D.Okl.1982) which considered a tractor to be an implement and within the meaning of section 522(f)(2)(B). We consider Liming to be contrary to the great weight of authority and also note that in that case the debtor had premised his exemption claim upon an Oklahoma Statute which allowed an exemption in "all implements of husbandry used upon the homestead", a provision which had been construed by the Oklahoma Supreme Court to include tractors.
From the record, it appears that the Bank, over a number of years, extended the Debtors substantial farm operating loans *40 against which it took security in various farm property, including those enumerated in Schedule B-2(i). This Court agrees with the rationale of Yparrea in the statement that section 522 was never meant to be applied so as to effectively shut off farmers and ranchers from necessary operating loans. This would be the eventual result if the terms "equipment" and "tools of the trade" were construed to include large items of farm equipment. We follow the majority of decisions and hold that the terms were meant to include small tools and implements which have little, if any, resale value. It is the opinion of this Court that none of the enumerated items in Schedule B-2(i) constitute "implements" or "tools of the trade".
3.
This Court holds that the "wild card" or "spillover" provisions of sections 522(d)(1) and (5) are unlimited and may be applied to any property of the debtor including whatever property constitutes tools and implements of trade under section 522(f). Metzig, supra; In re Brock, 10 B.R. 67 (Bkrtcy.W.D.Mich.1981); 3 Br.L.Ed. § 22:34.
The constitutional issue raised in the Bank's brief will not be addressed since it is not necessary to a resolution of the instant case.
The auction of the Schedule B-2(i) equipment was conducted with the stipulated understanding that the proceeds would stand in place of the property. The Bank's lien in and to the Schedule B-2(i) equipment is non-dischargeable for the reasons set forth herein and, therefore, the Bank is entitled to the proceeds which total $10,938.00.
The auction expenses should be pro-rated between the parties according to their respective benefits. The total proceeds were $19,074.50 with expenses of $1,609.54 of which 55.62%, or $895.23, shall be borne by the Bank and 44.38%, or $714.31, should be paid by the Debtors.
IT IS, THEREFORE, ORDERED, consistent with this opinion, that the Debtors' Complaint to avoid the Farmers State Bank of Fosston's lien be DISMISSED with auction expenses apportioned as set forth. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3129781/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-09-234-CR
2-09-235-CR
2-09-236-CR
MELVIN DASHAWN GRIGGS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
------------
MEMORANDUM OPINION
(footnote: 1)
------------
On February 22, 2010, the trial court filed a corrected certification of appellant Melvin Dashawn Griggs’s right to appeal his convictions that form the basis of these appeals.
See
Tex. R. App. P. 25.2(a)(2), (d), (f). The corrected certification states that these are plea bargain cases in which Griggs has no right of appeal and that Griggs has waived his right of appeal.
Based on the information contained in the corrected certification, on March 16, 2010, we issued an order expressing our concern about whether we have jurisdiction over the appeals. We explained that the appeals were subject to dismissal unless any party desiring to continue them filed a response showing grounds to continue them.
See
Tex. R. App. P. 44.3. We have not received any such response. Accordingly, we dismiss the appeals for want of jurisdiction.
See
Tex. R. App. P. 25.2(a)(2), (d), 43.2(f);
Chavez v. State
, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006);
Jackson v. State
, 168 S.W.3d 239, 243 (Tex. App.—Fort Worth 2005, no pet.).
PER CURIAM
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 29, 2010
FOOTNOTES
1:See
Tex. R. App. P. 47.4. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1605542/ | 416 So.2d 1158 (1982)
Donald TOPLEY a/k/a Donnie Tarpley, Appellant,
v.
STATE of Florida, Appellee.
No. 81-920.
District Court of Appeal of Florida, Fourth District.
June 9, 1982.
Rehearing Denied August 11, 1982.
*1159 Richard L. Jorandby, Public Defender, Marcy Karr Allen and Ellen Morris, Asst. Public Defenders, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn, Asst. Atty. Gen., and James P. McLane, Legal Intern Certified, West Palm Beach, for appellee.
DOWNEY, Judge.
The criminal episode giving rise to the charges in this case involved the burglary of a jewelry and gift store. From the evidence, we determine that appellant Topley's car was seen in the vicinity of the burglary in the City of Stuart and a high speed chase ensued to the Martin County line. There appellant's car was stopped and two males exited the car and entered nearby woods, where appellant and a cohort were eventually apprehended. Many of the stolen items were found in the trunk of appellant's automobile, including a display case with appellant's fingerprint on it.
Appellant was charged with Count I, burglary of a structure; Count II, grand theft; and Count III, criminal mischief causing damage over $1,000. A jury trial resulted in appellant's conviction on all three counts as charged.
On appeal no contention is made that the evidence was not sufficient to convict appellant. Rather reversal is sought on the grounds 1) that appellant was tried in jail clothing and 2) the trial court erred in not granting a mistrial because of the prosecutor's remarks in closing argument. We find no merit at all in appellant's second contention. However, since the first point raises a due process question, we find it deserves more detailed treatment.
When appellant arrived at the Martin County Jail he was relieved of his clothes, which the State proposed to use in evidence, and he was issued jail garb. In view of the confiscation of his clothes, appellant filed a pretrial motion requesting funds with which to purchase clothes to wear to trial. Although the motion was denied, the trial court offered appellant time to seek civilian clothing from friends or some social agency or any other source. Appellant renewed his motion when he arrived at the courthouse for trial, but once again the trial judge denied the motion. However, the trial judge offered to give the jury a curative instruction relative to the presumption of innocence and the necessity that no inferences be made from appellant's clothing. The case proceeded to trial; no curative instruction was requested or given and appellant was convicted. We think it worthy to note that appellant was not a resident of Martin County, that he remained incarcerated from the date of his arrest through the date of trial, and that he was indigent and represented by the public defender.
The problem with compelling a defendant to be tried in prison or jail clothes is that it may have an insidious effect upon the presumption that he is innocent.[1] As *1160 the Supreme Court of the United States said in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976):
[T]he constant reminder of the accused's condition implicit in such distinctive identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. 425 U.S. at 504-505, 96 S.Ct. at 1693, 48 L.Ed.2d at 131.
Although requiring an accused to appear for trial in prison garb is generally condemned, the courts have not embraced an automatic rule requiring reversal in all instances. Rather, as the court said in Estelle, supra:
Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury... . This is apparently an accepted practice in Texas courts ... including the court where respondent was tried. (Citations omitted.)
-425 U.S. at 507-508, 96 S.Ct. at 1694-1695, 48 L.Ed.2d at 132-133.
Compelling the defendant's appearance so dressed may impinge upon his presumption of innocence and thus constitute a violation of his constitutional right to due process. Estelle, supra, Bentley v. Crist, 469 F.2d 854 (9th Cir.1972). However, the error is not necessarily reversible. In fact, many courts have applied the harmless error rule in this situation. Hernandez v. Beto, 443 F.2d 634 (5th Cir.1971); Watt v. Page, 452 F.2d 1174 (10th Cir.1972); Bentley v. Crist, 469 F.2d 854 (9th Cir.1972); Thomas v. Beto, 474 F.2d 981 (5th Cir.1973); and see other cases cited at Annotation, Wearing Prison Garb at Jury Trial 26 A.L.R.Fed. 535, § 7[a]. Nevertheless, under these circumstances, error must be found harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Although appellant does not attack the sufficiency of the evidence, we are unable to say with the degree of certitude required by Chapman, supra, that denial of appellant's motion for funds to procure clothing for trial was harmless error. On the other hand, we are also unable to determine that under the circumstances of this case appellant was actually compelled to go to trial in prison garb. As pointed out earlier in this opinion, an accused may prefer to go to trial so garbed as a matter of tactics in the hope of creating sympathy with the jury for his plight. Thus, appellant's right not to be compelled to submit to trial in that fashion, like so many others, can be waived by failure to assert it. Estelle v. Williams, supra. In the present case the fact that appellant requested that he be furnished funds (from whom we do not know) to purchase clothing so he would not have to appear in his jail issue clothing does not end the matter. For in order to require the State to furnish clothing an accused ought to be required to show that he does not have clothes available to him from sources such as family, friends, social agencies, or his own funds.
We, therefore, remand the cause to the trial court to determine, after an evidentiary hearing, whether appellant could have obtained suitable clothing for trial from any of the mentioned sources and thus whether he was compelled to go to trial in his jail clothing. The trial court is requested to file its findings and conclusions, together with a transcript of the hearing, with this court within 60 days from date hereof.
REMANDED with directions.
WALDEN, J., concurs.
LETTS, C.J., dissents with opinion.
*1161 LETTS, Chief Judge, dissenting:
The defendant was not "compelled" to go to Court in prison garb. On the contrary the Court offered the defendant a chance to seek civilian clothing. There is no record that he did so and was unsuccessful. Surely he has the burden of demonstrating error.
Moreover, the defendant did not request clothes as such. Instead he asked for money to purchase same. Our majority opinion may, for the future, tacitly approve a practice whereby the county, hence the taxpayer, has to buy clothes for a defendant. I deplore any such expansion of the law.
Finally, the evidence of guilt is overwhelming in this case and at the very least the harmless error doctrine should apply.
NOTES
[1] Prison clothing was described as a "brand of incarceration" in Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605590/ | 416 So.2d 361 (1982)
Rudy MILLS
v.
Richard GANUCHEAU, et al.
No. 12-916.
Court of Appeal of Louisiana, Fourth Circuit.
June 8, 1982.
Rehearing Denied July 16, 1982.
*362 Henry P. Julien, Jr., New Orleans, for plaintiffs-appellants.
Louis A. Heyd, Jr., New Orleans, for defendant-appellee.
Before KLEES, BYRNES and CIACCIO, JJ.
CIACCIO, Judge.
This is an action for damages claimed to have been sustained by the plaintiff, Rudy Mills, as a result of the negligent acts of the defendant, Deputy Clerk Johnny Ohlsen, (sometimes referred to as Johnny Ohlsson), while in the employ of Richard Ganucheau, Clerk of Civil District Court. The district court[1], after a trial on the merits, rendered judgment in favor of the plaintiff, Rudy Mills, and against the defendants, Richard Ganucheau, Clerk of Civil District Court, and Johnny Ohlsen, Deputy Clerk, in the sum of $7,500.00, plus interest and costs. The defendants filed this suspensive appeal. We affirm.
The trial judge, in his lucid reasons for judgment, stated findings of fact and a recitation of the applicable law which serves as the basis for the judgment granted in favor of plaintiff. We adopt his reasons as our own.
The trial judge stated:
REASONS FOR JUDGMENT
"Plaintiff, Rudy E. Mills, filed a petition for damages against defendants, Richard J. Ganucheau, now Judge and formerly Clerk of the Civil District Court for the Parish of Orleans and Johnny Ohlsson, a Deputy Clerk of the same Court. It is alleged by plaintiff that he was arrested and imprisoned because Ohlsson failed to properly check the records of the Civil District Court before replying to a letter dated August 23, 1978 from Captain Albert M. Fried, of the Los Angeles Police Department inquiring as to the legal custody of the minor children.
The sequence of events is as follows:
On August 29, 1975 Vilma Allen Mills was awarded the care, custody and control of the minor children of her marriage to Rudy E. Mills, namely Rudy E. Mills, Jr., Alexander Mills and John Mills. This judgment *363 was rendered in a suit for separation filed by Mr. Mills against Mrs. Mills entitled "Rudy E. Mills versus Vilma Allen, wife of Rudy E. Mills", Docket No. 596-268, Division "F" of the Civil District Court.
In 1976 David Mills was born and some time later that year Mrs. Mills left for California, taking only the youngest child with her. The balance of the children remained in the physical custody of their father.
Mills then filed a suit for divorce against his wife, bearing Docket No. 77-95, Division "J" and on January 27, 1977 was awarded a judgment of divorce and the care, custody and control of the minor children, Rudy E. Mills, Jr., Alexander Mills and John Mills.
In 1977 Mills visited his ex-wife in California and brought the three children with him, namely, Rudy, Alexander and John. Following the visit Mrs. Mills would not permit the children to return to Louisiana with her former husband.
In the summer of 1978 plaintiff travelled to the State of California and brought all four children of the marriage home to New Orleans with him. Mrs. Mills then filed a child stealing complaint against Mills on August 13, 1978 furnishing the authorities with a copy of the judgment dated August 29, 1975. In investigating the complaint, Captain Albert M. Fried forwarded the following letter dated August 23, 1978 to the Clerk of the Civil District Court, to-wit:
`Clerk of Civil District Court
421 Loyola Avenue
New Orleans, Louisiana 70112
Dear Sir:
This Department is currently conducting a criminal investigation regarding an act of child stealing. The involved parents are Vilma and Rudy S. Mills, both residents of the City of New Orleans.
It is necessary that this Department obtain certified copies of all court orders regarding custody of the minor children, Rudy, Jr., Alexander, John and David Mills. Our information has revealed that this matter was handled in Division "F", Civil District Court for the Parish of Orleans, No. 596-268, Docket 5 on August 26, 1975. We also need any court orders handed down since that date.
Copies of these court documents will be used by the Los Angeles District Attorney for the purpose of resolving the current complaint.
This Department will greatly appreciate your attention to this matter, and ask that you send the documentation to Investigator W. J. LaBrie # 16130, Los Angeles Police Department, Southwest Special Investigations Team, 1546 W. Santa Barbara Avenue, Los Angeles, California 90062
Very truly yours,
DARYL F. GATES, Chief of Police
ALBERT M. FRIED, CAPTAIN
Acting Commanding Officer, Southwest Area'
The letter was delivered to the defendant, Johnny Ohlsson, Senior Deputy Clerk of Docket No. 5 of the Civil District Court. This docket handles separations and divorces among other types of cases.
After checking the record of Case No. 596-268, Mr. Ohlsson typed across the bottom of the letter as follows:
`The enclosed judgment is the only judgment rendered in the above named suite.
J. Ohlsson, Dy. Clerk'
Following receipt of this reply from Ohlsson, Detective William J. LaBrie swore out a complaint against plaintiff for child stealing. Thereafter, a warrant was issued for plaintiff's arrest.
Plaintiff was arrested in New Orleans on the fugitive warrant on September 27, 1978 and was not released on bond until the afternoon of September 29, 1978. While plaintiff was in jail during this period Mr. Mills was served with a rule to change custody back to his ex-wife.
Custody of the minor children was again awarded to Mrs. Mills on September 29, 1978 while her ex-husband was incarcerated. Further, the plaintiff was unrepresented at the hearing with Wilfred McKee, attorney for plaintiff claiming he had a conflict in court dates on the 29th. Further, *364 both McKee and Mills claimed they could not properly communicate about the matter with plaintiff confined in jail.
On October 13, 1978 plaintiff appeared in Court at the extradition hearing with counsel, McKee. McKee advised plaintiff to waive extradition and voluntarily to return to California to get the matter settled. Mills testified he waived extradition on advise of counsel, principally because the local judge indicated that under the criminal procedure in effect in this State, he could not consider the validity of the various judgments of custody rendered in this case. Additionally, plaintiff testified that he was without funds to further contest the proceedings and that the State of California would bear the cost of air transportation to that State if he waived extradition. Moreover, Mills testified that the matter had to be resolved and since the State of California had filed the charges he had been led to believe that the matter would have to be settled there.
Plaintiff was returned to California on October 31, 1978 where he remained in jail for two days until released in the custody of a Los Angeles attorney. The charges filed by the State of California against plaintiff were dismissed on November 15, 1978.
Plaintiff filed the instant suit for damages on October 30, 1979. Defendants filed a peremptory exception of prescription of one year, urging that the alleged cause of action occurred more than one year prior to the commencement of this action.
This Court overrules the defendants' plea of prescription. Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect. Cordova v. Hartford Accident and Indemnity Co., 387 So.2d 574 (La.Sup.Ct.1980). This Court also holds that plaintiff did not discover until November 15, 1978 that the Los Angeles Police Department had mailed a letter to the Clerk's Office in New Orleans and that Ohlsson had returned the letter with his notation contained thereon. It is also the conclusion of this Court that plaintiff's failure to learn of the existence of the letter sooner was not the result of neglect or willful ignorance.
The Clerk of Court is the legal custodian of all of its records, and is responsible for their safekeeping and preservation. LSA C.C.P. Art. 251. Further, the Clerk of Court is required to keep a docket of all cases of separation and divorce, with proper indices thereto. LSAR.S. 13:1216. Additionally, Rule 5, Section 1 of the Rules of the Civil District Court for the Parish of Orleans, provides that the Clerk shall keep the several dockets required by LSAR.S. 13:1216, in one room. Rule 6, Section 14 provides that the Clerk shall keep an index of the general docket and of each particular docket under LSAR.S. 13:1216. The record reflects that since 1976 there has been maintained a card index for docket five cases listed alphabetically by plaintiffs and defendants and cross-indexed.
The above cited authority requires of the Clerk of Court that he have a complete and thorough knowledge of the dockets under his control. Furthermore, being the custodian of the records gives the Clerk the sole responsibility for disseminating requested documentation.
LSA-R.S. 44:32 prohibits the Clerk from making any inquiries of any person who applies for a public record beyond the purpose of establishing his authority. However, in this case, the Los Angeles Police specifically set forth their purpose in requesting the documentation.
Deputy Clerk Ohlsson testified that the Los Angeles Police could not have received the requested documentation from any other source. He also stated that he knew why the documentation was being sought. He further related that he knew separation and divorce proceedings are sometimes filed in separate records.
The Louisiana Code of Civil Procedure Article 251, provides that the Clerk of Court may issue a copy of any of the records over which he is the custodian. While the article does not require any specific legal duty on the part of the Clerk of Court, this Court *365 feels that once he had undertaken this responsibility he is to be held to a standard of care mandated by Articles 2315 and 2316 of the Louisiana Civil Code pursuant to the circumstances of each case. This Court believes that these articles provide a broad ambit of protection for those persons damaged by negligent acts of misrepresentation of others. See Devore v. Hobart Manufacturing Co., 367 So.2d 836 (Sup.Ct.1979).
Actionable negligence results from the creation of maintenance of an unreasonable risk of injury to others, and the likelihood that harm may be caused is relevant in determining whether the risk is unreasonable. Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La.Sup.Ct.1976). The likelihood that harm may be caused was prominent in this case.
This Court feels that the information requested in Captain Fried's letter, together with Mr. Ohlsson's knowledge of the Clerk's Office and accessibility of its records, should have put Ohlsson on notice that a more thorough search of the records was necessary.
Mr. Ohlsson further testified that he was aware of the possibility of criminal action being dependent on his response and that the Los Angeles Police Department was relying on him for pertinent information relative thereto.
It appears here that a reasonable standard of care requires that Ohlsson should have at least checked the index cards of the docket five suits.
This Court made a first hand inspection of these and within two (2) minutes found two index cards, one entitled "Rudy Mills v. Velma Mills" Docket No. 596-268 and another entitled "Rudy Mills v. Velma Mills", Docket No. 77-95. Both of these cards were also cross-indexed for easy reference.
Therefore, this Court finds that defendant, Ohlsson, was negligent under the circumstances of this case.
Additionally, the evidence overwhelmingly supports a determination that Ohlsson was acting within the scope of his employment at the time he sent the requested documentation to the Los Angeles Police Department. As a Deputy Clerk of Court, Mr. Ohlsson is an employee of the Clerk of Court. The Clerk of Court at the time of the incident in question was Richard J. Ganucheau.
As a result of the negligence detailed above, defendant was required to spend a total of five (5) days in jail, was extradited to California and has a permanent felony arrest on his record.
This Court feels that an award in the sum of Seven Thousand Five Hundred and No/100 ($7,500.00) Dollars is fair for the damages sustained by plaintiff. Further, this Court feels that a higher award would be granted in this case except that plaintiff voluntarily waived extradition proceedings."
In appealing this judgment defendants urged that the trial court erred in concluding that once the Clerk of Court answered the inquiry of the Los Angeles Police that he was held to a standard of care mandated by Articles 2315 and 2316 of the Louisiana Civil Code; that the court further erred in ruling that the letter from Los Angeles was clear and precise enough to have put defendants on notice to make the more thorough search; and, that the court erred in ruling that defendants did not meet the standard of care that would be reasonable under these circumstances. We find no merit in these assignments of error and hold that the trial court committed no manifest error in holding the defendants liable for their negligent acts. Further, a review of the record does not indicate that the trial judge was clearly wrong in his finding of facts and in his interpretation of the law. Canter v. Koehring, 283 So.2d 716 (La.1973) at 724 and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) at 1333.
DAMAGES
The defendants argue that the trial court's award of $7,500.00 damages constitute an abuse of discretion. The individual circumstances of each case are controlling in a determination by the reviewing court *366 as to whether a trial court's award is excessive. Reck v. Stevens, 373 So.2d 498 (La. 1979). Before an appellate court may disturb the award made by the trial court, the record must clearly reveal that the trier of fact abused his discretion in making the award, based upon the particular injuries sustained and their effect on the particular person injured. Perniciaro v. Brinch, 384 So.2d 392 (La.,1980): Reck v. Stevens, supra.
In this case the plaintiff was arrested, handcuffed, fingerprinted and photographed for future identification and transported cross country as a criminal suspect. He was imprisoned for a total of five (5) days. He also suffers the effects of having a permanent felony arrest on his record. These were injuries which resulted directly from the negligent actions of the defendants. Under these circumstances an award of $7,500 was not an abuse of discretion. The trial court did not err in its award of damages.
For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the defendants-appellants.
AFFIRMED.
NOTES
[1] The Honorable Thomas C. Wicker, Jr. was appointed, by the Louisiana Supreme Court, to preside as judge ad hoc over the district court proceedings in this matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/460679/ | 776 F.2d 1054
Weggev.Egger
84-6340
United States Court of Appeals,Ninth Circuit.
10/25/85
1
C.D.Cal.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1605717/ | 310 N.W.2d 531 (1981)
Erma M. LISKA, Plaintiff-Appellant,
v.
FIRST NATIONAL BANK IN SIOUX CITY, Defendant-Appellee.
Erma M. LISKA, et al., Plaintiff-Appellant,
v.
FIRST NATIONAL BANK IN SIOUX CITY, Defendant-Appellee.
No. 2-64699.
Court of Appeals of Iowa.
April 21, 1981.
*533 Raun, Franck, Mundt & Nepper, Denison and Hutchison & Hurst, Sioux City, for plaintiff-appellant.
Klass, Whicher & Mishne, Sioux City, for defendant-appellee.
Heard by OXBERGER, C. J., and DONIELSON, SNELL and JOHNSON, JJ.
DONIELSON, Judge.
Plaintiff Erma Liska appeals from grant of summary judgment for defendant bank on two petitions for damages for negligent and fraudulent administration of several trusts and the estate of plaintiff's husband. Plaintiff contends, essentially, that there was a genuine issue of material fact presented on the fraud allegation such that summary judgment should not have been granted and that the trial court incorrectly ruled that the plaintiff's malpractice action was barred by section 633.487, The Code 1977. We reverse and remand to the trial court.
Our review of this equitable proceeding is de novo. Iowa R.App.P. 4.
I.
In October, 1969, plaintiff and her husband turned over their assets, consisting mainly of stocks and bonds, to the defendant bank in order that inter vivos trusts could be established for each of them. Plaintiff's husband died shortly thereafter and the assets from his inter vivos trust went into his estate. His will then provided that these assets be put in a testamentary trust set up for the benefit of his children and grandchildren. The executor's final report was filed in July of 1971; plaintiff signed a receipt and waiver of notice regarding the final report in which she waived notice of hearing on the report and approved and ratified it.
On June 22, 1976, plaintiff filed a petition against the defendant bank alleging fraud and negligence by the bank in 1969-71 when it acted as trustee and executor of her husband's estate. She alleged that the bank had caused property owned solely by her and property owned in joint tenancy to be placed in her husband's inter vivos trust and included in his estate. On August 13, 1976, plaintiff, together with her children and grandchildren (beneficiaries of the trust set up by plaintiff's husband's will), filed a second petition against the defendant bank. This petition alleged that the bank's inclusion in the husband's inter vivos trust and estate of property owned solely by the plaintiff and of property owned in joint tenancy resulted in payment of an additional $48,000 in estate and inheritance taxes. The petition also asked for monetary and punitive damages. Defendant's answers to the two petitions raised estoppel and laches as affirmative defenses because the plaintiff had approved the executor's final report over five years ago. Defendant also filed for summary judgment in each of the actions but only as to plaintiff Erma Liska in the action involving multiple plaintiffs. Defendant's motions for summary judgment alleged that no genuine issue of material fact existed because under section 633.487, The Code 1977, the actions of the bank as executor could be challenged only upon a showing of fraud and because the plaintiff had admitted in a deposition that she did not think the defendant had committed fraud. The trial court sustained defendant's motions for summary judgment and the plaintiff then filed notice of appeal from these rulings. The notices of appeal have been consolidated into one case on appeal.
II.
We note initially that a question exists as to whether plaintiff's notice of appeal from the grant of summary judgment on the second petition was from a final judgment. This question arises because, although there were multiple plaintiffs in that action, summary judgment was requested and granted against plaintiff Erma Liska only. The trial *534 court did not specify whether the summary judgment granted against Erma was to extend to the other plaintiffs as well; we assume, however, that no such extension was intended. Because there exists the possibility that plaintiff's notice of appeal was not from a final judgment, we are prepared to treat plaintiff's notice of appeal from the grant of summary judgment on the second petition as an application for interlocutory appeal pursuant to Iowa R.App.P. 1(c); that application is hereby granted.
III.
While we acknowledge that section 633.487, The Code 1977, prohibits challenges to the actions of an executor except by appeal from the final order of settlement where notice of hearing on the final report was waived and where the executor has been discharged, we reverse the trial court's grant of summary judgment for the defendant in each action and remand to the lower court for trial.
The purpose of summary judgment is to enable the moving party to obtain a judgment promptly and without the expense of trial when no genuine issue of material fact exists. Drainage District No. 119 v. Incorporated City of Spencer, 268 N.W.2d 493, 499 (Iowa 1978). Essentially, the party moving for summary judgment asserts that, due to the lack of a genuine issue of material fact in the record, he or she is entitled to a judgment on the merits as a matter of law. Id. In order to successfully resist a motion for summary judgment, the resisting party must set forth specific evidentiary facts showing the existence of a genuine issue of material fact. Schulte v. Mauer, 219 N.W.2d 496, 500 (Iowa 1974); Davis v. Comito, 204 N.W.2d 607, 611-12 (Iowa 1973); Bauer v. Stern Finance Company, 169 N.W.2d 850, 853 (Iowa 1969); Iowa R.Civ.P. 237. The party may not rest on the mere allegations or denials of the pleading. Bauer, 169 N.W.2d at 853; Iowa R.Civ.P. 237(e). Additionally, all the evidence must be viewed in the light most favorable to the party resisting summary judgment. Parsons v. National Dairy Cattle Congress, 277 N.W.2d 620, 621 (Iowa 1979); Drainage District No. 119, 268 N.W.2d at 499. If reasonable minds could draw different inferences and reach different ultimate conclusions from the undisputed facts, the issues must be reserved for the factfinder at trial and summary judgment is inappropriate. Parsons, 277 N.W.2d at 621. We are guided by the same principles in reviewing a grant or denial of summary judgment. Id.; see Drainage District No. 119, 268 N.W.2d at 500.
Applying these considerations to the instant case, we conclude that summary judgment was improper on the basis of this record. Acts of a fiduciary that might constitute fraud are not protected by section 633.487, The Code 1977. Such acts are alleged in the action brought by Mrs. Liska as a single plaintiff. Defendant claims that no genuine factual issue in support of such claims exists because of certain statements made by plaintiff in a discovery deposition. In plaintiff's resistance to the motion for summary judgment in her single plaintiff action she asserts:
Initially, it is clear that regardless of whether Mrs. Liska realizes it or not, this is an action based on the fraudulent nondisclosure by the defendant of its wrongful acts as a fiduciary. At the deposition of Mrs. Liska, plaintiffs reserved their right to object to any questions at the time of trial other than objections going to the form of questions. Questions which call for legal conclusions from a lay witness are clearly objectionable and plaintiff now objects. Accordingly, plaintiff objects to those questions contained on pages 170 and 187 through 188 of plaintiff's deposition.
Because plaintiff is a layperson with absolutely no business experience and it is thus questionable whether she understands the legal definition of "fraud," we find that her statement may more appropriately be characterized as the opinion of a lay witness and therefore inadmissible. See Ganrud v. Smith, 206 N.W.2d 311, 314 (Iowa 1973) (lay opinion evidence inadmissible unless it will *535 aid the jury in determining outcome and is based on special training, experience, or knowledge of witness). See generally McCormick on Evidence §§ 10-12 (2d ed. E. Cleary 1972). In any event, even if the plaintiff's statement were admissible, its effect would have to be weighed in the context of the entire record; our conclusion as to the propriety of summary judgment for the defendant would remain unchanged. We agree with plaintiff that her deposition statements do not serve to conclusively negate the allegations of fraud. While we have no way of knowing what the evidence will ultimately show as to these allegations, we conclude that plaintiff's statement in her deposition does not serve to defeat them as a matter of law. If these statements in the deposition are taken as evidence, they are inconclusive. If they are taken as issue-narrowing concessions by a party to the litigation, her position in this regard was reversed by reason of the formal resistance filed to the motion for summary judgment.
We also conclude that summary judgment based on section 633.487 was improperly granted as to those portions of plaintiff's claims in each action based upon alleged acts or omissions of the defendant acting as trustee of the inter vivos trusts of plaintiff and her husband, E. J. Liska. Such acts or omissions, if any, were not placed in issue or otherwise before the court as part of the administration of the E. J. Liska Estate. See and compare In re First National Bank of Mansfield, 37 Ohio St.2d 60, 307 N.E.2d 23, 68 A.L.R.3d 1258 (1974). We do agree, however, with the trial court's conclusion that, absent a finding of fraud, this statute would preclude recovery in either action against the defendant for acts as executor after its appointment and qualification as such.
IV.
The trial court further applied section 633.487, The Code 1977, to bar that part of the plaintiff's action in which she alleged malpractice by the defendant bank as trustee of her husband's inter vivos trust and as executor of his estate. The provisions of section 633.487 clearly apply insofar as the plaintiff is alleging malpractice by the defendant as executor, since plaintiff herself does not deny that she waived notice of hearing on the final report and accounting. See § 633.487, The Code 1977. However, that statute does not operate to bar claims against trustees of inter vivos trusts, and the trial court erred in so ruling.
V.
The defendant bank contends, for the first time on appeal, that plaintiff's action is barred by sections 614.1(4) and 614.4, The Code 1977, which would limit the time for filing plaintiff's petitions to five years. The statute of limitations is an affirmative defense to be raised by the pleadings; it cannot be raised for the first time on appeal. See Pride v. Peterson, 173 N.W.2d 549, 553 (Iowa 1970); Harrison v. Keller, 254 Iowa 267, 272, 117 N.W.2d 477, 480 (1962); Ehlinger v. Ehlinger, 253 Iowa 187, 192-93, 111 N.W.2d 656, 659 (1961). We therefore do not consider defendant's argument.
Plaintiff's action is therefore reversed and remanded for further proceedings consistent with our decision.
REVERSED AND REMANDED.
CARTER, J., takes no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605720/ | 416 So.2d 1186 (1982)
VIDA APPLIANCES, INC. and Zurich-American Insurance Company, Appellants/Cross-Appellees,
v.
James GATES, Appellee/Cross-Appellant.
No. AI-292.
District Court of Appeal of Florida, First District.
June 30, 1982.
Rehearing Denied August 4, 1982.
*1187 Albert P. Massey, III, of Pyszka & Kessler, P.A., Fort Lauderdale, for appellants/cross-appellees.
Dennis M. Usdan of Abramowitz, Altman & Usdan, Plantation, for appellee/cross-appellant.
ERVIN, Judge.
In this workers' compensation appeal, we find that claimant James Gates' October 1, 1979 accident entitles him to full wage-loss benefits, because he did not limit his income or fail to accept employment, and that under the facts of this case, the deputy commissioner correctly included vacation pay in the computation of claimant's average weekly wage.
Fifty-nine year old James Gates, the appellee/cross-appellant herein, worked for Vida Appliances as a delivery man. While unloading a truck he slipped and fell, suffering permanent anatomical impairment. Gates had eleven years of schooling but no high school diploma. He had worked only in various menial tasks unloading trucks, painting, doing maintenance work, as a stock clerk, and laboring at construction sites.
Upon reaching maximum medical improvement, his doctor advised that he could return to the job market but that he was restricted to light work. Despite occasional yet persistent pains, he made a rather extensive job search to numerous motels, a mall, supermarket, the state employment service, and other locations. His former employer, Vida Appliances, refused to rehire him for light work. The other job sites at which he applied lost interest in him as soon as he indicated that he was seeking light work, and the state employment service similarly was unable to assist him. The deputy commissioner found this to be a competent, good faith work search.
At the hearing the employer/carrier (e/c) presented testimony by a vocational counselor *1188 who indicated that he had conducted a two-hour interview with Gates and reviewed his medical records. The counselor felt certain that Gates was employable in the Broward County job market in a light maintenance job making $175 per week and that such jobs were available. Candidly, the counselor admitted that he knew of no specific jobs available to the claimant, nor had he actually canvassed the job market.
The deputy commissioner also received testimony that the claimant made $180 per week before his injury, received uniforms worth $10 per week from his employer and was paid in cash an additional $360 during a two-week period preceding his injury. According to the employer's secretary, this sum represented vacation pay which Gates was taking in the form of cash in lieu of actual vacation time off. The secretary stated that this was a common practice among the employer's truck drivers, and, unlike all other fringe benefits, this was the only benefit, if paid in cash, that was subject to social security and withholding taxes, thereby making it similar to wages.
Based on the foregoing, the deputy commissioner concluded that Gates had an average weekly wage of $220 per week, but that due to the claimant's employment background, age, education and anatomical impairment, the claimant only had a wage-earning ability of $125 per week. Gates was found to be entitled to wage-loss benefits, but the monthly benefit payments were to be computed based upon his earning ability. On appeal the e/c argues that the finding of claimant's earning capacity should have been $175 due to the vocational counselor's testimony, and that the average weekly wage amount could have only been computed by erroneously considering vacation pay. The claimant's cross-appeal counters that the inclusion of the $125 per week earning ability finding in any computation to determine wage-loss benefits was error.
The computation of the claimant's earning ability and the correctness of its application to any determination of actual wage-loss benefits are issues that appear inextricably linked. By our finding that the claimant's cross-appeal is meritorious, the correctness of the deputy's determination of the amount of claimant's wage-earning capacity is superfluous. This is because the deputy commissioner found that the claimant had conducted a good faith job search, and there is substantial competent evidence for that view.
Section 440.15(3)(b)(2), Florida Statutes (1979), states that the salary, wages, or other remuneration that a claimant might have earned shall be treated as if they had actually been earned. However, this statutory mandate does not become effective, unless it can be shown that the claimant voluntarily limited his income, by not conducting a competent, good faith job search, or unless he fails to accept employment within his abilities. Since the claimant conducted a competent, good faith job search, the burden is upon the employer to demonstrate that the claimant has refused work or has somehow voluntarily limited his income. Pompano Roofing Co., Inc. v. O'Neal, 410 So.2d 971, 972 (Fla. 1st DCA 1982).[1]
This view is totally consistent with the Florida Supreme Court's most recent opinion on the subject of work searches in which the court noted that after a claimant demonstrates "some effort" to obtain work within his limitations, the burden shifts to the employer to demonstrate that suitable employment is available. Wright v. Gulf & Western Products, 401 So.2d 1316, 1318 (Fla. 1981); see also Flesche v. Interstate Warehouse, 411 So.2d 919, 926 n. 14 (Fla. 1st DCA 1982). Despite the fact that cases such as Wright and Flesche both involve questions of wage-earning capacity loss and not wage-loss, they do provide some guidance as to the subject of work searches.
*1189 The claimant having demonstrated that he had made more than "some effort" to find work, it is apparent that the e/c had the burden of showing that suitable employment was available. The e/c attempted to meet this burden with the vocational counselor's testimony. While somewhat probative, it was insufficient to carry the burden, because the counselor had neither canvassed the job market, nor could he point to an actual suitable employer who would readily hire the claimant.[2] Therefore, while there may have been some basis upon which to determine claimant's earning ability to be $125 per week, it was error to apply this finding to in any way limit the dollar amount of claimant's wage-loss benefits, because the evidence did not indicate that the claimant had failed to accept a job offer or that he limited his income.[3]
With regard to the computation of claimant's average weekly wage, there appears no way that the $220 per week amount could have been determined by the deputy without inclusion of the additional $360 vacation pay. Belle v. General Electric Co., 409 So.2d 182, 183-184 (Fla. 1st DCA 1982), appears to be supportive of the deputy's determination to include the vacation pay in computing the claimant's average weekly wage, although we feel this case provides a much stronger factual basis upon which to affirm. This is because the vacation pay, having been paid, had obviously vested, cf. Pate v. Maddox Foundry & Machine Works, 414 So.2d 524 (Fla. 1st DCA, 1982) petition for rev. docketed, no. 62,090 (Fla., May 20, 1982), and was comparable to actual wages, which is of course included in the computation of a claimant's average weekly wage. § 440.14(1)(a), Fla. Stat. (1979).
This case is therefore AFFIRMED with the exception of the limitation upon the claimant's right to full wage-loss benefits due to wage-earning ability. We, therefore, amend paragraph two of the decretal portion of the deputy commissioner's order by striking the words "based upon the Claimant's ability to earn $125 per week," so that the claimant may receive the maximum wage-loss benefits subject only to the statutory formula. § 440.15(3)(b)(1), Fla. Stat. (1979).
The order is affirmed as modified.
ROBERT P. SMITH, Jr., C.J., and SHAW, J., concur.
NOTES
[1] While Pompano Roofing is a case dealing with the temporary partial disability wage-loss statutory provision in Section 440.15(4)(b), Florida Statutes, it will be observed that this provision is almost word-for-word the same as the statutory provision relevant to this case. Compare § 440.15(3)(b)(2), Fla. Stat. The case is obviously applicable.
[2] It should be noted that the testimony of vocational counselors in the area of employment searches has traditionally been viewed as being of extremely limited probative value. Errol Estates, Ltd. v. O'Neal, no. 2-3031 (IRC, Sept. 7, 1976), cert. denied, 348 So.2d 951 (Fla. 1977); Cook v. Hamilton County Bd. of County Comm'rs., no. 2-2984 (IRC, June 16, 1976); but cf. Brooks v. Haines City Citrus Growers Assoc., 382 So.2d 725 (Fla. 1st DCA 1980). The case at bar furnishes support for the traditional rule, because while the counselor was able to testify as to the job market generally, he could point to no specific opportunities available to the claimant.
[3] We point out that wage-loss benefits are payable for a particular month only after it has been determined what the claimant's actual wage-loss was; whether the claimant failed to accept employment or voluntarily limited his income; and if so, in what amount. Assuming that the vocational counselor had been able to point to a specific job with a particular employer that the claimant could fill, it would still have to be shown that the claimant knew of the job availability, could have obtained it, and that it was within his abilities, before the claimant's past wage-loss benefits could have been limited. In other words, even offering a job to a claimant for the first time at a hearing, which job was previously unknown to claimant, would not act to bar claimant's previous right to 100% wage-loss benefits. Conversely, it follows that if the claimant did not promptly act on the offer, his right to future full wage-loss benefits would be affected. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2749767/ | IN THE
TENTH COURT OF APPEALS
No. 10-13-00384-CR
TARIUS MANUERE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C34890
ABATEMENT ORDER
Appellant’s brief was originally due on or before May 7, 2014. Appellant’s
counsel requested an extension of time to prepare and file appellant’s brief, and the
Court granted an extension until July 7, 2014. Subsequently, Appellant’s counsel
requested a second extension of time to prepare and file appellant’s brief, and the Court
granted an extension until August 6, 2014. The Court’s letter order stated, “Any further
motions requesting an extension of time to file a brief will be disfavored and will rarely
be granted.” Appellant’s counsel then requested a third extension of time to prepare
and file appellant’s brief, and the Court granted an extension until September 5, 2014.
The Court’s letter order stated, “Absent extraordinary circumstances, no further
motions for extension of time to file the appellant’s brief will be entertained.”
The Court then received from Appellant’s counsel a motion for a fourth extension
of time to prepare and file appellant’s brief. It did not set forth extraordinary
circumstances, and to grant the requested extension would have given appellant’s
counsel 182 days to accomplish that which the Rules allocate only 30 days. See TEX. R.
APP. P. 38.6. Appellant’s motion for a fourth extension of time to file brief was therefore
denied, and the appellant’s brief was ordered to be filed by October 1, 2014. The
Court’s letter order stated, “The failure of the Court to timely receive appellant’s brief
will result in the Court abating the appeal and ordering the trial court to immediately
conduct a hearing under Rules of Appellate Procedure 38.8(b)(2) & (3).”
The Court has now received from Appellant’s counsel another motion for an
extension of time to prepare and file appellant’s brief. The motion requests until
October 8, 2014 to finish the appellant’s brief. To date, appellant’s brief has still not
been filed. Accordingly, we deny the motion for extension of time to file appellant’s
brief and abate this appeal to the trial court to conduct any necessary hearings within 21
days of the date of this order in accordance with Texas Rule of Appellate Procedure
38.8(b)(2) and (3). TEX. R. APP. P. 38.8(b)(2), (3).
The supplemental clerk’s and reporter’s records required by the rule, if any, are
ordered to be filed within 35 days of the date of this Order. See id.
PER CURIAM
Manuere v. State Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Cause abated
Order issued and filed October 16, 2014
Do not publish
Manuere v. State Page 3 | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1607274/ | 366 So. 2d 418 (1978)
John Murry JOHNSON, Petitioner,
v.
STATE of Florida, Respondent.
Dale McCLAIN, Petitioner,
v.
STATE of Florida, Respondent.
Nos. 50592, 51218.
Supreme Court of Florida.
December 21, 1978.
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for Johnson.
Karen M. Gottlieb, Asst. Public Defender, Miami, for McClain, petitioners.
Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., Miami, and Ira N. Loewy, Asst. Atty. Gen., Miami, for respondent.
*419 BOYD, Justice.
The two instant cases are here on certiorari granted to review the decisions of the District Court of Appeal, Third District, in Johnson v. State, 338 So. 2d 556 (Fla. 3d DCA 1977) and McClain v. State, 341 So. 2d 1075 (Fla. 3d DCA 1977). Since these decisions conflict with our holding in Cone v. State, 285 So. 2d 12 (Fla. 1973), we have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.
Both petitioners were convicted of the crime of robbery and the crime of display of a firearm during the commission of a felony under Sections 813.011 and 790.07(2), Florida Statutes (1973), respectively. McClain in addition was convicted of breaking and entering a dwelling. Johnson was sentenced to two concurrent five-year terms. McClain was sentenced to three concurrent eight-year terms.
Petitioners then each appealed to the district court, arguing that the trial courts erred in imposing separate sentences for robbery and display of a weapon during the commission of a felony, on the ground that these were in each case different facets of a single criminal transaction. In Johnson, the district court acknowledged our decision in Cone, above, which held that where the crimes of robbery and display of a firearm were facets of the same criminal act, sentence may be imposed only for the more serious offense. But the court concluded that Cone has been effectively overruled by the holdings of this Court in Estevez v. State, 313 So. 2d 692 (Fla. 1975); Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975) and State v. Ray, 331 So. 2d 316 (Fla. 1976). In McClain the court upheld the separate sentences, citing only Estevez and Swyers v. State, 334 So. 2d 278 (Fla. 3d DCA 1976).
In both cases the record indicates and the evidence showed that the display in question took place in the course of the robbery itself and in fact constituted the element of force, assault, violence, or putting in fear by which the robbery was accomplished. The issue now presented to us is whether one who is convicted under such circumstances both of robbery and display of a firearm during the commission of that robbery can be separately sentenced for each offense. In Cone we answered this question in the negative and we now reaffirm that holding. The decisions in Estevez, Jenkins and Ray indicate that the scope of the "single transaction rule" is quite narrow. But none of these decisions has undermined the authority of Cone in reference to the state of facts dealt with here.
In Estevez, the appellant had been convicted of the crime of breaking and entering with intent to commit a felony, to-wit: grand larceny and the crime of grand larceny. Both crimes were part of the same criminal episode. We held that the two crimes were separate offenses, not "facets"[1] of the same transaction, and that two separate sentences were proper. This decision cannot have overruled Cone even by implication, since the factual dissimilarity calls for the application of a different rule of law. In Estevez the crimes were "separate and distinct."[2] This fact is illustrated by the temporal distinction: the crime of breaking and entering with the requisite criminal intent was complete before the asportation *420 of any property.[3] The crime of grand larceny was commenced thereafter.
In Jenkins the petitioner was convicted of the wrongful possession of two different controlled substances and was separately sentenced for each statutory violation. The two crimes arose out of the same transaction in the sense that they were committed simultaneously, i.e., the two illegal drug substances were possessed simultaneously. This Court held the separate sentences to be proper since the statutory violations were separate and distinct. Under the facts of the situation, either of them could have been committed completely independent of the other.[4]
In Ray, the two crimes charged were breaking and entering with intent to commit a felony, to-wit: sexual battery, and attempted sexual battery. As in Estevez, the temporal distinction demonstrated the separate and distinct nature of the two crimes. Ray cannot have overruled Cone any more than Estevez or Jenkins did.
The holdings in Estevez and Jenkins were "reaffirmed" by our decision in Williams v. State, 346 So. 2d 67 (Fla. 1977). We there adopted the decision of the district court of appeal, 337 So. 2d 1038 (Fla. 1st DCA 1976), and specifically overruled Panzavecchia v. State, 311 So. 2d 782 (Fla. 3d DCA 1975). The two offenses in Panzavecchia were first degree murder and possession of a firearm by a convicted felon. The district court had held that the convictions were facets of the same transaction and the appellant could only be sentenced for the more grievous offense.
In Williams, the evidence showed that the appellant had shot a store clerk and later the same day, following an argument with another individual, had fired a gun at the individual within an occupied building. He was convicted of assault with intent to commit murder, shooting a firearm within an occupied building, and possession of a firearm by a convicted felon. The appellant argued that he should not have received a separate sentence on the possession charge, on the ground that it was a mere facet of the two criminal transactions. The district court held, at 1038-39:
The crime of possession of a firearm by a convicted felon was completed when appellant, a convicted felon, came into possession of a firearm. The other two offenses for which appellant was convicted, assault with intent to commit murder and shooting within an occupied building, necessitated proof of the use of the firearm, which is something more than mere possession.
The petitioners argue that the decisions of this Court dealing with the single transaction rule have established a "temporal distinction" test for determining whether separate sentences are proper where two or more convictions are obtained based on a single criminal episode. For example, in State v. Heisterman, 343 So. 2d 1272 (Fla. 1977), the respondent had been convicted both of assault with intent to commit murder and of shooting a gun into an occupied *421 dwelling. The two crimes charged clearly arose out of a single criminal transaction, as the defendant, standing outside a dwelling, yelled at the occupants, "Come on out, I'm going to kill you," and then fired at the windows of the house with a pistol. This Court held, at 1273:
The acts constituting assault under the statute were completed when respondent verbally threatened the Simmons, pointed a pistol in their direction, and put them in fear. This crime was proved without evidence that any shots were fired... . Respondent's other conviction was based on adequate evidence that several shots were in fact fired into the house around the window area. (citations omitted.)
The state points out that petitioners' "temporal distinction" test does not satisfactorily explain all of the instances where the "single transaction" rule is held applicable. For example, the crimes of possession and sale of the same single quantity of a controlled substance can be temporally distinguished, but convictions thereof have nevertheless been held not separately punishable. Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971).
On the other hand, there is not necessarily a temporal distinction where one is convicted of the simultaneous illegal possession of two or more distinct controlled substances. As discussed above, however, such separate violations are separately punishable. Jenkins, above.
The state suggests a different test. The inquiry should be, it argues, into whether the proof of one of the offenses charged requires the proof of some fact in addition to what is required to prove the other offense. If so, then the crimes should not be considered mere facets of the same transaction, and should be separately punishable. The state would utilize this type inquiry and argues that since the crime of robbery can be committed either with or without a firearm, the use or display of a firearm is a separate fact which must be proved, in addition to proving all the elements of the crime of robbery, in order to prove display of a firearm during the commission of a felony. The state argues further that the intent of the Legislature controls whether crimes are separately punishable and it is to be assumed that all legislative enactments are to have purpose and effect. The crime of use or display of a firearm during the commission of a felony is always committed in connection with some other crime. The Legislature must not have intended to establish a criminal offense which could never be punished.
What the state's argument neglects to consider is that under the facts of the situation we consider, as shown by the evidence in each case, the act of displaying the firearm itself constituted the necessary element of force, violence, assault, or putting in fear, needed to prove the crime of robbery. The Cone decision did not say that use or display of a firearm during the commission of a felony could never be separately punished because it would always be involved with another felony. It merely said that the facts proven there showed the "display" offense to have been an element of the other crime charged, robbery. The cases at bar are factually identical and are governed by Cone.
In addition to arguing that the rule of Cone should control their cases, the petitioners also maintain that double punishment principles under the Fifth Amendment to the United States Constitution require that this be so, so that arguments as to legislative intent should be of no avail to the state here. An enactment of the 1976 Legislature, now codified as Section 775.021(4), Florida Statutes (1977), specifically provides for separate sentencing when a person, having committed "an act or acts," is convicted of the violation of two or more criminal statutes in the course of one transaction or episode. This provision went into effect on October 1, 1976. Since our disposition of these cases under Cone makes it unnecessary for us to reach petitioners' Fifth Amendment claims, we will not address these constitutional issues until they are properly presented under the new statute.
*422 The decisions of the district court upholding separate sentences for the offense of display of a firearm during the commission of a felony are quashed and the cases are remanded to the district court for a mandate to the trial court directing that the sentences for display of a firearm during commission of a felony be vacated.
It is so ordered.
ENGLAND, C.J., and ADKINS, OVERTON, SUNDBERG and HATCHETT, JJ., concur.
ALDERMAN, J., dissents with an opinion.
ALDERMAN, Justice, dissenting.
Defendants were convicted of the crime of robbery under Section 813.011, Florida Statutes (1973), and the crime of display of a firearm under Section 790.07, Florida Statutes (1973). I dissent from the majority opinion and agree with the District Court of Appeal's decision which upholds separate sentences for, what I find to be, two separate and distinct offenses arising out of the same incident.
It is clear from a reading of Sections 813.011 and 790.07 that the Legislature intended to create two separate offenses leading to two separate convictions and separate sentences. Cf. Estevez v. State, 313 So. 2d 692 (Fla. 1975); Norwood v. Mayo, 74 So. 2d 370 (Fla. 1954). See also United States v. Crew, 538 F.2d 575 (1976), in which the United States Court of Appeals, Fourth Circuit, held that, under federal law, it is permissible to impose separate sentences for the offenses of armed bank robbery and the unlawful carrying or use of a firearm during the commission of the robbery.
Section 775.021(4), Florida Statutes (1977), will resolve this question in future cases. This statute provides:
(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
Cf. State v. Munford, 357 So. 2d 706 (Fla. 1978).
Although, in my opinion, the constitutional question argued by the defendants is without merit, I would not reach this question since it was raised for the first time in these proceedings in the petition for writ of certiorari. Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970). See also Simmons v. State, 305 So. 2d 178 (Fla. 1974).
Accordingly, I would recede from Cone v. State, 285 So. 2d 12 (Fla. 1973), approve the decisions of the District Court of Appeal, Third District, and uphold the separate sentences.
NOTES
[1] Simmons v. State, 151 Fla. 778, 10 So. 2d 436 (1942), was an early statement of the "single transaction rule." It was there stated that where one is convicted of two or more offenses based on various counts of an indictment or information presenting different aspects of the same criminal transaction, there should be one sentence, for the most serious offense. It was held that assault with intent to commit rape and attempting to have carnal intercourse with an unmarried female under the age of eighteen of previous chaste character, were different aspects of the same transaction.
The language of different "facets" is found in Wheeler v. State, 72 So. 2d 364 (Fla. 1954), which held that five counts of violating the lottery statute reflected five facets of one transaction. See also Norwood v. State, 86 So. 2d 427 (Fla. 1956). Different "aspects" of one transaction were held separately punishable where the crimes were breaking and entering and grand larceny, in Steele v. Mayo, 72 So. 2d 386 (Fla. 1954).
[2] Norwood v. Mayo, 74 So. 2d 370 (Fla. 1954).
[3] Estevez, above. Adkins, J., concurring, at 695.
[4] The state points out that in Jenkins the Court said, at 479, "We recede from our decision in Foster v. State, [286 So. 2d 549 (Fla. 1973)], to the extent that it conflicts with this opinion." In Foster, appellant had been convicted and separately sentenced for breaking and entering with intent to commit a felony and for possession of burglary tools. The only evidence of the crime of possession of burglary tools was a simple screwdriver on the accused's person when he was apprehended. There was also evidence of its use in the burglary. Because the possession charge could only have been made under the circumstances of the screwdriver having been used in the perpetration of the burglary, we held that the possession charge presented a mere facet of a single criminal transaction and that separate sentences were improper. Foster did not hold that one can never be punished separately for two crimes merely because they were committed simultaneously. It is conceivable for separate sentencing to be proper for the two crimes involved in Foster, even when their commission is simultaneous or overlapping in time, because it is possible for them to be "separate and distinct." Jenkins recognized this possibility, but receded from Foster only "to the extent that it conflicts with this decision." Limited to its peculiar facts, Foster is still good law. See generally State v. Kirkland, 322 So. 2d 480 (Fla. 1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605610/ | 7 So. 3d 21 (2009)
CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE
v.
CAPITAL CITY PRESS, L.L.C. d/b/a The Advocate.
Capital City Press and Kimberly Vetter
v.
East Baton Rouge Parish Metropolitan Council and The Baton Rouge Police Department.
Nos. 2007 CA 1088, 2007 CA 1089.
Court of Appeal of Louisiana, First Circuit.
February 13, 2009.
*22 Maty E. Roper, E. Wade Shows, Gwendolyn K. Brown, Baton Rouge, Louisiana, for Appellees City of Baton Rouge/Parish of East Baton Rouge.
Floyd J. Falcon, Jr., Daniel L. Avant, Baton Rouge, Louisiana, for Intervenors/Appellees Baton Rouge Union of Police, Local # 237, AFL-CIO, et al.
Lloyd J. Lunceford, Edwin W. Fleshman, Tom S. Easterly, Baton Rouge, Louisiana, for Appellants Capital City Press, L.L.C. d/b/a The Advocate and Kimberly Vetter.
Claude A. Schlesinger, C. Theodore Alpaugh, III, New Orleans, Louisiana, for Appellees Louisiana State Lodge, Fraternal Order of Police; Patrick J. Yoes; Baton Rouge Lodge Number 1, Fraternal Order of Police; and Cory N. Reech.
Before PARRO, KUHN, GUIDRY, DOWNING, and WELCH, JJ.
ON REHEARING
KUHN, J.
In our October 10, 2008 decision, this court issued a writ of mandamus that directed the East Baton Rouge Police Department ("the BRPD") and the Baton Rouge Parish Metropolitan Council ("the Metropolitan Council") to make available to Capital City Press, L.L.C. d/b/a The Advocate ("Capital City Press"), within ten days of the finality of that opinion, a redacted copy of the BRPD Internal Affairs Division ("IAD") files at issue. Plaintiffs-appellants, Capital City Press and Kimberly Vetter, filed an application for rehearing, asserting this court erred in setting forth the scope of the required redaction. In their application, appellants request that we revisit that portion of our decision "pertaining to the proper scope of [the] required redaction, to more clearly define the terms and conditions pertaining thereto..." We grant the rehearing and reissue the writ of mandamus with modified instructions.
In our previous decision, we found that the BRPD, the Metropolitan Council, and the Intervenors[1] did not establish, as they had maintained, that the entirety of the *23 IAD records at issue is exempted from disclosure by the Public Records Act. Because we concluded, however, that it was necessary for the IAD records to be redacted prior to their release, our decision then outlined the information properly deemed confidential as follows:
[T]he following information contained in the IAD files was properly deemed confidential pursuant to La. R.S. 40:2532:1) personal information relative to the names, addresses, and identifying information of alleged victims, witnesses, and complainants, including the names of police officers who are complainants; 2) photographs of police officers or others; 3) any home addresses, home telephone numbers, social security numbers, and drivers' license numbers; and 4) any medical information. Further, records pertaining to pending or reasonably anticipated criminal litigation or arrest records that have not resulted in a final judgment of conviction are expressly exempt pursuant to La. R.S. 44:3 A(1) and (4)(a). Also, records pertaining to status offenders, see La. R.S. 44:3 A(6), and official driving records are protected public records. See La. R.S. 44:3 G; La. R.S. 15:521 C. (Footnote omitted).
On rehearing, we first clarify that our instructions regarding redaction apply to the facts of the present case only and should not serve as a bright-line test for all future public records requests for IAD records. Next, we turn to appellants' challenges to our interpretation of La. R.S. 40:2532 with respect to the facts of the instant case.
Appellants ask this court to more specifically define the nature of "medical information" that should be redacted. They contend, "As presently worded, this Court's October 10, 2008, Judgment may be cited by police to keep secret any physical injuries that occur during an arrest or as a result of the police conduct under IAD investigation." Appellants urge that medical information that is relevant to the IAD complaints and its resolution should be disclosed.
Although we find that the chief of police properly exercised his discretion to protect the privacy interests of those individuals not under investigation, it was not our intent to shield from disclosure any medical information that is related to the alleged officer misconduct at issue. Accordingly, we modify our instruction regarding the redaction of medical information to provide that any medical information that is unrelated to the alleged officer misconduct at issue should be redacted from the IAD investigation records. If the medical information is related to alleged officer misconduct, that information should be disclosed after the redaction of the names, addresses, and any other identifying information regarding the alleged victims, witnesses, and complainants.
Appellants further contend that redacting information relative to victims, witnesses, and complainants is not authorized by the Public Records Act, La. R.S. 44:1 et seq. They claim there is no objectively reasonable expectation of privacy that attaches to the broad category of "personal information relative to the names, addresses, and identifying information of alleged victims, witnesses, and complainants." They assert the redaction should be limited to information regarding "victims who are minors and victims of sex offenses" (La. R.S. 46:1844(W) and La. R.S. 44:3 A(4)(d)) and information regarding witnesses who are in some sort of protective custody of law enforcement authorities (La. R.S. 15:262) or who are "confidential sources" (La. R.S. 44:3 A(2)).
Appellants concede there is an objectively reasonable expectation of privacy that *24 outweighs any competing constitutional interest in disclosure of social security numbers and driver's license numbers. They also concede that the home addresses and home telephone numbers of police officers under an IAD investigation are exempt from disclosure under La. R.S. 40:2532 and that the home telephone numbers and addresses of public employees are confidential where such individuals have chosen to maintain the confidentiality of that information under La. R.S. 44:11 A(1)-(3). They assert, however, that our October 10, 2008 judgment goes beyond the statutorily-authorized exemptions by protecting all home addresses and phone numbers.
If we were to accept appellants' position with respect to these latter categories of information (information relative to victims, witnesses, complainants, home addresses, and home phone numbers), we would abrogate La. R.S. 40:2532, which authorizes that certain information may be deemed confidential. The Chief of Police's exercise of this power is essential to effective law enforcement and for the protection of individual privacy rights. We cannot focus only on the rights of the public and the police officers under investigation, but must also recognize that the liberties of others might well be infringed upon if the identities of individuals and their personal information are disclosed at the conclusion of an IAD investigation. Victims, witnesses, and complainants have a reasonable expectation of privacy, i.e., the right to be let alone and to be free from unreasonable intrusions into their solitude and seclusion. See La. Const. Art. 1, § 5; Angelo Iafrate Const., L.L.C. v. State ex rel Dep't of Transp. and Dev., 03-0892, pp. 5-6 (La.App. 1st Cir.5/14/04), 879 So. 2d 250, 255, writ denied, 04-1442 (La.9/24/04), 882 So. 2d 1131. This reasonable expectation of privacy is embodied in La. R.S. 40:2532. Finding a reasonable expectation of privacy with respect to these categories of information in the instant case, we find these individuals' privacy interests outweigh the interests of public records disclosure.
With respect to our instructions to redact "photographs of police officers or others," appellants concede that La. R.S. 40:2532 exempts from disclosure the photograph of a police officer under investigation without his express consent, but they complain of the further redaction of the photographs of others. They assert that "in the case of completed IAD investigations, this could include photographs of people who have complained of police brutality," urging "when a complaint has been made of police brutality the victim wants the world to know what happened."
We do not agree with appellants' assertion that all victims want the world to know they have been victimized. Again, based on the language of La. R.S. 40:2532, we believe that any personal or identifying information pertaining to the victims in these IAD investigation records is information properly deemed confidential. The need for protection of victims and other citizens who provide information to police investigators is a common thread inherent in all IAD investigations. The effectiveness of internal affairs investigations requires open and candid disclosure of information and expectations that privacy rights will be protected.
For these reasons, we modify our October 10, 2008 judgment to clarify that based on the IAD records presented in this case, medical information properly deemed confidential pursuant to La. R.S. 40:2532 is "any medical information unrelated to the alleged officer misconduct at issue in the IAD complaints under consideration." In all other respects, our instructions for redaction remain the same as in our October 10, 2008 judgment. As such, we reissue the writ of mandamus, hereby directing *25 the BRPD and the Metropolitan Council within ten days of the finality of this opinion to make available to Capital City Press for inspection and copying, after redaction in accordance with our modified instructions pursuant to this rehearing, a redacted copy of the IAD files.
WRIT OF MANDAMUS REISSUED WITH MODIFIED INSTRUCTIONS.
PARRO, J., concurs.
GUIDRY, J., concurs in part and dissents in part and assigns reasons.
DOWNING, J., dissents.
GUIDRY, J., concurring in part and dissenting in part.
I disagree with the majority's pronouncement that the information that may be deemed "otherwise confidential" under La. R.S. 40:2532 is subject to the discretionary determination of the chief of police. Rather, I believe any information deemed "otherwise confidential" under La. R.S. 40:2532 refers to other provisions in the Public Records Act or the Louisiana Constitution that declare the information to be confidential. See La. R.S. 44:4.1.
To the extent the information not disclosed has not been deemed confidential pursuant to the Public Records Act or the Louisiana Constitution, I respectfully dissent from the majority's expansive interpretation of La. R.S. 40:2532 to provide that such a declaration of confidentiality is left to the discretion of the chief of police. I otherwise concur in the majority opinion.
NOTES
[1] The Intervenors in this matter are the Baton Rouge Union of Police, Local # 237, AFL-CIO ("Local # 237"); Chris Stewart, a BRPD officer, appearing individually and as a representative of Local # 237; Joseph Bourgeois, a BRPD officer, appearing individually and as the district representative of the International Union of Police Associations, AFL-CIO; John Doe # 1, # 2, and # 3, BRPD officers whose rights and reputations are directly involved in the instant litigation; and Chris Nassif, an Alexandria police officer, who is the president of the Louisiana Union of Police Associations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/792704/ | 432 F.3d 419
UNITED STATES of America, Appellee,v.Alaa AL-SADAWI, Defendant-Appellant.
Docket No. 03-1784.
United States Court of Appeals, Second Circuit.
Argued: March 3, 2005.
Decided: December 23, 2005.
COPYRIGHT MATERIAL OMITTED Tracy Lee Dayton, Assistant United States Attorney for Roslynn R. Mauskopf United States Attorney, Eastern District of New York, Emily Berger, Ruth Nordernbrook, Assistant United States Attorneys, of counsel, for Appellee United States.
William M. Bloss, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT, for Defendant-Appellant Alaa Al-Sadawi.
Before: WALKER, Chief Judge, CARDAMONE, B.D. PARKER, Circuit Judges.
B.D. PARKER, JR., Circuit Judge.
1
Alaa Al-Sadawi appeals from a judgment of conviction in the United States District Court for the Eastern District of New York (Garaufis, J.) on charges of currency violations and conspiracy.1 On appeal, Al-Sadawi principally challenges two evidentiary rulings by the District Court as well as his sentence. We affirm the conviction, finding the evidentiary errors to have been harmless. However, we remand to the District Court to determine whether to resentence in accordance with United States v. Crosby, 397 F.3d 103 (2d Cir.2005) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
BACKGROUND
2
The prosecution underlying this appeal arose from Alaa Al-Sadawi and his co-defendant Abdel Moniem Soliman's attempts to smuggle $659,000 in United States currency to Egypt through John F. Kennedy International Airport in the luggage of Al-Sadawi's parents, Hassan and Afaf Al-Sadawi. Al-Sadawi, his father Hassan, and Soliman were indicted in July 2002. Soliman eventually pled guilty, while Al-Sadawi and his father went to trial where Al-Sadawi was convicted and his father was acquitted.
3
The facts adduced at trial reflect that during an investigation of currency transactions, the government intercepted a series of phone calls between Al-Sadawi and Soliman pursuant to a wiretap authorized in December 2001. In these calls the two men discussed the consolidation and packaging of currency to be taken out of the United States by Al-Sadawi's parents. At trial, the government established that when discussing their plans, the two men relied on thinly disguised code, using terms such as "the benefit" and "the job" and referring to the actual money as "the shirts."2 They discussed the need to be covert about their activities, with Soliman, for example, telling Al-Sadawi that he would keep his distance from Al-Sadawi prior to the day they would smuggle the currency: "I will neither be tied to you, nor to a suitcase, not even packing suitcases. And I will not come to you in Jersey." "Correct," Al-Sadawi replied. "I'll meet with you at the last minute. I can even meet with you at the airport," Soliman told Al-Sadawi. Al-Sadawi urged Soliman to be speedy, telling him: "[T]he important thing is that you finish the folding of the shirts and the pants and these things as much as you can."
4
In one conversation, Al-Sadawi suggested that they contact a person who had consolidated money for Al-Sadawi on previous occasions. Al-Sadawi told Soliman: "[I]f you need help from Waleed . . . He does it for me." In another conversation, Al-Sadawi asked Soliman, "were you successful in your shirts mission?" Soliman replied, "[i]t was a fifty-fifty success." On April 28, 2002, Soliman telephoned Al-Sadawi to advise that he was "done with everything according to [their] arrangements" and to tell him "we will prepare a suitcase, one that I'll buy myself, so I don't tie myself with you. And I can meet with you at the airport . . . ." In a conversation the next day, the two men discussed the weight and size of the suitcase. In another, Soliman asked, and Al-Sadawi agreed, to delay Al-Sadawi's parents' return to Egypt to give Soliman more time to complete the considerable task of packaging a large amount of currency.
5
Based on these and other intercepted conversations, the FBI and the United States Customs Service ("USCS") learned that Al-Sadawi's parents planned to depart for Egypt on April 30, 2002, and the authorities decided to conduct visual and video surveillance at Kennedy Airport. The government observed Al-Sadawi entering the terminal pushing a luggage cart containing a number of suitcases. On top of the cart there was a large black suitcase with yellow handles. In the line at the Egypt Airlines counter, the Al-Sadawi family was joined by Soliman and another associate. Al-Sadawi walked his parents to the security checkpoint.
6
When Al-Sadawi's parents attempted to board their flight, they were intercepted and interviewed by a USCS inspector, accompanied by an Arabic translator. When questioned, they told the inspector that they were carrying approximately $1,200. However, when their luggage was searched, a total of $659,000 in U.S. currency was recovered from the black suitcase. The money was concealed within two boxes of baby wipes, a box of Ritz crackers, and a box of Quaker Oats. Once informed that they would not be able to board their plane, Hassan turned to Afaf with the familiar parental lament: "[I]t's your son that got us into this trouble."
7
They were escorted to an office to be interviewed. There Hassan told Customs officials that the suitcase belonged to Soliman, and that Soliman was their son's friend. At the agents' request, Hassan made a monitored and recorded telephone call to Soliman. Hassan asked Soliman, "The suitcase, does it have anything?" to which Soliman replied, "No [Hassan]. There is nothing in it, only the money." Soliman then called Al-Sadawi and the two devised a cover story, which was also captured by the wiretap. Al-Sadawi told Soliman to find out what Hassan had told the Customs officials: "Is he going to tell them that we knew about that or that we didn't? So our statements do not differ than his, did we know about this or we did not?" "How do you want to direct it if they did not know?" Soliman asked Al-Sadawi. "You told us that you want to send this suitcase and that it contains clothing . . . . [t]hat is the story." Al-Sadawi responded. Hassan then placed a second consensually recorded call to Soliman. Hassan asked if Soliman had spoken to Al-Sadawi, and Soliman replied: "Yes, I told him, but I beg you not to mention him in anything." Later, when Soliman arrived at the airport, Hassan was wearing a body-recording device, permitting the FBI to hear Soliman tell him that the two of them "need[ed] [their] statements to be the same." Hassan also called Al-Sadawi, and that conversation was captured by the wiretap. Al-Sadawi told his father, "[Soliman] gave you the suitcase and it contains clothes only. You only know that."
8
Soliman was arrested at the airport. Subsequently, he pled guilty to conspiracy to export monetary instruments without filing a required report. The FBI continued to investigate Al-Sadawi's involvement in the money transfer operation. In July 2002, Al-Sadawi complied with a grand jury subpoena for fingerprints, photographs and handwriting exemplars. Al-Sadawi was arrested on July 16. The arrest was triggered by the fact that, as a consequence of its surveillance of Ibtissam Chadid, Al-Sadawi's wife, the government had concluded that Al-Sadawi was intending to flee the country.
9
At trial, the government established its case primarily through the extensive wiretap and surveillance evidence. Secondarily, the government introduced evidence of Al-Sadawi's wife's travel plans to show his attempted flight as indicative of his consciousness of guilt. That evidence showed that on July 11 and July 15 she had been recorded calling various United States passport offices seeking an appointment to obtain passports on an expedited basis. A few days earlier, Al-Sadawi and his wife had both become naturalized United States citizens. At the time, both had valid Egyptian passports which would have permitted them to travel outside the country. Two tickets had been issued in their names on a Delta Airlines flight from JFK Airport to Cairo, departing on July 15. No tickets were obtained for the couple's four children. The District Court admitted this evidence over Al-Sadawi's objection and with an appropriate limiting instruction. The propriety of admitting this evidence is a principal issue on this appeal.
10
At trial the government also read to the jury, again over Al-Sadawi's objection, a redacted portion of Soliman's plea allocution. The jury heard admissions by Soliman that he failed to declare more than $10,000 when sending money from the United States to a place outside the United States, that he had arranged for the money to be sent with a parent of one of his friends, and that the money was being sent from JFK Airport. The District Court instructed the jury that the plea allocution was admitted "for the limited purpose of establishing the existence of the conspiracy" and "not for the purpose of inculpating" Al-Sadawi.
11
Al-Sadawi's defense included testimony from his attorney, Steven M. Bernstein Esq., who had represented Al-Sadawi in connection with his grand jury subpoena. Bernstein testified that he had advised Al-Sadawi that since he was an American citizen, he was eligible for an American passport and should apply for one.
12
At the conclusion of the trial, Al-Sadawi was convicted on all counts and his father was acquitted. The District Court enhanced Al-Sadawi's sentence by fourteen levels based on the amount of money he attempted to smuggle and by two levels as a consequence of the fact that, in securing his parents' assistance, he supervised others. See U.S.S.G. §§ 1B1.3(a)(1)(A), 3B1.1(c). Al-Sadawi was sentenced principally to sixty-three months imprisonment. This appeal followed.
DISCUSSION
13
Al-Sadawi's principal contention on appeal is that two significant evidentiary errors by the District Court infected his trial. First, it erred in admitting evidence of his wife's attempts to obtain United States passports and airline tickets to show her husband's intention to flee. Secondly, it erred in admitting portions of Soliman's plea allocution in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
14
A district court's decision to admit flight evidence is reviewed for abuse of discretion. See United States v. Amuso, 21 F.3d 1251, 1258 (2d Cir.1994). It is well-settled that flight can, in some circumstances, evidence consciousness of guilt. United States v. Glenn, 312 F.3d 58, 67 (2d Cir.2002); United States v. Salameh, 152 F.3d 88, 157 (2d Cir.1998) (per curiam). However, before a court may instruct a jury regarding flight, a satisfactory factual predicate must exist from which the jury can infer consciousness of guilt from flight. See Amuso, 21 F.3d at 1260; United States v. Sanchez, 790 F.2d 245, 252 (2d Cir.1986). Since flight evidence can be powerful, the requirement of a sufficient factual predicate "ensures that the evidence is probative in a legal sense and protects the defendant against the possibility of the jury drawing unsupported inferences from otherwise innocuous behavior." Amuso, 21 F.3d at 1260.
15
Flight is an admission by conduct. United States v. Lobo, 516 F.2d 883, 885 n. 1 (2d Cir.1975) (per curiam) (Flight "is to be viewed as conduct offered as circumstantial evidence rather than for its assertive, testimonial value"). "Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged." United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977); United States v. Beahm, 664 F.2d 414, 420 (4th Cir.1981) ("If the government wishes to offer evidence of flight to demonstrate guilt, it must ensure that each link in the chain of inferences leading to that conclusion is sturdily supported.") (citing Myers, 550 F.2d at 1049); see also 1 NEW WIGMORE EVID. § 1.3 (Leonard Rev.2000).
16
For Al-Sadawi, the chain of inferences never proceeds beyond the first of these four steps. The government's flight evidence showed that his wife attempted to obtain United States passports and airline tickets but that evidence failed to connect Al-Sadawi with those plans. The government's theory was that he and his wife were co-conspirators in their flight plans. But this proposition was not proved. While it may be possible that Al-Sadawi instructed his wife to obtain a different passport and purchase tickets to assist him to flee prosecution, this was not demonstrated and we have cautioned that the flight evidence "must . . . provide the jury with more than an opportunity for mere `conjecture and speculation'." Sanchez, 790 F.2d at 252 (quoting Myers, 550 F.2d at 1050). The government's theory that its evidence demonstrated Al-Sadawi's intention to flee was problematic for a number of reasons. First, Al-Sadawi had a valid Egyptian passport on which he, presumably, was free to travel at any point. Secondly, he had known for at least six months that he had been the subject of government surveillance, that the government had seized the currency he intended to smuggle and that he had been directly implicated in this activity. Yet during this period he did nothing consistent with an intention to flee. Thirdly, although Al-Sadawi was arrested an hour before the ticketed flight was scheduled to depart, no evidence was presented that he had bags packed, had tickets in his possession or was on the way to the airport when he was arrested. See United States v. Silverman, 861 F.2d 571, 582 n. 4 (9th Cir.1988) ("Evidence that a defendant fled immediately after a crime was committed supports an inference that the flight was motivated by a consciousness of guilt of that crime. As the time between the commission of the offense and the flight grows longer, the inference grows weaker.") (emphasis in the original) (citing Myers, 550 F.2d at 1051).
17
These circumstances differ sharply from those we considered in Salameh. There, we held that the jury could have inferred consciousness of guilt where the defendant in a bombing prosecution actually left the country the day after the bombing. Salameh, 152 F.3d at 157. In Salameh, the defendant's intention to flee was incontrovertible because he actually did travel. The timing and the circumstances of that travel — a one-way ticket out of the country, no luggage, leaving his family behind — combined to permit the jury reasonably to infer the defendant's consciousness of guilt. Id. Here, by contrast, Al-Sadawi had known for many months that he was heavily implicated in currency smuggling yet the government adduced no evidence that he attempted to flee during this period. Under these circumstances, his wife's efforts to obtain tickets and passports were, without more, too attenuated to establish that he intended to flee to avoid prosecution or apprehension. With so thin an evidentiary reed, the government should not have been permitted to argue that his wife's conduct evidenced his consciousness of guilt.
18
But given the overwhelming strength of the evidence against Al-Sadawi, and the limiting instruction by the court on flight evidence, we find its admission to have been harmless. See, e.g., United States v. Lewter, 402 F.3d 319, 323 (2d Cir.2005). The government's case against Al-Sadawi was strong. By far the most damaging testimony against him came from the recorded conversations which provided an adequate factual predicate on which the jury could conclude that he was deeply involved in the planning and execution of the crimes for which he was convicted. Those conversations documented Al-Sadawi and Soliman's coordinated efforts to use Al-Sadawi's parents to hide and to smuggle the currency, to delay the trip until the currency could be properly consolidated, to use a contact who had previously helped Al-Sadawi consolidate currency, and then, once they realized their plan was exposed, to develop a cover story. The jury also saw surveillance evidence collected by the agents at the airport, showing Al-Sadawi himself carrying the suitcase in which the money was smuggled and accompanying his parents to the security checkpoint. The jury also heard evidence that Al-Sadawi's father blamed Al-Sadawi for preventing him from taking his flight. The jury was given an appropriate instruction concerning the flight evidence, and we must presume that it followed the instruction. United States v. Downing, 297 F.3d 52, 59 (2d Cir.2002). In light of all these factors, we conclude that the admission of this evidence did not contribute to the verdict.
19
The second evidentiary error urged on appeal is that the District Court should not have permitted portions of Soliman's plea allocution to be read to the jury. After Al-Sadawi's trial, the Supreme Court held in Crawford that the Confrontation Clause bars the admission of out-of-court testimonial statements made by an unavailable declarant not subject to cross-examination. Crawford, 541 U.S. at 68-69, 124 S. Ct. 1354. In light of this intervening development, the government concedes that the admission of the allocution violated Crawford but, citing United States v. McClain, 377 F.3d 219 (2d Cir.2004), contends-correctly-that the admission is subject to harmless error analysis. Id. at 220.
20
Like the admission of the flight evidence, we conclude that this error was also harmless. In McClain, we concluded that a Crawford error is harmless if "the government can show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." 377 F.3d at 222 (internal quotation omitted). In Zappulla v. New York, 391 F.3d 462, 468 (2d Cir.2004), we observed that "the Supreme Court has found the following factors to be relevant in determining whether the erroneous admission of a confession was harmless error (1) the overall strength of the prosecution's case; (2) the prosecutor's conduct with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted testimony; and (4) whether such evidence was cumulative of other properly admitted evidence."
21
Each of these factors leads us to conclude that the error in the admission of Soliman's allocution was harmless. As previously discussed, the government's case was strong. The statements from Soliman's plea allocution were essentially cumulative of the properly admitted transcripts and surveillance evidence that supplied powerful evidence of Al-Sadawi's guilt. Moreover, the introduction of the allocution was the subject of an appropriate limiting instruction. While the government adverted to the allocution in closing arguments, the reference was brief and was subsumed in discussions of the contents of the intercepted conversations and the surveillance evidence. Viewing the record in its entirety, we conclude that the admission of the allocution does not erode our confidence that the properly admitted evidence established Al-Sadawi's guilt beyond a reasonable doubt.3
22
Finally, Al-Sadawi attacks his sentence principally on the basis of two enhancements. The District Court added two levels pursuant to U.S.S.G. § 3B1.1 (c) because "[t]he defendant recruited his parents to participate in the crime and delayed their travel to assist Soliman in preparing the money for transfer." Section 3B1.1 provides that "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than that described in (a) and (b) [involving five or more people], increase by 2 levels." For the enhancement to apply, a defendant need only have been "the organizer, leader, manager, or supervisor of one or more other participants." U.S.S.G. § 3B1.1 cmt. 2.
23
Al-Sadawi argues that the government did not meet its burden of showing that he supervised criminally culpable persons since his mother was not charged and his father was acquitted. However, the definition of "participant" in U.S.S.G. § 3B1.1 makes clear that such a person need not have been convicted. Furthermore, evidence of a defendant's direct and immediate control over other participants provides strong support for a role enhancement. "A defendant may properly be considered a manager or supervisor if he `exercise[d] some degree of control over others involved in the commission of the offense . . . or play[ed] a significant role in the decision to recruit or to supervise lower-level participants.'" United States v. Blount, 291 F.3d 201, 217 (2d Cir.2002) (alterations in original) (quoting Ellerby v. United States, 187 F.3d 257, 259 (2d Cir.1998) (per curiam)). Indeed, it is enough to manage or supervise a single other participant. United States v. Payne, 63 F.3d 1200, 1212 (2d Cir.1995).
24
The District Court's conclusion that Al-Sadawi recruited his parents into the conspiracy is well-grounded in the record. The father's reaction to being detained at the airport was not one of surprise, as would be expected if he had no knowledge of the plot, but, on the contrary, was clearly indicative of knowledge of criminal activity. Furthermore, Al-Sadawi's discussion with Soliman upon learning of his father's arrest in which Al-Sadawi voiced his concern that his father would tell the agents what he knew about the smuggling operation supplied the court below with a powerful additional indication of his father's involvement. Since the two-point role enhancement would have been justified upon Al-Sadawi's recruitment of his father alone, the court was justified in imposing it. See U.S.S.G. § 3B1.1(c).
25
The District Court held Al-Sadawi responsible pursuant to U.S.S.G. § 1B1.3(a)(1)(A) for the total amount of funds ($659,000) that he and his co-conspirators attempted to export. Al-Sadawi argues that the District Court should not have increased his base offense level by 14 points as a result of this total because it was not reasonably foreseeable as part of jointly undertaken criminal activity.
26
We note that it is unclear that "reasonable foreseeability" is the standard, but we need not reach that question because Al-Sadawi personally and directly participated in the smuggling.4 He planned and organized the consolidation and packaging of the currency. He brought the suitcase containing $659,000 into the airport and waited while his parents checked the luggage and then attempted to devise a cover story once the currency was discovered. Consistent with this evidence, the District Court found that Al-Sadawi directly participated in the criminal conduct and thus was accountable for the full amount of funds regardless of whether that amount was reasonably foreseeable to him.
27
To the extent that the District Court relied on U.S.S.G. § 1B1.3(a)(1)(B), it failed to articulate adequately its findings concerning the scope of the activity agreed upon by the conspirators and whether the activity conducted was reasonably foreseeable by the defendant as to the full amount of the money Al-Sadawi attempted to smuggle. United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995). Nevertheless, such error was harmless, because the District Court could have clearly relied on subsection A for the reasons stated above.
CONCLUSION
28
We affirm the judgement of conviction but remand to the District Court with instructions to consider whether to conduct resentencing in accord with United States v. Crosby, 397 F.3d 103 (2d Cir.2005). See United States v. Garcia, 413 F.3d 201 (2d Cir.2005).
Notes:
1
Al-Sadawi was convicted of (1) conspiracy to fail to file an accurate currency report in violation of 18 U.S.C. § 371, 31 U.S.C. § 5316(a)(1)(A); (2) aiding and abetting transportation of more than $10,000 outside the United States without filing an accurate report in violation of 18 U.S.C. § 2, 31 U.S.C. §§ 5316(a)(1)(A) and (b), and 5322(b); and (3) aiding and abetting the concealment of more than $10,000 and attempting to transfer that currency outside the United States in violation of 31 U.S.C. § 5332(a)
2
This code was particularly transparent because it was used inconsistently. For example, at one point, when discussing the bag with "the shirts," Soliman told Al-Sadawi, "I was surprised that most of it was in small change. . . . I keep on consolidating the currencies now." Transcript of an April 25, 2002 telephone conversation (translated from the original Arabic)
3
AlSadawi also argues that the District Court ought not to have admitted the plea transcript when it refused to admit statements by Soliman that exculpated Al-Sadawi. Again, in light of the other overwhelming evidence that Al-Sadawi was actively participating in the conspiracy, the District Court's decision to exclude Soliman's post-arrest statements — which were not made under oath — was not an abuse of discretion
4
In general, a defendant is responsible for all criminal conduct that he or she either personally committed or aided and abetted, regardless of whether the totality of contraband involved in that conduct was known to the defendant. U.S.S.G. § 1B1.3(a)(1)(A). Al-Sadawi clearly participated in this crime, therefore we need not reach the foreseeability requirements of conspiracy | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1606339/ | 258 Minn. 33 (1960)
102 N.W. (2d) 689
JOHN KNOPP
v.
DAVID GUTTERMAN AND ANOTHER.
No. 37,854.
Supreme Court of Minnesota.
April 22, 1960.
Lipschultz, Altman, Geraghty & Mulally and H.E. Cochrane, for relator.
Janes & Elliott, Alex Leslie Janes, Jr., and Harrison P. Dilworth III, for respondent.
NELSON, JUSTICE.
Certiorari issued upon the petition of employer to review a decision of the Industrial Commission. The referee had determined that the filing of the claim petition by employee was not barred by statutory limitation, and the referee's decision was unanimously affirmed by the commission.
The employee, John Knopp, was injured in the course of his employment on August 9, 1954. He returned to his work on August 16, 1954. A report of injury was filed with the commission on August 31, 1954. No weekly workmen's compensation benefits were paid on account *34 of said personal injury, but employer paid medical expenses of $41 as a result of said injury. Employee later, on January 31, 1958, filed a petition for workmen's compensation benefits claiming weekly compensation benefits and medical expenses. An answer was interposed by the employer and his insurer denying employee's right to compensation and pleading as a defense the 2-year limitation contained in M.S.A. 176.151(1).
M.S.A. 1949, § 176.18, limiting actions prior to 1953, was repealed under the 1953 recodification of the Workmen's Compensation Act, L. 1953, c. 755, and M.S.A. 176.151, containing approximately identical language, was enacted.[1]
This case involves the application of § 176.151(1) and the determination of whether the payment of medical or hospital bills or both constitutes a proceeding before the Industrial Commission and thereby avoids the time limitation of the statute.
Prior to the enactment of L. 1953, c. 755, entitled "An act relating to workmen's compensation, and codifying and revising the laws relating thereto; and repealing Minnesota Statutes 1949, Sections 176.01 to 176.12, 176.14 to 176.25, 176.255, 176.26 to 176.65, 176.67 to 176.79, 176.81; and Laws 1951, Chapters 457 and 463," compensation was defined as follows (M.S.A. 1949, § 176.01, subd. 2):
"The word `compensation' indicates the money benefits to be paid on account of injury or death."
By the enactment of L. 1953, c. 755, the definition of "compensation" was changed so that M.S.A. 176.011, subd. 8, approved April 24, 1953, reads as follows:
"`Compensation' includes all benefits provided by this chapter on account of injury or death."
*35 The time limitation remained unchanged under the recodification of 1953. In substance the statute sets 6 years from the date of the accident as the period within which a proceeding for compensation must be commenced, but it gives the employer the right to shorten the period to 2 years by his "written report of the injury" to the commission.
Prior to 1953, the statutory definition of "compensation" being limited to money benefits only, this court adopted the rule that payment of medical expenses for injury arising out of an industrial accident did not constitute a proceeding before the commission within the meaning of the Workmen's Compensation Act. Mattson v. Oliver Iron Min. Co. 201 Minn. 35, 275 N.W. 403, 10 Minn. W.C.D. 39; Mohrlant v. Lampland Lbr. Co. 222 Minn. 58, 23 N.W. (2d) 172, 14 Minn. W.C.D. 162.
This court had prior to the Mattson case laid down the rule in Nyberg v. Little Falls Black Granite Co. 192 Minn. 404, 256 N.W. 732, that where an employee suffered an injury conceded to be compensable and the employer paid compensation pursuant to the provisions of the Workmen's Compensation Act and filed receipts with the Industrial Commission and reported the history of the case for the determination of whether the employee's rights had been fully protected and full compensation given, the transaction amounted to a proceeding within the purview of the act which continued the commission's jurisdiction. In Lunzer v. W.F. Buth & Co. 195 Minn. 29, 261 N.W. 477, 8 Minn. W.C.D. 458, the employee was injured June 13, 1927. He was totally disabled until October 22, 1927, but had been paid his full wage together with his medical expenses. The employer, however, had made no written report of the accident and, therefore, what took place between the injured employee and his employer was held not to constitute a proceeding or any part of a proceeding before the Industrial Commission within the rule of the Nyberg case, the commission having no knowledge of the injury or the payment of wages and medical expenses.
Following the Mattson case, it was also held in Krossen v. Oliver Iron Min. Co. 250 Minn. 430, 85 N.W. (2d) 193, involving an accident occurring on or about March 28, 1952, that payment limited *36 to medical expenses only for injuries arising out of an industrial accident duly reported to the Industrial Commission by the employer did not constitute a proceeding before such commission within the meaning of the act so as to toll the 2-year limitation of M.S.A. 1949, § 176.18(1). It will be observed that the Krossen case was controlled by § 176.01, subd. 2, and not by § 176.011, subd. 8, which now provides that the term "compensation" includes all benefits provided by the Workmen's Compensation Act on account of injury or death.
The most recent decision of this court involving the payment of medical expenses is Bergstrom v. O'Brien Sheet Metal Co. 251 Minn. 32, 86 N.W. (2d) 82. Bergstrom had sustained an injury resulting in permanent partial disability to both wrists in 1940, but he lost no time from work and no report of the accident was made to the Industrial Commission. In 1955 Bergstrom filed a petition for benefits under the Workmen's Compensation Act and was denied recovery by the Industrial Commission. Bergstrom on appeal contended that the payment of medical benefits in 1949 constituted a proceeding for compensation, particularly since the enactment of M.S. A. 176.011, subd. 8; that the limitations prescribed in the act did not become operative until employee discovered, after an examination by his doctor in 1955 and 1956, that his injury was permanently, partially disabling and that it would become worse. This court, in affirming the Industrial Commission, said (251 Minn. 34, 86 N.W. [2d] 84):
"Under the express language of Mason St. 1927, § 4282(1), employee's claim is barred unless it can be held that the payment of his medical expenses by employer's insurer constituted a proceeding before the commission. In construing this statutory provision, however, we have held to the contrary in a number of cases * * * [citing the Krossen, Mattson, and Lunzer cases].
"Likewise, it appears settled by previous decisions of this court that the law in effect on the date of an employee's accidental injury is the law which governs his claim, Warner v. Zaiser, 184 Minn. 598, 239 N.W. 761; Nyberg v. Little Falls Black Granite Co. 202 Minn. 86, 277 N.W. 536; and that the amendment to the Workmen's Compensation Act, embodied in M.S.A. 176.011, subd. 8, which provides *37 `"Compensation" includes all benefits provided by this chapter on account of injury or death,' does not operate retroactively, since there is no manifestation of a legislative intent to such effect therein. M.S.A. 645.21; Marsolek v. Miller Waste Mills, 244 Minn. 55, 69 N.W. (2d) 617; Carroll v. State Dept. of Social Security, 242 Minn. 70, 64 N.W. (2d) 166.
"* * * While we have held that an employer's report of a nondisabling injury should not be construed as the report of a compensable injury so as to commence the operation of the two-year limitation period prescribed in Mason St. 1927, § 4282(1), (Pease v. Minnesota Steel Co. 196 Minn. 552, 265 N.W. 427, 266 N.W. 854), we have never held that the six-year limitation period specified therein should commence with any date other than the `date of the accident' as provided in such statutory provision. Lunzer v. W.F. Buth & Co. 195 Minn. 29, 261 N.W. 477. While fairness and justice speak for the desirability of a statutory provision which would extend time for the commencement of actions or proceedings to determine or recover compensation to a six-year period from the date of the discovery of the disabling nature of an industrial accident sustained by an employee, any such relief must come from the legislature." (Italics supplied.)
Thus, this court recognized the change in the meaning of the word "compensation" in the Bergstrom case but took the position that § 176.011, subd. 8, would not operate retroactively, there being no manifestation of such legislative intent, and applied the former definition of compensation. M.S.A. 1949, § 176.01, subd. 2.
An interim commission report was made to the legislature in 1953 which contained the following observation:
"It may be noted that the Industrial Commission in suggesting this amendment has intimated that an amendment such as proposed would automatically make the payment of medical benefits equivalent to a commencement of a `proceedings' for the purpose of tolling the Statute of Limitations. The Interim Commission cannot accept this view because it seems to be contra to the opinions by the Supreme Court. Lunzer v. Buth, 1935, 195 Minn. 29, 261 N.W. 477; Mattson v. *38 Oliver Mining Company, 1937, 201 Minn. 35, 275 N.W. 403; Mohrland v. Lampland Lumber Co., 1946, 222 Minn. 58, 23 N.W. (2d) 172. If such payment is to be considered as to toll the Statute of Limitations for original claims, Sec. 176.18 must be amended to that effect."
The legislature was not bound to refuse to amend because the amendment would be contra to the opinions of this court. The changes in the statutory law are the business of the legislature, and this court frequently suggests that revision, repeal, amendment, or recodification may be advisable, often suggesting the reasons therefor in its decisions.
Section 176.251 states the duties of the Industrial Commission as follows:
"The commission shall actually supervise and require prompt and full compliance with all provisions of this chapter relating to the payment of compensation."
Section 176.265 makes provision regarding the commission's duty to report to the legislature as follows:
"The commission shall observe in detail the operation of this chapter throughout the state. It shall make a report to each session of the legislature concerning the operation of the chapter, proposing such changes as it deems advisable to improve the law."
The Industrial Commission, which is entrusted with the administration of the act and given quasi-judicial powers and duties with respect thereto, said in its opinion in the instant case:
"The Commission is of the opinion that under this new definition of `compensation', medical and hospital payments are definitely included as money payments and as such the payment of these bills will be in the nature of the commencement of a proceedings before the Industrial Commission and thereby toll the Statute of Limitations and give to the Industrial Commission continuing jurisdiction."
The opinion accompanying the decision in this case was written by Robert E. Faricy, who appeared before the legislative committees concerned with the proposed changes in the Workmen's Compensation *39 Act. All of the then members of the Industrial Commission joined in proposing the change in the act involved in the instant case as to the broader meaning of the term "compensation." An examination of the reporters' notes of the hearings before the Employees' Compensation Committee of the house and the Workmen's Compensation Committee of the senate at the 1953 legislative session indicates that when the matter of a recodification and revision of the Workmen's Compensation Act came before those committees one or more of the then members of the Industrial Commission, which included Mr. Faricy, appeared and submitted to questioning on the proposed recodifications. The reporters' notes of these hearings refer to the interim commission's report, but no part of it has been extended into these notes. The notes indicate that suggested amendments to the act were passed by the committees when the hearings concluded. Since the members of the Industrial Commission were charged with the duty of proposing such changes as they might determine advisable to improve the Workmen's Compensation Act, it is only reasonable to assume that they understood the purport of adopting § 176.011, subd. 8, in lieu of M.S.A. 1949, § 176.01, subd. 2, and that succeeding members informed themselves of it.
This court has heretofore considered the meaning of the word "compensation" as used in M.S.A. 1949, § 176.06, subd. 2, reenacted as § 176.061, subd. 5 (third-party liability), and concluded that under that section the word "compensation" includes not only the periodic disability benefits paid but also the medical expenses paid. See, Dockendorf v. Lakie, 251 Minn. 143, 86 N.W. (2d) 728; Dockendorf v. Lakie, 240 Minn. 441, 61 N.W. (2d) 752.
In Frank v. Anderson Brothers, 236 Minn. 81, 84, 51 N.W. (2d) 805, 807, this court said:
"* * * The right to receive hospitalization and medical treatment, or the right to receive either of them, is a money benefit which of and by itself constitutes compensation within the meaning of the compensation act."
We are not to assume that the legislature will engage in a futile act *40 nor attribute to it an intent to bring about an absurd and unreasonable result. Courts cannot make exceptions and limitations which a reading of the statute does not warrant since the plain language of a statute permits of no perversion by the process of construction. Extraneous aids to construction are permissible only to solve doubt, not to create it. A construction of a statute which will lead to an impracticable and absurd result is to be avoided if the language used will reasonably bear any other construction. It is to be construed so as to render it practicable, when reasonably possible. Questions involving government must not be determined along technical lines. Broad and practical considerations should control. See, §§ 645.16, 645.17.
We have repeatedly said that rules of statutory construction are merely aids in ascertaining the legislative intent; that statutes must be so construed as to give effect to the obvious legislative intent though the construction be contrary to such rules. Arlandson v. Humphrey, 224 Minn. 49, 27 N.W. (2d) 819; Downing v. Independent School Dist. No. 9, 207 Minn. 292, 291 N.W. 613; Romanchuk v. Plotkin, 215 Minn. 156, 9 N.W. (2d) 421; Gleason v. Geary, 214 Minn. 499, 8 N.W. (2d) 808; Judd v. Landin, 211 Minn. 465, 1 N.W. (2d) 861.
Statutes must be construed with reference to the objects sought to be accomplished and that which is implied in a statute is as much a part of it as that which is expressed. Singer v. Singer, 173 Minn. 57, 214 N.W. 778, 216 N.W. 789; G.N. Ry. Co. v. United States (8 Cir.) 155 F. 945, affirmed, 208 U.S. 452, 28 S. Ct. 313, 52 L. ed. 567. Where statutory meaning is clear there is no place for rules which aid in ascertaining meaning of statute. Walker v. United States (8 Cir.) 83 F. (2d) 103. There is no room for construction when language of statute and of administrative orders thereunder is plain. United States v. Chicago, St. P.M. & O. Ry. Co. (D. Minn.) 34 F. (2d) 812, affirmed (8 Cir.) 43 F. (2d) 300, 71 A.L.R. 507.
If on its face or in application to subject matter a statute's meaning is plain, rules of construction do not apply. Trustees of Pillsbury Academy v. State, 204 Minn. 365, 283 N.W. 727.
In determining legislative intent, courts may consider legislative hisory *41 of the act, subject matter as a whole, purpose of legislation, and objects intended to be secured thereby. Mattson v. Flynn, 216 Minn. 354, 13 N.W. (2d) 11; Warren v. Marsh, 215 Minn. 615, 11 N.W. (2d) 528. In construing a legislative act, a section thereof is not to be considered apart from other sections of the act, but the act is to be read and construed as a whole. Underhill v. State, 208 Minn. 498, 294 N.W. 643; Tankar Gas, Inc. v. Lumbermen's Mutual Cas. Co. 215 Minn. 265, 9 N.W. (2d) 754, 146 A.L.R. 1223; Merritt v. Stuve, 215 Minn. 44, 9 N.W. (2d) 329.
Departmental practice in administration of statutes will control when the practice is reasonable. Robinson v. Lundrigan, 227 U.S. 173, 33 S. Ct. 255, 57 L. ed. 468. When meaning of statute is doubtful, great weight is to be given by courts to construction placed upon it by department charged with its administration. Durkee-Atwood Co. v. Willcuts (8 Cir.) 83 F. (2d) 995. Administrative interpretation of statutes, although not binding upon the courts, should receive consideration unless found to be erroneous and in conflict with expressed purposes of the act and intentions of the legislature. In re Estate of Raynolds, 219 Minn. 449, 18 N.W. (2d) 238.
This court has made it plain that the Workmen's Compensation Act should be liberally construed so as to effect its full purpose. Recently in Kolbeck v. Myhra, 255 Minn. 341, 344, 96 N.W. (2d) 633, 635, this court said:
"* * * Since workmen's compensation statutes are highly remedial and humanitarian in purpose, they must be given a broad, liberal construction in the interests of the workmen."
In Lappinen v. Union Ore Co. 224 Minn. 395, 404, 29 N.W. (2d) 8, 15, we said:
"It is too well settled to require citation of authority that the workmen's compensation act should be liberally construed so as to afford coverage of all cases reasonably within its purview."[2]
*42 This spirit of liberality must be observed in construing the act as a whole so as to better understand and apply the legislative purposes.[3]
Based upon the heretofore liberal construction by this court of the Workmen's Compensation Act and the administrative interpretation thereof in the instant case, the better view appears to be that "compensation," as defined in § 176.011, subd. 8, includes the payment of medical and hospital bills and expenses, and that such interpretation reflects legislative intent.
We are of the opinion that the decision of the Industrial Commission correctly interprets § 176.011, subd. 8, as applied to the facts before the court on this appeal. Respondent is allowed $250 attorneys' fees.
Affirmed.
MR. JUSTICE LOEVINGER, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.
NOTES
[1] § 176.151(1) provides:
"The time within which the following acts shall be performed shall be limited to the following periods, respectively:
"(1) Actions or proceedings by an injured employee to determine or recover compensation, two years after the employer has made written report of the injury to the commission, but not to exceed six years from the date of the accident."
[2] Moore v. J.A. McNulty Co. 171 Minn. 75, 213 N.W. 546; Thoresen v. Schmahl, 222 Minn. 304, 24 N.W. (2d) 273.
[3] Casey v. Northern States Power Co. 247 Minn. 295, 77 N.W. (2d) 67; Nyberg v. Little Falls Black Granite Co. 192 Minn. 404, 256 N.W. 732; Langland v. State Dept. of Highways, 250 Minn. 544, 85 N.W. (2d) 736; Christopherson v. Security State Bank, 256 Minn. 191, 97 N.W. (2d) 649; McCourtie v. United States Steel Corp. 253 Minn. 501, 93 N.W. (2d) 552. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605680/ | 7 So. 3d 201 (2009)
Judith FRYE, Plaintiff-Appellant
v.
OLAN MILLS, Defendant-Appellee.
Nos. 44,192-WCA, 44,193-WCA, 44,194-WCA, 44,195-WCA.
Court of Appeal of Louisiana, Second Circuit.
April 8, 2009.
*203 Judith Frye, In Proper Person-Appellant.
Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley by Denis P. Juge, Metairie, Keith E. Pittman, for Defendant-Appellee.
Before WILLIAMS, GASKINS and CARAWAY, JJ.
GASKINS, J.
In these four consolidated appeals, the claimant, Judith Frye, argues that the workers' compensation judge (WCJ) erred in denying her claims for more medical and indemnity benefits for two separate work-related injuries. We affirm the ruling of the WCJ.
FACTS
In September 2001, the claimant, a photography assistant in the church directory division of Olan Mills, was injured when a door struck her right heel while she was working. She received medical and indemnity benefits but eventually resumed her job. In April 2004, the claimant filed a disputed claim for compensation with the Office of Workers' Compensation (OWC) pertaining to this incident; she requested medical treatment and compensation. The employer filed an answer and exception in which it admitted a work-related accident but denied an injury.
In May 2004, the claimant was at a church working on their directory when she had to descend some stairs with a cart. She lost her balance and had to grab the cart to try to stop it from falling. She did not fall or hit the wall. In November 2004, the claimant filed a disputed claim for compensation with the OWC for this accident; according to the claimant, she injured her "right upper extremity."[1] In its answer, the employer denied a work-related accident or the employee's entitlement to compensation or treatment. In January 2005, this matter was consolidated with the claim for the September 2001 incident.
In April 2006, the claimant filed an amended claim in which she requested penalties and attorney fees and asserted that the "accident caused aggravated or made pre-existing condition worse [sic]." In its answer, the employer denied that the claimant was entitled to any additional benefits, penalties or attorney fees. Yet another amended disputed claim for compensation was filed in May 2006. In response, the employer asserted that the claimant's problems had resolved as of November 26, 2002, for the first injury and September 24, 2005, for the second one. In September 2006 and February 2007, the claimant filed additional disputed claims for workers' compensation asserting the same two injuries. By joint motion, all of the claims were consolidated in May 2007.
Trial was held in July 2007. The claimant was the only witness to testify in person. Among the evidence introduced at trial were the claimant's medical records and the depositions of two doctors. The medical records showed that the claimant suffered from a myriad of medical conditions (including diabetes, osteoarthritis, diverticulitis, hyperthyroidism, hypertension, and cardiac problems) that were unrelated *204 to her work injuries. The claimant was repeatedly confronted by her medical records in which her physicians concluded that while she suffered injuries in the work-related accidents, the injuries eventually resolved and she was able to return to work at full duty; she generally denied awareness of this information. The claimant's testimony was often confusing and contradictory. At various points, she admitted that she did not injure her left hand in the second accident; at others, she asserted that she hurt both hands. At the end of her testimony, the employer orally moved to amend its pleadings to include a violation of La. R.S. 23:1208, which provides for forfeiture of benefits due to wilful misrepresentations.
On November 14, 2007, the WCJ issued oral reasons for judgment. The WCJ found that the claimant failed to meet her burden of proof to show that she was entitled to any further indemnity or medical benefits as a result of her work-related accidents on September 7, 2001, and May 24, 2004. The WCJ further noted that it was "highly improbable" that the disability she was claiming had been caused by either work-related accident. According to the WCJ, the claimant's testimony was so inconsistent and lacking in veracity that it did not aid her case. Accordingly, the WCJ dismissed her claims with prejudice at her cost. However, the WCJ denied the employer's request to find that the claimant violated La. R.S. 23:1208; it declined to find that she made deliberate misrepresentations to obtain workers' compensation benefits. Judgment was signed December 3, 2007. The claimant's motion for new trial was denied in January 2008; that judgment was signed February 29, 2008.
The claimant appealed. She filed a motion to present evidence in this court; we denied the motion in January 2009 on the grounds that many of the documents she submitted were already in the record and that as a court of review we do not consider new evidence.
LAW
An employee is entitled to compensation benefits if she receives a personal injury by an accident arising out of and in the course of her employment. La. R.S. 23:1031. The employee has the burden of proving, by a preponderance of the evidence, that her disability is related to an on-the-job injury. Anthony v. BE & K Construction, 32,729 (La.App. 2d Cir.5/10/00), 760 So. 2d 608, writ denied, XXXX-XXXX (La.9/15/00), 768 So. 2d 1280.
Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits (SEBs) if she sustains a work-related injury that results in her inability to earn 90 percent or more of her average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Smith v. Bossier Parish School Board, 39,590 (La.App. 2d Cir.4/6/05), 899 So. 2d 747, writ denied, XXXX-XXXX (La.11/28/05), 916 So. 2d 147.
A workers' compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, her inability to engage in any type of employment. Greis v. Lake Charles Memorial Hospital, XXXX-XXXX (La.App. 3d Cir.3/6/98), 709 So. 2d 986, writs denied, XXXX-XXXX & XXXX-XXXX (La.5/15/98), 719 So. 2d 467.
Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. A workers' *205 compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App. 2d Cir.9/21/05), 914 So. 2d 579, writ not considered, XXXX-XXXX (La.4/17/06), 926 So. 2d 500, cert. denied, 549 U.S. 1157, 127 S. Ct. 982, 166 L. Ed. 2d 783 (2007).
Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Taylor v. Hollywood Casino, 41,196 (La.App. 2d Cir.6/28/06), 935 So. 2d 293; City of Shreveport v. Casciola, 43,132 (La.App. 2d Cir.3/26/08), 980 So. 2d 203. Factual findings in workers' compensation cases are subject to the manifest error rule. Winford v. Conerly Corporation, XXXX-XXXX (La.3/11/05), 897 So. 2d 560; City of Shreveport v. Casciola, supra.
Under the manifest error rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Winford, supra; Stobart v. State, Department of Transportation and Development, 617 So. 2d 880 (La. 1993). The manifest error standard applies even when the workers' compensation judge's decision is based upon written reports, records or depositions. Bruno v. Harbert International, Inc., 593 So. 2d 357 (La.1992); Alexander v. Brookshire Grocery Company, 42,855 (La.App. 2d Cir.1/9/08), 975 So. 2d 100, writ denied, XXXX-XXXX (La.4/25/08), 978 So. 2d 367.
When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So. 2d 840 (La.1989). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Winford, supra.
As a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. However, the treating physician's testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Mosley v. Pennzoil Quaker State, 37,199 (La.App. 2d Cir.7/23/03), 850 So. 2d 1100, writ denied, 2003-2412 (La.11/21/03), 860 So. 2d 553.
An independent medical examiner (IME)'s medical conclusions should be given significant weight because the IME is an objective party. Nevertheless, the opinion of the IME is not conclusive and the WCJ must evaluate all of the evidence presented in making a decision as to a claimant's medical condition. Mosley, supra.
While the treating physician's testimony is normally given substantial weight, the court-appointed expert's opinion must be considered as prima facie evidence of the facts therein stated. La. R.S. 23:1123; Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3d Cir.7/24/96), 677 So. 2d 1132.
MEDICAL EVIDENCE
Foot injury
Following the September 2001 door accident, the claimant was treated by Dr. Don Burt of the Bone and Joint Clinic about a *206 week after the incident. He found evidence of contusion with no indication of a permanent disability; he stated that she should be able to return to work within four days of seeing him.
She later saw her internal medicine doctor, Dr. Leslie Sewell, in mid-to-late 2002. Dr. Sewell's impression was that the claimant had diabetes mellitus with mild peripheral neuropathy of her right foot; the doctor sought to educate her on diabetic foot disease.[2]
Dr. Sewell referred the claimant to Southside Foot Clinic in June 2002. She was placed in a cast boot which was initially beneficial. Dr. Richard Havens, a podiatrist, referred her to Dr. James Lillich, an orthopedic specialist.
In September 2002, Dr. Lillich of Orthopedic Specialists of Louisiana examined the claimant to give a second opinion as to her right foot; his impressions were post contusion of the Achilles tendon insertion with probable mild tendonosis and equinus contracture of the foot with weakness of the anterior leg musculature. He recommended physical therapy. On October 9, 2002, she saw another doctor in that practice, Dr. G. Michael Haynie, who told her she could return to work as long as she continued physical therapy.
In November 2002, Dr. Jenness Courtney, III, of Northwest Louisiana Physical Medicine, noted an unremarkable MRI when he saw the claimant for right heel pain and ankle weakness secondary to a contusion injury. An EMG exam conducted then showed an old peroneal mononeuropathy on the right, which was resolving. He recommended physical therapy for a month. In December 2002, Dr. Courtney signed a report attesting that the claimant was at maximum medical improvement (MMI) and capable of returning to work.
Also in November 2002, the claimant was treated by Dr. Gordon Mead, who diagnosed a contusion of the right heel; he believed her recovery was prolonged by an old peroneal nerve injury. He agreed with a course of physical therapy for six to eight weeks, after which she should be at MMI. He opined that she could return to work which did not involve standing, climbing or jumping. He did not believe that her peroneal nerve problem had anything to do with her work-related injury. A physical therapist note from Willis Knighton dated November 12, 2002, stated that the claimant was physically able to return to work, but had not.
In January 2003, Dr. Sewell referred the claimant to Dr. Mary McWilliams, a board-certified neurologist. She diagnosed the claimant as suffering from bursitis in her right heel; she also had bilateral muscle contracture, or shortening of the muscles, in her calf muscles which the doctor described as being the result of a longstanding lack of exercise and was not related to her 2001 injury. While she did not consider the claimant to be at MMI on January 16, 2003, Dr. McWilliams agreed with Drs. Courtney and Mead that her peroneal mononeuropathy was not a result of the work injury. She also concluded that the claimant was capable of returning to regular job duties. Dr. McWilliams was unable to relate the bursitis to her work injury, noting that bursitis can develop in anyone. When she saw the claimant on January 28, *207 2003, she noted that her complaints were out of proportion to the doctor's findings. By the time of her appointment on February 10, 2003, the claimant was pain free and displayed no evidence of injury. In a report Dr. McWilliams completed in July 2003, she stated that the claimant was at MMI and completely released from care due to the work injury. In her deposition, Dr. McWilliams testified that the claimant's foot injury resolved; she did not expect it to return and if it did, she opined that it would not be related to her 2001 injury.
In late 2004, the claimant began seeking medical treatment for her foot again. When she saw Dr. Timothy Talbert at Minden Orthopaedics in November 2004, he assessed her as having peroneal tendonitis and calcaneal ossification. He placed her in a short leg walking cast.
In November 2006, she saw Dr. Bryan Randolph, a podiatrist. His impression was "Achilles tendinitis vs peroneal tendonitis right."
The claimant saw Dr. Steven Atchison in April 2007. The medical records from her visit indicate that she told him that her injury happened in 2001, she recovered, and then she had recurrences in 2005 and in November 2006. The doctor noted that an MRI revealed no abnormalities.
Hand injury
At the time of her May 2004 accident, the claimant had been back at work for four or five months performing her regular job.
The claimant was seen by Dr. James Dossey at Willis Knighton's Work Kare on June 9, 2004. She was diagnosed with de Quervain's tenosynovitis of the right wrist. She did not relate this condition to any specific incident; however, she indicated that she had used her thumb to click her computer mouse and she believed that to be a possible cause of her malady. By July 9, 2004, the doctor found her condition to be improving. As of July 23, 2004, he found that her de Quervain appeared to have resolved, and stated that he had nothing more to offer her. She had some residual hand pain and stiffness, which he suspected was mostly due to degenerative joint problems or hand arthritis. However, he noted that she believed that she should be taken off work.
On August 16, 2004, the claimant went to see Dr. Michelle Ritter at the Center for Hand and Reconstructive Surgery. Dr. Ritter noted intrinsic tightness in the ring, middle and index fingers of the claimant's right hand and tendinitis of the right thumb. On August 19, 2004, the claimant saw Dr. M.E. Milstead at Orthopedic Specialists of Louisiana. She gave a history of injuring her right hand and thumb when she lost her balance and her buggy pulled her arm. He found that she had de Quervain's tendinitis and multiple trigger fingers; he saw the claimant several more times over the next few months. On November 11, 2004, he diagnosed locked trigger thumb, which he felt was probably related to her diabetes.
When Dr. Ritter saw her on November 18, 2004, she diagnosed the claimant as having de Quervain's syndrome of the right wrist and forearm, as well as finger flexor tendinitis of the right hand. She also noted that she was unaware that the claimant was being treated by Dr. Milstead and suggested that the claimant follow up with him. In early 2005, the claimant was seen by Dr. Milstead again, who opined that she might be displaying early signs of carpal tunnel syndrome.
In March 2005, the claimant was seen by Dr. David Adams of the Spine Institute of Louisiana. To him she gave a history of a jerking traction injury to both hands and wrists. EMG results showed mild bilateral *208 carpal tunnel syndrome, but no evidence of radiculopathy or ulnar neuropathy.
In May 2005, a second medical opinion was obtained from Dr. Karl Bilderback. He found no objective evidence of a significant injury or of permanent impairment. He believed that Dr. Milstead's treatments might have resolved any problems she had had. In his opinion, she was not a surgical candidate. Dr. Bilderback opined that she was at MMI and could return to work at her prior occupation.
In August 2005, Dr. Douglas Brown, an orthopedist, performed an independent medical examination (IME) on the claimant. She gave him a history of holding the "airborne" buggy first with her right hand, then her left hand, then her right one again. His impression was that she had osteoarthritis in both hands in the thumb MP joints with early diabetic peripheral neuropathy and early carpal tunnel syndrome. He also diagnosed resolved de Quervain's syndrome (which he described as tendinitis on back of both wrists) and resolved trigger fingers. He stated in his report that he saw no work-related injuries or percentages of disability related to injury. He opined that she was fully capable of performing the job of computer photographer. Following the results of the IME, the claimant's indemnity payments were stopped in September 2005.
In his deposition, Dr. Brown noted the claimant's history of diabetes and explained that diabetes is well associated with peripheral neuropathy. He thought she had early diabetic peripheral neuropathy. He stated that he found no objective signs of injury from the 2004 accident and he saw no reason she could not return to work. Although she had early carpal tunnel symptoms, he did not believe the carpal tunnel was related to a work injury. In his opinion, there was no more medical treatment necessary for her work-related injuries.
The claimant continued to see Dr. Milstead. In late 2005, he ordered a complete rheumatoid survey. In February 2006, the LSUMC Rheumatology clinic found signs of osteoarthritis with no rheumatoid arthritis. In May 2006, nerve conduction velocity (NCV) studies showed mild median and ulnar neuropathic abnormalities on the right side.
In March 2006, Dr. Milstead wrote a letter stating that her work injury did not cause her existing problems but aggravated them and made the conditions more symptomatic. In June 2006, he noted that she was "really doing fairly well." Her hands were not bothering her too much and the EMG studies showed only mild levels. EMG studies in April 2007 were essentially unchanged from the one from March 2005. At her May 2007 appointment, Dr. Milstead found that the claimant still had carpal tunnel syndrome.
DISCUSSION
It is not entirely clear what sort of workers' compensation benefits this pro se claimant is seeking. However, it is obvious that she failed to prove entitlement to any additional benefits under any standard of proof, be it by a preponderance of the evidence or by clear and convincing evidence.
As to the 2001 foot injury, the claimant's medical records and the deposition of Dr. McWilliams demonstrate that the claimant suffered an injury which was appropriately treated and thereafter completely resolved. Dr. McWilliams, who treated the claimant for almost a year, testified that by July 2003, the claimant was at MMI and completely released her from care due to her work injury. She also opined that the condition would not return and, if it did, such a recurrence *209 would not be related to her 2001 work injury. While the claimant had apparently had subsequent issues with her foot, there is no credible medical evidence in this record to support a finding that these are related in any way to the 2001 injury.
As pertains to the 2004 right hand injury,[3] the medical records and the deposition of Dr. Brown show again that the claimant suffered an injury which was treated and then resolved. The claimant relied heavily upon the medical records of Dr. Milstead which indicated that the accident might have aggravated her diabetes-related conditions of carpal tunnel syndrome and trigger fingers. On the other hand, the employer emphasized the medical records of Dr. Bilderback, who gave a second opinion on the claimant's condition in May 2005. At that time, he found no objective evidence of significant injury or permanent impairment; he believed that Dr. Milstead's treatments had resolved any injury she had had. In his opinion, the claimant was at MMI and able to return to her job. Likewise, in August 2005, Dr. Brown performed an IME on the claimant and reached similar conclusions. Dr. Brown testified in his deposition that he found only preexisting conditions and no objective evidence of work-related injuries. He also saw no reason why she could not return to work.
Presented with two permissible views of the medical evidence, the WCJ chose to accept the view set forth by Dr. Brown, the doctor who performed the IME an objective party whose opinion was corroborated by Dr. Bilderback over that of a treating physician, Dr. Milstead. Under the facts of this case, that choice was wholly reasonable. We further find that the WCJ's conclusion that the claimant's testimony lacked credibility and failed to help her case is well supported by the record. We cannot say that the WCJ was manifestly erroneous in finding that the claimant was not entitled to any further indemnity or medical benefits as a result of either the 2001 door accident which injured her right foot or the 2004 cart accident in which she hurt her right hand.
CONCLUSION
We affirm the judgment of the WCJ in favor of the defendant, Olan Mills. Costs of this appeal are assessed to the plaintiff, Judith Frye.
AFFIRMED.
NOTES
[1] While the copy of this claim form found in the record is difficult to read, it appears to assert that she injured her "RUE." Her answers to interrogatories state that she hurt her "right upper extremity."
[2] When Dr. Sewell saw her in December 2003, the doctor noted that the claimant had chronic foot pain, thought to be neuropathy, and that she had been seen by a neurologist, Dr. Mary McWilliams. In her testimony, the claimant disagreed with Dr. Sewell's finding that she had a foot disease; she believed that she would have it in both feet and legs if she was so afflicted. Likewise, she disputed the doctors' findings that she had neuropathy because she believed that she would have to have it in both heels.
[3] On the issue of whether the claimant injured only her right hand or both hands, we note that all of the claimant's initial complaints to her doctors mentioned only her right hand. She made no mention of any injury to her left hand to Drs. Dossey, Ritter or Milstead. Only in March 2005, almost a year after the accident, did she first claim to Dr. Adams that she hurt both hands. At best, her trial testimony on the subject was contradictory and confusing. In one breath she admitted that she did not hurt her left hand; in the next, she claimed to have injured both hands. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605691/ | 416 So. 2d 192 (1982)
Pete PENNINGTON
v.
F. G. SULLIVAN, JR., CONTRACTORS, INC., et al.
No. 14757.
Court of Appeal of Louisiana, First Circuit.
May 25, 1982.
Rehearing Denied July 13, 1982.
*193 Arthur Cobb, Baton Rouge, for plaintiff-appellant Pete Pennington.
Gerard E. Kiefer, and Paul Marks, Jr., Baton Rouge, for defendant-appellee F. G. Sullivan, Jr., Contractors, Inc.
Before ELLIS, PONDER and SAVOIE, JJ.
PONDER, Judge.
Plaintiff appealed from a summary judgment dismissing F. G. Sullivan, Jr., Contractors, Inc., one of five defendants.
The issue is whether summary judgment was appropriate.
We reverse and remand.
Plaintiff was injured when a dump truck pulled out in front of him, causing him to lose control of his motorcycle. In a suit for his damages, he alleged that the dump truck causing the accident was owned or operated by the defendants, F. G. Sullivan, Jr., Contractors, Inc. and/or J. H. Jenkins Contractors, Inc. Motions for summary judgment were granted in favor of defendants, Sullivan, Jenkins and a third defendant. Plaintiff has appealed only from the judgment in favor of Sullivan.
The record, designated by the plaintiff, contains: the petition, the motion by Sullivan and a supporting affidavit, opposition by plaintiff and a supporting affidavit, a job report evidently issued by the City-Parish and the judgment of dismissal. The briefs of both counsel, the motion for summary judgment and the opposition to the motion indicate that other affidavits and depositions were utilized. However, plaintiff has designated only the above for inclusion in the appellate record and defendant has not requested that the record be supplemented. La.C.C.P. Art. 2128.[1] References to other sources and the attachment to defendant's brief of excerpts from the depositions are therefore unavailing.
The affidavit of F. G. Sullivan avers that he is the owner of the defendant corporation and that it had no dump trucks dispatched into the vicinity of the accident on the day plaintiff was injured.
The plaintiff's opposition had attached an affidavit of an investigator, who said that Gary Sullivan, an employee of Sullivan, reported that he checked the company's daily reports for the date of the accident and found that although the records reflected *194 no work was performed that day, some materials might have been hauled and that information obtained from the City-Parish indicated that Sullivan did work at the job on the day of the accident. He further stated that an inspector with the Louisiana Department of Transportation and Development said that Sullivan might have had dump trucks operating in the area on the date in question.
In the final paragraph of his affidavit, the investigator refers to a copy of the City-Parish records attached to a deposition. While this deposition is not in the appellate record, a copy of a job report showing that Sullivan, a contractor on the job, performed work on the date of the accident follows the affidavit. Since the job report has not been sworn and certified,[2] it is not properly in the appellate record and cannot be considered.
Although much of the affiant's statement is inadmissible into evidence and cannot be considered, the conversation with Gary Sullivan serves as an exception to the hearsay rule. Material statements of an agent who is acting for a principal are admissible when offered by a party opponent. Myers v. Sudo, 377 So. 2d 482 (4th Cir. 1979), writ denied 380 So. 2d 100 (La. 1980).
Any doubt concerning a dispute as to a material fact must be resolved against granting the motion for summary judgment. Gulf-Wandes Corporation, et al. v. Vinson Guard Service, Inc., et al., 393 So. 2d 207 (1st Cir. 1980), writ denied 397 So. 2d 1359 (La.1981). The record on appeal does not dissipate the factual issue of whether defendant's trucks were in the area on the day of the accident.
For these reasons, the decision of the trial court is reversed at Sullivan's cost for the appeal. All other costs are to await the final outcome. The case is remanded for additional proceedings.
REVERSED AND REMANDED.
NOTES
[1] La.C.C.P. Art. 2128:
"The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution. However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal. Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court."
[2] La.C.C.P. Art. 967:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees. Any offending party or attorney may be adjudged guilty of contempt." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605715/ | 7 So. 3d 541 (2009)
REUTTER
v.
STATE.
No. 2D09-85.
District Court of Appeal of Florida, Second District.
February 10, 2009.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605746/ | 7 So.3d 1097 (2009)
FOWLER
v.
McNEIL.
No. SC09-45.
Supreme Court of Florida.
March 23, 2009.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605753/ | 416 So.2d 485 (1982)
Richard ASMER, Appellant,
v.
STATE of Florida, Appellee.
Nos. 81-1521, 81-1751.
District Court of Appeal of Florida, Fourth District.
June 23, 1982.
Rehearing Denied July 28, 1982.
*486 Richard L. Jorandby, Public Defender, Jerry Schwarz, Asst. Public Defender, and Ronald McRae, Legal Intern., West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
DELL, Judge.
Richard Asmer appeals his conviction of trafficking in Methaqualone in an amount exceeding 200 grams but less than 5 kilograms. He contends the trial court erred in denying his motion for judgment of acquittal for failure to prove the offense as charged, and in denying his motions for new trial and in arrest of judgment for failure to charge "knowingly" in the information.
The information alleges that appellant [D]id ... unlawfully deliver ... a controlled substance, to wit: Methaqualone, or a mixture containing Methaqualone, in an amount of two hundred (200) grams or more, but less than five (5) kilograms, contrary to F.S. 893.(1)(e)(1)... . (emphasis added)
This statute provides a minimum sentence for "any person who knowingly sells" between 200 grams and 5 kilograms of Methaqualone or of any mixture containing Methaqualone (emphasis added).
Appellant's counsel moved to dismiss the information on various constitutional and procedural grounds, but did not challenge the sufficiency of the information based on the use of the word "unlawfully" rather than "knowingly." At trial, the State's expert witness testified that she determined *487 the net weight of the tablets at 795.7 grams, and that she tested one tablet at random and found it to contain Methaqualone. During the jury charge the trial judge read the information and the statute and specifically charged the jury that it must find beyond a reasonable doubt that appellant knowingly delivered methaqualone in the proper amount.
Appellant first contends the State failed to prove the offense charged because the expert testimony did not establish that appellant sold 200 grams of Methaqualone alone. This point is without merit. In Purifoy v. State, 359 So.2d 446 (Fla. 1978), on which appellant relies, the Supreme Court construed a statute which required the State to separate proscribed material from legal material in order to prove that the weight of the contraband alone exceeded the statutory amount. Section 893.135(1)(e) prohibits the sale of any mixture containing Methaqualone. The State cannot be expected to draw distinctions so fine as to treat all law violators with the precision of a computer. State v. Yu, 400 So.2d 762 (Fla. 1981). To require the State to test each tablet of the 1,000 tablets delivered by appellant and prove that enough tablets contained enough pure Methaqualone to satisfy the statutory amount is patently unreasonable.
Appellant next claims that the use of the word "unlawfully" rather than "knowingly" renders the information invalid. He compares his case to prosecutions for battery of a law enforcement officer, where the courts stated that without an allegation that the defendant knew the person battered to be a law enforcement officer, the circuit court was without jurisdiction. Analysis of these cases indicates that reversal was not granted because no crime was charged, but rather because without an allegation that the defendant knew the victim to be a law enforcement officer, the crime charged could be no more than a misdemeanor and thus jurisdiction was in county court rather than circuit court. See Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979). Herein appellant claims that the greatest offense charged is violation of Section 893.13(1)(a), delivery of Methaqualone. Violation of this statute is a third degree felony, however, and jurisdiction was properly in circuit court.
Rule 3.190(b) Florida Rules of Criminal Procedure requires all defenses other than that of not guilty to be made only by motion to dismiss the information. Failure to so raise the defense waives the defect, unless the information wholly fails to charge a crime, Tracey v. State, 130 So.2d 605 (Fla. 1961), State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973). Failure to allege one ingredient of an offense does not necessarily render the charge void as wholly failing to state a crime, State v. Taylor, supra, particularly where the information charges the specific section of the statute under which the prosecution proceeds. Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980), Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980), Bass v. State, 263 So.2d 611 (Fla. 4th DCA 1972).
The principles reviewed herein have enjoyed long standing and consistent application by the courts of this State. A defendant may not thwart the ends of justice by sitting on a technical defect which has occasioned him no prejudice, holding it in reserve as a trap to spring on the State in the event the jury renders an adverse verdict.
AFFIRMED.
GLICKSTEIN and HURLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605767/ | 416 So.2d 1376 (1982)
Johanna Quinn CROWE, Individually and for and on behalf of the minor, Trenton E. Quinn, Plaintiff-Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellees.
No. 82-108.
Court of Appeal of Louisiana, Third Circuit.
July 2, 1982.
*1377 Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
Hall, Lestage & Lestage, David R. Lestage, DeRidder, Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Jr., Scofield, Bergstedt, Gerard, Hackett & Mount, Benjamin W. Mount, Lake Charles, for defendants-appellees.
*1378 Before FORET, STOKER and DOUCET, JJ.
FORET, Judge.
Johanna Quinn Crowe (plaintiff) brought this tort action, individually and on behalf of her minor son, Trenton E. Quinn (Trent), to recover damages for personal injuries suffered by him, when the Honda ATV (ATV)[1] on which he was riding as a passenger, was struck by an automobile owned and driven by Robert K. King, Jr. (King). Named defendants were: State Farm Mutual Automobile Insurance Company (State Farm), the automobile liability insurer of King; Allstate Insurance Company (Allstate), plaintiff's uninsured motorist insurer; James J. Miller (James Miller) and Joyce Belle Miller (Joyce Miller), the divorced parents of the minor driver of the ATV, Hank Miller (Hank); King; and Fireman's Fund Insurance Company (Fireman's), the automobile liability and homeowners insurer of James Miller.
Plaintiff requested a trial before a jury and the jury returned a verdict finding no negligence on King's part. In addition, the trial court had granted a motion for a directed verdict filed by Fireman's during the trial. The trial court, pursuant to the jury's verdict, rendered judgment in favor of all other defendants, dismissing plaintiff's claims against them. Plaintiff's motion for a new trial was denied, and she was then granted a devolutive appeal to this Court, where she raises the following issues:
(1) Whether the jury committed manifest error in finding no negligence on the part of King;
(2) Whether the jury committed manifest error in finding no negligence on the part of James Miller;
(3) Whether the trial court erred in granting Fireman's motion for a directed verdict;
(4) Whether the jury committed manifest error in finding that Trent was guilty of contributory negligence, and had assumed the risk of his injuries.
FACTS
This action arises out of a tragic accident which occurred on November 4, 1978, near DeQuincy, in Calcasieu Parish, at approximately 9:00 A.M. Hank and Trent were both nine years old at the time of the accident. They were riding the ATV, which had been purchased by James Miller, and were heading south on Pecan Street, located in the Pine Acres Subdivision (a rural subdivision). They approached the intersection of that street with Grape Street, and should have come to a complete stop as there was a stop sign directing traffic on Pecan Street to stop before entering the intersection. They failed to do so and were struck by an automobile being driven by King in an easterly direction on Grape Street.
The impact of the collision hurled the ATV and both boys some fifty feet from the point of impact and caused them to suffer multiple, severe injuries. Hank died two hours later at the Calcasieu-Cameron Hospital. Trent underwent extensive surgery at the same hospital and survived. He was released from the hospital one month later and wore a cast on his right leg for the next few weeks. He has made a good recovery so far. However, at the time of trial, medical testimony indicated that, because of his age and the fact that he had injured a portion of his right thigh where bone growth takes place, his left leg was growing much faster than his right leg. Because of this, he would have to undergo surgery within the next two years to correct this worsening condition. He will suffer a permanent disability in that he will be unable to grow to the height he would have reached had he suffered no injuries, and his right leg will have less strength than it normally would have.
KING'S ALLEGED NEGLIGENCE
Plaintiff contends that the jury committed manifest error in finding no negligence *1379 on the part of King which was a proximate cause of this accident.
Plaintiff's action is brought under the provisions of LSA-C.C. Articles 2315 and 2316. Thus, plaintiff must first show that she probably would not have suffered the injuries complained of but for defendants' conduct.[2]
The evidence shows that King was traveling at approximately 45 miles per hour as he approached the intersection where the accident occurred. Randall Authement, a Louisiana state policeman who investigated the accident, testified that the speed limit on the road on which King was traveling was 55 miles per hour. Thus, King was traveling well within the speed limit. King testified that he knew the intersection between Grape and Pecan Streets existed, but saw nothing as he approached the intersection which caused him any concern. Photographs introduced in evidence show that there is a heavy growth of brush on the left side of Grape Street as one proceeds in an easterly direction down the street and approaches the intersection. It is from this side of Grape Street that the boys entered the intersection from Pecan Street. The photographs also clearly show the presence of a stop sign at the intersection directing traffic traveling in a southerly direction on Pecan Street to stop before entering the intersection.
King testified that he first saw the boys on the ATV when he was approximately thirty to forty feet from the intersection. At that time, he stated that the ATV was approximately six feet from the paved surface of Grape Street. This is consistent with what an alert driver would have seen as shown by the photographs. King stated that he immediately applied his brakes upon seeing the boys and turned his wheels to the right in an attempt to avoid hitting them. This statement comports with a drawing made by Authement of the accident scene.
We find that plaintiff has failed to prove that King engaged in any of the conduct which she contends was a cause-in-fact of this accident. Our review of the record establishes that the jury's finding of no negligence on the part of King is correct.
ALLEGED LIABILITY OF JAMES MILLER
Plaintiff admits, in brief, that James Miller is unable to be held liable for the acts of his son, Hank, by virtue of the divorce decree which awarded the care, custody and control of Hank to his mother prior to the accident. See Flannigan v. Valliant, 400 So.2d 225 (La.App. 4 Cir. 1981), writ denied, 406 So.2d 611 (La.1981).
Instead, plaintiff would have this Court hold James Miller negligent for allegedly violating LSA-R.S. 32:416 which provides:
"§ 416. Unlawful operation by minors; parents responsible
No person shall cause or knowingly permit his child or ward, under the age of fifteen years, to drive a motor vehicle, except a power cycle, and under the age of fourteen years, to drive a power cycle, upon any highway."
Plaintiff relies on Hartman v. Allstate Insurance Company, 271 So.2d 372 (La.App. 4 Cir. 1972), affirmed, 284 So.2d 559 (La. 1973), in support of her contention. We find Hartman to be distinguishable on its facts from the case sub judice. In Hartman, plaintiff was found negligent for granting permission to her daughter to drive her stepfather's stationwagon across La. Highway 40, when she knew her daughter was only 14 years old at the time and was unable to obtain a Louisiana driver's license.
In the instant action, James Miller admitted that he had purchased two ATV's for use by members of his family, including Hank. He testified that, when he was present, Hank was never allowed to ride the ATV on the highway, except along the *1380 shoulder for a short distance to reach a pasture in which he would ride it. He admitted that there was another means of reaching the pasture without having to ride on the shoulder of the highway. He stated that while he was living with Hank and his mother, he was always present when Hank rode the ATV. He instructed Hank that he was to ride it on family property only and nowhere else.
In establishing negligence on the part of James Miller, plaintiff must first prove that but for James Miller's conduct, she would not have suffered the injuries complained of. See Footnote # 2. This she has failed to do. The evidence clearly shows that James Miller allowed Hank to ride the ATV on the shoulder of the highway only to get to the pasture where he would usually ride the vehicle. Hank was forbidden by his father to ride the ATV at any other times on the highway or its shoulder. Hank was forbidden to ride the ATV on Pecan Street, and James Miller had no knowledge that his son was doing so. Thus, there is no conduct of James Miller which can be said to be a cause-in-fact of this accident and the plaintiff's injuries. See Liedtke v. Allstate Insurance Co., 405 So.2d 859 (La.App. 3 Cir. 1981), writ denied, 407 So.2d 748 (La.1981), where this Court discussed causation and LSA-R.S. 32:416.
The jury made no finding as to any negligence on the part of James Miller. We find none.
FIREMAN'S MOTION FOR A DIRECTED VERDICT
Fireman's filed a written motion for a directed verdict after the plaintiff rested her case and the trial court granted the motion. Plaintiff contends that the trial court committed manifest error in doing so.
LSA-C.C.P. Article 1810(A) provides:
"Art. 1810. Directed verdicts; motion to dismiss at close of plaintiff's evidence
A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury."
Fireman's motion for a directed verdict set forth a number of specific grounds as the basis therefor. First, that the parents of Hank had been divorced before the accident and that Joyce Miller had been awarded the care, custody and control of him. Thus, Hank's father (Fireman's insured), James Miller, is unable to be held legally responsible for Hank's negligence. Second, that the automobile liability insurance policy issued to James Miller provides no coverage for the ATV. Third, that Hank and Joyce Miller were unable to qualify as insureds under the terms of the homeowners policy. Finally, that no coverage was provided under the homeowners policy issued to James Miller by Fireman's on the DeQuincy property since the policy excluded coverage for bodily injury resulting from an accident involving a recreational vehicle owned by an insured, when the accident occurred away from the residence premises.
The trial court, without reaching the issue of whether Joyce Miller or Hank were insureds under either of the two homeowners policies or automobile liability insurance policy issued to James Miller, granted Fireman's motion for a directed verdict based on exclusions found in those policies. Plaintiff, on appeal, limits her argument as to insurance coverage solely to the homeowners policy issued to James Miller.
Under the heading of "EXCLUSIONS", that policy provides:
"This policy does not apply:
1. Under Coverage EPersonal Liability and Coverage FMedical Payments to Others:
*1381 a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) any aircraft; or
(2) any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises; or
(3) any recreational motor vehicle owned by any Insured, if the bodily injury or property damage occurs away from the residence premises; but this subdivision (3) does not apply to golf carts while used for golfing purposes."
Plaintiff concedes that the ATV was a recreational motor vehicle for purposes of this policy exclusion. However, plaintiff argues that the accident did not occur away from the residence premises. The policy defines the "residence premises" as follows:
"c. "residence premises" means
(1) a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto; or
(2) that portion of any other building occupied as a residence; provided that such premises is used as a private residence by the Named Insured or his spouse but excluding any portion of the premises used for business purposes."
The evidence leaves no doubt that the accident occurred in the intersection of two public roads and away from the residence premises. Thus, the exclusion found in Fireman's policy is clearly applicable and that policy provides no insurance coverage for bodily injury or property damage resulting from the accident.
Campbell v. Mouton, 373 So.2d 237 (La. App. 3 Cir. 1979), sets forth the standards to be used by the trial court in determining whether to grant a motion for a directed verdict. Campbell stated, on page 238, that:
"The motion for directed verdict is a common law procedural device which has only recently found its way into the law of Louisiana through Article 1810 of the Code of Civil Procedure. The purpose of the directed verdict is that "it serves judicial efficiency by allowing the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict." Civil ProcedureWork of Louisiana Legislature for 1977 Regular Session, 38 La.L.Rev. 152, 157 (1977); See also Williams v. Slade, 431 F.2d 605 (5th Cir. 1970)."
We find that the trial court correctly granted Fireman's motion for a directed verdict as the facts and inferences, as shown above, are so overwhelmingly in its favor that reasonable men could arrive at no other verdict than that its policy exclusion was applicable and no coverage for the accident was provided. We find no need, as did the trial court, to make any determination as to whether Hank or Joyce Miller were insureds under this policy, as the result would be the same no matter what the outcome of such a determination, because of the above mentioned policy exclusion.
CONTRIBUTORY NEGLIGENCE OR ASSUMPTION OF THE RISK ON THE PART OF TRENT
Plaintiff contends that the jury committed manifest error in finding that Trent was guilty of contributory negligence and had assumed the risk of his injuries. Cormier v. Sinegal, 180 So.2d 567 (La.App. 3 Cir. 1965), set forth the test for determining contributory negligence on the part of a child on page 569:
"In evaluating whether the child's conduct constitutes contributory negligence, the child is required to exercise only the care expected of his age, intelligence, and experience under the particular circumstances presented to him; in this respect, the obviousness or not of the danger to *1382 one of the child's years, experience, and intelligence is taken into consideration."
Cormier further delineated the test for determining contributory negligence on the part of a child, on page 570, where we stated:
"Young Cormier's left turn under these circumstances thus meets the tests of contributory negligence for such a youngster a "gross disregard of one's safety in the face of known, perceived and understood dangers", Danna v. London Guarantee & Accident Co. [La.App.], cited above, at 147 So.2d [739] 742; an intentional exposure to "obvious danger in connection with non-technical and ordinary objects and situations" within the capacity of the child of that age "to appreciate and realize", Juhas v. American Casualty Co. [La.App.], cited above, at 140 So.2d [676] 679. See also Veillon v. Muffoletto, La.App. 1 Cir., 77 So.2d 118." (emphasis ours.)
The child in Cormier was 12 years old at the time he was injured, when he suddenly turned the bicycle he was riding into the path of an automobile attempting to overtake and pass him.
A nine-year-old may be capable of contributory negligence, but like a twelve-year-old, he is not held to adult standards of comprehension of danger and duty of self-care. Outlaw v. Bituminous Insurance Co., 357 So.2d 1350 (La.App. 4 Cir. 1978), writ denied, 359 So.2d 1293 (La.1978).
The evidence shows that the accident was the sole result of negligence on the part of Hank. Trent was nothing more than a passenger on the ATV, and there was no evidence presented to indicate that he knew that Hank was a reckless or careless driver. Indeed, there was no evidence presented to show that Hank was such a driver.
Jagers v. Royal Indemnity Co., 257 So.2d 806 (La.App. 3 Cir. 1972), affirmed, 276 So.2d 309 (La.1973), held, on page 809, that:
"The rule of White v. State Farm Mutual Automobile Insurance Company, 222 La. 994, 64 So.2d 245 (1963) is still applicable to us, and a guest or passenger in an automobile has the right to place reliance upon the driver and is not required to monitor the operation or pay strict attention to the road, save under special circumstances or conditions which dictate preventive measures by such passenger or guest." (emphasis ours.)
We find that there were no special circumstances present in this case which would have dictated that Trent pay special attention to Hank's driving or to the road conditions. The ATV the boys were riding was capable of achieving speeds of 20 to 25 miles per hour and no more. Trent did admit that he was talking to Hank while Hank was driving. However, he also stated that Hank never looked back and kept his attention focused on the road ahead of him. It is our opinion that Trent's conduct in simply riding as a passenger on the ATV and talking to Hank can in no way be construed as contributory negligence on his part and the jury was manifestly erroneous in finding it to be such.
As to the affirmative defense of assumption of the risk, Dofflemyer v. Gilley, 384 So.2d 435 (La.1980), stated, on page 438, that:
"We stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971):
The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard.
It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); McInnis v. Fireman's Fund Insurance Co., 322 So.2d 155 (La.1975); Brantley v. Brown, 277 So.2d 141 (La.1973); Langlois, supra. Assumption of risk is an affirmative defense that must be specially pleaded. La.Code *1383 Civ.P. art. 1005. The burden of proving this defense is upon the defendant. Langlois, supra."
The evidence clearly shows that Trent in no way assumed the risk of his injuries. The risk here was that Hank would fail to stop for the stop sign on Pecan Street and, thus, subject both himself and Trent to the danger of being struck by a vehicle traveling on Grape Street, the favored street. Defendant, Allstate, failed to produce any evidence whatsoever to show that Trent knowingly and voluntarily encountered this risk which caused him harm.
It is our opinion that the jury was clearly wrong in finding that Trent had assumed the risk of his injuries. Thus, Allstate, as the uninsured motorist insurer of Trent's mother (plaintiff), must provide coverage up to its policy limits for the injuries received by Trent.
QUANTUM
Allstate's automobile liability insurance policy, issued to plaintiff, was introduced in evidence. It provides for the following limits of liability: uninsured motoristbodily injury, $10,000.00 each person or $20,000.00 each accident; and, automobile medical payments, $2,000.00 each person. Thus, the limit of liability available to plaintiff is $12,000.00. The evidence shows that plaintiff sustained more than $12,000.00 in special damages and, therefore, is entitled to recover that amount from Allstate.
For the above and foregoing reasons, the judgment of the trial court, rendered pursuant to the jury's verdict, is reversed in part insofar as it dismissed plaintiff's claim against Allstate. Judgment is hereby rendered in favor of plaintiff and against Allstate, ordering Allstate to make available to plaintiff its uninsured motorist and automobile medical payments coverages up to its policy limits.
The trial court's judgment is affirmed in all other respects.
All costs of this appeal, and in the trial court, are assessed equally between plaintiff-appellant and defendant-appellee, Allstate.
REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.
NOTES
[1] An ATV is an all terrain vehicle usually designed for use in areas other than on the public roads and streets. In this case, the ATV was what is commonly known as a "three wheeler" motor bike.
[2] See Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3 Cir. 1982); writ denied, 412 So.2d 99 (La.1982); Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3 Cir. 1981), writ denied, 410 So.2d 760 (La.1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605834/ | 778 F.Supp. 5 (1991)
Victor SEVERINO, Plaintiff,
v.
THORNBURGH, Defendant.
No. 91-CIV-2689 (LJF).
United States District Court, S.D. New York.
November 12, 1991.
Peter Hirsch, Law Office of Peter Hirsch, New York City, for plaintiff.
Diogenes P. Kekatos, Asst. U.S. Atty., U.S. Attorney's Office, S.D.N.Y., New York City, for defendant.
OPINION AND ORDER
FREEH, District Judge.
At issue in this habeas corpus petition is whether the Immigration and Naturalization *6 Service ("INS") is obligated to make a bond determination for a state prisoner against whom an INS detainer, an administrative order to show cause charging deportability, and arrest warrant have been issued. Magistrate Judge Katz, who issued a Report and Recommendation in this matter, concluded that the Court had jurisdiction to hear this habeas petition because Severino is effectively in the custody of the INS. Magistrate Judge Katz further concluded, however, that the INS is not required to set a bond for Severino because Severino is not in the actual, physical custody of the INS. Accordingly, Magistrate Judge Katz recommended that the writ be denied and that the petition be dismissed with prejudice. For the reasons stated at oral argument on November 6, 1991, and set out below, the Magistrate Judge's recommendation is accepted as modified herein.
FACTS
Petitioner Victor Severino ("Severino"), a native of the Dominican Republic, has been a lawful resident of the United States since 1970. In January 1990, Severino pled guilty in New York Supreme Court to criminal possession of a controlled substance in the third degree, and was sentenced to a term of imprisonment between two and six years. (Report at 1). In November 1990, the INS, which had been notified of Severino's conviction, issued an Immigration Detainer-Notice of Action indicating that it was investigating whether Severino was subject to deportation. The INS "Detainer-Notice of Action" requested that the state prison superintendent accept the detainer for notification purposes only and did not otherwise seek to limit the state's discretion regarding petitioner's custody. The detainer further requested the superintendent of the correctional facility where Severino is incarcerated to notify the INS thirty (30) days prior to his release. (Id. at 2).
Pursuant to 8 U.S.C. § 1251(a)(2)(B), which provides for deportation of any alien convicted of violating any law or regulation relating to a controlled substance, on December 18, 1990, the INS issued an administrative order to show cause why Severino should not be deported. On that same date, the INS issued a warrant for Severino's arrest under 8 U.S.C. § 1252. (Id.). The arrest warrant was lodged with the state authorities but was not served on petitioner.
For several months prior to the INS' action, Severino was enrolled in a work-release program, the terms of which allowed him to work full-time outside of prison and to sleep at home four nights a week. After the INS notified prison officials of its order to show cause and arrest warrant, Severino's participation in the work-release program was revoked. Severino filed this habeas petition on May 6, 1991, seeking an order requiring respondent to (1) set a bond pursuant to 8 U.S.C. § 1252(a); (2) commence deportation proceedings pursuant to 8 U.S.C. §§ 1252(a) and (d); and (3) remove the immigration detainer lodged with the Department of Corrections. (Id. at 3).
DISCUSSION
The petition must be dismissed because the Court lacks jurisdiction to entertain Severino's request, pursuant to 28 U.S.C. § 2241 and 8 U.S.C. § 1252(a) and (d). "Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ." Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir.1988), cert. denied, 490 U.S. 1082, 109 S.Ct. 2105, 104 L.Ed.2d 666 (1989). As discussed in the "custody" portion of Magistrate Judge Katz' Report and Recommendation, the concept of "custody" within the context of the habeas corpus statute has been expanded beyond physical custody alone. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Frazier v. Wilkinson, 842 F.2d 42, 45 (2d Cir.), cert. denied, 488 U.S. 842, 109 S.Ct. 114, 102 L.Ed.2d 88 (1988); Vargas v. Swan, 854 F.2d 1028, 1031 (7th Cir.1988). However, the mere filing of an INS detainer notice fails to establish the requisite custody under the habeas corpus statute.
*7 The fact that an unexecuted arrest warrant and administrative Order to Show Cause were also served upon Severino does not establish INS custody either. See Moody v. Daggett, 429 U.S. 78, 89, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976) (filing of parole violation warrant which was not served upon defendant was treated as administrative detainer notice). The plain language of Section 1252 providing for an alien to be "arrested and taken into custody," "be released under bond," and "be released on conditional parole," § 1252(a)(1)(A), (B), (C), clearly contemplates "physical" custody. Similarly, § 1252(a)(2)(A) contains language that the Attorney General "shall take into custody any alien convicted of an aggravated felony upon release of the alien ... the Attorney General shall not release such felon from custody." Finally, § 1252(a)(2)(B) directs that the "Attorney General shall release from custody an alien who is lawfully admitted for permanent residence ... if ... the alien is not a threat to the community and ... is likely to appear before any scheduled hearings."
The clear import of § 1252 is "physical custody" of the alien by INS. Thus, the mere "filing of a detainer with prison officials" does not amount to "taking into custody, technical or otherwise." Campillo v. Sullivan, supra, 853 F.2d at 596. As a result, the Court does not adopt Magistrate Judge Katz' recommendation that Severino is deemed to be in the INS custody for purposes of habeas corpus jurisdiction. (Report at 4-11).
Courts in this Circuit which have considered the issue have held that "physical" custody rather than any technical custody by operation of a detainer is essential to establish habeas corpus jurisdiction pursuant to 28 U.S.C. § 2254. Garcia v. McClellan, 1991 WL 90755 (S.D.N.Y.1991); Fernandez-Collado v. INS, 644 F.Supp. 741, 743-44 (D.Conn.1986), aff'd, 857 F.2d 1461 (2d Cir.1987). See also D'Ambrosio v. INS, 710 F.Supp. 269, 271 (N.D.Cal.1989). Because petitioner has not yet been taken into INS custody pursuant to a warrant of arrest or by operation of a detainer, neither 28 U.S.C. § 2241 nor 8 U.S.C. § 1252 is available to support the writ. The writ is denied and the Clerk of the Court is directed to enter judgment dismissing the petition with prejudice.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605836/ | 349 So.2d 1153 (1977)
Margaret Talley DOWNEY, etc.
v.
BITUMINOUS CASUALTY CORPORATION et al.
SC 2530.
Supreme Court of Alabama.
September 9, 1977.
R. Ben Hogan, III, Birmingham, Robert H. King, Gadsden, and Hogan, Smith & Alspaugh, Birmingham, for appellant.
Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
EMBRY, Justice.
Appellant, Margaret Talley Downey, brought this action in her own behalf as the dependent widow of Emmett Downey and for the benefit of his three dependent minor children. She sought recovery of benefits provided in lieu of workmen's compensation benefits by the terms of an insurance policy issued by appellee Bituminous Casualty Corporation to State of AlabamaHighway Department. That department had leased Downey, a convict, from the Board of Corrections, State of Alabama. While working with a road crew of the Highway Department he met his death as the result of an accident. The Department was housing Downey and paying the Board for his use, at the time.
Appellants, the Downeys, make three statements of what they perceive to be the issues presented for review by this court. The third one is controlling.
"3. Did the Trial Court err in failing to find from the stipulated facts as a matter of law and policy that State prisoners working on road crews under the supervision of the Alabama Highway Department are employees of the Department within the meaning of the insurance coverage that provides benefits for the death or disability to the employees of the Alabama Highway Department?"
We hold that the trial court did not err and will affirm.
The Downeys contend that Mr. Downey was an employee of the Highway Department *1154 within the meaning of the Alabama workmen's compensation laws and they are entitled to benefits on account of his death under the terms of the policy which required Bituminous:
"To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law."
They say that, although there is no Alabama case interpreting our insurance law or comp act as it applies to leased convicts under the facts of this case, the better rule of law is that, where the convict is housed and supervised by the Highway Department, the widow and minor children should receive death benefits afforded beneficiaries of any other Highway Department employee killed in the course of his employment by accidental means.
Primarily, two cases are relied upon to support the Downeys' contention; Johnson v. Industrial Commission, 88 Ariz. 354, 356 P.2d 1021; and Pruitt v. Workmen's Compensation Appeals Board of the State of California, 261 Cal.App.2d 546, 68 Cal.Rptr. 12.
In Johnson, the Arizona court stated:
"This case presents the single question of whether a county prisoner, injured while on loan to a private corporation, is an employee within the meaning of the Workmen's Compensation Act of Arizona, and therefore entitled to compensation for injuries sustained during the time he was so employed."
In holding the corporation, Yuma County Fair, Inc., was the employer and Johnson the employee, it was stated:
"Although petitioner was under duress in that he was a prisoner of Yuma County, there is nothing in this record to indicate that the actual services of these eight prisoners for the Yuma County Fair, Inc. was compulsory. As an additional inducement they were each given three-days credit for each day's work and seemingly were free to choose whether they worked or not. All the essentials of a contract for hire were present. Consideration flowed from the employer by way of different food and lodging, perhaps better, and sundries and cigarettes. Petitioner evidenced his agreement to the arrangement by performing the work tendered."
Although there are other distinctions between this case and Johnson, the fact that Johnson's services for Yuma County Fair was voluntary is a significant one. One of Bituminous' principal arguments is that Downey was not an employee because his services to the Highway Department were not voluntary. Obviously, the other distinction between Johnson and this case is the fact that Yuma County Fair was a private corporation.
In Pruitt, a county inmate was farmed out to Nevada City to work on its sewer plant. He was held to be a city employee for workmen's compensation purposes where he did such work voluntarily in return for credit on the sentence served, interlude release from jail confinement, and a carton of cigarettes per week. The distinction between Pruitt and this case may be found in that portion of the opinion of the California court where it states:
"We hold that when a county jail inmate is loaned out to a third party for work on a voluntary basis, whether that third party be a private corporation or a municipality, and when he is under the control of the latter with the right in said third party to direct the manner in which the service shall be performed, there is (1) a relationship of master and servant, (2) an implied contract of hire and therefore by statutory definition (in Lab. Code, § 3351) the inmate becomes an `employee' and as such entitled to workmen's compensation benefits when injured in the course and scope of his employment. That is true notwithstanding that monetary consideration passing to the prisoner be nil and the other consideration from the direct beneficiary of the services *1155 (here a carton of cigarettes) be of nominal value. This court has held that payment of monetary wages is not a sine qua non of employment under workmen's compensation law. * * * Concededly, the principal consideration passing to petitioner was his credit on sentence time served plus an interlude release from jail confinement. That which the inmateservant received may not have been great from the viewpoint of some, but that which he gave in return was considerable.
The section of the California Labor Code, defining an employee for workmen's compensation purposes, mentioned in the quoted statement provides:
"* * * [E]very person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully employed * * *."
In this case, as did the Arizona court in Johnson and the California court in Pruitt, we deal largely with the interpretation of statutes. We are bound, in comp cases, by statutory definitions of the words employer and employee. Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933). The words employer and employee are both defined in our Workmen's Compensation Act. Title 26, § 262(d), Code, defines the term employer as:
"* * * every person not excluded by section 263 of this title who employs another to perform a service for hire and to whom the `employer' directly pays wages, and shall include any person or corporation, copartnership, or association, or group thereof, and shall, if the employer is insured, include his insurer, as far as applicable, and shall not include one who regularly employs a number less than four in any business * * *"
Title 26, § 262(h) defines employee or workman as:
"* * * Every person, not excluded by Section 263 of this title in the service of another under any contract of hire, express or implied, oral or written * * *"
One of the essentials of the relation of employee and employer is the voluntary rendition of service by the employee. Reed v. Ridout's Ambulance, Inc., 212 Ala. 428, 102 So. 906 (1925). Under our comp act there must be a contract of hire, express or implied, or written. Tit. 26, § 262(h). The person rendering the services must be paid wages directly by the employer. Tit. 26, § 262(d).
In this case, unlike in Johnson and Pruitt, Downey was not performing work voluntarily; rather he was working under sentence after conviction for a felony. He was performing forced labor while leased to the custody of the Highway Department of the State by the Board of Corrections of the State. And finally, but significantly, he was not one to whom the employer directly paid wages; a statutory requirement. For these reasons the judgment is due to be affirmed.
We would like to note the excellence of briefs of both counsel in this case as well as their reasoned and logical oral arguments. The issues were presented clearly and greatly facilitated our decision.
AFFIRMED.
TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and BEATTY, JJ., concur.
MADDOX, J., concurs in result.
JONES and SHORES, JJ., dissent.
JONES, Justice (dissenting):
I respectfully dissent. It seems to me that, under any reasonably conceivable test of the employer/employee relationship, Emmett Downey was an employee of the State Highway Department at the time of his death. The majority concludes from the record (stipulation of facts) that Downey's employment was not voluntary. This is a totally unwarranted conclusion. To be *1156 sure, his confinement as a convict was involuntary, but not his employment. Once the lease arrangement was effected between the Board of Corrections and the Highway Department, and once Downey commenced his work activities under the direction of the Highway Department, he was an employee to the same extent and to the same degree as any private citizen hiring his services as a laborer with the department; and, upon meeting with the work-related accident, though just a convict, he is just as dead.
On a relative scale, the second rationale employed by the majority is even more unfortunate. The literal reading of the statutory language "to whom the `employer' directly pays wages," misses the obvious purpose and intent of this definition. Clearly, this was intended to distinguish between a personal contract of employment and the independent contractor arrangement. One example of this distinction is Manpower, Inc. This firm contracts to perform labor and services for others through its own employeespays its own wages, and maintains its own workmen's compensation coverage. Under this arrangement, the statutory definition exempts the "employer" from the operative effect of the Workmen's Compensation Act. To use this definition to abort the employer/employee relationship between Downey and the Highway Department, in my opinion, is a distortion never contemplated nor intended by the drafters of the Act.
SHORES, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605842/ | 349 So.2d 638 (1977)
MAIN INSURANCE COMPANY, a Corporation, Appellant,
v.
Edwin E. WIGGINS, Appellee.
No. BB-449.
District Court of Appeal of Florida, First District.
May 25, 1977.
On Rehearing September 16, 1977.
*639 C.T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellant.
Gerald Sohn and Charles Cook Howell, III, Jacksonville, for appellee.
McCORD, Chief Judge.
This appeal is from a final judgment awarding personal injury protection (PIP) benefits and uninsured motorist benefits to appellee under an automobile liability insurance policy issued to appellee's daughter. Appellee was injured when hit by a motor vehicle while standing beside an uninsured vehicle he had under lease. The lease did not contain an option to purchase and therefore, under § 627.732(2), Florida Statutes (1975), appellee was not the "owner" of the vehicle and was therefore not required to carry insurance on the leased vehicle. See § 627.733, Florida Statutes (1975). Appellee did not own any automobile.
The automobile which hit appellee was covered by liability insurance to the extent of $10,000, and appellee was paid the full amount of that vehicle's coverage. He contends he is entitled to PIP benefits under the respective automobile insurance policies of his daughter and his son, both of whom resided in his household. He contends also that he is entitled to uninsured (underinsured) motorist benefits from his son's and daughter's policies since the total uninsured benefits of the two is $20,000, which is in excess of the $10,000 coverage on the vehicle which hit him. Appellee and appellant (appellee's daughter's insurer) and the son's insurer (Unigard Insurance Co.) entered into a stipulation providing that if appellee is entitled to PIP benefits, then each insurer would pay $2,125 and that if appellee is entitled to uninsured motorist coverage, then each insurer will pay $5,000.
As to PIP benefits, § 627.736(4)(d), Florida Statutes (1975), provides in pertinent part as follows:
*640 "(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.
* * * * * *
3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subparagraph 2., provided the relative at the time of the accident is domiciled in the owner's household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741." (Emphasis supplied.)
Appellee, not being the owner of a motor vehicle, is not entitled to PIP benefits under paragraph 1 of the foregoing statute, but under paragraph 3, he does qualify for such benefits under his daughter's and son's policies.
Uninsured (underinsured) motorist benefits would be payable to appellee under § 627.727(2), Florida Statutes (1975), only if he himself had an insurance policy affording uninsured motorist's coverage in excess of the $10,000 coverage of the vehicle which hit him. That statute defines the term "uninsured motor vehicle" to include an insured motor vehicle when the liability insurer thereof "has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist's coverage." (Emphasis supplied.) In Government Employees Insurance Co. and Travelers Indemnity Co. v. Clem Taylor, 342 So.2d 547 (Fla. 1 DCA 1977), we construed the words "his uninsured motorist's coverage" in the above-quoted statute to refer only to coverage of a policy issued to the injured person and not to include uninsured motorist's coverage of another person's policy of which the injured person happens to be a beneficiary.
The trial court was correct in ruling appellee was entitled to PIP benefits and attorneys fees applicable to his claim for PIP benefits, but erred in ruling that appellee was entitled to uninsured (underinsured) motorist's benefits and attorneys fees for that claim.
Affirmed in part and reversed in part. Remanded for further proceedings consistent herewith and for assessment of a reasonable attorney's fee to appellee's attorney for successfully defending this appeal as to PIP benefits.
RAWLS, Acting C.J., and SMITH, J., concur.
ON PETITION FOR REHEARING
We have reexamined our opinion in this cause in the light of the opinion of another panel of this Court in Hunt v. State Farm Mutual Insurance Company, 349 So.2d 642, Opinion filed June 27, 1977, and in the light of our previous opinion in Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977). In the latter case, Taylor was injured when involved in a collision with a third party tort feasor. Taylor at the time was driving a vehicle owned by Jones. Taylor had $10,000 uninsured motorist coverage, Jones had $50,000 uninsured motorist coverage and the third party tort feasor had $10,000 liability coverage. Taylor contended that although his uninsured (underinsured) motorist coverage was the same amount as the liability coverage of the tort feasor, he should be entitled to stack with his $10,000 the $50,000 uninsured (underinsured) motorist coverage of the policy of Jones; that by doing so his uninsured (underinsured) motorist coverage would then exceed the liability coverage of the third party thereby bringing into play underinsured motorist coverage and he would be entitled to recover up to $50,000. We there construed § 627.727(2)(b), Fla. Stat. (1975) which expanded uninsured motorist coverage to include underinsured motorist coverage. That statute states as follows:
"(2) For the purpose of this coverage, the term `uninsured motor vehicle' shall, subject *641 to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof: * * * (b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist's coverage." (Emphasis supplied.)
We ruled that the use of the words "his uninsured motorist's coverage" refers to the coverage of the policy issued to the injured person and does not include uninsured (underinsured) motorist coverage of another person's policy of which the injured person happens to be a beneficiary. We thus held that in determining whether or not Taylor was entitled to underinsured motorist coverage he could look only to a comparison of the uninsured motorist coverage in his own policy and the amount of liability coverage carried by the third party involved in the accident.
In our previous opinion in the case sub judice following our previous opinion in Taylor, we ruled that Wiggins who had no insurance of his own would not be entitled to recover uninsured (underinsured) motorist benefits from his son's and daughter's uninsured (underinsured) motorist coverage (both lived in his household) that he would only be entitled to such benefits if he himself had an insurance policy affording uninsured motorist coverage in excess of the $10,000 liability coverage on the vehicle which hit him.
In Hunt, which was decided by another panel of this Court as aforesaid, Hunt while riding as a passenger in a pickup truck was injured in a one vehicle accident. He had no insurance policy of his own. The driver of the truck had $10,000 liability coverage. Hunt claimed uninsured (underinsured) motorist benefits under his mother's policy which had $25,000 uninsured motorist coverage and under his stepfather's policy which had $10,000 uninsured motorist coverage. The court ruled that the uninsured coverages of his mother's and stepfather's policies should be stacked, and he should recover the difference between the $35,000 total of the uninsured (underinsured) motorist coverage and the pickup truck.
Upon reconsideration of this entire matter, we have determined that the construction which we placed upon the words "his uninsured motorist's coverage" as contained in § 627.727(2)(b), Florida Statutes 1975, was more restrictive than the legislature intended by the use of such term. Prior to the amendment of § 627.727(2), Florida Statutes (1971), by Chapter 73-180, Laws of Florida, which added underinsured motorist coverage and brought it under the umbrella of uninsured motorist coverage, the Supreme Court in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla. 1971), had ruled that uninsured motorist coverage not only covered the policyholder but also covered his spouse, his relatives, and his spouse's relatives who are residents of his household. In addition, the Supreme Court stated that such coverage included any lawful occupants of the insured's automobile covered in the policyholder's automobile liability policy. The Supreme Court in Mullis quoted with approval this court's ruling in Travelers Indemnity Co. v. Powell, 206 So.2d 244 (Fla. 1st DCA 1968) that uninsured motorist coverage "has made each member of a family an insured under each such police purchased by any family member." In these two previous cases, the Supreme Court and this Court were construing only the statute as it existed prior to the 1973 amendment. As heretofore stated, the Legislature subsequently added underinsured motorist coverage by adding the following additional language:
"The term `uninsured motor vehicle' shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof:
(a) * * *
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist's coverage." (Emphasis supplied)
*642 The Legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute, Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla. 1964). The Supreme Court and this Court, having previously ruled that uninsured motorist coverage had made each member of a family (residing in the same household) an insured under each policy purchased by any family member, the legislature evidently intended by its subsequent enactment that the term "his uninsured motorist's coverage" contained therein would include the uninsured motorist's coverage of each member of the family which each such member would have under the policy of other members of the family residing in the same household. We, therefore, so hold in this case and recede from the language in our opinion in Taylor which states otherwise. We do not rule, however, that the legislature intended by the use of this term to extend underinsured motorist coverage to persons not related to the policyholder as was the situation in Taylor [although such persons, if injured while occupying the policyholder's motor vehicle with his knowledge and consent would be entitled to receive uninsured (as distinguished from underinsured) benefits by virtue of previous judicial rulings as to such uninsured motorist's coverage.]
We recede from our previous opinion in this cause insofar as it relates to uninsured (underinsured) motorist's benefits and reverses the trial court's judgment as to the award of such benefits.
Affirmed and remanded for assessment of a reasonable attorney's fee to appellee's attorney for successfully defending this appeal.
RAWLS and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605699/ | 108 Mich. App. 695 (1981)
310 N.W.2d 843
PEOPLE
v.
GILLIAM.
Docket No. 50759.
Michigan Court of Appeals.
Decided August 18, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Earl H. Morgan, Jr., Prosecuting Attorney, and Justus Scott, Assistant Prosecuting Attorney, for the people.
Frank A. Antonelli, for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and ALLEN and D.C. RILEY, JJ.
D.C. RILEY, J.
On May 14, 1979, defendant pled guilty to a charge of violating the so-called felony-nonsupport statute, MCL 750.165; MSA 28.362. The judge delayed sentencing for one year on the condition that defendant pay $20 per week per child for support of his three minor children and that he pay certain other costs. Upon defendant's failure to comply with the conditions attendant to the delayed sentence, defendant was brought in for sentencing before the one-year period expired. On January 28, 1980, defendant was sentenced to 60 days incarceration in the county jail and now appeals as of right.
Defendant does not challenge the factual basis upon which his conviction rests. More fundamentally, *698 defendant assails the constitutionality of the felony-nonsupport statute, claiming that it violates his constitutional rights to due process and equal protection.
The threshold issue is whether appellate review of these issues is precluded because of defendant's failure to raise them in the court below or as a result of his tendering of a plea of guilty to the offense charged. As to the latter, we are of the opinion that a plea of guilty does not waive appellate consideration of the constitutionality of the statute under which defendant was convicted. People v Alvin Johnson, 396 Mich. 424, 444; 240 NW2d 729 (1976), People v Riley, 88 Mich. App. 727, 730; 279 NW2d 303 (1979). We are also of the opinion that the defendant's failure to raise the issue below should not preclude our review, given the serious due process implications of conviction under an invalid statute, especially where, as here, defendant was not represented by counsel at the time he tendered his plea. See People v Miller, 49 Mich. App. 53, 61; 211 NW2d 242 (1973), People v De Silva, 32 Mich. App. 707, 713; 189 NW2d 362 (1971).
Turning to the merits of defendant's contentions, he first argues that the statute abridges his constitutional guarantee of equal protection under the law because of its discriminatory application only to "husbands" and "fathers". The statute in issue provides:
"Where in any decree of divorce, or decree of separate maintenance granted in this state, or by order entered during the pendency of any such proceedings, if personal service is had upon the husband or upon the father of any minor child or children, under the age of 17 years, or such husband or father shall have entered an appearance in such proceedings either as plaintiff or *699 defendant, the court shall order such husband to pay any amount to the clerk or friend of the court for the support of any wife or former wife who by reason of any physical or mental affliction is unable to support herself, or father to pay any amount to the clerk or friend of the court for the support of such minor child or children, and said husband or father shall refuse or neglect to pay such amount at the time stated in such order and shall leave the state of Michigan, said husband or father shall be guilty of a felony: Provided, however, if at any time before sentence he shall enter into bond to the people of the state of Michigan, in such penal sum and with such surety or sureties as the court may fix, conditioned that he will comply with the terms of such order or decree, then the court may suspend sentence therein: Provided further, That upon failure of such person to comply with said undertaking he may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and take a new undertaking and further suspend sentence as may be just and proper." MCL 750.165; MSA 28.362.
Preliminarily, we note several well-established rules of statutory construction. In Thomas v Consumers Power Co, 58 Mich. App. 486, 492; 228 NW2d 786 (1975), the Court stated that courts should attempt to construe statutes in a fashion that gives them force and validity and to avoid constructions that will nullify them. Similarly, the Supreme Court has stated that it seeks "to save legislation from unconstitutionality wherever possible by reasonable and permissible interpretation". Fritts v Krugh, 354 Mich. 97, 114; 92 NW2d 604 (1958). All legislation is presumed constitutional and all doubts are resolved in favor of upholding the validity of legislative enactments. People v Neumayer, 405 Mich. 341; 275 NW2d 230 (1979), People v Piasecki, 333 Mich. 122; 52 NW2d *700 626 (1952). When a statute is susceptible to two constructions, one consistent with the constitution and the other inconsistent, the one consistent with the constitution is preferred as that presumptively intended by the Legislature. People v Dubina, 304 Mich. 363, 369; 8 NW2d 99 (1943). Finally, as this Court stated in Simmons v Marlette Board of Education, 73 Mich. App. 1, 5; 250 NW2d 777 (1976):
"Where one section of a statute is ambiguously worded, legislative intent may be found by clear and express language found in other sections. Bidwell v Whitaker, 1 Mich. 469 (1850). In interpreting a statute we must read the entire act as a whole, and the meaning to be given to one section should be arrived at after due consideration of other sections, so as to produce a harmonious and consistent enactment as a whole. Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich. 420; 102 NW2d 584 (1960)."
The statute under which defendant was convicted is part of the Penal Code. MCL 750.10; MSA 28.200 provides that, as found throughout the Penal Code, "[t]he masculine gender includes the feminine and neuter genders". This provision indicates a clear legislative intent that the Penal Code apply to females as well as males. In addition, the Michigan Legislature amended the custody and maintenance provisions of the divorce law to provide that either parent may be ordered to pay child support. MCL 552.17a; MSA 25.97(1).[1] It thus *701 appears that the obvious legislative intent was to place fathers and mothers on equal footing with regard to the responsibility of providing child support.
We also note that MCL 8.3b; MSA 2.212(2) provides that statutory words importing the masculine gender only may extend and be applied to females as well as males. More importantly, MCL 750.10; MSA 28.200 and the original version of MCL 750.165; MSA 28.362 were part of the same act of the Legislature, 1931 PA 328, a further indication of the Legislature's intent to have the former read into the latter for purposes of application of the penal provision in issue now.
Further, in the case of Navagata v Navagata, 99 Misc. 2d 90; 415 NYS2d 372, 373 (1979), which involved an application for an order adjudging the plaintiff-husband in contempt for failure to comply with an order awarding defendant-wife temporary alimony, plaintiff argued that the statute under which the alimony order was entered was unconstitutional as being violative of equal protection. In response to this claim, the Court stated that:
"[T]he Court may utilize the principle authorizing it to construe the statute as to avoid an unconstitutional interpretation. (Carter v Carter, 58 AD2d 438; 397 NYS2d 88 [1977]). No violence is done to either the purpose or intent of the statute with respect to the award of temporary alimony in appropriate matrimonial actions by construing and interpreting the statute as to equalize the eligibility of a spouse, irrespective of sex or gender, to the benefits thereof. This Court so construes the statute."
*702 In light of the fairly recent extension of child support obligations to mothers and the rules of statutory construction set forth in MCL 8.3b; MSA 2.212(2), and that found in MCL 750.10; MSA 28.200, as well as the judicial rules of construction as mentioned hereinbefore, including the rule of construction employed by the Court to save the statute in Navagata, we conclude that the statute in question applies equally to males and females and is therefore not violative of equal protection.[2]
Defendant's due process challenge is that the statute under which he was convicted is unconstitutionally vague with respect to the conduct proscribed.
Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. People v Howell, 396 Mich. 16, 21; 238 NW2d 148 (1976). The basic standard for determining whether a statute is void for vagueness is found in People v Herron, 68 Mich. App. 381, 382; 242 NW2d 584 (1976), where the Court stated:
"`[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Lanzetta v New Jersey, 306 U.S. 451, 453; 59 S. Ct. 618; 83 L. Ed. 888 (1939)."
The parameters of a vagueness inquiry are *703 clearly spelled out in People v Harbour, 76 Mich. App. 552, 558; 257 NW2d 165 (1977), as follows:
"The proper vagueness inquiry is whether the statute `does not provide fair notice of the conduct proscribed', or whether it `confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed'. People v Howell, 396 Mich. 16, 20; 238 NW2d 148, 149 (1976), accord People v Downes, 394 Mich. 17, 23-24; 228 NW2d 212, 215-216 (1975). The vagueness challenge must be examined in light of the facts at hand; that is, whether the statute is vague as applied to the conduct allegedly proscribed in the instant case. See People v Howell, supra. Even though the statute may be susceptible to impermissible interpretations, reversal is not required where the statute can be narrowly construed so as to render it sufficiently definite to avoid vagueness, and where defendant's conduct falls within that proscribed by the properly construed statute. See People v Howell, supra, 23-25; 238 NW2d 150-152, People v Downes, supra, 25-27; 228 NW2d 216-217, People v Purifoy, 34 Mich. App. 318, 322-324; 191 NW2d 63, 64-65 (1971)."
The statute in question was construed by this Court in People v Ditton, 78 Mich. App. 610; 261 NW2d 182 (1977), over 18 months before a complaint was filed against the defendant. In Ditton, the Court held that inability to pay is a defense to the charge and that the refusal to pay or neglect thereof must occur at or prior to the time a defendant leaves the state of Michigan. Ditton, supra, 613, 617. The Ditton Court also held that refusal or neglect must be coupled with flight. Id., 613. Thus, it is clear that the statute, as construed prior to the institution of proceedings against the defendant, required a refusal to pay or a neglect of the duty to do so which must have occurred contemporaneously with or prior to a defendant's *704 leaving the state. These are the elements of the offense. There is no vagueness in this regard.
The remaining question concerns defendant's claim as to imprecision with respect to the meaning of the word "flight". As plaintiff argues, this statute presupposes the defendant's knowledge of the obligation of support, because of the previously entered order attendant to a decree of divorce or a modification thereof. As construed in Ditton, the statute requires neglect or refusal to pay prior to or at the time of leaving. The term "flight", read in context in the statute, means no more than leaving the state contemporaneously with or after refusing or neglecting to pay support, with knowledge of an obligation to do so. The term "flight", as understood by men of common intelligence, does not encompass the crossing of the state line where the leaving of the state is merely temporary or incident to one's occupation. If one leaves the state permanently or on a prolonged basis, doing so with the knowledge that an unfulfilled obligation of support exists by reason of neglect or refusal to pay, the flight requirement is satisfied. We cannot say this interpretation gives a trial court unfettered discretion to determine whether an offense has been committed. People v Harbour, supra, 558.
We refuse to reach defendant's hypothetical claim as it is irrelevant to a vagueness inquiry outside the First Amendment area. We believe defendant's conduct falls within the ambit of the statute as construed previously by Ditton and as construed further here. Defendant may not complain of lack of notice as to the conduct proscribed by the statute. Howell, supra, 23-25, Harbour, supra, 558.
Affirmed.
NOTES
[1] MCL 552.17a; MSA 25.97(1) provides as follows:
"The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age. However, on application for modification of a judgment or order where applicant is in contempt, for cause shown, the court may waive the contempt and proceed to a hearing without prejudice to applicant's rights and render a determination on the merits."
[2] We recognize that our opinion in this matter conflicts with a recent opinion of another panel of this Court that considered the same issue. See People v Lewis, 107 Mich. App. 277; 309 NW2d 234 (1981). We believe that Lewis was wrongly decided, however, in that the Lewis opinion did not take into consideration MCL 750.10; MSA 28.200, which evidences a legislative intent to make the Penal Code applicable to men and women equally, and did not properly consider several well-established rules of statutory construction considered herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605810/ | 349 So. 2d 338 (1977)
Andrew LEWIS
v.
Mrs. Sara PAILET, d/b/a Jefferson Bottling Co., and Fireman's Fund American Insurance Co.
No. 7879.
Court of Appeal of Louisiana, Fourth Circuit.
February 15, 1977.
On Rehearing August 1, 1977.
Writ Refused October 26, 1977.
Gertler & Gertler, M. H. Gertler, New Orleans, Richard H. Levenstein, for plaintiff-appellant.
Dillon & Williams, Gerard M. Dillon, New Orleans, for defendants-appellees.
Before GULOTTA, SCHOTT and MORIAL, JJ.
MORIAL, Judge.
Plaintiff appeals from a judgment of the district court granting summary judgment for defendant, Sara Pailet. We affirm.
Plaintiff was injured in the course and scope of his employment while driving a truck owned by Pailet Industries, a partnership doing business as Jefferson Bottling Company and Claiborne Ice House. While *339 driving down South Claiborne Avenue in New Orleans in a northerly direction, the truck's brakes failed causing plaintiff to collide with another vehicle.
Plaintiff sued Sara Pailet, the managing partner of Pailet Industries, as well as other supervisory employees in tort. He alleged that they were negligent in failing to properly maintain the vehicle and further alleged that the accident was caused solely by the defective brakes in the truck provided by defendant Jefferson Bottling Company.
Sara Pailet contended that plaintiff's exclusive remedy is in workmen's compensation and filed a motion for summary judgment. Three affidavits by Sara Pailet were filed in support of her motion for summary judgment. In her several affidavits defendant Pailet declared that she had delegated the duties of supervisor of employees, maintenance and inspection of vehicles used in the business of Jefferson Bottling Company and Claiborne Ice Company to the respective general managers of those separate divisions of Pailet Industries; that she never undertook the above responsibilities and had no knowledge of the defective condition of the vehicle. Plaintiff filed no counter affidavits. The district court granted Pailet's motion for summary judgment. We affirm.
Subsequent to the district court's ruling, the Supreme Court decided Cooley v. Slocum, 326 So. 2d 491 (1976). In Cooley the Court held that a partner in the employing partnership is not immune from individual tort liability for injuries sustained by an employee of the partnership. In view of Cooley plaintiff has a possible action in tort against Pailet. However, in reviewing the record as a whole, as we are bound to do, we are of the opinion that the decision of the district court is correct.
In Cooley the Supreme Court analogized the cause of action to that of an employee against an executive officer of a corporation as set out in Canter v. Koehring, 283 So. 2d 716 (La.1973). In Canter at page 721 the Court stated:
"* * * personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or malperformance and has nevertheless failed to cure the risk of harm." [footnote omitted]
Defendant's declaration in her affidavits in support of her motion for summary judgment substantially show that there is no genuine issue as to material fact. When scrutinized under the requirements in Canter necessary to find personal fault of an officer, agent, or employee upon which personal liability can be imposed, defendant's affidavits in support of her motion for summary judgment together with plaintiff's petition show substantially that there is no genuine issue as to material facts. See LSA-C.C.P. Article 966.
Plaintiff failed to file any opposing affidavits. He relied on the allegations of his petition to show that there is a genuine issue for trial. A party who opposes a properly supported motion for summary judgment cannot rely upon the bare allegations or denials of his pleadings, but must respond by affidavit or as otherwise provided and must set forth specific facts showing the existence of a genuine factual issue for trial. LSA-C.C.P. Articles 966 and 967. As here, should the opposing party fail to respond, summary judgment, if appropriate, shall be rendered against him. See Continental Casualty Co. v. McClure, 313 So. 2d 260 (La.App. 4 Cir. 1975).
This is an appropriate case for the rendition of a summary judgment. Plaintiff failed to present any facts to support the *340 bare allegations of negligence on the part of Mrs. Pailet as set out in his petition. Sara Pailet as the managing partner of Pailet Industries had delegated the duties of personal supervision over the employees and maintenance and inspection of vehicles used in the businesses of the partnership to her subordinate managers. Therefore, applying the doctrine of Canter to the facts set forth in Mrs. Pailet's affidavits and the allegations of plaintiff's petition we cannot find her personally liable for the injuries sustained by the plaintiff.
The judgment of the district court is affirmed at plaintiff's costs.
AFFIRMED.
SCHOTT, J., dissents.
SCHOTT, Judge, dissenting.
LSA-C.C.P. Art. 966 provides that the summary judgment "shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, . . ."
As was pointed out in the majority opinion, the Supreme Court in Canter v. Koehring, 283 So. 2d 716 (1973) provided that for liability to attach to the executive officer plaintiff must show that the officer breached a personal duty toward the injured plaintiff but the executive officer may avoid liability if he establishes that the defendant's general responsibility "has been delegated with due care to some responsible subordinate . . . ." See Downey v. Callery, 338 So. 2d 937 (La.App. 4th Cir. 1976), writs refused, La., 340 So. 2d 1389 (1977).
Mrs. Pailet, as the managing partner of plaintiff's employer, had a personal duty toward plaintiff to insure that the brakes on the truck which plaintiff was required to operate were functioning properly. The record establishes that Mrs. Pailet delegated this responsibility or duty to the general manager of Claiborne Ice Company, the division of her company for which the truck was used and being operated at the time of plaintiff's accident. In order for defendant to prevail she must show, however, that her delegation was made with due care and that the general manager of Claiborne Ice Company was a responsible subordinate. There is nothing in the record to show that there is no genuine issue as to these material facts which are necessary elements in the defense of this case.
I would reverse this summary judgment and remand the case to the trial court for further proceedings.
ON REHEARING GRANTED
PER CURIAM.
We find no error in our original decision.
ORIGINAL DECREE REINSTATED.
SCHOTT, Judge, dissenting from Per Curiam on Rehearing.
I adhere to my original dissenting opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606225/ | 349 So.2d 830 (1977)
Debra MACKEY, a Minor, by and through Charles Mackey, Her Father and Next Friend, Appellants,
v.
RESERVE INSURANCE COMPANY and Rosann Wheeler, Appellees.
No. EE-255.
District Court of Appeal of Florida, First District.
September 14, 1977.
*831 Sylvan A. Wells of Stern, LaRue & Wells, P.A., Daytona Beach, for appellants.
Sutton G. Hilyard, Jr. of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees.
SMITH, Judge.
Debra Mackey, a minor, and her father appeal from a judgment in this personal injury case awarding each $2,500 on their claims against Wheeler and her insurer. By a special verdict the jury found each claimant damaged to the extent of $5,000, but reduced the amount of their recovery by half due to Debra's own negligence. The Mackeys complain principally of the trial court's exclusion from evidence, when offered by the Mackeys, of Wheeler's admission of guilt of a traffic infraction in the incident.
Because the traffic incident caused personal injury to Debra, Wheeler was required by Section 318.19, Florida Statutes (1975) to attend a mandatory hearing on her traffic citation. She there pleaded guilty to or admitted the truth of the traffic charge. The trial court, excluding evidence of her admission, gave her the benefit of Section 318.14, which provides that a person not required to attend a mandatory hearing may respond to a traffic citation by paying the civil penalty by mail or in person within 10 days or by forfeiting any bond posted to secure appearance. Section 318.14 further provides:
"If the person cited follows either of the above procedures, he shall be deemed to have admitted the infraction and to have waived his right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings."
The trial court erred in excluding Wheeler's admission. Section 318.19, prescribing procedures for the disposition of traffic citations requiring a mandatory hearing, states:
"Any person cited for the infractions listed in this section shall not have the provisions of § 318.14(2) and (4) available to him but must appear... ."
The legislature evidently considered different treatment of more serious traffic offenses is appropriate. We need not speculate *832 on whether the policy of excluding admissions of guilt under the provisions of Section 318.14(2) and (4) should reasonably be applied also in the case of more serious offenses handled under Section 318.19, for the legislature has clearly stated that the policy should not be so applied.
While we consider the trial court erred, the error was harmless in this case. The proffered admission went simply to the question of whether Wheeler was negligent, which the jury's verdict found favorably to appellants. The admission did not, as contended by the Mackeys, bear on the question of Wheeler's degree of fault contributing to the injury. Conceding that Florida's comparative negligence doctrine makes the question more difficult, we conceive that, to warrant reversal, a successful plaintiff must show a clear relationship between the evidence erroneously excluded and the amount of plaintiff's verdict. In this case that showing was not made. The favorable verdict rendered the error harmless to appellants. See Kuharske v. Lake County Citrus Sales, Inc., 61 So.2d 495 (Fla. 1952); Evans v. Kloeppel, 72 Fla. 267, 73 So. 180 (1916).
AFFIRMED.
RAWLS, Acting C.J., and ERVIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070775/ | Order entered July 9, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01419-CV
IN THE MATTER OF THE MARRIAGE OF CASEY LEE CROOM AND AUSTIN
GREGORY CROOM AND IN THE INTEREST OF K.R.C. AND L.R.C., CHILDREN
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-51917-2010
ORDER
We GRANT appellant’s July 7, 2014 unopposed motion to extend time to file reply brief
and ORDER the brief be filed no later than July 25, 2014. No further extensions will be granted
absent exigent circumstances.
/s/ ELIZABETH LANG-MIERS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/396581/ | 663 F.2d 805
Paul SEEMILLER, Appellant,v.Donald WYRICK, Warden, and John Ashcroft, Attorney General, Appellees.
No. 80-2181.
United States Court of Appeals,Eighth Circuit.
Submitted Aug. 14, 1981.Decided Nov. 11, 1981.Rehearing and Rehearing En Banc Denied Dec. 1, 1981.
Jane E. Leonard (argued), Stolar, Heitzmann, Eder, Seigel & Harris, St. Louis, Mo., for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Lew A. Kollias, Asst. Attys. Gen., Jefferson City, Mo., for appellees.
Before HENLEY and ARNOLD, Circuit Judges, and BECKER,* Senior District Judge.
PER CURIAM.
1
Paul Seemiller, a state prisoner, brought this action in federal district court, seeking habeas corpus relief. The district court found that some of his claims were meritless, and that the rest had not been fully pursued in the state court system, and accordingly denied relief. Seemiller appeals, contending that he should not be required to exhaust his state court remedies.1
2
Seemiller was convicted in March, 1976 in the St. Charles County, Missouri Circuit Court of sodomy and of assault with intent to do great bodily harm without malice aforethought. He was given consecutive sentences of ten years on the sodomy count and two years on the assault count. The conviction was affirmed on appeal. State v. Seemiller, 558 S.W.2d 212 (Mo.App.1977), and transfer to the Missouri Supreme Court was denied.
3
In July, 1979 Seemiller filed a Missouri Rule 27.26 petition for post conviction relief in the St. Charles County Circuit Court. As grounds for relief, he stated that he was denied effective assistance of counsel and counsel of his own choosing; that he was denied a fair trial because the court instructed on assault without malice and failed to give MAI-CR instructions No. 2.70 and 2.77; and that he was denied a fair trial due to systematic exclusion of women and blacks from the jury. The petition included a motion to disqualify a judge.
4
The state court appointed counsel to represent Seemiller. The court denied that counsel's motion to withdraw. Counsel then filed an amended petition and a memorandum in support thereof. Eventually, the court apparently allowed counsel to withdraw, and a second attorney was appointed. On May 12, 1980 the new counsel filed a motion for disqualification of a judge, which was granted the next day. A new judge was assigned to the case on May 29, 1980, but a hearing was not held until March 21, 1981.
5
Dissatisfied with progress in the state trial court, Seemiller filed a petition for habeas corpus in the Missouri Supreme Court. He alleged he was being denied a prompt hearing for post conviction relief in state court, and that he was entitled to be discharged from custody because he was convicted in violation of his constitutional rights. The Missouri Supreme Court denied the petition on April 8, 1980.
6
On April 14, 1980 Seemiller filed the instant habeas corpus proceeding. As grounds for relief, he listed the six claims pending in his action in the St. Charles County Court, four claims of error which were rejected in his direct criminal appeal, and the delay in the state post conviction proceedings. The magistrate found that Seemiller had not exhausted his state court remedies as to the six claims pending in state court, that the four exhausted claims were without merit, and that delay in the post conviction proceedings was no reason to set aside the original conviction. He accordingly recommended that the unexhausted claims be dismissed without prejudice, and that all other claims be dismissed with prejudice.
7
Seemiller then objected that the issue of delay in the state proceedings was not an independent claim but was support for his contention that he should not have to exhaust his state court remedies as to the claims presented in the state trial court proceedings. The district court ordered a copy of the docket sheet of the state court action on September 30, 1980. A copy was produced, and the district court noted that the (second) change of judge motion had been granted. In light of the "inevitable delays attendant upon the reassignment of the 27.26 motion," the court found that the State had not been " 'unnecessarily and intentionally dilatory' " (quoting Mucie v. Missouri State Department of Corrections, 543 F.2d 633, 636 (8th Cir. 1976)), and that "it was not unreasonable to require petitioner to exhaust his state remedies as recommended by the Magistrate." Accordingly, the court adopted the Review and Recommendation of the Magistrate.
8
On appeal counsel was appointed for Seemiller. Issues which have been raised are whether delay in the state court proceedings should excuse the exhaustion requirement, and whether, in any case, exhaustion should not be required as to two of his claims because of the absence of state law in support of the claims. We will consider these contentions in order.
9
To some extent we perhaps differ with the district court in that we do not think the change of judge motion should have led to much "inevitable delay." At the time of the second change of judge motion, no hearing had been held, and from the docket sheet it appears that the state had not even filed a response. Thus, the only judicial duplication of effort would have been that both judges looked at a file which contained only court orders and motions filed by Seemiller and his counsel. It is true, of course, that the case had to be fit into the schedule of the judge to whom it was reassigned and had to be made ready for disposition.
10
After the district court entered its decision, the state court held a hearing on Seemiller's claims. Thus, real progress has been made in the state proceedings, and we think that exhaustion may not yet be excused by us. Cf. Thompson v. White, 591 F.2d 441, 443 (8th Cir. 1979). As in Thompson, although there has been delay in the state court proceedings, this court has no reason to believe that the state court will continue to delay. While we cannot condone the slow progress of Seemiller's Rule 27.26 case, we cannot say that he has no effective remedy available in the state courts at this time.
11
Appellant contends that it would be futile for him to pursue his incompetence of counsel and lack of choice of counsel claims in state court, because there is no state law to support his claims. His incompetence of counsel claim stems from his trial counsel's failure to call as a witness one Ronald King. The state's evidence at trial showed that Seemiller and King forced the victim into a car, forced her to commit acts of oral sodomy and beat her.2 In the district court, Seemiller claimed that King would have corroborated his defense that the woman received her injuries in an accident and that no crimes were committed in the car. On appeal Seemiller asserts that Missouri courts routinely reject claims of ineffectiveness of counsel based upon failure to call witnesses, and thus it would be futile to pursue this claim in state court.
12
Although there are numerous Missouri cases which reject ineffective assistance claims based on failure to call witnesses, we cannot agree that Seemiller necessarily is foreclosed from obtaining relief in Missouri courts. To the contrary, the Missouri Supreme Court has stated that "(c)ounsel's duty includes use of witnesses named by defendant who may assist in the defense." Eldridge v. State, 592 S.W.2d 738, 741 (Mo.1979), citing Jones v. State, 491 S.W.2d 233 (Mo.1973). Perhaps Seemiller's trial counsel determined that Ronald King's testimony would not be helpful or for some other reason elected not to call King; if so, Missouri courts should have the opportunity to decide whether counsel's determination was reasonable.
13
Seemiller's claim that he was denied counsel of his own choosing is related to his claim of ineffective assistance of counsel, and should therefore also be decided by the state courts before the federal courts.
14
While we understand the petitioner's frustration with the slowness of the state court proceedings, as indicated we cannot say that this case is one in which the exhaustion requirement may be completely excused. However, it has been more than two years since appellant's pending state proceeding was commenced and more than seven months since it was tried. Should he lose in the St. Charles County Circuit Court, appellant will face still further delay in exhausting his state remedy through resort to state appellate procedures. In these circumstances, rather than affirm the order of dismissal for failure to exhaust, we deem it appropriate to vacate the judgment of the district court and remand for further consideration. If within sixty days from and after this court's mandate issues the state court has rendered decision in favor of appellant this case may be dismissed. But if after sixty days the state court has rendered no decision, the district court should proceed to trial herein. Should the state court render a decision unfavorable to appellant, then the district court should consider anew the question whether state appeal should be excused. See Mucie v. Missouri State Department of Corrections, supra.
15
The judgment of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.
16
We are grateful to appellant's counsel for her efforts in this case.
*
The Honorable William H. Becker, United States Senior District Judge, Western District of Missouri, sitting by designation
1
Seemiller has not contested the finding of the district court that his exhausted claims were meritless
2
King was jointly charged with Seemiller, and they were granted separate trials | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/662464/ | 15 F.3d 1538
Anthony Jerome HARRIS, Gary Middaugh, Theodore Ford, DoyleKing, Randy Meyer, Terry Crisp, Michael Farmer, JohnHoneycutt, Coy Hill, Troy Brown, Deems Rowell, GordonBunton, Adam Wright, Robert Manous, Kimball Foreman, JoeHeadrick, Terry Steward, Arthur Blackmon, James Smith,Stephen Ross, Johnny Smith, Larry Brown, Walter Robinson,Roger Williams, Kenneth Owens, Marshall Gee, Kelly Craig,Gilbert Payne, Danny Green, Calvin Eslick, Paul Rogers,Michael Smith, Nathaniel Jackson, Johnny Romo, Jeffery Lea,Johnny Davis, Chester Watkins, Ricky Wyatt, Aron Cox, NeroTecumseh, Joseph Osborne, Joseph Dicesare, William Knittel,James McClain, Eddie Coats, Walter Bowers, Huey Hall, RonnieMoore, Shane Boggs, Willie Taylor, Clarence Bramlett, BruceHill, Larry Ives, Donald Myles, Kevin Cole, Larry Crawley,Edward Teichman, Keith Larkins, Leonard Goudeau, JoelVanscoy, Robert Richards, Michael Broadnax, Rufus McGee,Kyle Cheadle, Steve Seitz, Timothy Whipkey, Adrian Collins,William Severe, Robert Brixey, Kevin Parker, Lloyd Harjo,Kenneth Burrell, Louis Washington, David Copple, Fred Cook,Robert Schneider, Joel Allen, Boyce Vandenburg, JerryStiles, Tony Abney, Jackie L. Adair, Robert Anderson,Ascension Armendariz, Larry Bailey, Charles Barnett, RogelioBege, J.C. Berry, Lavern Berryhill, Perry Biffle, JackieBlanton, Douglas Breeden, Gregory Brians, Arthur Brown,Bobby Bruce, Derek Burger, Larry Butcher, John Byrd, JamesCagle, Clifford Campbell, Douglas Capps, Gerald Carroll,Toriano Chandler, Joe Chase, Clyde Chuculate, Joseph Cloud,Johnny Cole, Pam Colley, Ronald D. Copper, Dennis Cornell,Cyndi Cornell, Germaine Crawford, Rickie Crisp, James Crow,Gerald Daniels, Brian Daniels, Richard Demes, Ronnie Dial,Alfonso Duran, Larry Edwards, Andrew Ephriam, James L.Evans, J.W. Fatherree, Lance Foster, Donnie Joe Frye, DennisGaines, Louis Gibson, Ronnie Gilmore, James Godbey, ForestGolbek, Jerry Graham, Lantze Green, Bryan Griffin, JamesHamilton, David P. Hammer, Lauren Hankins, Eual Hardt,Michael Hayes, Randy Henderson, Eldon Henderson, AndreaHester, Archie Hill, Dewayne Holland, Harold Holman, ThomasHoneycutt, Michael Houston, C. Huffstutler, Keith Hunt,Dorris Jackson, Napoleon James, Willie Jemison, Allen Jones,Allen Kaulaity, Jeffery King, Robert Kluver, Fred Knisley,Millard Knox, Clarence Landreth, Bernard Lawson, OdisLawson, Jr., Qunion Leigh, Frank Logan, Laura Long, JosephLyda, Brian Maffee, McKinley Mahan, Patrick Martin, ElijahMartin, Leobardo Martinez, Barry McClure, Glenn McGuire,Patrick Meadows, Juan Mercado, Walter Miller, Jackie Miller,Larry Mills, Gary Minard, William Moore, Abdullah Muhammad,Darphus Murray, Steven Ness, George Nichols, Michael Norman,James Northcross, Richard Olsen, Carmen Patton, DixiePebworth, Roger Peterman, Rick Petrick, Gregory Poe, WilliamP. Potts, Michael Prater, James Price, Steven Pyles, NillsonRamirez, Christopher Ransom, Hazen Ray, Terry Reeves,Kenneth Reynolds, Terrance Richards, Eddie Richie, MichaelRiggs, T.J. Roby, Arthur Rodriguez, Victor Rose, Kenneth L.Russell, David Russell, David Sadler, Samuel Sanner, WilliamSherburn, Monty Shockey, Mary Shoffner, Wayne Shull, DonaldSibit, Canova Singleton, John Smith, Danny Smith, TerrySmith, Michael S. Smith, Anthony Steele, Richard Stone,Thomas Strother, Jamie Struble, H. Stumblingbear, ShermanSurface, Stacey Sutton, Stephen Thomas, David Thomas, JonTibet, Johnny Tilley, Roscoe Tilley, Lyman Tomlin, Floyd R.Turner, Cheryl Wagner, Larry Walker, Michael Walling, WalterWalters, Warren Ward, Leslie Warledo, Johnny Washington,Orland Wasson, Joseph Watkins, Thomas Weaver, Andrew West,Jack Whitlock, Robert Whittier, Billy D. Wilkins, TyroneWilliams, Marty Williams, Jack Williams, Thurman Wilson,Donald Wilson, Willie Wilson, Randy Wood, Kevin Wood Sr.,Robert Woods, Billie Woolsey, Charles Wooten, Galen Wooten,Sharlene Workman, Coy Yocham, Floyd Zeigler, Floyd Harris,Roosevelt McCoy, Gregory Mundine, Donald O'Shields, GeraldThompson, Terry P. Crow, Brian Leroy Jordan, Terry LynnRhine, Leron Robinson, Carol Ann Pierce, Richard LeeJohnson, Robert M. Estrada, David Richard,Petitioners-Plaintiffs-Appellants,v.Ron CHAMPION, Steve Hargett, Stephen Kaiser, Bobby Boone,Dan Reynolds, Joy Hadwiger, R. Michael Cody, Edward Evans,R. Jack Cowley, Neville Massie, H.N. Scott, Sue Frank,Denise Spears, Earl Allen, Jim Sorrels, Wardens, and allother Wardens of Correctional Facilities of the State ofOklahoma having custody of any of the Plaintiffs; theOklahoma Department of Corrections; Gary Maynard, theDirector of the Oklahoma Department of Corrections; theOklahoma Court of Criminal Appeals; the Judges of theOklahoma Court of Criminal Appeals, to-wit, Honorable JamesF. Lane, Honorable Gary L. Lumpkin, Honorable Tom Brett,Honorable Ed H. Parks, and Honorable Charles A. Johnson;the State of Oklahoma; the Oklahoma Indigent DefenseSystem; Henry A. (Hank) Meyer, III, Chairman, Richard Reeh,Doug Parr, Richard James, and Becky Pfefferbaum, M.D.,individually and as Members of the Oklahoma Indigent DefenseSystem Board; Patti Palmer, individually and as ExecutiveDirector of the Oklahoma Indigent Defense System; and, E.Alvin Schay, individually and as Appellate IndigentDefender, i.e., Chief Administrative Officer of the OklahomaAppellate Indigent Defender Division,Respondents-Defendants-Appellees.
Nos. 93-5123, 93-5209.
United States Court of Appeals,Tenth Circuit.
Jan. 26, 1994.
David Booth of R. Thomas Seymour, Tulsa, Oklahoma, for Petitioners-Plaintiffs-Appellants.
Diane L. Slayton, Assistant Attorney General (Susan B. Loving, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Warden Respondents-Defendants-Appellees.
J. Warren Jackman (William A. Caldwell, with him on the brief), of Pray, Walker, Jackman, Williamson & Marlar, Tulsa, Oklahoma (and Gary Peterson, with him on the brief, Oklahoma City, Oklahoma), for Oklahoma Indigent Defense System Respondents-Defendants-Appellees.
John M. Imel (John E. Rooney, Jr., with him on the brief), of Moyers, Martin, Santee, Imel & Tetrick, Tulsa, Oklahoma (and Gail L. Wettstein, with him on the brief, Oklahoma City, Oklahoma), for Oklahoma Court of Criminal Appeals Respondents-Defendants-Appellees.
Before LOGAN, BRORBY, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
1
These consolidated habeas appeals, which come to us after our remand in Harris v. Champion, 938 F.2d 1062 (10th Cir.1991) (Harris I ), require us to revisit the problem of appellate delay in the Oklahoma criminal justice system. In Harris I, we ruled that the United States District Court for the Northern District of Oklahoma should have excused an Oklahoma prisoner's failure to exhaust his state remedies before seeking federal habeas relief in light of extensive delay by the state public defender in filing an opening brief in the prisoner's direct criminal appeal. 938 F.2d at 1065-66, 1071. We remanded the action to the district court and directed it to investigate the possibility of systematic delay in the filing of briefs by the Oklahoma Appellate Public Defender System (Public Defender).1 Id. at 1071. In a subsequent opinion, we expanded the scope of inquiry on remand to include a consideration of the entire criminal appellate process in Oklahoma insofar as it contributes to delay in deciding direct criminal appeals of indigent defendants. Hill v. Reynolds, 942 F.2d 1494, 1496-97 (10th Cir.1991). We now consider the results of the district court's rulings on remand.
2
In this opinion we are called upon to address several issues arising out of the delay in processing petitioners' direct criminal appeals, including whether petitioners must exhaust their state remedies before seeking habeas relief in federal court and whether the delays in the state appellate process have violated petitioners' rights to due process, equal protection, or effective assistance of counsel. The record before us shows that many of these petitioners, all of whom are indigent and were represented by the Public Defender in their direct criminal appeals, had to wait three or more years before a brief was filed on their behalf in their respective direct criminal appeals. Some petitioners also experienced delays elsewhere in the appellate process.
3
The following is a brief synopsis of our opinion, which begins with the issue of exhaustion. We conclude that there is a rebuttable presumption that the State's process is not effective and, therefore, need not be exhausted, if a direct criminal appeal has been pending for more than two years without final action by the State. This two-year presumptive period is not inflexible: the particular circumstances of a case may warrant excusing exhaustion after a delay of less than two years as, for example, when the length of the sentence is considered or when there is an obvious and massive breakdown in the procedural development of the appeal; alternatively, circumstances may warrant refusing to excuse exhaustion even after a delay of more than two years.
4
Next, we consider whether appellate delays also gave rise to independent due process violations. We apply the four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101 (1972), and examine the length of the delay, the reason for the delay, whether the petitioner asserted his or her right to a timely appeal, and whether the petitioner experienced any prejudice as a result of excessive delay.
5
First, we agree with the district court's conclusion that delay in finally adjudicating a direct criminal appeal beyond two years is presumptively excessive. Again, this two-year presumptive period is not inflexible; delay of less than two years may be excessive in some cases and delay of more than two years may not be excessive in other cases. Generally, however, the longer delay in the appellate process extends beyond two years, the less showing a petitioner must make on the other parts of the balancing test, including prejudice resulting from the delay.
6
Second, we conclude that the reasons the State has offered for the delays experienced by petitioners--underfunding and, possibly, mismanagement of resources--are not constitutionally sufficient to justify excessive delay. Third, we conclude that absent a showing that a petitioner affirmatively sought or caused delay in adjudicating his or her appeal, a petitioner sufficiently asserted his or her right to a timely appeal by filing a federal habeas petition seeking relief from appellate delay by the State.
7
Finally, we conclude that although prejudice may be presumed if appellate delay is sufficiently excessive, ordinarily a petitioner must make some particularized showing of prejudice to establish a due process violation. Prejudice arising from excessive appellate delay may take any of three forms: oppressive incarceration pending resolution of the appeal; anxiety and concern pending resolution of the appeal; and impairment of the grounds for appeal or the grounds for a retrial in the event the petitioner's conviction is reversed. Because we are concerned only with prejudice arising from excessive delay, the particularized showing must relate to events that occurred during the period of delay that was excessive.
8
The most significant form of prejudice, and often the most difficult to prove, is prejudice to the grounds for appeal or to the grounds for defense in the event of a retrial. As a precondition to establishing the latter, a petitioner must assert a colorable state or federal claim that would warrant a reversal and retrial. Likewise, as a precondition to establishing either oppressive incarceration or anxiety and concern pending resolution of the appeal, a petitioner generally must assert a colorable claim that would warrant a reversal of his or her conviction or a reduction in sentence that would entitle the petitioner to immediate release. Because the district court has not yet conducted the individualized factual inquiry necessary to apply the Barker balancing test to each petitioner, we remand the due process claims to the district court for further development.
9
Likewise, although we recognize that the Equal Protection Clause may be implicated if indigent petitioners face substantial delays in adjudicating their direct criminal appeals that petitioners who can afford to retain counsel do not face, we cannot review petitioners' equal protection claims on the factual record before us. Therefore, we must remand these claims to the district court, as well.
10
Turning to petitioners' claims for ineffective assistance of counsel, we conclude that excessive delay in filing an appellate brief may violate a petitioner's right to effective counsel. The violation ends, however, once the brief is filed, and unless the delay affected the outcome of the appeal itself, the past violation is not redressable through a habeas action. Therefore, only when a brief has yet to be filed can a petitioner obtain habeas relief for ineffective assistance of counsel resulting from excessive delay in filing an appellate brief.
11
Finally, we address two issues that do not relate to delay in the state appellate process. The first concerns the refusal of Judge Brett, one of the members of the district court panel that issued the rulings subject to appeal, to recuse himself from the habeas claims despite his uncle's presence on the Oklahoma Court of Criminal Appeals until the uncle's death in early 1993. We conclude that Judge Brett abused his discretion in failing to recuse himself and that he should not participate in any further proceedings relating to petitioners' claims. We further conclude, nonetheless, that Judge Brett's failure to recuse himself was harmless error under the particular circumstances presented here and, therefore, we may review the merits of the district court's rulings. Lastly, we conclude that the district court did not abuse its discretion in refusing to award petitioners interim attorney fees on the ground that the fee request was premature.
I. HISTORICAL & PROCEDURAL BACKGROUND
12
In 1981, following a two-year pilot project, Oklahoma instituted its first statewide system of public defenders. Before that time, in all but Tulsa and Oklahoma Counties, indigent criminal defendants were represented solely by appointed members of the private bar. The Oklahoma Appellate Public Defender System was given responsibility for appeals by all indigent defendants except those in Tulsa and Oklahoma Counties, who continued to be represented by county public defenders. Except for cases involving conflicts of interest, the Public Defender had no authority to refuse cases assigned to it by the courts.
13
Beginning in the mid-1980s, the Public Defender was assigned a steadily increasing number of felony appeals. This increase in caseload was not met with a corresponding increase in funding and staffing, however, and a backlog of unbriefed cases began to develop. With only five attorneys briefing noncapital cases, the Public Defender fell further and further behind. At the end of fiscal year (FY) 1986, the Public Defender had a total of 367 unbriefed cases.2 By the end of FY 1989, that number had risen to 705.
14
In an effort to maximize the use of its limited resources, the Public Defender implemented a "first-in, first-out" policy, pursuant to which the oldest cases were briefed first. The Public Defender also began seeking lengthy extensions from the Oklahoma Court of Criminal Appeals on a routine basis. The Public Defender would ask for an initial extension of 360 days to be followed, if necessary, by subsequent requests for extensions of 180 days or less. The Oklahoma Court of Criminal Appeals ordinarily granted these extensions.3
15
Although the Oklahoma Court of Criminal Appeals was distressed by the Public Defender's inability to handle the number of cases assigned to it, the court felt it had no power to remedy the situation directly.4 In response to a mandamus petition by an indigent criminal defendant who sought an order directing the Public Defender to file appellate briefs in his two cases with no further delays, the Oklahoma Court of Criminal Appeals regretfully commented:
16
It is obvious that the office is understaffed to handle the number of appeals that are presently being handled by the office but due to the lack of funding by the State, the office is apparently doing the best that they can under the circumstances. We are powerless to cure this problem. It can only be cured by the legislature through the use of its budgetary powers. Petitioner is not entitled to have his appeal handled prior to others who are in similar circumstances and have been delayed even longer.
17
Manous v. State, 797 P.2d 1005, 1005-06 (Okla.Crim.App.1990). Enter Anthony Jerome Harris.
18
Harris was sentenced on September 29, 1988, and the Public Defender was appointed to represent him on appeal. On April 16, 1990, in response to his inquiry, the Public Defender sent Harris a letter stating: " 'It will be at least 3 years before we are able to file your brief with the court.' " Harris I, 938 F.2d at 1064 (quoting Letter from Public Defender to Harris of 4/16/90). Believing that he should not have to wait that long to obtain a review of his conviction and sentence, Harris filed a habeas petition in federal district court and argued that the anticipated delay in adjudicating his direct criminal appeal should excuse his failure to exhaust his state remedies.
19
By the time we issued our opinion in Harris I on June 17, 1991, almost three years had passed since Harris' sentencing and the Public Defender had yet to file a brief on his behalf. We concluded that the briefing delay, which was authorized by the numerous extensions granted by the Oklahoma Court of Criminal Appeals, was attributable to the State and was not justified. Therefore, we excused Harris from exhausting his state remedies before proceeding in federal court. We also noted that the delay raised potential independent violations of Harris' constitutional rights, namely the right to equal protection, the right to due process, and the right to effective assistance of counsel.
20
We reversed the district court's dismissal of the habeas petition for failure to exhaust and, in light of the problems encountered by Harris and other Oklahoma habeas petitioners who had raised the issue of delay to this court, we directed the district court on remand
21
to consider this petitioner's claims within the context of the systemic operations of the [Public Defender]. Once the constitutional scope of the problem is known, the district court should consider what relief is appropriate for this petitioner as well as such systemic relief, if any, as may be needed to prevent any ongoing constitutional violations that may be occurring as a result of the inability of the [Public Defender] timely to prepare appeals for [its] indigent clients.
22
Harris I, 938 F.2d at 1071 (footnote omitted). Further, we instructed the district court (1) to consolidate, to the extent possible, any other habeas cases pending in the Northern District of Oklahoma that raised a constitutional challenge to the delay by the Public Defender in filing briefs in direct criminal appeals and to coordinate its review of those petitions with the review of similar petitions by the courts in the Western and Eastern Districts of Oklahoma; (2) to "conduct a full hearing, as expeditiously as possible, into possible systemic delays of the [Public Defender] in preparing and filing appellate briefs for [its] indigent clients;" (3) to make "detailed findings of fact and conclusions of law and ... enter orders specifically addressing and remedying any constitutional violations that may be found;" and (4) "to appoint experienced counsel to represent the petitioners" in the collective cases. Id. at 1071, 1073.
23
Two months later, we considered an appeal by another state habeas petitioner who was represented by the Public Defender in his direct criminal appeal. The opening brief there was not filed until two years and nine months after the notice of appeal. Hill, 942 F.2d at 1495. At the time we issued our decision, Hill's appeal had been pending three years and four months with no decision by the Oklahoma Court of Criminal Appeals. Hill contended that the delay in adjudicating his appeal excused his failure to exhaust state remedies and violated his right to due process.
24
Based on our decision in Harris I, we reversed the district court's dismissal of Hill's habeas petition for failure to exhaust. On remand, we instructed the district court to consolidate Hill's habeas action with that of Harris for hearing. We further instructed the district court to consider the period both before and after the Public Defender filed its brief and to determine "what part of the whole period of delay caused by the state may have violated Hill's right to due process." Id. at 1496-97. We thereby expanded the scope of inquiry on remand to excessive delay in the entire Oklahoma criminal appellate system.
25
During this time, sweeping changes were taking place in Oklahoma's public defender system. In June 1990, the Oklahoma Supreme Court ruled that Oklahoma's system for appointing and compensating trial counsel for indigent defendants was unconstitutional. State v. Lynch, 796 P.2d 1150, 1159 (Okla.1990).
26
In its 1991 session, the Oklahoma legislature responded to the Lynch decision by overhauling the entire indigent defense system, both at the trial and appellate levels. The Oklahoma Indigent Defense Act, Okla.Stat. tit. 22, Secs. 1355-68, which took effect on July 1, 1991, created the Oklahoma Indigent Defense System, and assigned it the responsibility of providing both trial and appellate counsel, as well as counsel on capital post-conviction matters, for indigent defendants in all but Tulsa and Oklahoma Counties. The legislature also authorized the Public Defender to hire two more attorneys to handle noncapital felony appeals.
27
Pursuant to our remand order in Harris I, in July 1991, judges in the three federal districts in Oklahoma began identifying pending habeas cases that raised the issue of delay by the Public Defender and transferring them for hearing to the then-Chief Judge of the Northern District of Oklahoma, who was designated to sit in all three judicial districts. In January 1992, the district court appointed counsel to represent the petitioners in these cases (the Harris group), which at that time numbered sixteen.
28
On February 28, 1992, the petitioners in the Harris group, which then consisted of thirty habeas cases, presented the court with reams of statistical and other data gathered from the Public Defender, the Oklahoma Court of Criminal Appeals, and the Attorney General. This evidence showed that for noncapital felony appeals filed in 1989, the Public Defender filed only three percent of its briefs within six months of the date they were due; fifty-six percent of its briefs were at least three years late; and thirty-one percent of its briefs had yet to be filed by the beginning of 1992. Almost all the Public Defender briefs due in noncapital felony appeals filed in 1990 and 1991 had yet to be filed by the beginning of 1992. During much of the operative period, therefore, an indigent appellant could expect a delay of two to four years before his or her appellate brief would be filed.
29
The Public Defender was not the only entity having problems managing its caseload, however. The Oklahoma Court of Criminal Appeals also had a steadily growing backlog of cases.5 Each year the court was struggling to dispose of the cases pending from the previous year and was making virtually no progress on the new cases filed that year. At the end of FY 1989, there were 1,148 undecided cases pending before the Oklahoma Court of Criminal Appeals; a year later, there were 1,407 undecided cases pending.6 Even the Attorney General was beginning to slip. Data collected from the Oklahoma Court of Criminal Appeals showed that although the Attorney General filed almost all her briefs within six months of the due date, starting in 1987, there was "a clear trend of a decreasing number of briefs timely filed." R., Doc. 27, Ex. 3(b) at 12. It was clear from the evidence presented that the appellate criminal justice system in Oklahoma was in a crisis.
30
In the spring of 1992, the Oklahoma legislature began taking steps to alleviate the crisis. It appropriated $400,000 for the Public Defender to use to contract with private attorneys to handle noncapital felony appeals on which the Public Defender had been appointed. As a result, the Public Defender contracted out approximately 176 of its cases that spring. In the fall, the Oklahoma Court of Criminal Appeals also took steps to speed up the appellate process. The court adopted a summary opinion format to be used in all cases that would not be published. By reducing the amount of legal analysis and discussion set forth in its unpublished opinions, the court eliminated lengthy conferences concerning the precise wording of the opinion, as well as the need for separate opinions when judges concurred in the outcome but not in the analysis.
31
Meanwhile, the petitioners in the Harris group, which by then had grown to 108 habeas cases, increased their pressure on the State by filing a supplemental and amended complaint that named as defendants the State of Oklahoma, the Oklahoma Court of Criminal Appeals and its individual members, the Public Defender and its board members and administrative officers, as well as all the Oklahoma wardens, among others. The complaint, filed in July 1992, asserted against all the named defendants both habeas claims and claims for damages under 42 U.S.C. Sec. 19837. The Harris petitioners also filed a motion for a preliminary injunction, seeking to enjoin the Oklahoma Court of Criminal Appeals from granting any further extensions of time to the Public Defender, and a motion for partial summary judgment, seeking the release of those petitioners who had been, or reasonably could be expected to be, in custody for 11.7 months or longer without receiving a final adjudication of their appeal.8
32
The district court held a hearing on the pending motions on October 15, 1992, by which time the Harris group had grown to 193 habeas cases. The court noted at the outset that all the parties appeared to agree that delays in the Oklahoma criminal appellate system had risen to the level of constitutional violations, and it informed the parties that it rejected the Attorney General's position that only the Oklahoma legislature could provide a remedy for those constitutional violations. The court said it, too, could provide a remedy.
33
The Public Defender recommended that the court stay its hand because the legislature had appropriated more money for the Public Defender to contract out its cases, and the Public Defender intended to award contracts in an additional 354-400 cases the next morning. The contracts would require all opening briefs to be filed on or before April 30, 1993. The Public Defender stated that once these cases were contracted out to private counsel, the Public Defender could "maintain brief filings on a current basis within the statutor[il]y allotted periods." Tr. 10/15/92 at 37. Counsel for the Oklahoma Court of Criminal Appeals also suggested that the court wait six months to see if the clog in the system would resolve itself. When questioned about appropriate remedies, counsel argued that while release of petitioners during the period of excessive appellate delay might be an appropriate remedy, it would have to be considered on a case-by-case basis. The Attorney General, in turn, also argued that the propriety of any remedy depended on the individual circumstances of each petitioner.
34
At the conclusion of the hearing, the court noted that, although in the usual situation it would approach petitioners' claims on an individual basis, in light of the unusual circumstances presented, it proposed the following possible remedy: to release any petitioner whose appeal had not been fully briefed and submitted to the Oklahoma Court of Criminal Appeals for decision within fourteen months of the date of conviction. Each petitioner would be released on his or her personal recognizance until the Oklahoma Court of Criminal Appeals issued its opinion; the State could apply for special terms and conditions of release in individual cases. The court gave the parties until October 23 to comment on the proposal and indicated it would issue a ruling shortly thereafter. Unfortunately, no ruling ever appeared.
35
Beginning in January 1993, various Harris group petitioners, who were anticipating release, began filing mandamus petitions with us seeking a ruling by the district court. By the end of February, there were seven such mandamus petitions pending, including one filed by counsel on behalf of all the Harris group petitioners.
36
On February 18, 1993, on motion of the Chief Judge of the United States District Court for the Northern District of Oklahoma, approved by the Chief Judges of the Western and Eastern Districts, the Chief Judge of this court entered an order designating a three-judge district court panel to adjudicate common issues of law and fact in all the habeas cases alleging delay in the adjudication of direct criminal appeals in Oklahoma. The panel, which was composed of one judge from each of the three federal districts in Oklahoma, was formed in an effort to resolve uniformly and expeditiously the common issues arising in the approximately 275 habeas cases that by then made up the Harris group.
37
By order entered March 26, 1993 in the mandamus proceedings, we directed the district court panel to show cause why it should not be ordered, among other things, "to enter findings of fact and conclusions of law in the Harris cases insofar as those cases seek habeas relief because of delays by the [Public Defender] in preparing and filing briefs in petitioners' direct criminal appeals" no later than May 10, 1993; and "to enter findings of fact and conclusions of law in the Harris cases insofar as those cases seek habeas relief because of delays by the [Attorney General] or the [Oklahoma Court of Criminal Appeals]" no later than September 10, 1993. Harris v. United States Dist. Ct., Nos. 93-527, et al., at 7-8 (10th Cir. Mar. 26, 1993) (unpublished order). We also suggested that the district court certify those rulings for immediate appeal pursuant to Fed.R.Civ.P. 54(b).
38
In its response to the show cause order, the district court indicated that it had no objection to meeting the deadlines set forth in the show cause order. Therefore, on April 22, 1993, we entered a mandamus order directing the district court to enter the findings and conclusions requested in our show cause order and we also instructed the court to consider the issue of cumulative delay in its ruling due September 10.
39
On April 1, 1993, the Harris group petitioners filed a motion to disqualify two of the three members of the district court panel. Both motions were orally denied at a status conference on April 6, with the exception that Judge Thomas R. Brett, whose uncle was a member of the Oklahoma Court of Criminal Appeals until his death three months earlier, agreed to recuse on any claims for damages.
40
At an evidentiary hearing on April 9, the district court said it would grant respondents' motion to sever from the Harris group twenty-six habeas cases by petitioners who were not represented by the Public Defender in their direct criminal appeals. The court also said that it would close the Harris group as of that date and any subsequent habeas petitions raising the issue of appellate delay would be considered on an individual basis. As of April 9, 284 habeas petitions that raised the issue of appellate delay in the Oklahoma criminal justice system had been filed by criminal defendants represented by the Public Defender.
41
On May 6, 1993, the district court entered its findings of fact and conclusions of law concerning delay by the Public Defender and certified its ruling as final for purposes of appeal pursuant to Rule 54(b). Based on the Rules of the Oklahoma Court of Criminal Appeals, the district court concluded that an appellate process that took up to sixteen months from the filing of the notice of appeal through the filing of appellate briefs "would satisfy constitutional concerns." R., Doc. 143 at 21-22. In light of this standard, the court concluded that "there has been inordinate delay attributable to [the Public Defender] in the filing of most of the appellant briefs herein. This delay has thus been systemic." Id. at 22. The court determined, however, that to decide whether the inordinate delay by the Public Defender gave rise to any independent due process violations, it would have to balance the factors set forth in Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191, which would require the court to consider each habeas petitioner's case individually. The court said it would defer this individual inquiry until after it had entered all the rulings required by our mandamus order of April 22. The court also deferred any rulings on the equal protection and ineffective assistance of counsel issues until it conducts the individual inquiries on due process.
42
The court further held that any habeas petitioner whose direct criminal appeal had been either affirmed or reversed with prejudice to retrial was not entitled to habeas relief as a result of delay in the appellate process. Finally, the court held that in the future, habeas petitioners would have to exhaust the issue of delay in the Oklahoma Court of Criminal Appeals before raising it in federal court. Petitioners filed their notice of appeal from the district court's order on May 28.
43
In August, the parties submitted documentary and testimonial evidence to the court concerning delays by the Attorney General and the Oklahoma Court of Criminal Appeals, as well as cumulative delays in the system. Among other things, the court was advised that two pieces of legislation went into effect on July 1 that would speed the appellate process.
44
The first act established an Emergency Appellate Division of the Oklahoma Court of Criminal Appeals that can be activated whenever more than 100 noncapital felony appeals are at issue and pending in the Office of the Clerk of the Oklahoma Court of Criminal Appeals. Act of June 3, 1993, ch. 292, secs. 2-6, 1993 Okla.Sess.Laws Serv. 1548, 1549-51 (West) (codified at Okla.Stat. tit. 20, Secs. 60.1.-.5). Each emergency appellate panel consists of three trial judges, two of whom must concur in any decision. Okla.Stat. tit. 20, Sec. 60.3. Each panel must dispose of any cases assigned to it or return the cases to the Oklahoma Court of Criminal Appeals for resolution within ninety days. Decisions of the panels are final unless the Oklahoma Court of Criminal Appeals grants a petition for review. Id. at Sec. 60.1. Judge Johnson of the Oklahoma Court of Criminal Appeals testified that sixty-six cases had been assigned to emergency appellate panels since the legislation went into effect, and three of the cases had already been decided.
45
The second act cut in half the time allowed for perfecting appeals in misdemeanor and felony cases (i.e., filing the record with transcripts); an appeal must be perfected in 90, rather than 180, days from the date the judgment and sentence are pronounced. Act of June 7, 1993, ch. 298, sec. 5, 1993 Okla.Sess.Laws Serv. 1562, 1564 (West) (codified at Okla.Stat. tit. 22, Sec. 1054). Because the briefing schedule does not begin to run until the appeal has been perfected, reducing the time permitted for perfecting the appeal effectively reduces delay on appeal by ninety days.
46
The district court entered its findings of fact and conclusions of law concerning delay by the Attorney General and the Oklahoma Court of Criminal Appeals, as well as cumulative delay throughout the appellate system, on September 8, 1993. The court found that pursuant to data provided by the parties, "there are approximately 302 matters now considered Harris cases as of August 13, 1993." R., Doc. 255 at 4. An appellate brief had been filed on behalf of the appellant in at least 301 of the cases and the Attorney General had filed a brief on behalf of the appellee in all but three cases. The Attorney General's briefs were filed within the statutory period in 130 cases and were filed more than sixty days after the statutory period in only sixty-seven cases. The Oklahoma Court of Criminal Appeals had issued opinions in eighty-five of the cases, and 217 cases remained pending before the court. Of those, six were not yet at issue, 125 were at issue and ready to be assigned to a judge, and eighty-six were at issue and had already been assigned to a judge.
47
The district court found no evidence of systemic delay in filing briefs by the Attorney General and also determined that although delay by the Oklahoma Court of Criminal Appeals may have been inordinate in individual cases, it had not been systemic. The court further concluded that there was no cumulative inordinate systemic delay at present. The court held that a delay in adjudicating an appeal of more than two years from the notice of appeal or order permitting an appeal out of time to issuance of an opinion would be presumed to be unconstitutional "absent a showing of good and sufficient cause or special circumstances." Id. at 8. The court again ruled that before a habeas petitioner could assert unconstitutional delay in federal court, he or she first had to raise the issue to the Oklahoma Court of Criminal Appeals and permit it to take appropriate action.
48
On September 28, petitioners filed their notice of appeal from the court's September 9 order, which the court certified as final pursuant to Rule 54(b). The two appeals were consolidated by our order of October 14, and we heard oral argument in the appeals on November 8, 1993.
49
On appeal, petitioners assert that the district court's findings and conclusions concerning their due process, equal protection, and ineffective assistance of counsel claims are incomplete and, in certain instances, erroneous. Petitioners also contend that Judge Brett, who was a member of the three-judge district court panel, should have recused himself on the habeas claims pursuant to 28 U.S.C. Sec. 455. Finally, petitioners maintain that the district court erred in not awarding interim attorney fees against the State for work performed by counsel on behalf of petitioners. We will discuss each of these issues below.
II. ISSUES ON APPEAL RELATING TO DELAY
A. Exhaustion of State Remedies
50
A threshold question that must be addressed in every habeas case is that of exhaustion. Federal habeas relief is not available to a state prisoner "unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. Sec. 2254(b).
51
The exhaustion doctrine, which was codified in 1948, began as "a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a 'swift and imperative remedy in all cases of illegal restraint or confinement.' " Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 490, 93 S. Ct. 1123, 1127, 35 L. Ed. 2d 443 (1973) (quoting Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603, 609 (H.L.)). Although the doctrine advances several interests, see Deters v. Collins, 985 F.2d 789, 794 (5th Cir.1993), it "is principally designed to protect the state court's role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d 379 (1982).
52
Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation," federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter."
53
Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 590, 94 L. Ed. 761 (1950)).
54
Exhaustion is, therefore, based on principles of comity; exhaustion is not jurisdictional. Patterson v. Leeke, 556 F.2d 1168, 1170 (4th Cir.), cert. denied, 434 U.S. 929, 98 S. Ct. 414, 54 L. Ed. 2d 289 (1977). "Although there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies, his failure to do so is not an absolute bar to appellate consideration of his claims." Granberry v. Greer, 481 U.S. 129, 131, 107 S. Ct. 1671, 1674, 95 L. Ed. 2d 119 (1987). The State may waive a prisoner's failure to exhaust by failing to raise the defense in federal district court. Id. at 135, 107 S.Ct. at 1675. Likewise, some cases may present special circumstances that make it "appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion." Id. at 131, 107 S.Ct. at 1673; Frisbie v. Collins, 342 U.S. 519, 521, 72 S. Ct. 509, 511, 96 L. Ed. 541 (1952). One such circumstance is when the State's process is inadequate to protect a prisoner's rights. See 28 U.S.C. Sec. 2254(b); Darr, 339 U.S. at 210, 70 S.Ct. at 593.
55
"[W]here state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding." Bartone v. United States, 375 U.S. 52, 54, 84 S. Ct. 21, 22, 11 L. Ed. 2d 11 (1963); see also Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir.1991) ("[T]he principle of comity weighs less heavily [when] the state has had an ample opportunity to pass upon the matter and has failed to sufficiently explain its ... delay."); United States ex rel. Hankins v. Wicker, 582 F. Supp. 180, 182 (W.D.Pa.1984) ("If an appropriate remedy does not exist or its utilization is frustrated in the state system, ... [t]he deference accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations."), aff'd, 782 F.2d 1028 (3d Cir.) (table), cert. denied, 479 U.S. 831, 107 S. Ct. 118, 93 L. Ed. 2d 64 (1986).
56
Thus, "inexcusable or inordinate delay by the state in processing claims for relief" may make the state process ineffective to protect the petitioner's rights and excuse exhaustion. Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986); accord Hill v. Reynolds, 942 F.2d at 1496 ("[T]he delay [petitioner] faced in having a direct appeal filed proves his state remedies ineffective.").
57
In Way v. Crouse, 421 F.2d 145, 146-47 (10th Cir.1970), we concluded that it was proper for a habeas petitioner who had experienced an eighteen-month delay in the adjudication of his direct criminal appeal to "seek vindication of his asserted constitutional grievance" in the federal, rather than the state, courts. Noting that " '[t]he concept of federal-state comity involves mutuality of responsibilities, and an unacted upon responsibility can relieve one comity partner from continuous deference,' " we vacated the order dismissing the habeas petition for failure to exhaust. Id. at 147 (quoting Dixon v. Florida, 388 F.2d 424, 426 (5th Cir.1968)).
58
Later, in Harris I, we set forth the standard that when "a habeas petitioner makes colorable and sufficient allegations of an unconstitutional delay in obtaining direct state appellate review of his criminal conviction, ... the federal district court should consider that claim on the merits without requiring that he exhaust his direct state appeal first." 938 F.2d at 1068-69. Because exhaustion is a threshold issue, it often can be addressed on the pleadings without the need for an evidentiary hearing. However, an evidentiary hearing was deemed necessary in Harris I to investigate the reasons for delay in light of the allegations of systemic delay.
59
We turn now to the question: At what point does delay in the state process become so inordinate that exhaustion should be excused? In addressing this question, we must keep in mind that "[i]t is the legal issues that are to be exhausted, not the petitioner," Park v. Thompson, 356 F. Supp. 783, 788 (D.Haw.1973). We cannot, of course, announce a bright line rule. As we noted in Way, 421 F.2d at 146-47, and Jones v. Crouse, 360 F.2d 157, 158 (10th Cir.1966), it is necessary to know the facts and circumstances surrounding the delay in order to determine whether the State is providing the petitioner an effective appeal.
60
In Way, we concluded that an eighteen-month delay in docketing a direct appeal before the state supreme court was enough to excuse exhaustion in the absence of facts and circumstances justifying that delay. 421 F.2d at 146-47. Based on other facts and circumstances, courts have found other periods of delay sufficient to conclude that the state process was ineffective and exhaustion should be excused. See Simmons v. Reynolds, 898 F.2d 865, 870 (2d Cir.1990) (suggesting that "[t]he doctrine of exhaustion of state remedies does not require a prisoner to wait ... three or four years before enlisting federal aid to expedite an appeal"); Rheuark v. Wade, 540 F.2d 1282, 1283 (5th Cir.1976) (remanding for district court to excuse exhaustion if fifteen-month delay in preparing transcript could not be justified); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir.1970) (remanding for district court to excuse exhaustion if seventeen-month delay in briefing direct criminal appeal could not be justified); United States ex rel. Hankins, 582 F. Supp. at 182 (finding "the twenty four month delay in the disposition of [petitioner's] direct appeal, to which is added the nine month period between his conviction and the filing of a notice of appeal, sufficient to question the adequacy of the state remedy" and to excuse exhaustion); cf. Smith v. Kansas, 356 F.2d 654, 657 (10th Cir.1966) (remanding for district court "to take such steps as it deems necessary to secure petitioner's right to a prompt hearing on his claim of unconstitutional restraint" where more than one year passed between filing of motion for post-conviction relief and entry of appealable order), cert. denied, 389 U.S. 871, 88 S. Ct. 154, 19 L. Ed. 2d 151 (1967); Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir.1978) (excusing exhaustion because state habeas petition had been completely dormant for over one year and the State had offered "no reason for its torpor"); St. Jules v. Beto, 462 F.2d 1365, 1366-67 (5th Cir.1972) (remanding for district court to excuse exhaustion and address merits if seventeen-month delay in state trial court ruling on motion for post-conviction relief could not be justified); Jones, 360 F.2d at 158 (remanding for district court to excuse exhaustion if eighteen-month delay in adjudicating appeal from denial of post-conviction relief could not be justified); Dixon, 388 F.2d at 426 (remanding for district court to excuse exhaustion and address merits if eighteen-month delay in state trial court ruling on post-sentencing motion could not be justified); Seemiller v. Wyrick, 663 F.2d 805, 807-08 (8th Cir.1981) (remanding for district court to excuse exhaustion and address claims if state court had not ruled within sixty days on motion for post-conviction relief that had been pending for two years); Wojtczak, 800 F.2d at 355-56 (excusing exhaustion because motion for post-conviction relief had been pending for more than two and one-half years); Moore v. Deputy Comm'rs of SCI-Huntingdon, 946 F.2d 236, 242 (3d Cir.1991) (excusing exhaustion because petition for post-conviction relief had been pending for three years), cert. denied, --- U.S. ----, 112 S. Ct. 1509, 117 L. Ed. 2d 647 (1992).
61
Although we cannot establish a bright line, we think it would be helpful to articulate a time period beyond which there is at least a presumption that the state process has become ineffective because of delay. Based upon the record before us, as well as our review of the case law in this and other circuits, we conclude that delay in adjudicating a direct criminal appeal beyond two years from the filing of the notice of appeal gives rise to a presumption that the state appellate process is ineffective.9
62
We recognize that cases may arise in which exhaustion should be excused even though an appeal has been pending for less than two years. Conversely, we also recognize that, in particular cases, the State may show that a delay of more than two years is justified and, therefore, good cause exists for not excusing exhaustion. Thus, we hold only that the state appellate process should be presumed to be ineffective and, therefore, exhaustion should presumptively be excused, when a petitioner's direct criminal appeal has been pending for two years without resolution absent a constitutionally sufficient justification by the State. See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987) (Burkett I ) ("[W]here a petitioner has demonstrated inordinate delay, we have placed the burden on respondents to demonstrate why further resort to the state courts should be required.").
63
Although Sec. 2254 requires a habeas petitioner to exhaust his or her underlying claims before coming to federal court, it does not require a petitioner to exhaust the issue of exhaustion, itself. Because exhaustion functions as a federal court gatekeeper, the federal, not the state, courts decide when the state process has been exhausted or should be deemed ineffective because of delay. Moreover, requiring a petitioner to raise the issue of exhaustion first in state court would unnecessarily frustrate a petitioner's right to a speedy adjudication of his or her claims. See Way, 421 F.2d at 146-47 (conditionally excusing petitioner from having to raise issue of delay to "the very courts which are responsible, on the face of the pleadings, for the very delay of which he complains"); Brooks v. Jones, 875 F.2d 30, 31 (2d Cir.1989) ("When the petitioner can substantiate his complaint that his right to appeal is being violated by inattention and time-consuming procedures, to require one more technical step would be to tolerate the frustration of the petitioner's due process rights."); United States ex rel. Hankins, 582 F. Supp. at 182 ("[W]here the state process is itself the basis for the claim[ed] denial of due process the issue has properly been presented [to the state judiciary]."). But see Schandelmeier v. Cunningham, 819 F.2d 52, 54-55 (3d Cir.1986) (holding that because petitioner had not pursued procedures for presenting his claims based on sentencing delay to the state court, he had not exhausted his remedies and could not seek federal relief), cert. denied, 480 U.S. 938, 107 S. Ct. 1584, 94 L. Ed. 2d 774 (1987).
64
Once exhaustion is excused, a federal court has the power to review the merits of a petitioner's habeas petition to the extent that it raises federal issues. See, e.g., Jones, 360 F.2d at 158. In many (indeed, most) instances, however, proceeding directly to the merits of a petitioner's claims after excusing exhaustion may not be the preferred course of action, or even an effective one.
65
If exhaustion is excused due to delay in adjudicating a petitioner's direct criminal appeal, the federal habeas review will, in some regards, serve as a surrogate for a direct state appeal. This raises several concerns. First, because the petitioner would be entitled to appointed counsel on direct appeal, Douglas v. California, 372 U.S. 353, 356-58, 83 S. Ct. 814, 816-17, 9 L. Ed. 2d 811 (1963), it may be appropriate to appoint counsel to represent the petitioner on habeas review. Likewise, the federal court may need to ensure that an indigent petitioner has a free copy of the trial transcript if it is necessary to evaluate his or her habeas petition. See Griffin v. Illinois, 351 U.S. 12, 19-20, 76 S. Ct. 585, 590, 100 L. Ed. 891 (1956).
66
Furthermore, to the extent the petitioner's underlying claims of error are state claims, the federal court cannot review them even if exhaustion is excused, because federal habeas review is limited to alleged "violation[s] of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254; see also Estelle v. McGuire, --- U.S. ----, ----, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").
67
Finally, federal courts should not be required as a routine matter to fulfill the State's obligation to provide an "adequate and effective" direct criminal appeal to its indigent criminal defendants, Griffin, 351 U.S. at 20, 76 S.Ct. at 591. Requiring the federal courts to do so on a regular basis just because the State does not fulfill its own constitutional obligations would unnecessarily tax federal resources and inject the federal courts into the State's process.
68
Thus, we consider an alternative. We start by noting that delay in adjudicating a state prisoner's direct criminal appeal may do more than simply excuse exhaustion. It also may give rise to an independent due process claim. Harris I, 938 F.2d at 1068; accord United States v. Pratt, 645 F.2d 89, 91 (1st Cir.), cert. denied, 454 U.S. 881, 102 S. Ct. 369, 70 L. Ed. 2d 195 (1981); Cody v. Henderson, 936 F.2d 715, 719 (2d Cir.1991); Burkett v. Fulcomer, 951 F.2d 1431, 1446 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992) (Burkett II ); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S. Ct. 1392, 67 L. Ed. 2d 365 (1981); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir.1990). Thus, a habeas petition may be predicated on a due process violation arising from the State's delay in adjudicating a petitioner's direct criminal appeal even if the petitioner's allegations of error at the trial level are based on state law and, therefore, not proper for federal habeas review.
69
Once appellate delay rises to the level of an independent due process violation, a wide range of remedies is available with which the federal district court can redress the constitutional violation. These remedies often will be more effective in redressing state appellate delay than will merely excusing exhaustion and considering the petitioner's underlying claims on the merits. We turn, therefore, to the requirements for establishing an independent due process claim based on the State's delay in processing a direct criminal appeal.
70
B. Substantive Claim That Appellate Delay Violates Right To Due Process
1. Elements of the claim
71
The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law...." U.S. Const. amend. V. Similarly, the Fourteenth Amendment provides "nor shall any State deprive any person of life, liberty, or property, without due process of law." Id. amend. XIV, Sec. 1.
72
The right to a speedy trial, which is guaranteed an accused by the Sixth Amendment, is a fundamental right imposed on the states by the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. at 515, 92 S.Ct. at 2184. Although the Constitution does not require the State to afford a criminal defendant a direct appeal to challenge alleged trial court errors, see McKane v. Durston, 153 U.S. 684, 687, 14 S. Ct. 913, 914, 38 L. Ed. 867 (1894), the Supreme Court has held that
73
if a State has created appellate courts as "an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant," Griffin v. Illinois, 351 U.S., at 18 [76 S.Ct. at 590], the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.
74
Evitts v. Lucey, 469 U.S. 387, 393, 105 S. Ct. 830, 834, 83 L. Ed. 2d 821 (1985) (alteration in original).
75
To ensure the defendant's right to a "meaningful appeal," Douglas v. California, 372 U.S. at 358, 83 S.Ct. at 817, the Court has held that when the State affords a criminal defendant an appeal by right, the Fourteenth Amendment requires, among other things, that counsel be appointed to represent an indigent defendant id. at 356-58, 83 S.Ct. at 816-17, that the representation of counsel be effective, Evitts, 469 U.S. at 396, 105 S.Ct. at 836, and that either an indigent defendant be provided a free transcript or some equivalent method of reporting the trial proceedings be employed, Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 778, 9 L. Ed. 2d 899 (1963); Griffin v. Illinois, 351 U.S. at 19-20, 76 S.Ct. at 590-591.
76
We may add to this list the requirement that the State afford the defendant a timely appeal, for an appeal that is inordinately delayed is as much a "meaningless ritual," Douglas, 372 U.S. at 358, 83 S. Ct. at 817, as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings. See Burkett I, 826 F.2d at 1221-22; United States ex rel. Smith v. Twomey, 486 F.2d 736, 739 (7th Cir.1973), cert. denied, 416 U.S. 994, 94 S. Ct. 2408, 40 L. Ed. 2d 773 (1974); cf. Coppedge v. United States, 369 U.S. 438, 449, 82 S. Ct. 917, 923, 8 L. Ed. 2d 21 (1962) ("No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures.... Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement."); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' ").
77
When determining whether a criminal defendant has been deprived of his or her right to timely process at the trial level, the Supreme Court has established a balancing test to be applied on an ad hoc basis. Barker, 407 U.S. at 530, 92 S. Ct. at 2191. Four factors should be assessed and balanced: "(1) [l]ength of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant." Id. (numbers added). The fourth factor "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect." Id. at 532, 92 S.Ct. at 2193. The "Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id.
78
Although Barker addressed only a defendant's Sixth Amendment right to a speedy trial, the balancing test the Court enunciated provides an appropriate framework for evaluating whether a defendant's due process right to a timely direct criminal appeal has been violated. See Rheuark v. Shaw, 628 F.2d at 303 ("The factors of Barker are preferred [over] the standard announced in United States v. Lovasco, 431 U.S. 783 [97 S. Ct. 2044, 52 L. Ed. 2d 752] ... (1977) [concerning pre-indictment delay], since the reasons for constraining appellate delay are analogous to the motives underpinning the Sixth Amendment right to a speedy trial.") (footnote omitted); DeLancy v. Caldwell, 741 F.2d 1246, 1248 (10th Cir.1984) ("We agree with the Fifth Circuit that the right to avoid unreasonable delay in the appellate process is similar to the right to a speedy trial."); Burkett II, 951 F.2d at 1445-46 (holding that delay in adjudicating an appeal, which infringes on due process rights, is effectively no different than delay in imposing a sentence, which infringes on Sixth Amendment speedy trial right).
79
We can apply the first three factors of the Barker test to claims of appellate delay without modification. We must modify the fourth factor of prejudice to the defendant, however, to reflect the interests sought to be protected by an appeal "unencumbered by excessive delay." Rheuark v. Shaw, 628 F.2d at 303 n. 8.
80
The Fifth Circuit has identified the following interests that should be considered when assessing prejudice arising from appellate delay: "(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired." Id. In DeLancy, 741 F.2d at 1248, we adopted the Fifth Circuit's modification of the Barker prejudice factor for purposes of appellate delay. We also heeded the Supreme Court's admonition that the four factors of the balancing test are related and should be considered together with such other circumstances as may be relevant. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; DeLancy, 741 F.2d at 1248.
81
Nevertheless, as we discuss below, we view the first factor--length of delay--as a threshold that a petitioner must meet before the court need consider the other factors. Furthermore, we agree with the Ninth Circuit that, ordinarily, a petitioner must make some showing on the fourth factor--prejudice--to establish a due process violation. United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993) (en banc).
82
Therefore, in determining whether delay in adjudicating a petitioner's direct criminal appeal violated the petitioner's due process rights, we must balance the following factors:
83
a. the length of the delay;
84
b. the reason for the delay and whether that reason is justified;
85
c. whether the petitioner asserted his right to a timely appeal; and
86
d. whether the delay prejudiced the petitioner by
87
i. causing the petitioner to suffer oppressive incarceration pending appeal; or
88
ii. causing the petitioner to suffer constitutionally cognizable anxiety and concern awaiting the outcome of his or her appeal; or
89
iii. impairing the petitioner's grounds for appeal or his or her defenses in the event of a reversal and retrial.
90
We will address each of these factors in turn.
91
a. The length of the delay
92
The first factor in the balancing test is the length of the appellate delay. "Only passage of an inordinate amount of time triggers due process concern[s]." Hill v. Reynolds, 942 F.2d at 1497 (emphasis added). Therefore, if a petitioner cannot establish at least some degree of inordinate delay, the court need not inquire into the other factors. Cf. Doggett v. United States, --- U.S. ----, ---- - ----, 112 S. Ct. 2686, 2690-91, 120 L. Ed. 2d 520 (1992) (holding that because no speedy trial violation occurs if the government prosecutes a defendant "with customary promptness," "to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay").
93
We cannot set an inflexible length of time that will constitute inordinate delay in every case. See Barker, 407 U.S. at 521, 92 S.Ct. at 2187 ("We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate."); Coe v. Thurman, 922 F.2d at 531 ("[T]here is no talismanic number of years or months, after which due process is automatically violated."). Nonetheless, it seems appropriate to judge appellate delay by the same two-year presumptive standard that we used earlier to excuse exhaustion. See supra at p. 1556. Therefore, a two-year delay in finally adjudicating a direct criminal appeal ordinarily will give rise to a presumption of inordinate delay that will satisfy this first factor in the balancing test.
94
Creating a presumption that a two-year delay in adjudicating an appeal is inordinate comports with the district court's ruling that "a two-year period, from the notice of appeal or order permitting same, be established as the time period for resolution of a direct criminal appeal in Oklahoma beyond which any delay will be presumed to be unconstitutional, ... absent a showing of good and sufficient cause or special circumstances." R., Doc. 255 at 8 (footnote omitted).10 Respondents do not challenge the district court's two-year presumptive period. Although petitioners argue for a shorter period, the only basis for their argument is that in 1991, the Tenth Circuit's median time for deciding direct criminal appeals was 11.7 months. See Appellant's Principal Br. (No. 93-5123) at 57; Appellant's Principal Br. (No. 93-5209) at 18-19. We are not sufficiently persuaded by this single statistic to conclude that the district court erred in establishing a two-year presumptive period. See United States v. Pratt, 645 F.2d at 91 (declining to hold nine-month appellate delay unconstitutional in absence of exacerbating factors); United States ex rel. Harris v. Reed, 608 F. Supp. 1369, 1376 (N.D.Ill.1985) (holding that a seven-and-one-half-month delay in adjudicating a motion for post-conviction relief was not so egregious as to violate petitioner's due process rights); Doescher v. Estelle, 454 F. Supp. 943, 952 (N.D.Tex.1978) (determining as a matter of law that a one-year delay in processing petitioner's appeal was not unjustified), appeal dismissed, 597 F.2d 281 (5th Cir.1979) (table).
95
The district court concluded that two years to adjudicate an appeal in Oklahoma is both customary and feasible.11 Furthermore, a two-year delay is within the time frame that other courts have found to raise due process concerns. For example, in United States ex rel. Hankins, 582 F. Supp. at 184-85, the court held that the pendency of an appeal for two years with no decision by the state appellate court, coupled with a nine-month delay by the trial court in ruling on post-trial motions, gave rise to a prima facie due process violation. See also Dozie v. Cady, 430 F.2d at 638 (holding that seventeen-month delay in filing opening brief warranted inquiry into possible due process violation); Burkett II, 951 F.2d at 1445-46 (holding that eighteen-month delay between sentencing and decision on appeal gave rise to due process violation); United States v. Antoine, 906 F.2d 1379, 1382-83 (9th Cir.) (holding that three-year delay in adjudicating federal appeal was "substantial" and remanding for further findings regarding prejudice), cert. denied, 498 U.S. 963, 111 S. Ct. 398, 112 L. Ed. 2d 407 (1990); Snyder v. Kelly, 769 F. Supp. 108, 111 (W.D.N.Y.1991) (holding that three years is "an excessive amount of time to await the resolution of an appeal"), aff'd 972 F.2d 1328 (2d Cir.1992) (table); cf. Jones v. Crouse, 360 F.2d at 158 (holding that delay of more than eighteen months in processing appeal of collateral attack warranted inquiry into possible due process violation).12
96
The passage of two years creates only a presumption of inordinate delay on appeal. The particular circumstances of a case may warrant a finding that the passage of less than two years constitutes inordinate delay or that the passage of more than two years does not. For example, although the length of the sentence cannot be a controlling factor in light of the time requirements inherent in processing an appeal, a case in which a very short sentence was imposed may warrant more expedited treatment. See Wheeler v. Kelly, 639 F. Supp. 1374, 1379 (E.D.N.Y.1986) (holding that "the length of the sentence is a factor in determining whether post-conviction delay is excessive"), aff'd, 811 F.2d 133 (2d Cir.1987). On the other hand, a particularly complex case may warrant a more lengthy appellate process. Cf. Geames v. Henderson, 725 F. Supp. 681, 685 (E.D.N.Y.1989) (holding that delay of three-and-one-half years was excessive because issues on appeal were "no more complex than in most criminal appeals").
97
Because it is a balancing test that we employ, however, delay substantially beyond two years, at least in a case that does not warrant a lengthier appellate process, will reduce the burden of proof on the other three factors necessary to establish a due process violation. See Doggett, --- U.S. at ----, 112 S. Ct. at 2693 (holding that the more protracted the delay, the more prejudice may be presumed from the delay).
98
b. The reason for the delay
99
The second part of the balancing test is the reason for the delay. In Harris I, we laid to rest any argument that delays by the Public Defender in filing briefs could be attributed to petitioners on the ground that the Public Defender requested the continuances on petitioners' behalf. 938 F.2d at 1065. The record indicated that "the delay in preparing petitioner's brief on appeal [was] caused by the inability of [the Public Defender] to address petitioner's case in a timely fashion." Id. Because this delay was "forced upon an unwilling petitioner by reason of his indigency," we held it should not be attributed to the petitioner. Id. The parties do not dispute that the delays in adjudicating petitioners' direct criminal appeals are attributable to the State of Oklahoma and not to petitioners.13 See R., Doc. 29 at 9 (Attorney General); Addendum to Br. of OIDS Defs. at 17 (Public Defender); R., Doc. 27, Ex. 3(c), Attachment 1 (Oklahoma Court of Criminal Appeals); see also Hankins v. Fulcomer, 941 F.2d at 252 (holding that court had numerous opportunities to rule on pending matters and its delay in doing so was not attributable to petitioner); Wojtczak v. Fulcomer, 800 F.2d at 356 (holding that delay in adjudicating motion for post-conviction relief was not attributable to petitioner, but to "disinterest on the part of court appointed counsel and to a failure on the part of the court to require them to provide minimally effective representation").
100
The State has offered no constitutionally sufficient justification for the delays, such as that the cases are unusually complex or that they involve the death penalty. The only reasons offered by the State were the lack of funding and, possibly, the mismanagement of resources by the Public Defender. See R., Doc. 29 at 9; Addendum to Br. of OIDS Defs. at 17; R., Doc. 27, Ex. 3(c), Attachment 1.14 Neither of these reasons constitutes an acceptable excuse for delay. See United States ex rel. Smith, 486 F.2d at 739 ("The rights announced in Griffin v. Illinois and Douglas v. California cannot be allowed to become meaningless through understaffing of the state offices responsible for assuring those rights.") (citations omitted); Snyder, 769 F. Supp. at 111 (holding that the "brobdingnagian case load of assigned counsel" is not an acceptable reason for delay); Rheuark v. Shaw, 477 F. Supp. 897, 912 n. 17 (N.D.Tex.1979) ("[T]he constitutional requirements of due process on appeal may not be abridged by failing to fund substitute court reporters."), aff'd in part, rev'd in part, 628 F.2d 297 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S. Ct. 1392, 67 L. Ed. 2d 365 (1981); cf. Bounds v. Smith, 430 U.S. 817, 825, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72 (1977) ("[T]he cost of protecting a constitutional right cannot justify its total denial."); Todaro v. Ward, 565 F.2d 48, 54 n. 8 (2d Cir.1977) ("Inadequate resources no longer can excuse the denial of constitutional rights.").
101
c. Petitioner's assertion of his or her right to a timely
102
appeal
103
The third factor we must balance in determining whether a due process violation has occurred is the petitioner's assertion of his or her right to a timely appeal. The Supreme Court rejected in Barker "the rule that a defendant who fails to demand a speedy trial forever waives his right." 407 U.S. at 528, 92 S.Ct. at 2191. Instead, the Court held that whether and how strongly a defendant asserts his or her right to a speedy trial should be balanced with the other factors. Id. at 528-29, 92 S.Ct. at 2191.
104
We will not require petitioners to have made an affirmative assertion of their right to a timely appeal in state court for this factor to weigh in their favor. Under the circumstances, the filing of these federal habeas petitions constitutes a sufficient assertion of petitioners' respective rights to a timely appeal. See Snyder, 769 F. Supp. at 111.
105
Unlike a criminal defendant who stands accused and may not wish to have any trial, much less a speedy one, e.g., Barker, 407 U.S. at 535, 92 S.Ct. at 2194, a criminal defendant who has already been convicted usually wants a speedy appeal and has little or no incentive to delay the outcome. Cody v. Henderson, 936 F.2d at 719; cf. Rose v. Lundy, 455 U.S. at 520, 102 S.Ct. at 1204 ("The prisoner's principal interest, of course, is in obtaining speedy federal relief on his claims."). Therefore, we presume every petitioner desired a timely appeal.
106
Furthermore, petitioners were hampered by the fact that they had to speak through their counsel in the state court appellate process and, in most instances, it was that very counsel who was responsible for the delay. Under these circumstances, we cannot fairly expect petitioners to have raised the issue of delay in state court. See Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084, 1093 (1984) ("The petitioners have been handicapped in asserting rights through their counsel when it is the counsel itself that has been the source of the challenged delays.").
107
Moreover, because the Public Defender had a policy of briefing cases on a "first in, first out" basis and the Oklahoma Court of Criminal Appeals was unwilling to expedite the briefing of one Public Defender's case over another, see Manous v. State, 797 P.2d at 1005-06, even if petitioners had complained vigorously about delays in prosecuting their appeals, those complaints probably would have been unavailing. See Gaines, 481 A.2d at 1093. Therefore, absent evidence that a petitioner affirmatively sought or caused delay in the adjudication of his or her appeal, this third factor should weigh in favor of finding a due process violation.
108
d. Prejudice to the petitioner as a result of delay
109
The fourth factor we must consider when determining whether a petitioner's due process rights have been violated is whether the petitioner has suffered any prejudice due to delay in adjudicating his or her appeal. As we stated earlier, prejudice may result from any of the following: (i) oppressive incarceration pending appeal; or (ii) constitutionally cognizable anxiety awaiting resolution of the appeal; or (iii) impairment of a defendant's grounds for appeal or a defendant's defenses in the event of a retrial. DeLancy, 741 F.2d at 1248; Rheuark v. Shaw, 628 F.2d at 303 n. 8.
110
We have not previously had occasion to discuss the meaning of prejudice in the context of appellate delay. We take this opportunity to do so, beginning with the last and most serious form of prejudice: impairment of the grounds for appeal or the grounds for defense in the event of a retrial.15[T]he most serious [form of prejudice] is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.
111
Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
112
Impairment of one's grounds for defense in the event of a retrial is "the most difficult form of ... prejudice to prove because time's erosion of exculpatory evidence and testimony 'can rarely be shown.' " Doggett, --- U.S. at ---- - ----, 112 S. Ct. at 2692-93 (quoting Barker, 407 U.S. at 532, 92 S. Ct. at 2193). The Supreme Court has recognized that "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify," id. --- U.S. at ----, 112 S. Ct. at 2693, and the likelihood of injury "increases with the length of the delay," id. To support such a finding of prejudice, unjustified delay "unaccompanied by particularized trial prejudice must have lasted longer than [unjustified delay] demonstrably causing such prejudice." Id. --- U.S. at ----, 112 S. Ct. at 2694.
113
That delay has impaired a petitioner's ability to mount a defense on retrial is irrelevant, however, if a petitioner has no credible grounds for reversal and retrial. See Tucker, 8 F.3d at 676. Therefore, in addition to establishing that excessive delay has impaired his or her defense on retrial, a petitioner also must assert a colorable state or federal claim that would warrant reversal of his or her conviction.16 See id. But see Harris v. Kuhlman, 601 F. Supp. 987, 994 (E.D.N.Y.1985) (finding that seven-year delay might impair petitioner's defense if he were retried, even though review of petitioner's claims suggested "very little chance of reversal"). Thus, if a petitioner's conviction has been affirmed by the time the petitioner's claims are heard in the federal habeas proceeding, the petitioner will not be able to show prejudice on retrial because the state appellate court has finally decided there will be no retrial.
114
Likewise, because the only prejudice with which we are concerned is that which arises from excessive delay, for a petitioner to make a particularized showing of prejudice, the prejudicial event, such as the death of a key witness, must have occurred, or have been exacerbated, during the period of delay that is found to be excessive. Therefore, in most cases, particularized prejudice that occurs during the first two years that an appeal is pending will not support a due process violation because the prejudice would have occurred even in the absence of any excessive delay in adjudicating the appeal.
115
We turn then to the second type of prejudice: constitutionally cognizable anxiety awaiting resolution of the appeal. Once again, we are concerned only with anxiety arising out of excessive delay. Therefore, that a petitioner is anxious about the outcome of the appeal from the day the notice of appeal is filed is of no consequence; the anxiety must relate to the period of time that the appeal was excessively delayed.
116
The courts appear split on the showing of anxiety that a petitioner must make. The Ninth Circuit, for example, requires a showing of "particular anxiety" distinguishable from that "of any other prisoner awaiting the outcome of an appeal." Antoine, 906 F.2d at 1383; see also Tucker, 8 F.3d at 676; Coe, 922 F.2d at 532. In Burkett II, the Third Circuit concluded that the petitioner had established prejudice in part because he was able "to detail anxiety related to the processing of his case post-conviction." 951 F.2d at 1447. The Second Circuit, on the other hand, has affirmed findings of prejudice based solely on the district court's assumption hat the delay of four or more years worried the petitioner, who awaited hopefully the outcome of the appeal. Yourdon v. Kelly, 969 F.2d 1042 (2d Cir.1992) (table), aff'g, 769 F. Supp. 112, 115 (W.D.N.Y.1991); Snyder v. Kelly, 972 F.2d 1328 (2d Cir.1992) (table), aff'g 769 F. Supp. 108, 111 (W.D.N.Y.1991). We think the better approach is to require the petitioner to make some particularized and substantial showing of anxiety and concern, absent a delay so excessive as to trigger the Doggett presumption of prejudice.
117
A petitioner has no reason to be anxious or concerned about the time it takes to adjudicate an appeal that is without merit. Therefore, to establish prejudice resulting from anxiety, a petitioner must once again assert a colorable state or federal claim that would warrant reversal of the petitioner's conviction or reduction of sentence to an amount of time less than that taken to adjudicate the appeal.17
118
The third form of prejudice a petitioner may suffer is oppressive incarceration pending appeal. In many respects this form of prejudice merely duplicates the prejudice of anxiety discussed above. In both cases, the petitioner must make some showing that his or her incarceration is wrongful. In addition, the petitioner must make a particularized showing that the incarceration is oppressive beyond that experienced by others awaiting the outcome of their appeals. That is, the petitioner must show some oppressiveness unique to his or her situation that is directly attributable to the excessive delay in adjudicating the petitioner's appeal.
119
While we recognize that a habeas petitioner has a right to assert a properly exhausted habeas claim even if incarcerated under another, unchallenged sentence, Sciberras v. United States, 404 F.2d 247, 249 (10th Cir.1968) (Sec. 2255); Rhodus v. Patterson, 404 F.2d 890, 891 (10th Cir.1968) (Sec. 2254), incarceration under an unchallenged sentence substantially negates a claim of prejudice arising from incarceration under the challenged sentence. Because the quality of a petitioner's incarceration may be affected by the very multiplicity of his or her convictions or the seriousness of the offense that is being challenged, however, a petitioner's incarceration under another, unchallenged sentence may not always negate the claim of prejudice altogether.
120
Recognizing that proving any of the three forms of prejudice is difficult, we will not require a level of proof that would necessitate a full blown trial simply to determine whether a petitioner suffered actual prejudice as a result of excessive appellate delay. Instead, the petitioner need make only a colorable and particularized showing of prejudice. As we stated earlier, however, regardless of the form the prejudice takes, it must arise during the period of appellate delay that the court finds to be excessive if it is to factor into the Barker balancing test.
121
The district court determined that it could not evaluate petitioners' due process claims without examining each petitioner's case individually. We agree. While one or more of the factors in the balancing test may weigh the same for every petitioner, not all the factors will. Prejudice, in particular, will vary with the individual. Because the district court has not yet conducted the individual inquiries necessary to resolve petitioners' due process claims, the record is not sufficiently developed for us to review those claims at this time. We therefore remand the action for the district court to conduct the necessary inquiry and make an appropriate record for review.18
2. Appropriate remedies
122
If the district court finds that a petitioner's due process rights have been violated, it must then address the matter of a remedy. We agree with the district court's conclusion that any petitioner whose direct criminal appeal has now been decided and whose conviction has been affirmed is not entitled to habeas relief based solely on delay in adjudicating his or her appeal, unless the petitioner can show actual prejudice to the appeal, itself, arising from the delay.19 See Muwwakkil v. Hoke, 968 F.2d 284, 285 (2d Cir.) (holding that once petitioner's state conviction was affirmed, he was not entitled to release unless he could show a reasonable probability that, but for the appellate delay, his appeal would have been decided differently), cert. denied, --- U.S. ----, 113 S. Ct. 664, 121 L. Ed. 2d 589 (1992).
123
Only when appellate delay "prejudiced [the petitioner's] due process rights so as to make his confinement constitutionally deficient," would habeas relief based on appellate delay be appropriate for a petitioner whose conviction has been affirmed. Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir.1990).
124
An untainted affirmance of a petitioner's state appeal while his habeas petition is pending makes clear that the petitioner was confined pursuant to a valid judgment of conviction throughout the period of delay. The affirmance establishes that if the delay had not occurred and petitioner's due process right to a timely appeal had been fully satisfied, he would have been subject to exactly the same term of confinement. Because the due process violation did not result in an illegal confinement, it cannot justify granting the habeas remedy of unconditional release.
125
Cody, 936 F.2d at 720.
126
We also agree with the district court that a petitioner whose conviction the state court has reversed with prejudice to retrial is not entitled to federal habeas relief. Because the state court has set such a petitioner's release in motion, federal habeas relief is neither necessary nor available.
127
"[A]bsent absolute or qualified immunity or other appropriate defenses," a petitioner for whom habeas relief is not available may seek redress from the responsible parties for any due process violation caused by state appellate delay through a claim for damages under 42 U.S.C. Sec. 1983. DeLancy, 741 F.2d at 1248; accord Diaz, 905 F.2d at 654; McLallen v. Henderson, 492 F.2d 1298, 1299-1300 (8th Cir.1974); Doescher v. Estelle, 477 F. Supp. 932, 934 (N.D.Tex.1979), aff'd in part, vacated in part, 616 F.2d 205 (5th Cir.1980). Because this appeal concerns only petitioners' habeas claims, we will not rule on the implications of any pending Sec. 1983 claims.
128
A petitioner whose direct criminal appeal has not yet been decided, however, is entitled to some form of habeas relief if he or she can establish a due process violation arising from delay in adjudicating his or her state appeal.20 The most appropriate remedy in these circumstances is to grant a conditional writ, i.e., release the petitioner if the State does not decide the petitioner's appeal within a specified period.21 See Harris I, 938 F.2d at 1070; Coe, 922 F.2d at 532-33; Brooks v. Jones, 875 F.2d at 32. The district court should order the State to decide the appeal within sixty days--or such other time as the district court decides is appropriate for good cause shown22--or release the petitioner.23
129
Although a conditional order of release is the preferred procedure, if the petitioner's underlying substantive claims are federal in nature and, either because of the clarity of the issues or the particular equities involved, the district court concludes that the better procedure would be for it to resolve the federal claims in the absence of exhaustion, the district court has discretion to adjudicate the merits of those claims.24 As we discussed supra at p. 1557, however, because review on the merits by the district court in many regards replicates the petitioner's direct criminal appeal, the district court should consider the appropriateness of appointing counsel for the indigent petitioner, Douglas, 372 U.S. at 356-57, 83 S.Ct. at 816, and providing the indigent petitioner a free transcript, Griffin, 351 U.S. at 19-20, 76 S.Ct. at 590-91, when reviewing the petitioner's federal claims.
130
C. Substantive Claim That Appellate Delay Violates Right To Equal Protection
131
"Unfairness results ... if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty." Ross v. Moffitt, 417 U.S. at 611, 94 S.Ct. at 2444. In Harris I, we noted that delay by the Public Defender in briefing appeals for indigent clients may implicate equal protection concerns. 938 F.2d at 1067; see also United States ex rel. Smith v. Twomey, 486 F.2d at 738; Gaines v. Manson, 481 A.2d at 1094. Our informal survey of published Oklahoma Court of Criminal Appeals opinions in Harris I suggested that appeals by criminal defendants who were represented by retained counsel were decided considerably faster than appeals by indigent criminal defendants who were represented by the Public Defender. 938 F.2d at 1070 & n. 9.
132
In its ruling of September 9, 1993, the district court determined the parties did not dispute that criminal defendants in Oklahoma who were represented by private counsel had their appeals decided "in significantly less time" than criminal defendants who were represented by "public appointed counsel." R., Doc. 255 at 11. The court, however, postponed any ruling on petitioners' equal protection claims until it conducts the individual inquiries necessary to resolve petitioners' due process claims.
133
Determination of petitioners' equal protection claims raises a variety of issues, including the level of scrutiny to be applied. If the State's conduct creates classifications that "impermissibly interfere[ ] with the exercise of a fundamental right or operate[ ] to the peculiar disadvantage of a suspect class" the classifications are subject to strict scrutiny. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566, 49 L. Ed. 2d 520 (1976) (per curiam) (footnotes omitted). Absent a classification that interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class, however, the State's conduct need only be "rationally related to a legitimate state interest." Oklahoma Educ. Ass'n v. Alcoholic Beverage Laws Enforcement Comm'n, 889 F.2d 929, 932 (10th Cir.1989).25
134
Whether the right to a direct appeal is a fundamental right depends on whether it is "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S. Ct. 1278, 1296-1297, 36 L. Ed. 2d 16 (1973). The Supreme Court has held that "appeals from state criminal convictions are not 'explicitly or implicitly guaranteed by the Constitution,' " and has noted that "in dealing with equal protection challenges to state regulation of the right of appeal in criminal cases [the Court has] applied the traditional rational-basis test." Estelle v. Dorrough, 420 U.S. 534, 538, 95 S. Ct. 1173, 1176, 43 L. Ed. 2d 377 (1975) (per curiam); see also McKane v. Durston, 153 U.S. at 687, 14 S.Ct. at 914 (holding that the Constitution does not require a state to afford a criminal defendant a direct appeal).
135
While it would appear that the rational basis test applies to petitioners' equal protection claims, the Ninth Circuit has suggested in dicta that when the classification is based on wealth, the right to a direct appeal may be a fundamental right for equal protection purposes. See United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986); Bell v. Hongisto, 501 F.2d 346, 353 (9th Cir.1974), cert. denied, 420 U.S. 962, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (1975). But see Maher v. Roe, 432 U.S. 464, 471, 97 S. Ct. 2376, 2381, 53 L. Ed. 2d 484 (1977) ("[T]his Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.").
136
Because the record on appeal is insufficient for us to review petitioners' equal protection claims at this time, we need not decide the proper level of scrutiny to apply to petitioners' claims. Nor need we decide other thorny issues relating to those claims, such as how unequal the appellate processing time for indigents and non-indigents must be to constitute an equal protection violation. See Ross, 417 U.S. at 612, 94 S.Ct. at 2444 ("The Fourteenth Amendment does not require absolute equality or precisely equal advantages, nor does it require the State to equalize economic conditions.... The question is not one of absolutes, but one of degrees.") (internal quotations and citations omitted); Gaines, 481 A.2d at 1094 (holding that the difference in processing appeals of indigents and non-indigents of four years and six months, respectively, "reflects a disparity in opportunity of access to the appellate forum that is constitutionally impermissible"); Carter v. Thomas, 527 F.2d 1332, 1333 (5th Cir.1976) (holding that alleged delays of up to twenty-one months between the submission of motions to proceed in forma pauperis and the filing of complaints stated an equal protection claim). The district court must address these issues in the first instance on remand.
137
We note that the district court may not need to reach the equal protection claim in some cases. Because the habeas remedies available to redress an equal protection violation based on appellate delay do not differ from the habeas remedies available to redress a due process violation based on appellate delay, once the court determines that a due process violation has occurred that warrants habeas relief, it need not address the other constitutional issues for purposes of the petitioner's habeas action. Likewise, as we discussed earlier with regard to the due process claims, see supra at p. 1566, if the State has upheld the petitioner's conviction on direct appeal, the petitioner is precluded from obtaining habeas relief based on any equal protection violation resulting from delay in adjudicating the petitioner's appeal. In any event, because we have neither the factual record necessary to evaluate petitioners' equal protection claims, nor the benefit of a reasoned analysis of these claims by the district court, we decline to address petitioners' equal protection claims at this time.
138
D. Substantive Claim That Appellate Delay Violates Right to Effective Assistance of Counsel
139
"A first appeal as of right ... is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney." Evitts v. Lucey, 469 U.S. at 396, 105 S. Ct. at 836. In the appellate context, the right to effective assistance of counsel requires that counsel "be available to assist in preparing and submitting a brief to the appellate court and ... play the role of active advocate." Id. at 394, 105 S.Ct. at 835 (citation omitted).
140
In Harris I, we said that, although a criminal defendant technically may have appointed counsel, "past and future alleged delays may be so great that at some point his [or her] counsel's delay in filing [an] appellate brief either has or will render such assistance ineffective." 938 F.2d at 1068. The courts in the Second Circuit also have acknowledged that delay by counsel in prosecuting an appeal can give rise to a claim for ineffective assistance of counsel. See Simmons v. Reynolds, 898 F.2d at 868 (holding that counsel's failure to file a brief for five years constituted ineffective assistance of counsel as a matter of law); Harris v. Kuhlman, 601 F. Supp. at 993 ("By any measure, counsel's failure to perfect the appeal [for approximately seven years] must be considered ineffective assistance."); Yourdon v. Kelly, 769 F. Supp. at 115 (holding that delay of nearly four years attributable to counsel was sufficiently long to constitute ineffective assistance of counsel as a matter of law); Williams v. James, 770 F. Supp. 103, 107 (W.D.N.Y.1991) (holding that delay of two and one-half years, even if attributable to counsel, was not sufficient to constitute ineffective assistance of counsel as a matter of law).
141
To establish a claim for ineffective assistance of counsel, a petitioner must show both that "counsel's performance was deficient," and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To establish the first of these requirements, a petitioner must show that counsel's performance "fell below an objective standard of reasonableness" measured by "prevailing professional norms." Id. at 688, 104 S.Ct. at 2064. To establish the prejudice requirement, a petitioner usually has to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Prejudice will be presumed, however, if the assistance of counsel is actually or constructively denied altogether. Id. at 692, 104 S.Ct. at 2067.
142
Many of the petitioners here have had to wait three or more years just to get their court-appointed counsel to file an appellate brief on their behalf. The district court may well find that delays of this magnitude fall below the prevailing professional standards for providing effective legal assistance. The real question, therefore, is whether the petitioners can prove prejudice as a result of the briefing delay.
143
During the time that counsel delays excessively in preparing and submitting an appellate brief, the petitioner is left in the same position as someone who has no counsel on appeal at all. See Evitts, 469 U.S. at 396, 105 S.Ct. at 836 ("[A] party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all."). Under these circumstances, prejudice is presumed. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067. So long as the brief remains unfiled, a petitioner's claim for ineffective assistance of counsel arising from briefing delay may be redressed through a habeas claim. The federal court may direct the State to appoint new counsel to represent the petitioner or otherwise ensure that the petitioner is provided effective assistance of counsel on appeal, and may grant a conditional writ, i.e., order that the petitioner be released if the brief is not filed and the appeal decided within a specified period of time.
144
Once counsel files an appellate brief, however, counsel's ineffectiveness because of delay ends. See Simmons v. Reynolds, 708 F. Supp. 505, 510 (E.D.N.Y.1989), aff'd 898 F.2d 865 (2d Cir.1990) (noting that although petitioner was denied effective assistance by counsel who failed to file a brief for six years, petitioner ultimately received effective assistance from new counsel, who filed a brief). Thus, ineffective assistance of counsel arising from delay in filing an appellate brief is unlike other types of ineffective assistance in that it has a temporal limitation. Furthermore, unlike ineffectiveness arising from, for example, counsel's failure to cross-examine a key witness or to raise a crucial argument on appeal, ineffectiveness arising from delay in filing a brief is unlikely to affect the actual outcome of the appeal.
145
As we said earlier in the context of due process, supra at p. 1566, if a constitutional violation does not affect the integrity of the State's decision, the petitioner's confinement is not unconstitutional. Granting the petitioner habeas relief based on counsel's past ineffective assistance, which has since ended and has not affected the outcome of the appeal, would go too far. Therefore, if an appellate brief has already been filed on the petitioner's behalf at the time the federal court addresses the petitioner's claim of ineffective assistance of counsel arising from delay in filing an appellate brief, the petitioner is not entitled to habeas relief absent a showing that the briefing delay impaired the petitioner's chances of prevailing on appeal.26 Redress for the past constitutional violation is available, if at all, only through a Sec. 1983 (or other) claim for damages.
146
In sum, a future habeas petitioner may be able to obtain habeas relief for an ineffective assistance of counsel claim based on counsel's ongoing and excessive delay in filing a brief in the petitioner's direct criminal appeal. Such relief appears to be foreclosed for the petitioners here, however, in light of the district court's finding that an appellate brief has been filed with the Oklahoma Court of Criminal Appeals on behalf of all but one petitioner and our assumption that, by now, a brief has been filed on behalf of this petitioner, as well.
III. OTHER ISSUES
A. Recusal of Judge Brett
147
Shortly after the three-judge district court panel was designated to adjudicate common issues of law and fact in these habeas cases, petitioners moved Judge Brett, one of the panel members, to disqualify himself. Petitioners filed a motion pursuant to 28 U.S.C. Sec. 455, in which they noted that among the named defendants in the actions were the Oklahoma Court of Criminal Appeals and the judges thereof, including the Honorable Tom Brett, who was the uncle of United States District Court Judge Thomas R. Brett. R., Doc. 113. In their brief in support of the motion, petitioners recited that "[a]llegations have been made in this case which will require federal judge Thomas R. Brett to review actions in which Tom Brett was involved while sitting on the Oklahoma Court of Criminal Appeals." Id., Doc. 114 at 3. Petitioners expressed their concern that "a decision making process involving a familial relationship between a sitting judge and a defendant presents at least the appearance of possible bias." Id.
148
Judge Brett declined to recuse himself because "in the habeas field ... it's just a matter of reviewing [the] opinions [of the Oklahoma Court of Criminal Appeals]." Tr. 4/6/93 at 101. Judge Brett did agree, however, that though his uncle had died a few months earlier, he should not be involved in any damage claims against his uncle personally. Id.
149
On appeal, petitioners argue that Judge Brett erred in not recusing himself on the habeas, as well as the damage, claims. In light of this error, petitioners request that we set aside any findings or conclusions by the three-judge district court panel that are unfavorable to petitioners. Though we conclude that Judge Brett erred in failing to disqualify himself in light of the allegations at issue in these cases, under the particular circumstances presented, we decline to set aside any findings or conclusions of the three-judge panel on that basis.
150
Section 455 provides in pertinent part as follows:
151
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
152
(b) He shall also disqualify himself in the following circumstances:
153
....
154
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:
155
(i) Is a party to the proceeding, or an officer, director, or trustee of a party[.]
156
28 U.S.C. Sec. 455 (emphasis added).
157
The general purpose of Sec. 455(a) is "to promote public confidence in the integrity of the judicial process." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S. Ct. 2194, 2202 n. 7, 100 L. Ed. 2d 855 (1988). Thus, the section is designed to eliminate "even the appearance of impropriety whenever possible." Id. at 865, 108 S.Ct. at 2205. Pursuant to Sec. 455(a), "a judge has a continuing duty to recuse before, during, or in some circumstances, after a proceeding, if the judge concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge's impartiality." United States v. Cooley, 1 F.3d 985, 992 (10th Cir.1993). The standard under Sec. 455(a) is an objective one, and requires recusal whenever "a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Id. at 993 (further citation omitted). Here, petitioners' habeas and civil rights claims require the district court not only to review the opinions of the Oklahoma Court of Criminal Appeals, but also to decide whether that court participated in, or at least authorized, alleged violations of petitioners' constitutional rights. Therefore, under Sec. 455(a) Judge Brett should have recused himself.
158
"[Section] 455(b) is stricter than Sec. 455(a) and is concerned with situations that may involve actual bias rather than Sec. 455(a)'s concern with the public perception of the judicial process." Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir.1988), cert. denied, 490 U.S. 1066, 109 S. Ct. 2066, 104 L. Ed. 2d 631 (1989). It requires recusal if the judge bears a third degree relationship, or closer, with a party to the suit. Here, although Judge Brett's uncle had died by the time Judge Brett was assigned to these cases, his uncle is, nonetheless, a named party in this action. Therefore, recusal under Sec. 455(b) was required.27
159
A conclusion that Judge Brett should have recused himself does not, however, end our inquiry. "Although Sec. 455 defines the circumstances that mandate disqualification of federal judges, it neither prescribes nor prohibits any particular remedy for a violation of that duty. Congress has wisely delegated to the judiciary the task of fashioning the remedies that will best serve the purpose of the legislation." Liljeberg, 486 U.S. at 862, 108 S.Ct. at 2204. Thus, the Supreme Court, noting that "[t]here need not be a draconian remedy for every violation of Sec. 455(a)," has held that a judge's violation of Sec. 455(a) may be harmless error that does not warrant setting aside the judge's previous rulings. Id. at 862, 864, 108 S. Ct. at 2204. Several circuits have extended the Supreme Court's harmless error analysis to violations of Sec. 455(b), see Poloroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1420-21 (Fed.Cir.), cert. denied, 490 U.S. 1047, 109 S. Ct. 1956, 104 L. Ed. 2d 425 (1989); Parker, 855 F.2d at 1527-28, and we are persuaded by their reasoning. Therefore, we will apply a harmless error analysis to Judge Brett's violations of Sec. 455.
160
In deciding whether a violation of Sec. 455 is harmless error, the Supreme Court has directed us to consider "the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process." Liljeberg, 486 U.S. at 864, 108 S.Ct. at 2205.
161
We begin our consideration of these factors by noting the following pertinent facts. First, the very issue involved in the three hundred cases before the district court is that of delay in reviewing petitioners' claims. Although petitioners' claims relate only to delay by the State of Oklahoma, we are ever mindful of the fact that further delay by the federal courts will only exacerbate petitioners' injuries. Second, the facts before the district court were, for the most part, undisputed. Thus, the district court panel was not called upon to make credibility determinations or to make findings on disputed facts that would later be subject to review for clear error only. See Heins v. Ruti-Sweetwater, Inc. (In re Ruti-Sweetwater, Inc.), 836 F.2d 1263, 1266 (10th Cir.1988). The panel's legal conclusions are subject to de novo review, see id., which we have done. Third, this case presents the very unusual situation that Judge Brett did not act alone, but rather as one member of a three-judge panel that ruled unanimously on the issues presented.28 Finally, we note that Judge Brett's uncle did not act alone, either, but rather as one member of a five-judge court.
162
Keeping these pertinent facts in mind, we consider the risks that may attend reviewing the panel's rulings on the merits, rather than vacating the district court's orders to permit an entirely new proceeding, untainted by the conflict.29 First, reviewing the district court's decisions as they now stand would not create an injustice to the State; vacating the decisions and remanding for new proceedings that would be largely duplicative of those before us, however, would, if anything, increase the risk of injury to petitioners by delaying even longer any federal consideration of their constitutional claims. Second, reviewing the present decisions carries little or no risk of injustice in other cases because our application of harmless error is unique to the procedural posture of these cases. See Poloroid Corp., 867 F.2d at 1420. Finally, we do not think our review of the panel's decisions will undermine the public's confidence in the judicial process under the circumstances here. Rather, our determination that a violation has occurred and our order that Judge Brett should recuse himself from all further proceedings involving these cases, should instill confidence in the judiciary. See Parker, 855 F.2d at 1527.
163
Therefore, we conclude that the proper remedy for Judge Brett's violations of Sec. 455 is to review the previous rulings of the three-judge district court panel on the merits, but to direct Judge Brett to recuse himself from all further proceedings relating to these matters on remand, including any individual hearings that may be necessary. See, e.g., supra at pp. 1565-66.
B. Attorney Fees
164
In the district court, counsel for petitioners sought an award of attorney fees and expenses for work performed through April 30, 1993, and for monthly payments thereafter, on the ground that petitioners were prevailing parties under 42 U.S.C. Sec. 1988. R., Doc. 142. Section 1988 provides in pertinent part that "[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Counsel subsequently sought an award of fees for prosecuting the fee application, as well. R., Doc. 176.
165
The district court denied both motions by order entered June 29, 1993. Id., Doc. 210. The court determined that the fee application was premature because the court had bifurcated the Sec. 1983 claims from the habeas claims and had yet to address petitioners' Sec. 1983 claims, which formed the predicate for an award of fees under Sec. 1988. Id. at 3, 7. The court ruled that "any attorneys fees claim[ed] as [a] prevailing party under the 42 U.S.C. Sec. 1983 claims must await another day." Id. at 8.
166
The district court subsequently denied counsel's motion to reconsider the denial of fees.30 The court indicated that the award of any fees beyond those counsel already was receiving pursuant to his appointment under the Criminal Justice Act was premature, regardless of whether the fees were sought pursuant to Sec. 1988 or pursuant to the language in Hill v. Reynolds, 942 F.2d at 1498, suggesting that an appropriate remedy for any constitutional deprivations might include "assessment against the state of costs and possibly even attorneys' fees." R., Doc. 233 at 2-3. The court noted that it had yet to enter any remedy of which attorney fees might be an appropriate part. Id. at 3.
167
"We review [a] district court's award of attorney fees for an abuse of discretion. Underlying factual findings will only be upset when clearly erroneous. However, a district court's statutory interpretation or legal analysis which provides the basis for the fee award is reviewable de novo." Homeward Bound, Inc. v. Hissom Memorial Ctr., 963 F.2d 1352, 1355 (10th Cir.1992).
168
The district court's rulings did not preclude the possibility that petitioners and their counsel may be entitled to an award of fees against the State in the future. Rather, the court ruled only that the present request for fees was premature. The district court did not err in so ruling.
169
Only after the district court conducts the analyses of petitioners' due process and equal protection claims that we have directed on remand can it enter appropriate remedies for petitioners' habeas claims. At that time, as indicated by our directions in Hill, 942 F.2d at 1498, the district court may consider whether the assessment of fees against the State would be an appropriate part of any remedy. But see Kennedy v. Shillinger, 971 F.2d 558, 562 (10th Cir.) (reversing an award of fees against the State in a habeas proceeding on the ground that the State's conduct in that action did not "justify a sanction of this sort"), cert. denied, --- U.S. ----, 113 S. Ct. 623, 121 L. Ed. 2d 556 (1992). Likewise, when the district court ultimately addresses petitioners' civil rights claims, it may then consider whether petitioners are entitled to fees as prevailing parties under 42 U.S.C. Sec. 1988. For the time being, we agree with the district court that the application for attorney fees is premature.
IV. CONCLUSION
170
The orders and judgments of the United States District Court for the Northern District of Oklahoma are AFFIRMED IN PART, REVERSED IN PART, and the matter is REMANDED for further proceedings consistent with this opinion.
1
The Public Defender is the predecessor in interest to the Oklahoma Indigent Defense System (OIDS), which came into being in July 1991. We will refer to both as the Public Defender
2
The Public Defender's fiscal year runs from July 1 of the named year through June 30 of the following calendar year
3
Judge Lumpkin, the Presiding Judge of the Oklahoma Court of Criminal Appeals, testified that the Oklahoma Court of Criminal Appeals decided that granting extensions of time to the Public Defender was preferable to the alternative of reviewing appeals without the benefit of briefs on behalf of the appellants. He explained that, under the court's rules, if a case were submitted with no brief, it would be reviewed for fundamental error only. The Oklahoma Court of Criminal Appeals thought that reviewing cases without the benefit of briefs from the Public Defender would likely lead to the indigent appellants filing motions for post-conviction relief based on ineffective assistance of counsel. Because granting a new appeal on the basis of ineffective assistance of counsel would only send the indigent appellant back to the bottom of the pile at the Public Defender's Office, the court determined that the indigent appellants would best be served by waiting for the Public Defender to file its briefs, however tardy. Apparently neither the Public Defender nor the Oklahoma Court of Criminal Appeals considered releasing the indigent appellants pending resolution of their appeals
4
The Oklahoma Court of Criminal Appeals attempted to remedy the problem indirectly by repeatedly asking the legislature to provide more funds
5
The Oklahoma Court of Criminal Appeals has jurisdiction over all criminal appeals in Oklahoma. Every person convicted of a crime in Oklahoma has an appeal as of right to the Oklahoma Court of Criminal Appeals, which is the only appellate court in the state that hears criminal matters. There is no intermediate court and the Oklahoma Supreme Court hears only civil matters. Five judges make up the Oklahoma Court of Criminal Appeals. Decisions are circulated to all five judges for signature, and cannot be issued until at least three of the five judges concur
6
The Oklahoma Court of Criminal Appeals' fiscal year runs from July 1 of the previous calendar year through June 30 of the year stated. In later documentation submitted to the district court, the number of pending cases at the end of FY 1990 was reported to be 1,533
7
The district court subsequently bifurcated petitioners' habeas and Sec. 1983 claims. We review only the habeas claims in this opinion
8
The period of 11.7 months was based on the median time, from notice of appeal to decision, required by the United States Court of Appeals for the Tenth Circuit to adjudicate criminal appeals in 1991
9
When a petitioner has been granted an appeal out of time, the length of the appellate process should be measured from the entry of that order, unless, of course, delay in perfecting the appeal in the first instance is attributable to the State
10
We modify the district court's ruling only in one particular. We use the two year period only to presume excessive delay, and not to presume the ultimate issue of unconstitutionality. To reach that ultimate issue, the other prongs of the Barker test also must be addressed
11
The district court arrived at the two-year period by taking into account the following time periods permitted for each stage of the appeal under the Rules of the Oklahoma Court of Criminal Appeals, plus reasonable extensions: three (previously six) months to prepare the transcript and record, per Rule 2.3A(2), plus one extension not to exceed sixty days; sixty days to file appellant's brief, per Rule 3.4B, plus one extension not to exceed sixty days; sixty days to file appellee's brief, per Rule 3.4C, plus one extension not to exceed sixty days; and the remainder of the time, consisting of eleven months, to hear and decide the appeal. R., Doc. 143 at 21-22; id., Doc. 255 at 7-8. The district court suggested that delay beyond any of these individual interim times might also create a presumption of inordinate delay that would be subject to redress through habeas corpus. See id., Doc. 143 at 23-24; id., Doc. 255 at 8-9. While we understand the district court's reluctance to require a petitioner whose direct criminal appeal has not progressed in a timely fashion to wait two full years before coming to federal court to seek redress, we think treating each component of the two-year period as a separate presumptive period is ill-advised and would open the federal courts to an unnecessary flood of litigation. Instead, we think the better practice is to recognize that the two-year presumptive period is neither absolute nor inflexible. For example, if unique circumstances dictate the need for a shorter adjudication time, the petitioner may establish that a delay of less than two years is inordinate under the circumstances. Similarly, if a substantial amount of time has passed and it appears a petitioner's direct criminal appeal cannot realistically be completed within the two-year period because of inordinate delay in the early stages of the appellate process, the petitioner may seek redress in federal court before the full two years has elapsed
12
We have searched, with little success, for appellate standards from other jurisdictions to guide us in our analysis of petitioners' claims of appellate delay. We note that the Standards Relating to Appellate Delay Reduction, which were established by the Appellate Delay Reduction Committee of the Appellate Judges Conference of the American Bar Association in 1988, provide that all appeals, whether civil or criminal, should be decided within 280 days from the filing of the notice of appeal. See Rita M. Novak & Douglas K. Somerlot, American Bar Ass'n, Delay on Appeal App. F at 187, 214 (1990)
The ABA standards, which are significantly shorter than the two-year presumption we have created, have been widely criticized as unrealistic, e.g., Honorable Carl West Anderson, Are the American Bar Association's Time Standards Relevant for California Courts of Appeal?, 27 U.S.F.L.Rev. 301, 307, 351 (1993); Roger Hanson et al., National Center for State Courts, Time on Appeal: Beyond Conjecture 3 (1993), and no court has formally adopted them without modification, Anderson, supra at 359.
Only a handful of state courts have adopted appellate time standards, and the time standards adopted vary widely. For instance, a delay reduction team in the First Appellate District of the California Court of Appeals has proposed the following standards: for appeals from criminal cases that were disposed of before a trial, the court should process fifty percent of the appeals within 185 days and ninety percent of the appeals within 305 days; and for appeals from criminal cases that were disposed of after a trial, the court should process fifty percent of the appeals within 305 days and ninety percent of the appeals within 475 days. Id. at 359, App. H-3. Justice Anderson's "comprehensive search of state appellate rules" revealed that the following standards have been formally adopted by state courts: Florida: "decision within 180 days of oral argument;" Maryland: "decision within 130 days of appeal for jointly-elected, expedited appeals;" New Mexico: "decision within 10 months of appeal." Id. at 351 n. 191. Wisconsin has adopted an internal operating procedure providing that "[t]he average time for rendering a decision should not exceed 40 days, and the maximum time for any case, except one of extraordinary complexity, should not exceed 70 days." Court of Appeals of Wisconsin Internal Operating Procedure VI(4)(h). Idaho and Virginia have informally adopted the following appellate standards: Idaho: "written but unpublished administrative goal to decide appeals within 418 to 508 days;" Virginia: administrative goal of decision within 210-295 days of appeal, "depending upon whether a transcript must be prepared and/or the opinion is to be published." Anderson, supra at 351 n. 191. There do not appear to be clear remedies for the appellant if any of these time standards are not met.
13
In her March 23, 1992, comments on data submitted by petitioners to the district court, the Attorney General conceded that
whether the delay and backlog are the result of understaffing and underfunding or whether the delay is the result of possible mismanagement of the internal operations and allocation of resources within the [Public Defender] agency, the result is still the same, that the reason for the delay is attributable to [the Public Defender] and not to the Petitioner.
R., Doc. 29 at 9.
14
The State did offer an alternative reason for the delay in adjudicating petitioner Doyle King's appeal, which was at issue and pending before the Oklahoma Court of Criminal Appeals for almost seven years without resolution. The State explained that a majority of the members of the Oklahoma Court of Criminal Appeals could not reach agreement on the disposition of the case. R., Doc. 143 at 29; Tr. 4/9/93 at 57. While we appreciate the court's dilemma, its deadlock did not justify the lengthy delay in adjudicating King's appeal
15
In Rheuark v. Shaw, 628 F.2d at 303 n. 8, the Fifth Circuit gave the following example of delay impairing the grounds for appeal. The passage of time made it more difficult for the court reporter to read and transcribe the notes of the trial he had taken. As a result, he omitted defense counsel's oral motion for a mistrial. On appeal, the state court refused to rule on an issue because the record did not reflect any motion for mistrial. Id. Although such examples of delay affecting the appeal may exist, they are rare; a petitioner is more likely to be able to establish that delay has impaired the grounds for defense in the event of retrial. Therefore, our discussion focuses on this latter type of prejudice rather than impairment of the grounds for the appeal itself
16
In determining the issue of prejudice, the federal district court need only address the colorability of the underlying claim and is not required to rule on the merits of the underlying claim
17
We recognize that the length of sentence imposed may affect not only when a petitioner is subject to release, but the quality of a petitioner's incarceration prior to release. Cf. Burkett II, 951 F.2d at 1443 (acknowledging that prejudice may arise from excessive delay that affects the quality of a petitioner's incarceration). Therefore, a petitioner might justifiably suffer anxiety if, for example, he or she had a colorable claim warranting a reduction in sentence that, though not enough to make the petitioner eligible for release before the conclusion of the appeal, was sufficient to affect the quality of the petitioner's incarceration by making the petitioner eligible for a lower level of security or for rehabilitative programs. See Strunk v. United States, 412 U.S. 434, 439, 93 S. Ct. 2260, 2263, 37 L. Ed. 2d 56 (1973) (recognizing that "the prospect of rehabilitation" may be adversely affected by delay); Burkett II, 951 F.2d at 1443 (finding merit in petitioner's claim that sentencing delay kept him in county jail, where he could not avail himself of rehabilitative programs that would have been available in the state penitentiary)
18
Petitioners contend that the district court's due process rulings are insufficient in several other respects. Based on language in Harris I, 938 F.2d at 1071, petitioners assert that the district court should have made findings about how much time the Public Defender can be expected to require in the future to file appellate briefs, as well as the specific reasons for the past delay in filing appellate briefs. Neither of these findings was necessary to the district court's analysis of petitioners' habeas claims, however, and neither is necessary to our review. The remainder of petitioners' challenges to the district court's due process rulings merit no independent discussion
19
Of course, if the State has decided the appeal and affirmed, the State's decision will be conclusive on any state claims. If the federal claims were properly presented in the state proceeding, however, they can then be regarded as exhausted, enabling the federal court to consider them on the merits in the habeas action
20
As of August 13, 1993, 217 criminal appeals by Harris group petitioners were still pending before the Oklahoma Court of Criminal Appeals
21
If the claims at issue in the direct appeal concern only the length of the petitioner's sentence, then release will be available only after the petitioner has served the uncontested portion of his or her sentence. Furthermore, if the petitioner is serving or has yet to serve another sentence that has not been challenged, "release" from the conviction and sentence being challenged will not actually set the petitioner free
22
For example, if the briefs have not yet been filed, good cause may exist to give the State more than sixty days to decide the appeal. We note, however, that the district court found in its order of September 8, 1993, that a brief had been filed on behalf of all but one of the petitioners in their respective direct criminal appeals. R., Doc. 255 at 4
23
Of course, it will not be necessary to provide the State a time to cure if the due process violation is incurable
24
In Harris I, 938 F.2d at 1071, we addressed other remedies that may be appropriate depending on the particular circumstances of the case
25
An intermediate level of review exists for " 'quasi-suspect' classifications based on characteristics beyond an individual's control, such as gender, illegitimacy, and alienage." Oklahoma Educ. Ass'n, 889 F.2d at 932
26
Petitioners' claims for ineffective assistance of counsel relate only to briefing delays and are distinct from their due process claims, which relate to delays in the entire appellate process. Although the eventual filing of an appellate brief ends a petitioner's ability to obtain habeas relief on an ineffective assistance of counsel claim arising from delay in briefing the appeal, it does not end a petitioner's ability to obtain habeas relief on a due process claim arising from delay in the entire appellate process. So long as a petitioner's appeal remains undecided, the petitioner may still obtain habeas relief for a due process violation even if counsel has filed a brief on the petitioner's behalf. See supra at pp. 1566-67
27
On December 27, 1993, the district court dismissed Judge Brett's uncle from this habeas action because he is not the custodian of any petitioner. See Mackey v. Gonzalez, 662 F.2d 712, 713 (11th Cir.1981). The district court also dismissed the Sec. 1983 claims against Judge Brett's uncle on the ground that he is absolutely immune from damages liability. See Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.1990), cert. denied, 499 U.S. 976, 111 S. Ct. 1622, 113 L. Ed. 2d 719 (1991)
28
Further, on remand Judge Brett should recuse himself from all cases consolidated in this appeal. Thus, he will be removed from the ultimate disposition of petitioners' claims
29
In deciding whether to vacate the panel's previous rulings, we cannot simply pick and choose among the panel's findings and conclusions, as petitioners would have us do. Either we will vacate all the rulings, or none of them
30
The parties did not designate the motion to reconsider as part of the record on appeal | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/529960/ | 886 F.2d 644
15 Fed.R.Serv.3d 272
Paul BECHTEL; Wanda Elaine Greene, Co-Executors of Estateof Edward G. Greene, Deceased, Appellants,v.Janus R. ROBINSON, d/b/a Kirby & Holloway Family RestaurantJames Gray, d/b/a Kirby & Holloway Family Restaurant.
No. 89-3120.
United States Court of Appeals,Third Circuit.
Argued July 11, 1989.Decided Oct. 3, 1989.
Bayard J. Snyder (argued), Phillips & Snyder, P.A., Wilmington, Del., for appellants.
Craig A. Karsnitz (argued), Young, Conaway, Stargatt and Taylor, Georgetown, Del., for Robinson, Gray, d/b/a Kirby & Holloway Family Restaurant.
Before HIGGINBOTHAM, BECKER and NYGAARD, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
1
This is an appeal in a diversity action from an order of the district court granting defendant's motion for summary judgment and denying plaintiffs' motion to file a second amended complaint. Because we find that the district court erred in not applying equitable estoppel against the statute of limitations defense, we will reverse the court's grant of summary judgment to the defendant. We will also reverse the court's denial of leave for plaintiffs to amend their complaint, and will remand this case for further proceedings consistent with this opinion.
I.
2
The following facts are based on the district court's findings and are undisputed. On March 9, 1986, Edward G. Greene ("Greene"), while dining at the Kirby & Holloway Family Restaurant (the "Restaurant") in Dover, Delaware, sustained back injuries when the chair he was sitting in collapsed. At the time of the incident, James E. Gray ("Gray") was working in the Restaurant, and recalled helping Greene after his fall. On October 15, 1986, Michael P. Creedon ("Creedon"), an attorney in Philadelphia, Pennsylvania, who was retained by Greene, wrote the Restaurant requesting that its insurance carrier contact him about Greene's accident. Creedon's letter did not mention the commencement of any lawsuit, and although there is no direct evidence that anyone at the Restaurant received the letter, it was never returned by the post office. On November 19, 1986, Greene died of causes unrelated to the accident at the Restaurant.
3
In January 1988, Greene's case was referred to Bayard J. Snyder ("Snyder"), an attorney in Wilmington, Delaware, who began an investigation on behalf of the plaintiffs Paul Bechtel and Wanda E. Greene, co-executors of Greene's estate, to determine the proper party upon which to bring a tort action for the injuries Greene suffered in the Restaurant.1 This investigation included a search of public records and available directories. From the Prothonotary's office in Kent County, Delaware, Snyder learned that the Restaurant was listed as being owned in sole proprietorship by Janus R. Robinson ("Robinson"). Moreover, an employee of Snyder's visited the Restaurant to determine actual ownership, but did not see any references to who owned the business except that of Kirby & Holloway, the Restaurant's trade name.
4
The plaintiffs filed a complaint in federal district court in Delaware2 on February 17, 1988, naming as the defendant "Janus R. Robinson, d/b/a Kirby & Holloway Family Restaurant." On February 23, 1988, when the plaintiffs attempted service on Robinson at the restaurant, they were informed by an unidentified employee that Gray, rather than Robinson, was the owner of the Restaurant. Unbeknown to the plaintiffs at that time, Gray had purchased the Restaurant from Robinson on September 4, 1984 through a corporation called Creative Dining, Inc.
5
Upon receiving information that Gray was the owner of the restaurant, plaintiffs filed an amended complaint as of right on March 14, 1988, after the statute of limitations period had expired,3 adding as a defendant "James Gray, d/b/a Kirby & Holloway Family Restaurant." Gray was personally served on March 18, 1988. When Gray answered the complaint on May 2, 1988, the plaintiffs learned for the first time that Creative Dining, Inc., was the actual owner of the Restaurant, and that Gray was the principal stockholder of that corporation.
6
Although Gray had not registered Creative Dining, Inc., as the new owner of the Restaurant prior to the filing of this suit, he did register "Creative Dining, d/b/a Kirby & Holloway Family Restaurant" in the Prothonotary's office on May 2, 1988. Before that date, the only public record that accurately reflected ownership was the state license of the Restaurant. That document was posted in Gray's office in the basement of the Restaurant, an area not open to the public.
7
In his answer to the plaintiff's complaint, Gray had raised the statute of limitations as an affirmative defense, and on July 7, 1988, he moved for summary judgment on that ground. On August 10, 1988, plaintiffs moved to file a second amended complaint correcting Robinson's name4 and adding "Creative Dining, Inc., d/b/a Kirby & Holloway Family Restaurant" as a defendant. The district court, after determining that the plaintiffs had failed to meet the requirements under Fed.R.Civ.P. 15(c) for relating their amended complaint back to the time of the filing of the original action, and that Gray's failure to register his company as the owner of the Restaurant and to post its license publicly did not provide plaintiffs with any form of equitable relief from the statute of limitations defense, granted Gray's motion for summary judgment and denied plaintiffs' motion to file a second amended complaint. Judgment was entered on December 15, 1988 123 F.R.D. 484, and this appeal followed.
II.
A.
8
As an initial matter, we must determine what is our appropriate scope of review in this case. On this summary-judgment record, we view the facts as they are set forth on the affidavits, in the light most favorable to the non-moving party, in order to determine whether there are material issues of disputed fact. In that determination, our review is plenary. Erie v. Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). We also exercise plenary review over the district court's statutory construction, see Chrysler Credit Corp. v. First Nat'l Bank & Trust Co., 746 F.2d 200, 202 (3d Cir.1984), and interpretation of legal precepts. Dent v. Cunningham, 786 F.2d 173, 175 (3d Cir.1986).
9
Moreover, when a trial court makes an equitable assessment after the operative facts are established, we review that assessment for abuse of discretion. See Callowhill v. Allen-Sherman-Hoff Co., Inc., 832 F.2d 269, 271 n. 4 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1228, 99 L.Ed.2d 428 (1988); E.E.O.C. v. Great Atlantic & Pacific Tea Co., 735 F.2d 69, 81 (3d Cir.), cert. dismissed, 469 U.S. 925, 105 S.Ct. 307, 83 L.Ed.2d 241 (1984). In that regard, we must decide whether the district court "located 'a just result' in light of the circumstances peculiar to the case...." Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362, 2362, 45 L.Ed.2d 280 (1975). Finally, we review a trial court's denial of leave to amend a complaint for abuse of discretion. Kiser v. General Electric Corp., 831 F.2d 423, 426 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988).
B.
10
We first address the appellants' contention that the district court should have applied equitable estoppel to bar Gray from asserting the statute of limitations as a defense since his lack of compliance with Delaware law had caused them to sue the wrong party. Specifically, the appellants argue that Gray violated Del.Code Ann. tit. 6, Sec. 3101 (1975) ("Sec. 3101"),5 which requires businesses operating under fictitious trade names to register their actual owner's name at the Prothonotary's office, and Del.Code Ann. tit. 30, Sec. 2109 (1985) ("Sec. 2109"),6 which requires a business to post its license in a conspicuous manner in either its principal office or place of business.
11
With respect to appellants' contention that he violated Sec. 3101, Gray rejoins that he was not required to disclose that Creative Dining, Inc., was the owner of the Restaurant on grounds that Del.Code Ann. tit. 6, Sec. 3107 (1975) ("Sec. 3107")7 expressly exempts legally incorporated companies from Sec. 3101's application. Nevertheless, the appellants assert that the purpose behind Sec. 3101 "is to allow the public ease and consistency in discovering the names of people transacting business in particular counties." Brief for Appellants at 24. Therefore, to avoid vitiating Sec. 3101's purpose, the appellants claim that Sec. 3107 should be read as only exempting corporations doing business under their corporate names, and not corporations doing business under fictitious trade names. Id.
12
We find the appellant's understanding of the import of Sec. 3101 to be supported by Delaware case law. As noted in 35 Virginia v. Tuttle, Civ. No. 1253, slip. op. (Del. Ch. June 26, 1987), aff'd, 536 A.2d 615 (Del.Supr.1987):
13
The purpose of a so called "common name statute" such as Sec. 3101 is "to protect the residents of the State [of Delaware] from the activities of unidentifiable associations engaged in business under assumed or common names." Silliman v. Dupont, 302 A.2d 327, 333 (Del.Super.1972), aff'd sub nom., F.I. Dupont, Glore Forgan & Co v. Silliman, 310 A.2d 128 (Del.Supr.1973).
14
Id. at 4.
15
Moreover, we find that the principles of statutory construction under Delaware law corroborate the appellants' reading of Sec. 3107. As stated by the Delaware Supreme Court:
16
The object of statutory construction is to give a sensible and practical meaning to the statute as a whole in order that it may be applied in future cases without difficulty, ... and if a literal interpretation leaves a result inconsistent with the general statutory intention, such interpretation must give way to the general intent. This is particularly true where such literal interpretation would lead to unjust and mischievous consequences.
17
Nationwide Mutual Ins. Co. v. Krongold, 318 A.2d 606, 609 (Del.Supr.1974) (emphasis added).
18
The district court initially held that "[t]o read Sec. 3107 literally to provide an exemption from the Sec. 3101 filing requirements for all legally incorporated Delaware companies is contrary to the protective purpose of the statute." Bechtel v. Robinson, et al., 123 F.R.D. 484, 489 (D.Del.1988), reprinted in Appellant's App. at 55. However, the district court still had some reservations about its construction of the statute and thus concluded that "it is at best arguable that Gray was required to so register." Id.
19
We have no such reservations in finding that Gray was required to register Creative Dining, Inc., as the owner of the Restaurant. It is certainly clear that "unjust and mischievous consequences" would result if businesses using fictitious trade names could simply evade Sec. 3101's disclosure requirement through the process of incorporation. If that were true, the exception carved out under Sec. 3107 would swallow the rule prescribed in Sec. 3101, and would have a devastating impact on the protection the Delaware legislature sought to afford citizens against businesses operating under assumed names in Delaware. Without a doubt, the state legislature did not desire this result, and while the Delaware Supreme Court has yet to decide the issue, a lower court has suggested that corporations using trade names must comply with Sec. 3101. See Zaleski v. Mart Associates, slip op. at 3-5 (Del.Super. Sept. 14, 1988) (noting that defendants' use of the trade name "Mart Associates" was not done pursuant to the registration requirements of Sec. 3101). Accordingly, we hold that Gray violated Sec. 3101 by failing to register Creative Dining, Inc., as the actual owner of the Restaurant after purchasing the business from Robinson.8
20
We next address appellants' contention that Gray's posting of the Restaurant's license in a part of the Restaurant closed to the public was an infraction of Delaware law. The relevant statute provides:
21
(a) Every person holding any state license authorizing the conduct of any business, trade or vocation shall expose such license in a conspicuous manner in the principal office or place of business of such person.
22
Del.Code Ann. tit. 30, Sec. 2109(a). Gray contends that he complied with the statute by posting the license on the wall of the Restaurant's office. The appellants, however, take the position that the license was not posted in a "conspicuous manner" since the office was located in a private area of the Restaurant.
23
Admittedly, the district court did not specifically address whether Gray's posting of the license in an area closed to the public constituted a violation of Sec. 2109. However, we agree with the appellants that the purpose of the statute is clearly to require people to post their licenses in full view of the public. Some persons can comply with the statute by posting their business licenses in their principal offices, where we can assume that clients seeking their services ultimately visit those offices. However, other persons can not comply with the statute by displaying their licenses in their principal offices, where those offices are inaccessible to the public. Restaurant owners fall within the latter category. Therefore, we hold that Gray was obligated under Delaware law to post the Restaurant's license in a conspicuous area open to the public.
24
Having found that Gray violated Delaware law, we now address appellants' contention that Gray's violations warrant the use of equitable estoppel to bar Gray from pleading the statute of limitations as a defense in this action. On this point, the district court concluded that even if Gray had been required to register under Sec. 3101, the Delaware legislature had not provided a tolling of the statute of limitations as one of the enumerated penalties for violating the statute. Moreover, the court held that, although Gray had posted the Restaurant's license in an area closed to the public, thus preventing the appellants from discovering the true identity of the owners, it could not engraft an equitable exception onto the limitations period for that reason.9
25
We find that the district court was mistaken in its determination that no equitable remedy was available to the appellants. Under Delaware law, "[equitable] estoppel may arise when a party by his conduct intentionally or unintentionally leads another, in reliance upon that conduct, to change position to his detriment." Wilson v. American Ins. Co., 58 Del. (8 Storey) 394, 398, 209 A.2d 902, 903-04 (1965) (citations omitted). As a result, "the person whose conduct has brought the situation about [is] estopped from asserting his legal rights against the party so misled." Wolf v. Globe Liquor Co., 34 Del. Ch. 312, 316, 103 A.2d 774, 776 (1954) (citations omitted).
26
Stated another way by one of the leading commentators on this subject:
27
Equitable estoppel in the modern sense arises from the conduct of a party, using that word in its broadest meaning as including his spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is justice and good conscience. Its object is to prevent the unconscientious and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of law, unless prevented by the estoppel; and its practical effect is, from motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel.
28
3 S. Symons, Pomeroy's Equity Jurisprudence Sec. 802 (5th ed. 1941) (footnote omitted) (emphasis in original); see also Timmons v. Campbell, 35 Del. Ch. 68, 75, 111 A.2d 220, 224 (1955) (quoting treatise).
29
Upon our review of the record in this case, we find that the overwhelming weight of the evidence supports the use of equitable estoppel to bar Gray from pleading the statute of limitations as a defense. It is undisputed that, at the time appellants' brought their suit, Gray had not registered Creative Dining, Inc., as the owner of the Restaurant, and that the only name on record in the Prothonotary's office was Robinson's. It is further undisputed that Gray did not post the Restaurant's license, the only public document disclosing the true owner of the business, in an area of the Restaurant that was open to the public. As a result, the appellants were misled by Gray into thinking that Robinson was the owner, and their reliance proved detrimental since they did not discover that they had sued the wrong party until after the statute of limitations had expired.
30
While we recognize that "[t]he statute of limitations is important to a defendant to protect it from the unfair surprise of a stale claim," Callowhill, 832 F.2d at 273 (citing Kreiger v. United States, 539 F.2d 317, 322 (3d Cir.1976)), in this case any surprise to Gray is not "unfair." It was through Gray's own conduct, by misleading the appellants as to the proper party to sue, that appellants were forced to bring a stale claim against him.10 Therefore, we hold that Gray is equitably estopped from pleading the statute of limitations as a defense.
31
Although Gray argues that he did not intend, in contemplation of this or any other lawsuit, to conceal the fact that Creative Dining, Inc., owned the Restaurant, we again note that whether a party intentionally or unintentionally committed an act is irrelevant under the doctrine of equitable estoppel. See Wilson, 58 Del. (8 Storey) at 398, 209 A.2d at 903-04. Likewise, Gray's contention that he should not be equitably estopped from pleading the statute of limitations since the appellants were informed on February 23, 1988 by an unidentified employee that Gray, and not Robinson, was the owner of the Restaurant, is without merit. It is undisputed that Gray was never the owner of the Restaurant and thus any information appellants received about Gray's ownership was still misleading. Indeed, the appellants did not discover that Creative Dining, Inc., was the actual owner of the Restaurant until May 2, 1988 when Gray answered the complaint.
32
On this last point, we find this case to be factually distinguishable from Food Fair Stores Corporation v. Vari, 55 Del. (5 Storey) 280, 191 A.2d 257 (1963). In that personal injury action, the plaintiff was notified prior to the expiration of the limitations period that it had sued the wrong party, and, in contrast to the case at bar, the plaintiff was given the name of the proper party to sue. Nevertheless, the plaintiff did not seek to amend its complaint to add the proper party until after the statute of limitations had run. The Delaware Supreme Court held that the trial court erred in not granting summary judgment for the improperly named defendant since there were no mitigating factors to excuse the plaintiff's failure to bring the action against the proper defendant. 55 Del. (5 Storey) at 284, 191 A.2d at 259.
33
In conclusion, we hold that the overwhelming weight of the undisputed evidence in this case warrants the application of equitable estoppel as a matter of law, and thus there is no need to remand this case for the district court to further assess the equities involved. We recognize that in some cases, where a trial judge makes an equitable assessment, there may be operative facts that would support contradictory dispositions. However, under the unique facts of this case, we find that any equitable assessment by a trial judge that did not grant the appellants relief would be an abuse of discretion. Accordingly, we conclude that the district court erred in granting Gray's motion for summary judgment.
C.
34
We now address the question of whether the district court erred in not permitting the appellants to file a second amended complaint. The appellants' primary objective in seeking leave from the district court to amend their complaint was to add Creative Dining, Inc., as a defendant. Under Fed.R.Civ.P. 15(c),11 a court can grant an amendment adding a party as a defendant to a complaint provided that the amendment can "relate back" to the time of the original filing. In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the Supreme Court articulated a four-prong test for determining whether a proposed amendment met the relation back requirement:
35
(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirement must have been fulfilled within the prescribed limitations period.
36
Id. at 29, 106 S.Ct. at 2384.
37
The district court held that since the appellants had not proffered sufficient evidence to create an issue of fact as to whether Gray had received notice of the institution of this action prior to the running of the statute of limitations,12 they had not satisfied the last three prongs of the Schiavone test. As a result, the court denied the appellant's motion for leave to amend their complaint since it reasoned that lack of notice to Gray, as principal stockholder of Creative Dining, Inc., was effectively lack of notice to the corporation.
38
However, in light of our finding that the district erred in failing to apply equitable estoppel to bar Gray from pleading that he did not receive notice of this action prior to the running of the statute of limitations, Schiavone 's concern with not prejudicing added parties with the unfair surprise of stale claims is irrelevant in this case. Therefore, we hold that the district court erred in denying appellants' motion for leave to amend their complaint on the basis that the amendment did not meet Rule 15(c)'s requirements for relation back.
39
We now examine whether the appellants' filing of an amended complaint should have been permitted under Fed.R.Civ.P. 15(a), which provides that "leave [to amend] shall be freely given when justice so requires." We have noted that the courts "have shown a strong liberality ... in allowing amendments under Rule 15(a)." Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981) (quoting 3 J. Moore, Moore's Federal Practice p 15.08(2) (2d ed. 1989)), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court identified a number of factors to be considered in deciding on a motion to amend under Rule 15(a):
40
In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given."
41
Id. at 182, 83 S.Ct. at 230; accord, Heyl & Patterson Int'l, 663 F.d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm'n, 573 F.2d 820, 823 (3d Cir.1978).
42
This Court has interpreted these factors to emphasize that "prejudice to the non-moving party is the touchstone for the denial of the amendment." Cornell & Co., 573 F.2d at 823. But the non-moving party must do more than merely claim prejudice; "it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely." See Heyl & Patterson Int'l, 663 F.2d at 426 (citing Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir.1969)).
43
In the case at bar, the district court refused to grant the appellants' motion to amend their complaint under Rule 15(a), holding that the "denial to the defendant of the defense of the statute of limitations constitutes prejudice to the defendant." Bechtel v. Robinson, et al., 123 F.R.D. at 487 (citations omitted), reprinted in Appellants' App. at 47. We find that the court erred in its holding since Gray should have been equitably estopped from pleading the statute of limitations as a defense. We further find that by granting the appellants' motion to amend the complaint, no other prejudice will result since neither Gray nor Creative Dining, Inc., will be deprived of the chance to present facts or evidence since this case is still in the initial stages of discovery.13
44
In the absence of undue or substantial prejudice, we must examine whether "denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Heyl & Patterson Int'l, 663 F.2d at 425 (citations omitted). Upon our review of the facts of this case, we find no evidence to support any of these grounds for denial. The appellants investigated who was the owner of the Restaurant before bringing suit against Robinson. Upon being told that Gray was the owner of the Restaurant and not Robinson, they amended their complaint to add Gray as a defendant and served him with process. Moreover, when they learned that Creative Dining, Inc., was the actual owner, they promptly moved for leave to amend their complaint to add Creative Dining, Inc., as a defendant.
45
We conclude that justice requires that the appellants be allowed freely to amend their complaint under the facts of this case. By allowing the appellants to amend their complaint to add Creative Dining, Inc., as a defendant in this action, we will simply allow them to correct an error made on account of Gray's misconduct and through no fault of their own. Moreover, since the parties were still engaged in initial discovery at the time this amendment was proposed, the amendment will not delay the bringing of this case to trial. Accordingly, we hold that the district court abused its discretion in not granting the appellants' motion to file a second amended complaint.
III.
46
For the foregoing reasons, we will reverse the district court's order granting defendant's motion for summary judgment and denying plaintiffs' motion to file a second amended complaint, and will remand this case for further proceedings consistent with this opinion.
47
NYGAARD, Circuit Judge, dissenting.
48
I dissent because I do not agree that appellants should be permitted to rely upon equity to resurrect the cause of action which they lost through their own inaction. It is disingenuous of appellants to argue that Gray's actions or inaction prevented them from filing suit against the proper party until after the statute of limitations had run.1
49
I agree with the majority's statement of Delaware law on equitable estoppel. I disagree with the support they find from the facts for their conclusion that equitable estoppel should apply in this case; (1) that appellants did not discover that they had sued the wrong party until after the statute of limitations had expired, Majority at 650; (2) that Gray's conduct so misled the appellants that they were forced to sue after the limitations period expired, Majority at 650-651; and (3) that "any information appellants received about Gray's ownership was still misleading," Majority at 651.
50
First of all, the alleged misstatement informed appellants fifteen days before the limitations period expired that they had sued the wrong party. Second, armed with this new information, appellants could have sued Gray within the time permitted by the statute of limitations and thereby preserved their right to add Creative Dining, Inc. pursuant to Fed.R.Civ.P. 15(c).2 It was appellants' tardy reaction to the information given them which foreclosed their cause of action, not Gray's failure to register his corporation's fictitious name or the information given to appellants by some employee of the restaurant.
51
Because appellants discovered they had sued the wrong party two weeks before the limitations period expired; and, because the information that Gray was the owner, if acted upon, would have preserved their claim, I do not think the elements of equitable estoppel have been established. To this extent, I think Food Fair Stores Corp. v. Vari, 55 Del. (5 Storey) 280, 191 A.2d 257 (1963) controls our case. Although Food Fair is factually different, the differences do not warrant a contrary result because, in each case, had appellants sued the party they were told to sue within the limitations period, their claims would not have been barred. The difficulty which appellants suffer is not the result of some misstatement of fact or violation of law, but rather of their own inaction. They tried to do in two weeks that which the law expects will be done in two years.
52
I conclude that appellants do not deserve equity and appellee should not be estopped from relying upon the statute of limitations to bar appellants' claim. Consequently, I would likewise conclude that the district court did not abuse its discretion by denying appellants' request to add Creative Dining, Inc.
1
There is no record of what occurred during the interim period between the sending of the letter by Creedon and the starting of the investigation by Snyder
2
The district court had subject matter jurisdiction based upon diversity of citizenship. See 28 U.S.C. Sec. 1332(a)
3
Delaware law imposes a two-year statute of limitations on actions arising out of personal injury. See Del.Code Ann. tit. 10, Sec. 8119 (1975)
4
At some point in time, after they had filed their first amended complaint, plaintiffs learned that the former owner of the restaurant was James R. Robinson and not Janus R. Robinson
5
That statute provides in relevant part:
No person, firm or association shall engage in, prosecute or transact any business within the limits of this State, by using any trade name or title ... without ... first filing a certificate ... in the office of the Prothonotary of each county in which it is prosecuting or transacting such business, designating the trade name or title and Christian and surname of such person, or, in case of a firm or association, the Christian and surname of each and every member of the firm or association.
Del.Code Ann. tit. 6, Sec. 3101 (1975).
6
That statute provides:
(a) Every person holding any state license authorizing the conduct of any business, trade or vocation shall expose such license in a conspicuous manner in the principal office or place of business of such person.
Del.Code Ann. tit. 30, Sec. 2109(a) (1985).
7
That statute in pertinent part provides:
Nothing in Secs. 3101-3105 of this title shall affect or apply to joint stock companies, using a common name, ... nor to legally incorporated companies.
Del.Code Ann. tit. 6, Sec. 3107 (1975).
8
We note that, as a technical matter, it was Creative Dining, Inc., that failed to register. However, since Gray was the principal shareholder and an executive of the corporation, he had an obligation to cause Creative Dining, Inc., to register
9
We note that contrary to Gray's contention, the issue of equitable estoppel was properly raised by the appellants below. Indeed, Gray concedes in his brief that
[i]n response to defendant-appellee Gray's brief [in support of the motion for summary judgment], plaintiffs-appellants filed a brief which discussed at great length the fact that defendant-appellee Gray failed to timely file a certificate indicating that his corporation, Creative Dining, Inc., was doing business under the trade name "Kirby & Holloway Family Restaurant["]....
Brief for Appellee at 20. Under the federal rules, as long as the issue is pled, a party does not have to state the exact theory of relief in order to obtain a remedy. A "pleading is a vehicle 'to facilitate a proper decision on the merits' and not 'a game of skill in which one misstep by counsel may be decisive.' " LaGorga v. Kroger Co., 407 F.2d 671, 673 (3d Cir.1969) (quoting United States v. Houghman, 364 U.S. 310, 317, 81 S.Ct. 13, 18, 5 L.Ed.2d 8 (1960)).
10
Nor did Gray identify any source other than the fictitious name registration or restaurant license, such as county or municipality records, where plaintiffs' counsel might have discovered that Creative Dining, Inc., was the owner of the Restaurant
11
Fed.R.Civ.P. 15(c) provides:
Whenever the claim or defense asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied, and, within the period provided by law for commencing the action against him, the party to be brought in by the amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
12
Although the appellants contend that there was sufficient evidence to support a finding that Gray had received notice of this lawsuit prior to the running of the statute of limitations, upon our review of the record, we find that Gray only had notice of Greene's injury. The district court correctly held that "notice of the institution of the action" under Rule 15(c) does not mean mere notice of the event giving rise to the cause of action. See Schiavone v. Fortune, 750 F.2d 15, 18 (3d Cir.1984), aff'd, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986)
13
We note that this is hardly a case where late filing will prejudice a party from producing witnesses to the accident. Gray himself was present in the Restaurant at the time of the accident, see supra p. 646
1
I find it unnecessary to decided whether or not defendant violated Delaware's Trade Name Registry Act because even if it did, plaintiffs discovered whom to sue in time to amend their complaint and give notice to Gray
2
Gray was the majority shareholder of Creative Dining, Inc., which was the party that should have been sued. Had appellants acted to amend their complaint to add Gray and served notice to him within the fifteen days they had before the limitations period expired, see, Dandrea v. Malsbary Mfg. Co., 839 F.2d 163, 167, n. 4 (3d Cir.1988), they could have amended their complaint after the limitations period expired to add Creative Dining, Inc., and, under Schiavone v. Fortune, 477 U.S. 21, 28-29, 106 S.Ct. 2379, 2383-84, 91 L.Ed.2d 18 (1986), the amendment would relate back to the filing of the complaint against Gray because notice to Gray, as principal shareholder, would be notice to Creative Dining. See, Itel Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253, 1258 (11th Cir.1983). Thus, the information given to appellants, if acted upon within the limitations, would have enabled appellants to sue the correct party without having their claim barred by the statute of limitations | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/691330/ | 49 F.3d 1049
41 Fed. R. Evid. Serv. 1236
UNITED STATES of America, Plaintiff-Appellee,v.Paul Douglas TANNEHILL, Defendant-Appellant.
No. 93-1709.
United States Court of Appeals,Fifth Circuit.
March 29, 1995.Rehearing and Suggestion for Rehearing En Banc Denied April26, 1995.
Steven P. Anderson (Court-appointed), Mills, Presby & Anderson, Dallas, TX, for appellant.
Susan Cowger, Thomas M. Melsheimer, James Jacks, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Dallas, TX, for appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
1
As the last of seven defendants in the early 1980s savings and loan "I-30 scandal" in Texas, Paul Douglas Tannehill appeals his convictions for conspiracy and overvaluation of land, with the critical issue being whether his statutory or constitutional rights to a speedy trial were violated; especially, whether, if only argument, and not testimony or other evidence, is presented on a pretrial motion not heard until after trial begins, the period between filing and argument is excludable under Sec. 3161(h)(1)(F) of the Speedy Trial Act (excludes "[a]ny period of delay resulting from ... any pretrial motion, from ... filing ... through ... hearing"). (Emphasis added.) Tannehill contends also that the evidence is insufficient, and that the district court erred in several evidentiary rulings and in refusing a jury instruction. We AFFIRM.
I.
2
In October 1987, Tannehill, a real estate appraiser, was indicted with David Lamar Faulkner, Spencer H. Blain, Jr., James L. Toler, Arthur Formann, Kenneth Earl Cansler, and Paul Arlin Jensen, as a result of their involvement in a scheme in which fraudulent real estate loans were obtained for the purchase of land and the construction of condominiums along Interstate 30 between Dallas and Fort Worth. See United States v. Faulkner, 17 F.3d 745, 756 n. 9 (5th Cir.), cert. denied, --- U.S. ----, ----, 115 S.Ct. 193, 663, 130 L.Ed.2d 125, 598 (1994). The 88-count indictment charged that Faulkner and Toler, real estate developers, and their employee, Cansler, arranged for Blain and Jensen, who controlled federally-insured savings and loan associations, to make loans for the purchase of building sites and completed condominium developments at inflated prices, and charged that Tannehill and Formann, a real estate appraiser employed by Tannehill, furthered the scheme by supplying intentionally inflated appraisals.1 Tannehill was charged in 13 counts with conspiracy, overvaluation of land, wire fraud, and aiding and abetting the misapplication of funds.
3
All seven defendants were tried in Lubbock beginning in early 1989, but a mistrial was declared that September, after the jury was unable to reach a verdict. A second trial began in Dallas in June 1991, but pretrial publicity made it impossible to select a jury in Dallas. The district court severed Faulkner, Toler, Blain, and Formann from Tannehill and the other two defendants, and transferred their four cases to the Western District of Texas (Midland). Their trial began in September 1991, and all were convicted that November. See Faulkner, 17 F.3d at 754-55.
4
After the Midland trial, Cansler pleaded guilty, and Jensen and Tannehill were severed, at their requests. Jensen was tried and convicted in October 1992. See United States v. Jensen, 41 F.3d 946 (5th Cir.1994). Tried in April 1993, Tannehill was acquitted on the wire fraud and misapplication counts and one overvaluation count, but was convicted for conspiracy and the other eight overvaluation counts.2 He was sentenced, inter alia, to six years imprisonment and fined $30,000.
II.
5
Tannehill contends that the indictment should have been dismissed for violations of his speedy trial rights; that the evidence is insufficient to sustain his convictions; and that the district court erred by permitting the Government to base its case on summary evidence, by admitting prior trial testimony of a deceased Government witness, and by refusing his requested instruction on reliance on the advice of counsel.
A.
6
The district court denied Tannehill's motion to dismiss the indictment for violations of his rights to a speedy trial under both the Speedy Trial Act and the Constitution. We turn first to the statutory claim.
1.
7
"We review the facts supporting a Speedy Trial Act ruling using the clearly erroneous standard and the legal conclusions de novo." United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). Although more than five and one-half years elapsed between indictment in October 1987 and trial in April 1993, Tannehill's statutory claim focuses only on the period between September 4, 1992 (filing of several pretrial motions by Tannehill), and the April 1993 trial.3 Accordingly, in reviewing his statutory claim, we do not consider any delays prior to then.
8
"The Speedy Trial Act[, 18 U.S.C. Sec. 3161-3174,] requires that a federal criminal defendant be tried within seventy days of his indictment or appearance in front of a judicial officer, whichever comes later. If the defendant is not brought to trial within this statutory period, the indictment must be dismissed." United States v. Williams, 12 F.3d 452, 459 (5th Cir.1994).
9
However, "[t]he Act provides for a number of 'exclusions' in which time that passes is not charged against the 70-day clock." Id. One of those provisions, Sec. 3161(h)(1)(F), excludes "[a]ny period of delay resulting from other proceedings concerning the defendant, including but not limited to ... delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion". 18 U.S.C. Sec. 3161(h)(1)(F) (emphasis added).
10
For motions that "require" a hearing,4 subsection (F) "excludes the time between the filing of the motion and the hearing on that motion, even if a delay between the motion and the hearing is unreasonable". United States v. Johnson, 29 F.3d 940, 942-43 (5th Cir.1994). Also excluded is the "time after a hearing needed to allow the trial court to assemble all papers reasonably necessary to dispose of the motion, e.g., the submission of post-hearing briefs". Id. And, after the court has received all of the submissions, the motion is considered to have been taken "under advisement", and the speedy trial clock is tolled for 30 days, pursuant to subsection (J), which provides for the exclusion of "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court". 18 U.S.C. Sec. 3161(h)(1)(J).
11
If a motion does not require a hearing, subsection (J) provides for the exclusion of 30 days after the court receives all submissions from counsel regarding the motion. Johnson, 29 F.3d at 943. "If the court has several motions on which it must rule, however, this time period can be reasonably extended." Williams, 12 F.3d at 460.
12
In May 1992, the district court set Tannehill's trial on its October 1992 docket. On September 4, however, Tannehill filed numerous pretrial motions, including a motion to dismiss for violations of the Speedy Trial Act, as well as a motion for a hearing on all pretrial motions. The Government's response, and Tannehill's reply, were submitted by the end of September. On November 20, the district court, sua sponte, reset the trial for its February 1993 docket. Tannehill filed additional motions on January 19 and 22, 1993, including a motion in limine. On January 29, the district court reset trial for April 5, 1993.
13
No hearing was conducted on Tannehill's motions prior to trial. After the jury was sworn, the court heard arguments on some of Tannehill's motions, including the motion to dismiss for violation of the Speedy Trial Act, filed in September 1992, and the motion in limine, filed in January 1993.
14
One basis for disposing of Tannehill's Speedy Trial Act claim turns on whether the arguments on his pretrial motions, heard after the jury was sworn, constitute a "hearing" within the meaning of Sec. 3161(h)(1)(F).5 Although our court has held that the speedy trial clock is tolled for the period between the filing of a motion and a hearing on that motion, even if the hearing is not conducted until trial, those cases do not address the meaning of "hearing" under Sec. 3161(h)(1)(F). See, e.g., Bermea, 30 F.3d at 1568 ("pending motions carried for hearing just before or during trial will toll the speedy trial clock indefinitely"); United States v. Santoyo, 890 F.2d 726, 728 (5th Cir.1989) (time between filing of pretrial motion in limine and hearing on motion at trial excludable), cert. denied, 495 U.S. 959, 110 S.Ct. 2567, 109 L.Ed.2d 749 (1990).
15
The Act does not define what constitutes a "hearing", and the parties have not cited, nor have we found, any authorities addressing the issue.6 In other contexts, "hearing" has been defined in various ways. See, e.g., Buxton v. Lynaugh, 879 F.2d 140, 144-45 (5th Cir.1989) ("hearing", as used in habeas corpus statute, 28 U.S.C. Sec. 2254(d), "does not necessarily require an evidentiary hearing and ... factfinding based on a record can in some circumstances be adequate"), cert. denied, 497 U.S. 1031, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990); State v. Orris, 26 Ohio App.2d 87, 269 N.E.2d 623, 624 (1971) (the term "hearing" suggests "to 'give audience to' "); Black's Law Dictionary 721 (6th ed. 1990) (defining "hearing" as "[a] proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or law to be tried, in which witnesses are heard and evidence presented").
16
In determining what Congress meant by its use of the word "hearing" in subsection (F), we must consider the context in which the word is used and give to the term its ordinary meaning within that context. See, e.g., Ardestani v. I.N.S., 502 U.S. 129, 134, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991) (when word used in statute has many dictionary definitions, it "must draw its meaning from its context"); John Doe Agency v. John Doe Corp., 493 U.S. 146, 153-56, 110 S.Ct. 471, 475-77, 107 L.Ed.2d 462 (1989) (looking to "ordinary meaning" and purpose of statute in interpreting statutory term). Subsection (F) deals with the exclusion of "any" delays, caused by the pendency of pretrial motions, from the time limitations imposed by the Act; applies to "any pretrial motion"; and excludes, inter alia, the period between filing and hearing. (Emphasis added.) Some motions require the presentation of testimony or other evidence (for example, a motion to suppress); others do not (for example, Tannehill's motion in limine ). In light of Congress' intent that subsection (F) apply to any pretrial motion, it would be unreasonable to conclude that the presentation of testimony or other evidence is an essential prerequisite for a "hearing" on a motion within the meaning of that subsection.
17
We need not determine the precise parameters for a "hearing" under subsection (F), because it is clear that the term includes a situation in which the district court hears argument of counsel and considers it prior to making its ruling, as was done in this case. Therefore, the entire period between September 4, 1992 (the date on which Tannehill filed his pretrial motions) and the hearing conducted at trial is excludable under subsection (F).7 See Bermea, 30 F.3d at 1568 (speedy trial clock tolled by motions which were ultimately heard and ruled upon during trial); United States v. Gonzales, 897 F.2d 1312, 1314-16 (5th Cir.1990) (period following filing of motion to dismiss for speedy trial violation, decided after oral argument on the first day of trial, excludable under Sec. 3161(h)(1)(F)), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991); Santoyo, 890 F.2d at 728 (period following filing of pretrial motion in limine excludable under Sec. 3161(h)(1)(F) even though motion was carried for hearing during trial); United States v. Riley, 991 F.2d 120, 123-24 (4th Cir.) (although resolution of pretrial motion to suppress was not concluded until trial, entire period between its filing and its resolution was excludable under Sec. 3161(h)(1)(F)), cert. denied, --- U.S. ----, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993).
2.
18
Alternatively, Tannehill claims violation of the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial". U.S. Const. amend. VI. "In resolving a constitutional speedy-trial claim, we must examine: (1) the length of the delay, (2) the reason for the delay, (3) when the defendant asserted his speedy trial rights, and (4) any prejudice to the defendant resulting from the delay." United States v. Neal, 27 F.3d 1035, 1042 (5th Cir.) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)), cert. denied, --- U.S. ----, 115 S.Ct. 530, 130 L.Ed.2d 433 (1994), and cert. denied, --- U.S. ----, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995).
19
The Government concedes, as it must, that the delay was "extraordinarily long", but maintains that it was reasonable under the Sixth Amendment for the same reasons that it was permissible under the Speedy Trial Act. In response to Tannehill's constitutional claim, the district court ruled, in part, that the delay was necessitated by the complexity of the case, combined with the need for the lengthy trial records that were essential to Tannehill's defense.8
20
Tannehill asserts that he was prejudiced by the delay because (1) he became insolvent due to the cost of defending the case, has been unable to obtain any significant work as an appraiser due to adverse publicity, and thus had to rely on appointed counsel; and (2) three material witnesses died following the mistrial. On the other hand, the district court ruled that Tannehill was not prejudiced but, instead, benefited from his counsel's opportunity to review and use transcripts from the other trials.
21
We agree; the trial transcript reflects several occasions on which Tannehill's counsel used the transcripts for impeachment or in an attempt to secure favorable evidentiary rulings. And, Tannehill, who was represented at trial by appointed counsel, has not shown prejudice to his defense as the result of his insolvency. Finally, as the district court also ruled, Tannehill has shown no prejudice from the deaths of the three witnesses, because he has not related the substance of their testimony, or shown how it would have affected his defense.
B.
22
Tannehill contends that the evidence is insufficient to support his convictions for conspiracy and overvaluation. Our narrow standard of review for challenges to the sufficiency of the evidence after conviction by a jury is well-established:
23
We must affirm if a reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. We must consider the evidence in the light most favorable to the government, including all reasonable inferences that can be drawn from the evidence. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence.
24
Bermea, 30 F.3d at 1551.
1.
25
For the conspiracy conviction, Tannehill maintains that there was no evidence that any alleged co-conspirator asked him to fabricate or arbitrarily inflate appraisals; or that he was present or overheard discussions about the conspiracy; or that he made statements indicating knowledge or awareness of it; or that he agreed to join it. But, there was ample circumstantial evidence to support the jury's finding that Tannehill knowingly participated in the conspiracy.
26
A lengthy recitation of the evidence is unnecessary. Our review of the trial transcript reveals numerous examples of circumstantial evidence of guilt, including Tannehill's secretary's testimony that, when she asked him why he did not terminate his relationship with the I-30 clients, he responded that he was "in too deep and I can't get out. I have to unload my condos first". Although Tannehill asserts that the secretary admitted, on cross-examination, that he could have been referring to the large accounts receivable balance owed his firm by the savings and loan association, this is precisely the type of alternative hypothesis of innocence that the evidence need not exclude. The jury was free to reject this explanation.
27
Other circumstantial evidence of Tannehill's participation in the conspiracy includes, for example, testimony about conversations in which he participated, reflecting his knowledge that sales of completed condominiums in the I-30 area were poor and, thus, that high appraisals were unwarranted; and his admission to another I-30 condominium developer that he had been "forced" by Faulkner to include Formann as a partner in the condominium development in which he had invested. It goes without saying that, although Tannehill presented conflicting evidence, "the jury is the final arbiter of the credibility of witnesses". Bermea, 30 F.3d at 1552. There is no basis upon which to overturn its conspiracy verdict.
2.
28
For his convictions on eight overvaluation counts, Tannehill contends that the evidence was insufficient because there was no evidence that he knew, or should have known, that the appraisals were false. He asserts that the evidence showed that his staff appraiser and co-defendant, Formann, gathered the data and prepared the appraisals; that there was no evidence that he conspired with Formann, or was aware that Formann was preparing false appraisals; and that he performed responsibly as a review appraiser in accordance with then prevailing standards.
29
To establish a violation of 18 U.S.C. Sec. 1014, the Government was required to prove that Tannehill knowingly made a false statement as to a material fact to a financial institution, for the purpose of influencing the institution's actions. United States v. Thompson, 811 F.2d 841, 844 (5th Cir.1987). There was ample evidence from which a rational juror could have found that Tannehill knew that the appraisals overvalued the property. The appraisals valued the property at 20-30% more than the amount for which it was being sold. There was testimony that the appraised values had to be higher than the sales prices so that the lending institutions, which loaned only 70-80% of the appraised value of the property, could fund 100% of the costs, thus allowing the investor/developer to pay no money down and often receive "up-front" money at the closings.
30
Moreover, sales of Tannehill's own condominium units in the area were poor, supporting an inference that he could not have assigned such high appraised values to other property in the area in good faith. Tannehill's assertion that his units were not available for sale until October 1982, and that the appraisals at issue were made either before or shortly thereafter, is unavailing in light of evidence that efforts to pre-sell the units prior to their completion were unsuccessful and evidence that, prior to the dates of the appraisals at issue, Tannehill participated in conversations with other I-30 developers in which they discussed poor sales of completed units.
31
Although Tannehill asserts that there was no evidence that he was aware of Formann's illegal activities until he fired Formann in February 1983, after he learned that Formann was responsible for forging his signature on an appraisal, which occurred after the appraisals at issue were submitted, the Government introduced expert testimony that the inconsistencies and unexplained adjustments in the appraisals could not be attributed to incompetence or negligence, and that an experienced appraiser should have detected them. In short, the jury chose to reject Tannehill's attempt to place all of the blame on Formann, and its decision to do so is supported by the evidence. Accordingly, we conclude that there was sufficient evidence for the jury to find that Tannehill knew that the appraisal reports he signed reflected overinflated values.
C.
32
Tannehill presents two evidentiary issues: use of summary evidence; and use of prior testimony of a deceased witness.
1.
33
Tannehill contends that the district court erred by permitting the Government to base its case on summary evidence. First, he claims that charts summarizing the transactions at issue were misleading and inaccurate, and contained information that the Government's expert, on cross-examination, admitted an appraiser should not be expected to know or consider in making an appraisal.
34
Of course, "[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of chart, summary, or calculation". Fed.R.Evid. 1006. We review the admission of evidence pursuant to Rule 1006 only for abuse of discretion. See United States v. Winn, 948 F.2d 145, 157 (5th Cir.1991), cert. denied, 503 U.S. 976, 112 S.Ct. 1599, 118 L.Ed.2d 313 (1992). The district court did not abuse its discretion in admitting the summary charts, because the requirements of Rule 1006 were satisfied. The documents summarized in the charts were voluminous, and in-court examination would have been more than inconvenient.9 Furthermore, the charts had annotations referencing the documents used to prepare them, and the underlying documents were available to the jury. And, the district court instructed the jury on the proper use of the summary evidence:
35
Charts or summaries, and the witness's explanation of them, are not in and of themselves evidence or proof of any facts. If these charts or summaries or the witness's explanation of them do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.
36
Our court has held that similar instructions were adequate to neutralize any potential for prejudice arising from the use of such evidence. See Winn, 948 F.2d at 157-59 & n. 30.
37
Next, Tannehill asserts that the district court erred by admitting the case agent's summary testimony, based on the charts, contending that it was improper and highly prejudicial because, given the relative brevity of the Government's case, there was no need for summarizing, interpreting, or simplifying the evidence. There was no abuse of discretion. The agent's testimony was helpful to the jury in explaining the charts and the documents he relied upon in preparing them, and Tannehill's counsel engaged in thorough cross-examination regarding the assumptions used in preparing the charts.
38
In addition, Tannehill maintains that these claimed errors were compounded when the district court allowed the charts in the jury room. But, as stated, there were no errors to compound. In any event, although the charts were not admitted in evidence, a notebook, containing copies of them, was admitted. Accordingly, the district court did not abuse its discretion in allowing the jury to have access to the charts during its deliberations.
39
Tannehill contends also that the district court erred by permitting numerous witnesses to read from, and interpret, documents of which they had no personal knowledge, including lay analysis of comparable sales and other information in the appraisals prepared by Formann. He asserts that such evidence was prohibited by Fed.R.Evid. 602, which provides, in pertinent part, that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter". Even assuming that the admission of such testimony was error, Tannehill has not shown that it affected his substantial rights. See Fed.R.Evid. 103(a).
2.
40
Rule 804(b)(1) of the Federal Rules of Evidence allows admission of the prior testimony of a deceased witness if the defendant "had an opportunity and similar motive to develop the testimony by ... cross ... examination". Tannehill contends that the district court erred by admitting the 1989 Lubbock trial testimony of a deceased Government witness, asserting that the testimony does not fall under Rule 804(b)(1), because Tannehill did not have the same motive in his prior cross-examination.
41
Tannehill maintains that his motive for cross-examining the witness at the Lubbock trial was sufficiently different to preclude admission of the testimony, because he was one of seven defendants at that trial, almost all of the cross-examination of the witness was conducted by counsel for his co-defendants, and his Lubbock trial strategy was to "disappear into the woodwork and hope for the best".
42
Needless to say, we review the district court's decision to admit the testimony only for abuse of discretion. See United States v. Amaya, 533 F.2d 188, 191 (5th Cir.1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977). Tannehill's motive for cross-examination was not sufficiently different to preclude admission of the testimony under Rule 804(b)(1) merely because different counsel with different defense theories conducted the cross-examination at the Lubbock trial. See id. at 191-92 (Rule 804(b)(1) does not "condition the use of prior testimony on representation by the same counsel at both trials. Adequate opportunity for cross-examination by competent counsel is sufficient."); Fed.R.Evid. 804(b)(1), advisory committee's note ("If the party against whom [the testimony is] now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine."). Although Tannehill's 1993 trial strategy may have changed because he was being tried alone, his motive for cross-examination was the same as in the Lubbock trial: to discredit the witness and separate himself from the other members of the conspiracy. Accordingly, the district court did not abuse its discretion by admitting the testimony.10
D.
43
Finally, Tannehill bases error on the district court's refusal to give his requested reliance on the advice of counsel jury instruction. Such refusal is reviewed only for abuse of discretion. E.g., United States v. Sellers, 926 F.2d 410, 414 (5th Cir.1991). A district court may refuse "to give a requested instruction which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions." United States v. Neal, 951 F.2d 630, 633 (5th Cir.1992). "The refusal to give a requested jury charge is reversible error only if the instruction was substantially correct, was not substantially covered in the charge delivered to the jury, and it concerned an important issue so that failure to give it seriously impaired defendant's ability to present a given defense." Id.
44
Tannehill introduced evidence that one of his attorneys attended a meeting in 1983 regarding the sale of Tannehill's completed condominiums. He asserts that his attorneys reviewed the documents for that transaction, concluded that full disclosure had been made to the lender, and instructed him to proceed. Although Tannehill was acquitted on the substantive counts relating to that transaction, he points out that it was the subject of two overt acts alleged in the conspiracy count.
45
The district court did not abuse its discretion. The evidence showed that Tannehill sought the advice of counsel only with respect to the sale of his condominiums, and not with respect to his appraisal activities. Tannehill's assertion that testimony regarding the meeting at which the transaction was structured was the only testimony which even tended to link him to the conspiracy is erroneous; as discussed, there was other evidence of his participation.
46
In any event, Tannehill's reliance on counsel was adequately covered by the court's instruction that, if the jury found that Tannehill acted with an honest, good faith belief that his statements and actions were legitimate business transactions, that would negate the specific intent required for conviction. Tannehill's acquittal on the substantive counts relating to the only transaction about which he consulted his lawyers tends to show that the refusal of the instruction did not impair seriously his ability to communicate his defense to the jury.
III.
For the foregoing reasons, the judgment is
47
AFFIRMED.
1
Further details about the scheme are provided in our court's two published opinions affirming the convictions resulting from the two trials in addition to Tannehill's. See United States v. Faulkner, 17 F.3d 745 (5th Cir.1994); United States v. Jensen, 41 F.3d 946 (5th Cir.1994)
2
Tannehill was convicted on the following counts: count 1 charged that, between January 1, 1982, and January 9, 1984, Tannehill and six others conspired to misapply funds of federally-insured institutions, to unlawfully participate in transactions and loans of federally-insured institutions, to commit wire fraud, to overvalue land for the purpose of influencing federally-insured institutions, to transport in interstate commerce money taken by fraud, and to defraud the United States, in violation of 18 U.S.C. Sec. 371; counts 2-4 charged that the seven defendants aided and abetted each other in knowingly and willfully overvaluing land to influence the actions of a federally-insured financial institution by fabricating, executing and submitting spurious appraisals on three tracts of land, in violation of 18 U.S.C. Secs. 1014 and 2; and counts 5, 6, 11, 19, and 20 charged Tannehill and Formann with violations of 18 U.S.C. Secs. 1014 and 2, for submitting false appraisals for five tracts of land
Tannehill was acquitted on counts 9 and 10, which charged all seven defendants with wire fraud in connection with the transfer of funds in connection with a development; count 12, which charged that he and Formann aided and abetted Blain in the misapplication of funds in connection with a development; and count 13, which charged that he and Formann aided and abetted each other in the submission of a false appraisal for that same development.
3
At oral argument, Tannehill's counsel stated that the focus of his Speedy Trial Act claim was on the period after June 1991. But, his briefs and arguments focus only on post-September 4, 1992. The district court found that the period between the June 1991 mistrial and the receipt in September 1992 of the transcript of the severed co-defendants' trial was excludable under 18 U.S.C. Sec. 3161(h)(8). See note 5, infra
4
See Henderson v. United States, 476 U.S. 321, 329, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986); United States v. Johnson, 29 F.3d 940, 942-43 (5th Cir.1994); and Bermea, 30 F.3d at 1567, for use of the word "required". Because Tannehill requested a hearing, as discussed infra, and because, in any event, it is undisputed that at least one or more of the motions at issue "required" a hearing, we need not address what causes a hearing to be "required"
5
The district court ruled that the delay was excludable under Sec. 3161(h)(8), which provides for the exclusion of "[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial". 18 U.S.C. Sec. 3161(h)(8)(A). Subsection (B) of Sec. 3161(h)(8) sets forth several factors for the district court to consider in determining whether to grant an "ends of justice" continuance pursuant to subsection (A). Among those factors is "[w]hether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section". 18 U.S.C. Sec. 3161(h)(8)(B)(ii). Because we conclude that the delay was excludable under Sec. 3161(h)(1)(F), we need not address whether the delay was excludable also under Sec. 3161(h)(8)
6
United States v. Gonzales, 897 F.2d 1312, 1315 (5th Cir.1990), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991), seems to imply that "oral arguments" on the defendant's motion to dismiss for lack of a speedy trial, conducted on the day trial began, constitute a "hearing" within the meaning of subsection (F)
7
The Supreme Court has stated that Congress intended to exclude all time between the filing of a motion and the conclusion of the hearing on that motion, regardless of whether a delay in holding that hearing is "reasonably necessary". Henderson v. United States, 476 U.S. at 330, 106 S.Ct. at 1876-77. Our court has noted that "[a]n exception might be justified in a particularly egregious case, for example, when defendants have presented repeated unsuccessful requests for hearings or ... other credible indication that a hearing had been deliberately refused with intent to evade the sanctions of the Act". United States v. Walker, 960 F.2d 409, 413 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, --- U.S. ----, 113 S.Ct. 443, 121 L.Ed.2d 362 (1992). Tannehill does not claim such an exception
8
The Lubbock trial transcript was not completed until June 1991; and the Midland trial transcript did not become available until September 1992, after Tannehill had filed his pretrial motions on September 4
9
The case agent testified that 28,000 documents (55 lateral five-shelf file cabinets), which would fill about two-thirds of the courtroom, were obtained through grand jury subpoenas
10
Prior to trial, the Government moved for admission of the deceased witness' Lubbock testimony; Tannehill opposed the motion, on the same grounds he urges on appeal. After the jury was selected, the district court heard argument on the motion, and granted it the next day. When the testimony was introduced, there was a bench conference; however, it was not transcribed, so the record does not reflect that Tannehill made a contemporaneous objection to the admission of the testimony. Accordingly, pursuant to United States v. Graves, 5 F.3d 1546, 1551-53 (5th Cir.1993) (applying plain error review where defendant did not make contemporaneous objection to admission of evidence that was subject of pretrial ruling on motion in limine ), cert. denied, --- U.S. ----, 114 S.Ct. 1829, 128 L.Ed.2d 459 (1994), it is arguable that this issue should be reviewed only for plain error. The Government does not raise this point; and, because we find no error under our normal abuse of discretion standard of review, we need not address it. Counsel are cautioned, however, of the requirement for contemporaneous objections even when admissibility has been decided previously | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/249049/ | 271 F.2d 44
Herald A. O'NEILL and G. Evelyn O'Neill, his wife, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 16039.
United States Court of Appeals Ninth Circuit.
October 13, 1959.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Herald A. O'Neill, Seattle, Wash., in pro. per.
Charles K. Rice, Asst. Atty. Gen., Melvin L. LeBow, Lee A. Jackson, Robert N. Anderson, Attys., Dept. of Justice, Washington, D. C., for respondent.
1
Before HEALY and HAMLEY, Circuit Judges, and KILKENNY, District Judge.
2
KILKENNY, District Judge.
3
Petitioners, of whom Herald A. O'Neill is herein called the taxpayer, have asked us to review a decision of the Tax Court holding that they are liable for certain income taxes in the years 1951 and 1952, and for an addition to their tax on account of taxpayer's failure to file a declaration of estimated tax in the year 1952. The points raised by the taxpayers on their petition for review are as follows:
4
1. Whether taxpayer, as a result of investments in Eagle Timber & Mill Company, a corporation, (herein called Eagle Timber) is entitled to (a) take a deduction in the year 1952 for a claimed loss sustained in that year from a transaction entered into for profit; or (b) in the alternative, a deduction for a business bad debt or loss which became determinable in that year; or (c) in the further alternative, a deduction for a capital loss in 1952.
5
2. Whether taxpayer is entitled to a deduction in 1951 for an alleged loss incurred in a transaction in which taxpayer was an escrow agent.
6
3. Whether the Tax Court erred in finding that the taxpayer failed to prove reasonable cause for his failure to file a declaration of estimated tax for the year 1952.
7
I. The taxpayer's principal contention in his brief and on oral argument before this Court is that Eagle Timber should not be recognized as a taxable entity separate and apart from himself, but that its business should be considered his business and that any loss as a result of the venture should be allowed in full, either as a business loss under Section 23(e)(1) of the 1939 Code, 26 U.S.C.A. § 23(e)(1), or a loss from a transaction entered into for profit under Section 23 (e) (2).
8
The taxpayer has been a lawyer since 1930, and was familiar with the tax law field. He married Evelyn, his second wife, on August 23, 1951, and they reside in Seattle, Washington. They filed joint income tax returns for the years 1951 and 1952 with the Director of Internal Revenue at Tacoma, Washington. The taxpayer's wife is involved only because of the filing of the joint tax returns for the taxable years. The taxpayer in September, 1946, purchased certain real and personal property herein referred to as Timber property. Eagle Timber was incorporated as a Washington corporation on October 22, 1946. The incorporators were the taxpayer, his former wife, Phoebe, and another. The deed to the real property and the bill of sale to the personal property transferring Timber property to Eagle Timber were dated October 24, 1946. On February 3, 1947, taxpayer transferred to Eagle Timber a portable sawmill. The declared purpose of the corporation was to engage in general logging, milling, plywood, timber and lumber business. The record shows it conducted business as follows: On December 27, 1946, it executed and delivered to another a promissory note and a mortgage to secure the same in the sum of $24,908.49, on the Timber property. On February 3, 1947, it executed and delivered to another a real and chattel mortgage on the timber property and the sawmill, as security for the payment of a promissory note in the sum of $25,000.00. Eagle Timber, on July 24, 1948, agreed to sell the timber property and sawmill for $90,000.00. This transaction was abandoned. In 1948 it was a party defendant in a Superior Court case in King County, Washington. Eagle Timber filed no reports with the office of the auditor of the county in which it had its registered office. There never were any meetings of the shareholders of the company and there never were any formal stockholders. No stock certificates were ever issued and no list was ever filed with the auditor naming the directors and officers or their terms of office, which was required by Washington law. The corporation did not prepare any minute book or records.
9
In 1946 and through 1949, the funds of the taxpayer and his then wife, Phoebe, in the sum of $20,566.60, were used in connection with the business of Eagle Timber. This included the $18,500.00 paid to acquire the sawmill. The taxpayer, on June 12, 1950, executed an assignment of his interest in funds on deposit in Douglas County, Oregon, to Seattle-First National Bank in the sum of $12,500.00.
10
On July 1, 1950, Eagle Timber was dissolved by operation of law for failure to pay its annual corporation license fee for a period of three years. On September 26, 1951, taxpayer delivered in escrow a deed executed by Eagle Timber to the Timber property. A title report was issued by a title insurance company and accompanied this deed, which title report recited that the title to the timber was vested in the dissolved corporation. Taxpayer entered into negotiations with the H & L Timber Company with reference to a sale of the timber on the timber property. On May 26, 1950, the Company offered the taxpayer $11,500.00 for the timber, but the sale was never closed. On August 12, 1952, the taxpayer delivered a bill of sale for the sawmill to another for a consideration of $12,500.00, which sum was secured by a mortgage on the sawmill. This mortgage was later released but the purchaser still owes the said sum of $12,500.00. In November and December, 1952, the taxpayer negotiated for the sale of the timber on the Timber property. He received an offer of $2,000.00, with an earnest money check for $500.00, which the taxpayer promised to hold until the following spring. When the purchaser again looked at the timber, he decided that it was worthless and concluded not to go forward with the transaction. This was in the spring of 1953. The taxpayer never cashed the check.
11
On the taxpayer's return for 1952 he claimed a bad debt loss of $33,639.84, on loans which he claimed he made to Eagle Timber.
12
Although on the basis of the documents and the record we could hold that the taxpayer's former wife was the owner of the corporation and that the corporate assets were technically distributed to her on its dissolution, we will assume for the purposes of this decision that taxpayer, and not his wife, owned Eagle Timber. We have already mentioned the activities and non-activities of this corporation. Taxpayer claims that they were insufficient to permit the Tax Court to view the corporation as a taxable entity in itself and further that taxpayer's advances should not be construed as capital contributions to the corporation. It is well settled that the only instances in which the taxpayer who owns a corporation, recognized as a tax entity, can take a business loss deduction for his financing of the corporation, either by way of loans or contributions to capital, are (1) where he is in the business of loaning money, or (2) he is in the business of promoting, financing and managing business enterprises. Holtz v. Commissioner, 9 Cir., 1958, 256 F.2d 865, 870; Skarda v. Commissioner, 10 Cir., 1957, 250 F.2d 429, 435; Wheeler v. Commissioner, 2 Cir., 1957, 241 F.2d 883, 884; Berwind v. Commissioner, 20 T.C. 808, 815.
13
The business activities of taxpayer, as shown by the record, were not such as to permit a finding that he was engaged in the business of loaning money or in the business of promoting, financing and managing business enterprises. His own tax returns show that his principal occupation was that of attorney. Holtz v. Commissioner, supra; Koch v. United States, 9 Cir., 1958, 264 F.2d 334, 337.
14
The chief complaint of the taxpayer on this point is that the Tax Court should have disregarded the corporate status of Eagle Timber. The taxpayer argues that since he was the owner of the corporation, we should entirely disregard the corporation and adopt his contentions. As a general rule, a corporation is to be treated as an entity separate from the individuals who own it. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 419, 53 S.Ct. 198, 77 L.Ed. 399; Dalton v. Bowers, 287 U.S. 404, 410, 53 S.Ct. 205, 77 L.Ed. 389. An exception is recognized and the corporate structure may be disregarded where (1) the purpose of its creation was not a business purpose, and (2) the creation was not followed by any business activity. Paymer v. Commissioner, 2 Cir., 1945, 150 F.2d 334.
15
On the other hand, where the corporation is created for a business activity or the creation is followed by business activity, the corporation must be recognized as a separate entity. National Carbide Corporation v. Commissioner, 336 U.S. 422, 428-429, 69 S.Ct. 726, 93 L.Ed. 779; Skarda v. Commissioner, supra; Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 439, 63 S.Ct. 1132, 87 L.Ed. 1499.
16
The last mentioned principles apply to the facts in this case. Skarda v. Commissioner, supra; L. T. Campbell, Inc. v. Commissioner, 5 Cir., 1947, 159 F.2d 629; Paymer v. Commissioner, supra. The failure of the corporation to comply with certain of the statutory requirements of the corporation laws of the state of Washington is not controlling. There was a substantial compliance with the requirements of the Washington statutes, but even if there was a failure in this respect, Eagle Timber must be recognized as a corporation de facto. Henry v. Markesan State Bank, 8 Cir., 1934, 68 F.2d 554, 558; Skarda v. Commissioner, supra. The taxpayer signed formal legal documents as an officer of the corporation. The officers so signing would be at least de facto officers. Independence Lead Mines Co. v. Kingsbury, 9 Cir., 1949, 175 F.2d 983, 985-986; Pacific State Bank v. Coats, 9 Cir., 1913, 205 F. 618, 621. We hold that Eagle Timber was a separate entity for tax purposes.
17
The taxpayer urges that the advances which were made to Eagle Timber were loans. The Tax Court found that such advances were contributions to the capital and were not loans. The question of whether advances to a corporation constitute loans or contributions to capital is one of fact. Earle v. W. J. Jones & Son, 9 Cir., 1952, 200 F.2d 846, 847; Bair v. Commissioner, 2 Cir., 1952, 199 F.2d 589, 591. We hold there is substantial evidence to support the finding of the Tax Court and that such finding is not clearly erroneous.
18
The Tax Court held that the taxpayer had failed to prove that he realized a loss in 1952. Of course, the burden of proof is on the taxpayer to produce such proof. Boehm v. Commissioner, 326 U.S. 287, 293, 66 S.Ct. 120, 90 L.Ed. 78; Finney v. Commissioner, 9 Cir., 1958, 253 F.2d 639, 641, 642.
19
The Tax Court found that when Eagle Timber was dissolved on July 1, 1950, the taxpayer received a liquidating dividend and the amount so distributed to him treated in full payment in exchange for his full interest in Eagle Timber. A finding that a distribution is made in liquidation of a corporation is one of fact. Gensinger v. Commissioner, 9 Cir., 1953, 208 F.2d 576, 583; Holmby Corporation v. Commissioner, 9 Cir., 1936, 83 F.2d 548, 549, 550. The taxpayer realized a gain or a loss in 1950 when he acquired the timber and sawmill properties in liquidation on the dissolution of the corporation based on the adjusted basis of his investment in Eagle Timber and the fair market value of the property acquired at the time of distribution. Section 111(b) of 1939 Code, 26 U.S.C.A. § 111(b); Westover v. Smith, 9 Cir., 1949, 173 F.2d 90, 92. On any sale of a property the taxpayer's cost or basis for determining gain or loss would be the fair market value at the time he acquired it on the dissolution. McCullough v. Commissioner, 2 Cir., 1946, 153 F.2d 345, 347; Bennett v. Commissioner, 8 Cir., 1944, 139 F.2d 961, 964, 965. No evidence was introduced in connection with the fair market values of the property in 1950, when it was received by the taxpayer in liquidation of the corporation. Proof of basis is a specific fact which the taxpayer has the burden of proving. Burnet v. Houston, 283 U.S. 223, 228, 229, 51 S.Ct. 413, 75 L.Ed. 991; Long v. Commissioner, 9 Cir., 1938, 96 F.2d 270, 272. The Tax Court held that the taxpayer had failed to establish any basis of value for the property in 1950. The record supports this conclusion and the finding is not clearly erroneous. We do not believe that there is any merit in the taxpayer's contention that there was no liquidation in 1950. It is a question of fact whether a corporation has made a distribution of assets in liquidation and this is a question of Federal and not of state law. Holmby Corporation v. Commissioner, supra; Ward M. Canady, Inc. v. Commissioner, 29 B.T.A. 355, 361, affirmed 3 Cir., 76 F.2d 278, certiorari denied 296 U.S. 612, 56 S.Ct. 131, 80 L.Ed. 434.
20
We hold that the decision of the Tax Court is supported by the record on all of these questions.
21
II. Taxpayer acted as lawyer for Lucky Music Company of America, a corporation. The company was engaged in the manufacture of certain amusement machines, including a certain machine which was so designed that it might be used in states where slot machines were illegal. Certain machine operators in the Tacoma area agreed to purchase 25 of the last mentioned machines from Lucky Music for $12,500.00, and appointed the taxpayer as the operator's escrow agent to pay over the money to Lucky Music under instructions on which we shall later elaborate. The machines were completed in 1950 and the taxpayer paid the escrow funds to Lucky Music. The operators did not want the machines delivered until after a certain election was held in Tacoma. Delivery was thus delayed at the request of the operators and during the delay the officers of Lucky Music took the machines to California and the machines were never delivered to the operators. The operators demanded that the taxpayer refund the $12,500.00. Subsequently in 1950 he executed an assignment of a fund on deposit in Court in Oregon to the operators and out of this fund the operators were paid the sum of $11,903.34 in 1951. This fund was community property of taxpayer and his former wife, Phoebe. Taxpayer never recovered any amount of said sum from Lucky Music or from any other source.
22
In his 1951 return the taxpayer claimed a loss for one-half of the money which he claims he was compelled to pay to the operators under a threat, the taxpayer claiming that this was a loss which he incurred as an escrow agent and as a practicing attorney and is therefore entitled to deduct the same as a business loss under Section 23(e)(1) of the 1939 Code.
23
Taxpayer does not claim that he violated any escrow instructions. On the other hand, at the time of the trial and in his argument on appeal, the taxpayer insisted that he fully complied with his escrow instructions. Taxpayer claimed that the operators were engaged in what he called "the rackets" and that they turned the "heat" on him and were going to have their money "or else." Neither as an attorney nor as an escrow agent was the taxpayer under any legal obligation to pay this money to the operators. The taxpayer is not claiming that the money was paid to the operators under a threat that would amount to a theft under the provisions of Section 23(e) (3) of the Code. Therefore, we must conclude, as did the Tax Court, that the fund was assigned and the money paid without legal obligation and under threats which did not amount to duress. Certainly, this state of facts would not fall within the provisions of Section 23(e)(1) under the provisions of which the taxpayer seeks a deduction. This is a case where the taxpayer felt he would personally benefit by complying with the operators' threatening demands. There is nothing in the Code which permits such a deduction. As a matter of fact, Section 24 of the Code, 26 U.S.C.A. § 24, provides that there shall be no deduction for personal expenses. Whether the personal expense is ordinary or extraordinary, necessary or unnecessary, is immaterial. Section 24(a)(1). The allowance of deductions depends upon legislative grace. Sparkman v. Commissioner of Internal Revenue, 9 Cir., 1940, 112 F.2d 774, 777. The Tax Court correctly found that the assignment was made for the purpose of protecting the taxpayer against the threats of the operators and was not made to settle any legal obligation resulting from his activities as an escrow agent or attorney and that the claimed loss was not deductible. This court is bound by that finding where there is no showing that it is clearly erroneous. McNeill v. Commissioner of Internal Revenue, 4 Cir., 1958, 251 F.2d 863, 866. The taxpayer failed to prove that the alleged loss was attributable to any trade or business operated by him. Putnam v. Commissioner, 8 Cir., 1955, 224 F.2d 947. The question of whether a debt is one the loss from the worthlessness of which is incurred in a taxpayer's trade or business is a question of fact in each particular case. Campbell v. Walker, 5 Cir., 1953, 208 F.2d 457; Pokress v. Commissioner, 5 Cir., 1956, 234 F.2d 146, 150.
24
Furthermore, it would seem that the assignment of the fund in 1950 was in complete settlement of the demands of the operators. In such case the taxpayer suffered the loss in that year and he could not take the deduction, even if it was a proper one, in his return for the year 1951. Heublein v. Commissioner, 2 Cir., 1956, 233 F.2d 426; Joe Balestrieri & Co. v. Commissioner of Internal Revenue, 9 Cir., 1949, 177 F.2d 867, 871.
25
III. The taxpayer complains of the additions which the Tax Court added to his deficiencies under the provisions of Section 294(d) for the years 1951 and 1952.
26
Section 294(d)(1)(A) of the 1939 Code, 26 U.S.C.A. § 294(d)(1) (A), is mandatory in its declaration that in case of a failure of the taxpayer to make and file a declaration of estimated tax within the time prescribed, an additional tax must be added "unless such failure is shown to the satisfaction of the Commissioner to be due to reasonable cause and not to willful neglect." The Tax Court found that the taxpayer had failed to establish that he fell within the exception. Such finding is binding on this Court unless clearly erroneous. Belser v. Commissioner, 4 Cir., 1949, 174 F.2d 386, 389, 391; Coates v. Commissioner, 8 Cir., 1956, 234 F.2d 459, 462-463.
27
The taxpayer has the burden of proof to establish that the failure to file the declaration was not due to wilful neglect. Lee v. Commissioner, 5 Cir., 1955, 227 F.2d 181, 184; Sanders v. Commissioner, 10 Cir., 1955, 225 F.2d 629, 636. The showing of an innocent mistake, wilful neglect or belief that no return was due, or that the taxpayer relied on an accountant or attorney does not supply this burden. P. Dougherty Co. v. Commissioner, 4 Cir., 1946, 159 F.2d 269, 273; Mayflower Investment Co. v. Commissioner, 5 Cir., 1956, 239 F.2d 624, 627; Henningsen v. Commissioner, 4 Cir., 1957, 243 F.2d 954, 958-959. It is true that a majority of the above cases concern themselves with the addition to the tax imposed by Section 291 of the 1939 Code, 26 U.S.C.A. § 291. The provision with which we are here concerned, Section 294(d)(1)(A) is harsher in its terms than Section 291 and provides that reasonable cause must be shown to the satisfaction of the Commissioner. We have carefully read the record and reviewed the finding of the Tax Court on this subject, as set forth in its opinion, and hold that such finding is fully supported by the record.
28
The decision of the Tax Court is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1553212/ | 37 B.R. 532 (1984)
In re Anthony Lowell GRAY and Helen Dianne Gray, Debtors.
LINCOLN FINANCIAL CORP., Plaintiff,
v.
Anthony Lowell GRAY and Helen Dianne Gray, Defendants.
Bankruptcy No. 83-00203N, Adv. No. 83-0105N.
United States Bankruptcy Court, N.D. Georgia, Newnan Division.
March 5, 1984.
*533 Thomas E. Prior, McCalla, Raymer, Padrick, Cobb & Nichols, Atlanta, Ga., for plaintiff.
James H. Bone, Carrollton, Ga., for defendants.
ORDER
W. HOMER DRAKE, Bankruptcy Judge.
This case is before the Court on the complaint by the Lincoln Financial Corp. ("Lincoln Financial") for a declaratory judgment validating a foreclosure sale with respect to certain real property owned by the debtors in Haralson County, Georgia. Lincoln Financial foreclosed upon the subject property nine (9) days before the debtors, Anthony Lowell Gray and Helen Dianne Gray, filed their Chapter 13 petition. The debtors now seek to cure and reinstate the debt secured by the subject property. The question presented is whether the debtors' interest in the subject property was extinguished by the foreclosure sale so as to preclude cure and reinstatement under Chapter 13.
Both sides of this adversary proceeding cite the decision by the Court in In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982), in support of their respective positions. Accordingly, the Court reexamines Gooden and its cornerstone, Federal Deposit Ins. Corp. v. Dye, 642 F.2d 837 (5th Cir.1981). The Court also considers two Georgia cases previously unmentioned in the context of an attempted cure and reinstatement under the Bankruptcy Code, predated by a foreclosure sale under Georgia law.
FACTS
On July 23, 1980, Thomas Edward Lucas and Peggy L. Lucas executed a deed to secure debt to the Morris Mortgage Corporation. The security deed was granted to secure a note of even date in the original principal amount of $26,900.00. The property described in said security deed, attached to Lincoln Financial's complaint as Exhibit "A", is herein referred to as the "subject property". The above-mentioned security deed, together with the indebtedness secured thereby, was conveyed to Lincoln Financial on July 23, 1980. The debtors herein assumed the indebtedness and acquired title to the subject property by warranty deed from the Lucases dated April 5, 1982.
Thereafter, the debtors defaulted on the assumed loan. Counsel for Lincoln Financial sent the debtors two copies of a demand letter dated March 9, 1983, one by certified mail and the other by regular delivery. A question of fact has arisen as to whether a copy of the newspaper advertisement of foreclosure was sent with the demand letter. Counsel for Lincoln Financial has stated in his place that the customary procedure in his office is to place a copy of the newspaper advertisement with both demand letters sent to the party or parties in default on a particular obligation. Should this dispute turn on the question of Lincoln Financial's compliance with this aspect of state law, the Court will hold an evidentiary *534 hearing to permit the debtors to testify under oath, and under the penalty of perjury, that they did not receive a copy of the newspaper advertisement.
Lincoln Financial duly advertised the foreclosure sale on March 10, 17, 24 and 31 of 1983. The subject property was knocked off at the Court House door in Haralson County, Georgia on April 5, 1983 to Lincoln Financial for a price of $27,205.00. In anticipation that Lincoln Financial would be the purchaser, Lincoln Financial had partially completed a deed under power prior to the sale, leaving blank the publication dates and bid amount. These blanks were, according to counsel for Lincoln Financial, completed some time between April 5 and April 14 of 1983. By letter dated April 14, 1983, Lincoln Financial notified the Veterans Administration, guarantor of the loan, of its intention to convey the property to the Veterans Administration pursuant to the guaranty. The debtors filed their Chapter 13 petition also on April 14, 1983. The deed under power and the deed from Lincoln Financial to the Veterans Administration were recorded on April 21, 1983.
The debtors contend that the April 5, 1983 foreclosure sale was not final under the test laid down by this Court in In re Gooden, supra. Lincoln Financial argues that Gooden does not set forth the correct standard, but, should the Court apply Gooden, the criteria in that case for a final foreclosure sale have been met in this instance.
FORECLOSURE SALE WAS COMPLETE UNDER GOODEN
The facts in Gooden are as follows: At 1:39 p.m. on July 7, 1981, the Buffalo Savings Bank conducted a foreclosure sale of Gooden's residence. The Buffalo Savings Bank purchased the residence at said sale for the total amount of indebtedness plus costs and attorney's fees. At 4:21 p.m. on the same day, Gooden filed a Chapter 13 petition. The Court, citing Federal Deposit Ins. Corp. v. Dye, supra, held that the foreclosure sale was not final as of the time the Chapter 13 petition was filed; that Gooden's equity of redemption had not, therefore, expired; and that Gooden was free to cure and reinstate her indebtedness to the Buffalo Savings Bank.
This Court acknowledged in Gooden, 21 B.R. at 458, the fundamental principle of Georgia law that a valid foreclosure sale under a power of sale in a security deed, when property advertised and conducted, extinguishes the grantor's right of redemption. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963); Georgia Real Estate Law and Procedure § 21-89, 867 (2d ed. 1979). See also Commercial Credit Corp. v. White (In re White), Adversary No. 83-1281A (Bkrtcy.N.D.Ga., Feb. 14, 1984) (citing Cummings v. Johnson, supra). However, the Court in Gooden permitted the debtor to retain the foreclosed upon property, deaccelerate the debt, maintain current payments and cure the default. The Court reasoned that the debtor's equity of redemption had not been extinguished because the foreclosure sale had not been fully consummated pursuant to the objective test set forth in Dye.
In short, Dye held that a foreclosure sale is not final, as to bar a suit on the underlying obligation, until the proceeds of the sale have been transferred from the bidder to the creditor. Federal Deposit Ins. Corp. v. Dye, 642 F.2d at 843. The difficulty presented in Dye is that the creditor and the bidder were the same entity. The Fifth Circuit Court of Appeals formulated an objective standard to determine when or if the transfer of consideration from the entity as bidder to the entity as creditor has occurred. Two factors which would indicate that the transfer has occurred are: (1) Delivery of the deed under power; and (2) Action by the creditor to mark the note paid in full.
The Court in the instant case is confronted with the same problem dealt with in Dye and Gooden. Lincoln Financial is both the creditor and bidder with reference to the subject property. However, one large difference between this case and Dye is that the creditor in Dye did not desire to go forward with the foreclosure sale after entering *535 its bid for the property. In fact, it was the debtor in Dye who alleged that the foreclosure sale was final; the reason for this argument was to bar a suit against the debtors, individually, on the notes. Moreover, in Gooden the creditor simply did not have enough time to consummate the transfer. Neither of these conditions is present in the case sub judice.
Lincoln Financial had possession of a deed under power, though incomplete in part, prior to the foreclosure sale. Counsel for Lincoln Financial contends that the blanks were filled in prior to the debtors' filing in bankruptcy. The Court has no evidence in support of this allegation; nevertheless, it is not material to the outcome of this case. Lincoln Financial, by all indication, was proceeding as owner of the property pursuant to its bid at the foreclosure sale. Lincoln Financial held the deed under power; Lincoln Financial had made the decision to transfer the subject property to the guarantor on the note, the Veterans Administration; and Lincoln Financial drafted a letter to the Veterans Administration informing them of this decision. These actions satisfy the objective standard for a transfer of the deed and passing of consideration articulated in Gooden. Although there is no evidence whether the note to Lincoln Financial was stamped paid in full, this Court holds that the debtors' equity of redemption is not determined by the performance or nonperformance of such a ministerial function where all other indicia suggest that the creditor has become the owner of the property. In addition, the fact that the deed under power and the deed to the Veterans Administration were recorded some seven days after the bankruptcy petition was filed is immaterial to the outcome of this case. Neither Dye nor Gooden require recordation of a deed under power to consummate the foreclosure sale, and the debtors have cited no Georgia statutory or case law authority for the position that recordation of the deed under power should be taken into account. In fact, two Georgia cases suggest that Dye and Gooden improperly extend a debtor's equity of redemption beyond the time a bid is entered at the foreclosure sale.
A REEXAMINATION OF DYE AND GOODEN
In Dye, the appellants were makers or guarantors on several notes secured by real property; the Federal Deposit Insurance Corporation ("FDIC") owned the respective security deeds. Upon default of the notes, FDIC published foreclosure notices in January, 1978 for a February sale. FDIC was the high bidder for each piece of property at the February foreclosure. After filing a petition to confirm the sale of each piece of property, required by Ga.Code Ann. 67-1503 (O.C.G.A. § 44-14-161) as a condition precedent to suing for a deficiency, FDIC learned that the foreclosure advertisement incorrectly stated that FDIC owned the property as receiver rather than in its own name. Therefore, FDIC ran a new foreclosure advertisement in February for a March sale. Because the new ad was also deficient, FDIC readvertised in April. By agreement with the appellants, FDIC finally cancelled the foreclosure sale to permit the appellants to try and sell the property. When the sales were not consummated, FDIC brought suit against the appellants for the outstanding balances on the notes.
The appellants asserted that suit on the notes was barred by the foreclosure sale in February, 1978. They contended that, since the FDIC did not obtain confirmation of the February foreclosure sale, suit for a deficiency was also barred by law, Ga.Code Ann. § 67-1503. In fact, the Superior Court denied confirmation of the February sales, without offering an explanation, on April 8, 1978. Although the parties agreed that valid foreclosure sales would preclude the suit by FDIC on the notes, Federal Deposit Ins. Corp. v. Dye, 642 F.2d at 841, the Court undertook to determine whether the high bid by FDIC constituted a valid foreclosure sale.
As stated above, the Fifth Circuit Court of Appeals allowed FDIC to bring its suit on the notes. The Court reached this result without finding that the foreclosure sale *536 was void. Id. at 843. Rather, the Court concluded that the foreclosure sale was not fully consummated. Citing Moody v. Mendenhall, 238 Ga. 689, 234 S.E.2d 905 (1977), the Court stated that the high bid at a foreclosure sale forms a contract between the bidder and the debtor to purchase the property at the bid price. At this point, the Fifth Circuit failed to examine the effect of the high bid at the foreclosure sale on the debtor's rights in the property. Instead, the Fifth Circuit reasoned by analogy that a suit for a deficiency could be had until the time the foreclosure sale was fully consummated.
Georgia law permits a creditor to foreclose on property after suing on the note. Norwood and Co. v. First Federal Savings & Loan Association, 99 Ga.App. 692, 109 S.E.2d 844 (1959); Oliver v. Slack, 192 Ga. 7, 14 S.E.2d 593 (1941); Brown v. Georgia State Bank, 141 Ga.App. 570, 234 S.E.2d 151 (1977). A creditor can go so far as to reduce a note to judgment and, yet, commence an action for foreclosure, so long as the judgment is not satisfied prior to the foreclosure sale. See Norwood, supra. Accordingly, the Fifth Circuit analogized that, in the converse situation, a suit on the note would not be barred until the foreclosure sale had been fully consummated, i.e., the proceeds of the sale have been transferred from the bidder to the creditor.
FDIC was both the bidder and the creditor in the February, 1978 foreclosure sales. The Fifth Circuit applied an objective test to determine whether the internal transfer had occurred. The Court stated:
[W]here the deeds have not been delivered nor have the notes been marked paid in full, it is clear that the proceeds of the sale have not been transferred in the cases before us. Thus, there were not valid foreclosure sales to prevent FDIC from suing for the previously outstanding balance of the notes.
Federal Deposit Ins. Corp. v. Dye, 642 F.2d at 843.
The Court in Gooden utilized this objective standard to hold that the high bidder at a foreclosure sale had not completed the internal transfer of consideration so as to fully consummate the foreclosure sale and prevent the debtor from curing and reinstating the outstanding obligation. However, the appropriate inquiry by the Bankruptcy Court should be: At what point is the debtor's equity of redemption extinguished under state law? See In re Butchman, 4 B.R. 379, 381 (Bkrtcy.S.D.N.Y.1980); In re Smith, 7 B.R. 106, 108 (Bkrtcy.W.D.N. Y.1980); In re Sparkman, 9 B.R. 359, 363 (Bkrtcy.E.D.Pa.1981); In re Thompson, 17 B.R. 748, 753 (Bkrtcy.W.D.Mich.1982); In re Martinson, 26 B.R. 648, 10 B.C.D. 163, 164 (D.N.D.1983).
The Court in Martinson, supra, stated that:
State property law generally determines what property rights form the estate under 11 U.S.C. § 541 and are therefore protected by the provisions of the Bankruptcy Code. Butner v. United States, 440 U.S. 48, 54-55 [99 S.Ct. 914, 917-18, 59 L.Ed.2d 136] (1979).
Equally apposite is an excerpt from the opinion in Thompson, supra:
If the equity of redemption expires pursuant to state law prior to the filing of a Chapter 13, this Court would hold that it loses all jurisdiction to provide relief to a debtor as to that property.
In more colorful language, the Bankruptcy Court cannot "cultivate rights where none can grow". In re Butchman, supra.
A question unaddressed by Dye and Gooden is the effect of a bid at a foreclosure sale on the debtor's equity of redemption. However, the Georgia Supreme Court stated in Carrington v. Citizens Bank of Waynesboro, 144 Ga. 52, 53, 85 S.E. 1027 that:
Where a sale of land is made under a power contained in a security deed . . . the grantor cannot defeat the purchaser's right to have the sale fully consummated, by tender of the amount of his indebtedness to the grantee before the actual execution of the deed pursuant to the terms of the sale.
*537 In addition, the Georgia Court of Appeals stated in McKinney v. South Boston Savings Bank, 156 Ga.App. 114, 116, 274 S.E.2d 34 (1980) that:
Appellant [grantor of deed to secure debt] became a tenant at sufferance of appellee [grantee of deed to secure debt and high bidder at foreclosure sale] by the terms of the security deed and operation of law when appellee bid in the property at the foreclosure sale. [Emphasis added.]
These cases cast doubt on the correctness of Dye and Gooden. However, because the Court finds for Lincoln Financial under the objective test in Gooden, this Court does need to hold that the debtor's rights terminated with the bid at the foreclosure sale, thereby overruling Gooden. At a minimum, the Court declares that Gooden will be stringently applied when relied upon by debtors to attempt a cure and reinstatement under Chapter 13 of the Bankruptcy Code subsequent to a bid at a foreclosure sale. When a proper case is presented, the Court will decide whether to uphold or overrule Gooden.
Finding that the deed had been transferred and that the objective test for a completed foreclosure sale under Gooden had been met, the Court hereby validates the April 5, 1983 foreclosure sale by Lincoln Financial, subject to a finding of fact that compliance has been made with the notice provision under Georgia law. An evidentiary hearing is necessary to determine whether a copy of the newspaper advertisement of foreclosure was sent to the debtors by Lincoln Financial, as required by O.C.G.A. § 44-14-162.2(b). This hearing shall be held on the 30th day of March, 1984, at 11:00 A.M., in the Bankruptcy Courtroom, Second Floor, The Federal Building, Newnan, Georgia.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/285401/ | 412 F.2d 661
5 A.L.R.Fed. 935
UNITED STATES of America, Plaintiff-Appellee,v.Reies Lopez TIJERINA and Jerry Noll, Defendants-Appellants.
Nos. 3-68, 4-68.
United States Court of Appeals Tenth Circuit.
June 23, 1969.
John Quinn, U.S. Atty., (John A. Babington, Asst. U.S. Atty., was with him on the brief) for plaintiff-appellee.
Irving M. King, Chicago, Ill., (Morton Stavis, Newark, N.J., William Kunstler, New York City, Albert Gonzales, Santa Fe, N.M., and Beverly Axelrod, San Francisco, Cal., were with him on the brief) for defendants-appellants.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
1
After a trial to the court without a jury, Tijerina and Noll were convicted of criminal contempt and each was sentenced to serve thirty days in jail and to pay a fine of $500. We held the case in abeyance to await the decision of the United States Supreme Court in Frank v. United States, 395 U.S. 147, 89 S. Ct. 1503, 23 L. Ed. 2d 162 on the right of an accused in a contempt proceedings to a jury trial. The Frank decision, announced May 19, 1969, held that, if the 'actual penalty is one which may be imposed upon those convicted of otherwise petty offenses,' a jury trial is not required. Here the penalties were within the prescribed limit. See 18 U.S.C. 1(3).
2
These proceedings are an outgrowth of the prosecution of Tijerina, Noll, and three others in the United States District Court for the District of New Mexico for federal offenses. See our decision in United States v. Tijerina, 10 Cir., 407 F.2d 349. In the disposition of that case 'the court and the parties were concerned with pretrial publicity and the impanelling of an impartial jury.' Ibid. at 354. On October 17, 1967, a hearing was held with counsel present for all parties. The problem of pretrial publicity was discussed. Previously defense counsel had suggested that the court should make an order restricting extrajudicial statements. The court stated its intent to make such an order. Counsel for Tijerina then directed attention to a convention of the Federation of Free City States which would be held in a few days. Later the court furnished counsel with copies of the order which it proposed. It made no exception of the convention. No counsel made any objection and the order was entered. It covered the attorneys, the defendants, and the witnesses and forbade them to 'make or issue any public statement, written or oral, either at a public meeting or occasion or forpublic reporting or dissemination in any fashion regarding the jury or jurors in this case, prospective or selected, the merits of the case, the evidence, actual or anticipated, the witnesses or rulings of the Court.'1 The order was by Judge Bratton who later presided over the criminal trial.
3
On October 21 and 22, 1967, the annual convention of Alianza Federal de los Pueblos Libres2 was held in Albuquerque. Both Tijerina and Noll made speeches at the convention. On the basis of statements then made, the United States Attorney filed an application for an order requiring Tijerina and Noll to show cause why they should not be adjudged in contempt. See Rule 42(b), F.R.Crim.P., and 18 U.S.C. 401(3). The application was made after the criminal case had gone to the jury. Judge Bratton issued an order to show cause before Judge Ewing T. Kerr, a United States District Judge for the District of Wyoming, who thereafter presided over the contempt proceedings. After a full evidentiary hearing, Judge Kerr made findings of fact and conclusions of law and held both Tijerina and Noll in contempt.
4
Tijerina and Noll attack the findings of the trial court that the statements with which they are charged were made at a public meeting. They insist that the convention was private and was attended only by members of Alianza and their invited guests. Estimates of the number present varied from 200 to 600. The only claimed restriction on those entering was identification by guards at the doors and payment of the required fee. Two police officers in plain clothes paid the $3.00 charge and entered. Two newspaper reporters and a radio newscaster entered upon identifying themselves. The auditorium was set up with a TV camera and a loudspeaker system. The finding that the meeting was public has substantial support in the record and is not clearly erroneous.
5
The meeting was held in the Civic Auditorium of Albuquerque. At the request of local police officers and without the knowledge of those in charge of the convention or of either Tijerina or Noll, auditorium personnel installed a tape recorder to record the proceedings. The machine failed to work on the first day but did on the second. The statement charged to Noll and one of the statements charged to Tijerina were preserved on the tape. The argument is that the recording was an unreasonable search and seizure in violation of the Fourth Amendment. We are not persuaded. Reliance on the electronic surveillance cases is misplaced. Unauthorized electronic eavesdropping upon private conversations is a search and seizure which violates the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, and Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248; cf. Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462. We are concerned here with statements made at a public meeting to which reporters were admitted. Our attention is directed to no decision holding that the use of mechanical recordings of public proceedings violates the Fourth Amendment. The tapes are a means of corroborating the recollections of those present. We see no constitutional distinction between the receipt of testimony of those present and the admission of the tapes which recorded what was said.
6
Appellant Tijerina objects to the receipt of testimony by a newspaper reporter, Beier, of statements made by Tijerina on the first day of the convention when the tape recorder was not functioning. Tijerina spoke in Spanish. Beier does not speak or understand Spanish. Martinez, a police officer who spoke Spanish, sat next to Beier and translated certain portions of the speech for Beier who made notes of the gist of what the officer told him. After the speech, Beier read his notes to a Spanish-speaking reporter, Herrera, who confirmed the notes as containing the statements which he, Herrera, heard Tijerina make. Herrera so testified at the trial. On the same day as the speech, Beier discussed in English with Tijerina his remarks regarding Judge Bratton. Beier did not show Tijerina the notes but questioned him about 'his mentioning Judge Bratton and Judge Bratton's order.' Tijerina made no denial and said that 'it wasn't for discussion for the press.'
7
The argument now made is that the hearsay objection to Beier's testimony should have been sustained. In our opinion the testimony was not inadmissible hearsay. We have held that 'testimony is not hearsay when it is to prove only that a statement was made and not the truth of the statement.' Creaghe v. Iowa Home Mutual Casualty Company, 10 Cir., 323 F.2d 981, 984. See also Aikins v. United States, 10 Cir., 282 F.2d 53, 57, and Standard Oil Company v. Standard Oil Company, 10 Cir., 252 F.2d 65, 75, 76 A.L.R. 2d 600. The testimony of Beier was offered to prove what Tijerina had said and the only question of credibility related to the credibility of Beier. We are concerned with the fact, not the truth, of the statement. Beier was thoroughly cross-examined by defense counsel. The court chose to believe him. The argument that officer Martinez spoke idiomatic New Mexican Spanish while Tijerina used 'pure' Spanish is unpersuasive. Tijerina was speaking in Spanish to a large assembly of Spanish-speaking New Mexicans. The fact that Beier got his information through an interpreter goes only to the weight of the evidence. We believe that Beier's testimony was properly received.
8
The next argument is that the statements charged do not violate the order as a matter of law. The trial court specifically found three statements violative of the order. One made by Tijerina on the opening day of the Alianza convention was:
9
'U.S. District Judge Howard C. Bratton last week issued an order against any of the defendants, witnesses and lawyers not to talk about the case outside of the courtroom. If Judge Bratton asks me I'll tell him I told the witnesses what to say and what to do. I may get arrested. This is fine. It's all right with me because I don't want Judge Bratton to judge this case.'
10
The statement of Tijerina on the following day was:
11
'For example, the trial of Reies is coming up and Reies Tijerina is going to be judged the 6th of November and that is an important issue. We know that the Judge has taken the power in his own hands. We know that the Judge is using the law to take vengeance and drink blood and humiliate our race. In this case we can advise the Negro pueblo of what is going on and they can come out and march around the court house. This is their business.'
12
The statement of Noll is much longer. After referring to the events at the Echo Amphitheater and asserting that the United States had declared that he and his codefendants 'are criminals and that it was going to try us and put us to death,' he said:
13
'War with the U.S. is imminent, for during the last week of August, I caused to be sent to the self-styled President of the United States of America, an ultimatum which he received August 31st. This ultimatum, in essence, declared that if and when the alleged cases in the U.S. imposed force relative to the events at Echo Ampitheater and Tierra Amarilla should commence for trial, a state of war should exist as of that date between the Kingdom of the Indies and the United States of America. According to the newspaper, the tentative date for the war to commence is November 6th, but I think they are going to try to postpone it. Therefore, prepare yourselves for war. I suggest that a scorched earth policy be used; for every nation that used this policy were victorious. We must burn every tree, every blade of grass, every building within the kingdom. Let them burn, burn, burn.'3
14
The record in the criminal trial4 shows a continuing and pervading concern of both court and counsel over the effect which publicity might have on a fair trial of that case. This appears in motions of the defendants for change of place of trial and for continuances and from various colloquies between court and counsel. The hazard arose to some extent from published and broadcast reports of the Echo Ampitheater incidents which were the basis of the then pending federal charges, but more importantly from publicity relating to events at Tierra Amarilla which caused state charges to be made against some of the defendants, and from a variety of public statements made by a number of individuals.
15
The trial court found that the statements of Tijerina and Noll were wilful and deliberate; and that the statements 'created a danger to the rights of these defendants and their co-defendants and the Government to a fair and impartial trial by jury * * *.'
16
In colorful and demagogic language Tijerina and Noll addressed their followers on the merits of the case. Tijerina boasted that he 'told the witnesses what to say and what to do.' He charged that the judge 'is using the law to take vengeance and drink blood and humilate our race.' Noll said that the United States has declared that he and his co-defendants 'are criminals and that it was going to try us and put us to death.' Tijerina urged a 'march around the court house' and Noll suggested 'a scorched earth policy.' In the context in which they were made such public utterances while a criminal trial was pending are not compatible with the concept of a fair trial. We are aware of the recent admonition that appellate courts 'must constantly have in mind that their function is not to decide factual issues de novo.' Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129. The findings of the trial court are not clearly erroneous. On the entire evidence we are not 'left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746. We are convinced that if the order was valid, Tijerina and Noll violated it.
17
The defendants argue that the order forbidding extrajudicial statements violates their rights under the First, Fifth, and Sixth Amendments. At the outset it must be noted that in colloquies between the court and counsel an order against extrajudicial statements was discussed. Mention was made of the forthcoming Alianza Convention. The court disclosed to counsel the order which it intended to enter and which did not except the convention. No objection was made to the order entered and no effort was made to get it modified or reviewed. When a court has jurisdiction of the subject matter and person, its orders must be obeyed until reversed for error by orderly review. See Dunn v. United States, 10 Cir., 388 F.2d 511, 513, and cases cited in footnote 2. This should dispose of the matter, but the circumstances of the case are such that the constitutional claims merit discussion.
18
The prime argument of the defendants is that the order infringes on the defendants' rights of free speech guaranteed by the First Amendment. Many volumes have been written on the subject of fair trial and free speech. The problem here is unusual in that the defendants are complaining against the application of such an order to them. The theory of the defense seems to be that because the order was entered for their protection, they cannot be charged with a violation. We do not agree. The public has an overriding interest that justice be done in a controversy between the government and individuals and has the right to demand and expect 'fair trials designed to end in just judgments.' Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974; and Mares v. United States, 10 Cir., 383 F.2d 805, 808 and 809. This objective may be thwarted unless an order against extrajudicial statements applies to all parties to a controversy. The concept of a fair trial applies both to the prosecution and the defense.
19
The defendants say that the order violates the First Amendment because it fails to meet the clear and present danger test. See Bridges v. California, 314 U.S. 252, 263, 271, 62 S. Ct. 190, 86 L. Ed. 192; Pennekamp v. Florida, 328 U.S. 331, 347-348, 66 S. Ct. 1029, 90 L. Ed. 1295; Craig v. Harney, 331 U.S. 367, 376, 67 S. Ct. 1249, 91 L. Ed. 1546; and Wood v. Georgia, 370 U.S. 375, 383-385, 82 S. Ct. 1364, 8 L. Ed. 2d 569. None of the foregoing decisions considered a situation where the contempt arose from the violation of an order. They were all concerned with extrajudicial statements which, in the absence of a prohibitive order, were said to obstruct the administration of justice and have an adverse effect on the right to a fair trial. Here we have the violation of a court order.
20
Counsel attack the order on the ground that it is not based on a clear and present danger. The order is based on a 'reasonable likelihood' of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. We believe that reasonable likelihood suffices. The Supreme Court has never said that a clear and present danger to the right of a fair trial must exist before a trial court can forbid extrajudicial statements about the trial.
21
The responsibility of a trial judge to exercise the control necessary to assure a fair trial is emphasized by the decision in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600. The Court said that control of the sources of prejudicial news items is 'concededly within the court's power' and that the court 'might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.' Id. at 361, 86 S.Ct. at 1521.
22
The Court said further, Id. at 363, 86 S.Ct. at 1522:
23
'The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.'
24
Defense counsel argue that the quoted statements from Sheppard are dicta and have no binding force. We are not persuaded. The Court did not make gratuitous remarks which were not relevant to the issue for decision. In our opinion it established guidelines necessary to assure a fair trial in a case which attracted wide publicity. The failure of the trial court in Sheppard to apply and use the procedures, which the Supreme Court said were appropriate, resulted in a reversal.
25
The ultimate question is whether the application to the defendants of an order against extrajudicial statements violates their rights of freedom of speech. The defense argument necessarily places freedom of speech in a preferred position above fair trial. Some decisions of the Supreme Court place First Amendment rights in a preferred position. See e.g. Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 89 L. Ed. 430, and discussion of the subject in concurring opinion of Justice Frankfurter in Kovacs v. Cooper, 336 U.S. 77, 95-96, 69 S. Ct. 448, 93 L. Ed. 513. This preferred position has never been approved in a case where a balance must be had between free speech and fair trial. Indeed, the Court has awarded the preference to fair trial. In Estes v. Texas, 381 U.S. 532, 540-541, 85 S. Ct. 1628, 1632, 14 L. Ed. 2d 543, the Court said:
26
'We have always held that the atmosphere essential to the preservation of a fair trial-- the most fundamental of all freedoms-- must be maintained at all costs. Our approach has been through rules, contempt proceedings and reversal of convictions obtained under unfair conditions. Here the remedy is clear and certain of application and it is our duty to continue to enforce the principles that from time immemorial have proven efficacious and necessary to a fair trial.'
27
The order against extrajudicial statements was designed to maintain the atmosphere essential to the preservation of a fair trial, 'the most fundamental of all freedoms.' Both the defendants and the public have the right to expect that justice will be done. The defendants have the protection of the order and the responsibility to obey it. Their rights under the First Amendment were not infringed.
28
The fifth Amendment argument is that the order is so broad and vague that it denies due process. We are not so persuaded. The order specifies the persons who are affected, the time when it is in effect, and the conduct which is forbidden. If greater particularity were needed, the defendants could have sought a clarification. They did not do so.
29
The Sixth Amendment argument is even less convincing. The guarantee of a public trial means a public trial in the courthouse, not in a convention hall.
30
Affirmed.
1
The full text of the order follows:
'This matter coming on for consideration by the Court upon its own Motion, and it appearing to the Court that there is a reasonable likelihood that prejudicial news prior to trial would render more difficult the impaneling of a fair and impartial jury and would tend to prevent a fair trial and that the Court should enter an order seeking to prevent difficulties in these regards: Now, Therefore,
IT IS BY THE COURT ORDERED:
1
This Order is binding on all attorneys, both for the Government and the defense, on each of the defendants, and on each witness for both sides. It shall remain in force during the pendency of this action in this court
2
No party covered by this Order shall make or issue any public statement, written or oral, either at a public meeting or occasion or for public reporting or dissemination in any fashion regarding the jury or jurors in this case, prospective or selected, the merits of the case, the evidence, actual or anticipated, the witnesses or rulings of the Court. This Order does not apply to statements made, evidence given, or pleadings filed in this action. Of course, all proceedings in the action are and will continue to be public and matters of public record
3
No person covered by this Order shall avoid the effect of it by actions which indirectly, but deliberately bring about a violation of this Order
A copy of this Order shall be served on each party named above immediately upon its entry, and, as each witness is subpoenaed, a copy of this Order shall be served on him with the service of a subpoena.'
2
The Alianza Federal de Mercedes mentioned in our opinion in the criminal case, 407 F.2d 351, had been dissolved and the new organization created
3
The reference to the events at Echo Ampitheater relates to the activities which caused the then pending federal charges. The reference to Tierra Amarilla is to an unrelated state case
4
In the contempt proceedings the trial court said that it would take judicial notice of the file in the criminal case | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1605900/ | 107 Mich. App. 491 (1981)
310 N.W.2d 12
PEOPLE
v.
CUELLAR.
Docket No. 52994.
Michigan Court of Appeals.
Decided June 23, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
Zimostrad, Allsopp, Wenzloff & Zimostrad, P.C., for defendant.
*492 Before: R.M. MAHER, P.J., and ALLEN and CYNAR, JJ.
PER CURIAM.
On April 9, 1980, defendant was convicted by a Bay County Circuit Court jury of larceny over $100 in violation of MCL 750.356; MSA 28.588. Defendant was sentenced to five years probation, the first six months of which to be spent in jail. Defendant appeals as of right.
At trial, the security manager for the K-mart store located in Hampton Square Mall testified that he apprehended defendant and a woman companion for shoplifting on August 11, 1979. The security manager further testified in detail concerning how the women concealed a color television set, curtains, and $282 worth of women's clothing in an empty "hot cycle" box and in a clothes hamper during the 45 minutes he observed them. Other store employees testified to finding the "hot cycle" which had been removed from its box in the furniture department and to finding the clothes hangers from the women's clothing in a garbage pail inside the store in accordance with the security manager's observations and testimony. Defendant's companion paid only $13.48 for the "hot cycle" box in which the color television and the curtains were hidden. Defendant paid only $10.88 for the clothes hamper in which the women's clothing was hidden.
Defendant's claims of error concern the testimony of Officer Reynolds, the arresting officer. Officer Reynolds testified that security manager Wood's report gave defendant's name as Anna Garcia and gave defendant's birth date. Officer Reynolds indicated that defendant had no identification with her and, when asked for her full name, that she initially gave him the name Anna Garcia. Defendant objected to this question and answer *493 claiming a Miranda[1] violation since defendant had not been given her rights prior to being asked for her name. The objection was overruled. A discussion outside the presence of the jury followed in which defense counsel indicated that, without waiving the prior Miranda objection, there would be no objection to the prosecution's asking Officer Reynolds if he subsequently learned "from another source" that defendant's name was Annette Cuellar and that defendant then admitted to him that Annette Cuellar was her name. The jury was then brought back into the courtroom and this testimony was taken without objection. On cross-examination, Officer Reynolds testified that Anna Garcia was defendant's maiden name.
Defendant's claim of a Miranda violation is without merit. The trial court was correct in holding that the simple asking of defendant's name was not interrogation or an investigative type question requiring the giving of Miranda rights. "[I]nterrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Emphasis in original.) Rhode Island v Innis, 446 US 291, 302; 100 S Ct 1682; 64 L Ed 2d 297 (1980). Asking defendant her name does not substantively concern the offense charged and does not amount to interrogation. Therefore, the question falls outside the parameters of the Miranda decision. Innis, supra, People v Scanlon, 74 Mich App 186, 189; 253 NW2d 704 (1977).
Defendant's claim that the admission of Officer Reynolds's testimony that he learned of defendant's name "from another source" resulted in *494 reversible error is also without merit. Defendant did not object to this testimony at trial. The function of an appellate court is restricted to the test of questions which have been raised in the court below and thus saved for review. Walls v Director of Institutional Services, 84 Mich App 355; 269 NW2d 599 (1978), Oakland County v Detroit, 81 Mich App 308; 265 NW2d 130 (1978). The lack of objection precludes reversal absent manifest injustice. People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979), MRE 103(a)(1) and (d). We find no manifest injustice.
At the conclusion of a lengthy discussion outside the presence of the jury, the following agreement was reached by the prosecution, defense counsel and court delineating the questions to be asked Officer Reynolds by the prosecution:
"[The Prosecutor]: First, did did she have any identification. Number two, did she initially go by the name Anna Garcia. Number three, * * * did you learn from another source that her name was Annette Marie Cuellar and then what occurred after you learned that and then I assume you would testify that you went in the room and asked Annette and she spoke right up and then the fifth question would be, did she later give you the name Annette Marie Cuellar? And that would be the questions.
"[Defense Counsel]: If those are the questions I have no without waiving the earlier objections * * * I would say I have no objection to them. I also have no objections to the form of the question which leads the officer because I think that's going to prevent us from getting to the question of a LEIN and alias and all this other business.
* * *
"The Court: All right. Very good. Are you ready for the jury, then?
"[Defense Counsel]: Yes, we're ready.
"The Court: You may bring in the jury." *495 The jury was brought back into the courtroom and Officer Reynolds testified in response to prosecution questioning exactly as was agreed:
"Q. Now, when Annette the defendant was in the security room, did she have any identification?
"A. Not that I recall.
"Q. And did she initially give you the name Anna Garcia?
"A. Yes, she did.
"Q. And did you subsequently learn from another source that her name was Annette Annette Cuellar?
"A. Yes, I did.
"Q. And what happened after that point?
"A. What do you mean? After I
"Q. You learned this did you go back into the security room?
"A. Okay. I went back into the room and I stated, Annette, as a question, Annette? And she answered up yes.
"Q. Okay. The defendant answered up?
"A. Yes.
"Q. Okay. And did you subsequently learn that her name was
"A. Actually
"Q. from her that her name was Annette Cuellar?
"A. She admitted to me that her name was Annette Cuellar.
"[The Prosecutor]: I have no further questions."
This testimony established that defendant, Annette Cuellar, was the person identified as Anna Garcia in security manager Wood's report.
The present case is distinguishable from the case of People v Albert Thompson, 101 Mich App 609; 300 NW2d 645 (1980), in which the trial court allowed the prosecutor, over objection, to question the defendant concerning his prior use of aliases for purposes of impeaching the defendant's credibility. *496 Here, defendant did not testify.[2] Additionally, the prosecution did not, as argued by defendant, imply that defendant was involved in other criminal conduct by some oblique reference to an alias of the defendant. The word "alias" was never mentioned at trial and the prosecution neither commented on defendant's use of her maiden name during opening argument nor during closing argument.
The evidence against defendant was overwhelming and the single unobjected-to statement in question was insignificant in leading to her conviction. People v Bryan, 92 Mich App 208, 218; 284 NW2d 765 (1979). Thus, even if Officer Reynolds's statement could be deemed error under Thompson, supra, the error was harmless and it would not warrant reversal. Thompson, supra, 614.
Affirmed.
NOTES
[1] Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
[2] Since defendant did not testify, there was no attempt to impeach her credibility. Therefore, we need not address the issue of whether the use of an alias is "highly probative" of a witness's credibility. See People v Pace, 98 Mich App 714, 718; 296 NW2d 345 (1980), and People v Dietrich, 87 Mich App 116, 138-139; 274 NW2d 472 (1978), holding use of an alias highly probative. Cf. People v Thompson, supra, holding it is not. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441374/ | 970 N.E.2d 139 (2008)
385 Ill. App. 3d 1154
361 Ill. Dec. 139
PEOPLE
v.
SHUMPERT.
No. 5-08-0286.
Appellate Court of Illinois, Fifth District.
December 22, 2008.
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605934/ | 7 So. 3d 1111 (2009)
LEE
v.
STATE.
No. 3D09-155.
District Court of Appeal of Florida, Third District.
April 8, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605937/ | 7 So. 3d 1101 (2009)
HICKOX
v.
STATE.
No. 1D08-5080.
District Court of Appeal of Florida, First District.
April 27, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605977/ | 349 So. 2d 441 (1977)
Walter Jerald HELMS, Defendant-Appellant,
v.
Joyce Edna HELMS, Plaintiff-Appellee.
No. 6104.
Court of Appeal of Louisiana, Third Circuit.
August 3, 1977.
Charles S. King, Lake Charles, for defendant-appellant.
Raleigh Newman, Lake Charles, for plaintiff-appellee.
Before CULPEPPER, GUIDRY and FORET, JJ.
FORET, Judge.
This appeal arises from a judgment of divorce granted by the trial court in favor of Joyce Edna Helms, and against Walter Jerald Helms, who has perfected this appeal.
Walter Jerald Helms obtained a judgment of separation from his wife, Joyce Edna Helms, in this suit in the Fourteenth Judicial District Court, on June 8, 1976. On October 27, 1976, in this same suit, Joyce Edna Helms filed a petition against Walter Jerald Helms, seeking a judgment of divorce on the grounds of adultery. By supplemental and amended petition, Joyce Edna Helms also made other demands against Walter J. Helms; the latter then added to his original petition and reconvened against Joyce Helms for a money judgment for money loaned to her after their legal separation. However, the only *442 issue before this Court is the matter of the divorce.[1]
Defendant-appellant, Walter Jerald Helms, on appeal, contends that the sole issue and question of law involved herein is whether the trial court applied the proper standard of proof of adultery, i. e. that there was sufficient evidence to exclude all reasonable hypotheses other than that of guilt of adultery.
In her petition, appellee alleges that defendant-husband, on the nights of October 15 and 16, 1976, committed acts of adultery with Nona Allison in the latter's apartment in Lake Charles, Louisiana. To substantiate those allegations, four witnesses testifiedappellee, Joyce Edna Helms; Agnes Thompson, appellee's mother; Dorothy Hebert, appellee's aunt; and Linda Foy, a close friend of appellee's. They all swore under oath that they conducted a constant surveillance of the apartment of Nona Allison, the alleged paramour, between the hours of 3:30 o'clock P.M. Friday, October 15, 1976, and 11:00 o'clock A.M. Saturday, October 16, 1976, and between the hours of 9:30 o'clock P.M. Saturday, October 16, and 6:30 o'clock A.M. Sunday, October 17. They stated that each night, upon arrival at the apartment house, by knocking loudly and continuously for a reasonably long period of time, they sought entrance into Nona Allison's apartment; and that, after no response thereto was made, they positioned themselvesDorothy Hebert and Linda Foy in an automobile parked in the street immediately in front of the apartment building, and Agnes Thompson and appellee in an automobile situated in the rear of the apartment buildingso that they could view those who entered and/or exited from the building. (Dorothy Hebert and Linda Foy were positioned so that they could easily view those who made use of the only entrance to the apartment building.) They all testified that at no time did they leave their positions.
The findings of the first surveillance were as follows: at 4:38 o'clock P.M., Nona Allison arrived at her apartment. Approximately two hours later, at 6:32 o'clock P.M., defendant, Walter Jerald Helms, entered the apartment. Between those times and 11:00 o'clock A.M. October 16, no one entered, or left, the apartment.
The October 16-17 surveillance also revealed that defendant stayed overnight in the apartment of Nona Allison. All of appellee's witnesses testified that at 11:50 o'clock P.M. Walter Jerald Helms and Nona Allison entered the latter's apartment; and that between the hours of 11:50 o'clock P.M., October 16, and 6:30 o'clock A.M., October 17, no one else entered or left the apartment. Appellee and Agnes Thompson stated that, while the lights in the master bedroom of the apartment were illuminated, through the curtains covering a window of that room, they could see the outlines or silhouettes of two persons, of the opposite sex, undressing, getting into bed together, and putting the lights out.
Fourteen witnesses testified on behalf of defendant-appellant. The testimony of Nona Allison, Charlene Wimberly, Nona's sister, and appellant himself was in direct conflict with the testimony of plaintiff's witnesses insofar as the times in which Nona and Jerald entered the apartment on the two nights in question and insofar as they stated that Nona and Jerald attended a birthday party on Friday, October 15, and a McNeese football game and alumni dance on Saturday, October 16. The above witnesses for the defendant, and defendant himself, definitively stated that Jerald Helms stayed overnight in Nona's apartment on October 15 and 16, but that at no time ever did Jerald and Nona commit an act of adultery; and that Nona and Charlene slept in the same bed and Jerald slept on the couch in the living room.
Nona and Jerald testified that they arrived at the home of Mr. Jerry Wayne Bruno and his wife Peggy at 8:30 o'clock P.M. Friday, October 15, to attend a birthday *443 party in honor of Peggy, and that they departed therefrom at about 12:30 o'clock A.M. Such testimony was corroborated by that of Jerry Wayne Bruno, Peggy Bruno, Mark Collins, and Mr. & Mrs. Rufus Nelands, the latter three of which were guests at the party.
Nona and Jerald stated that they left the apartment a little past 7:00 o'clock P.M. Saturday, October 16, to attend a McNeese football game. That statement was substantiated by that of Jerry and Peggy Bruno, who testified that they were spectators along with Nona and Jerald. The latter two also testified that they attended the McNeese alumni dance thereafter and left its situs, the Civic Center, between 1:00 and 2:00 o'clock A.M. James and Betsy Robinson, Ronald Hayes, Sam Monticello, and Jeffery and Brenda Boudreaux stated that Nona and Jerald attended the dance and that they sat at a table with them.
In his oral reasons for judgment (Tr., pg. 420-424), the trial judge stated that he closely scrutinized the testimony of all of the witnesses and that he placed great weight and credibility upon the testimony of plaintiff's witnesses. This Court, in reviewing the factual and legal conclusions of the trial court, is bound by the rule of law succinctly enunciated in the case of Canter v. Koehring Co., 283 So. 2d 716, 724 (La. 1973):
"When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts." Citations omitted.
Defendant-appellant Walter Jerald Helms contends that the trial judge did not apply the proper burden of proof in his evaluation of his case. We cannot say that the trial court did not apply the burden of proof required in adultery cases, that is, evidence so convincing that it excludes all reasonable hypotheses other than that of guilt of adultery. We must presume that the trial court did apply the proper rule of law, for we have nothing from the record to indicate otherwise. The learned trial judge is a capable and experienced trial judge, and absent a contrary showing, we must presume that he applied the proper rule of law to the evidence in this case.
Adultery is rarely susceptible of proof with any irrefutable degree of certainty. All of the surrounding circumstances must be considered, and in the majority of cases adultery is proven by circumstantial evidence. From a review of this record, certainly there is strong and convincing evidence sufficient to support the trial court's finding. For example, defendant-appellant definitely admitted to having spent two nights at Nona Allison's apartment. A stronger case of circumstantial evidence could hardly ever be structured and presented. Without going into details about the inconsistencies in the testimony of defendant-appellant's witnesses, of which the record reveals there are many, we will merely state that after a careful reading of the record, we conclude that there exists a reasonable evidentiary basis for the judgment of the trial court. Accordingly, we affirm its judgment.
All costs of this appeal are assessed against defendant-appellant.
AFFIRMED.
NOTES
[1] For the reason that the petition for divorce was filed in the same suit as was the suit for legal separation, Walter Jerald Helms is herein referred to as defendant-appellant, and Joyce Edna Helms is referred to as plaintiff-appellee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605975/ | 85 F. Supp. 532 (1948)
SECURITIES CO.
v.
UNITED STATES.
United States District Court S. D. New York.
March 29, 1948.
Willkie, Owen, Farr, Gallagher & Walton and Charles A. Davey, New York City, for plaintiff.
John F. X. McGohey, New York City, Jay Slonim, New York City, for defendant.
BONDY, District Judge.
Plaintiff sues to recover income and excess profits tax paid by it, on the ground that it erroneously included in its amended return for the year 1939 as income $111,500, the amount of three promissory notes made and payable in the City of New York, as well as $48,353.08 accrued interest thereon, amounting in the aggregate to $159,853.08. The notes were made by plaintiff to the order of James A. Blair in consideration of money loaned by him to the plaintiff. They were dated August 19, 1932, April 3 and June 27, 1933 respectively. They remained unpaid and the Statute of Limitations had barred action thereon. Plaintiff thereafter eliminated entries of liability thereon from its books, thereby indicating an increase of its assets over its liabilities to that extent.
It has been conceded that action on the notes became barred without any donative intent on the part of the creditor.
Plaintiff stated in its claim for refund and now urges as grounds for recovery of the tax paid that "the action of the creditor in allowing the Statute of Limitations to run on these debts, constituted a gift to the creditor, not taxable income. Helvering v. American Dental Co., 318 U.S. 322, 63 S. Ct. 577, 582, 87 L. Ed. 785", and that "the interest in question had accrued in prior years, during which the taxpayer had no taxable income and thus received no tax benefit from such accruals."
Internal Revenue Code, Section 22(a), 26 U.S.C.A. § 22(a), provides that "`gross income' includes * * * gains or profits and income derived from any source whatever", and Section 22(b) (3) excludes therefrom "the value of property acquired by gift." The issue therefore is whether or not the plaintiff realized taxable income when the Statute of Limitations became available to it as a defense against action on the notes.
In the American Dental Co. case, supra, solely relied on by the plaintiff, creditors by affirmative action cancelled rent and interest on accounts owed to them by the taxpayer. Both the rent and interest had been accrued by the taxpayer and deducted in its tax returns. The Court held that the creditors' voluntary act of "forgiveness was gratuitous, a release of something to the debtor for nothing, and sufficient to make the cancellation here gifts within the statute." The rule of the American Dental Co. case applies only where the creditor acts voluntarily. See Fifth Ave.-Fourteenth St. Corp. v. Commissioner of Internal Revenue, 2 Cir., 147 F.2d 453, 456. In the case at bar the creditor did not perform any act of cancellation, nor gratuitiously or otherwise forgive or affirmatively release the debts. He merely failed to act within the statuory period and thereby made available to the debtor a defense. The release of plaintiff's assets from liability on the notes in these circumstances *533 represents taxable income. See United States v. Kirby Lumber Co., 284 U.S. 1, 3, 52 S. Ct. 4, 76 L. Ed. 131. Accordingly the plaintiff did not erroneously pay the tax on the amount of the notes which it was relieved from paying only through the operation of the Statute of Limitations. Great Northern Ry. Co. v. Lynch, D.C., 292 F. 903, 905, 906; North American Coal Corp v. Commissioner of Internal Revenue, 6 Cir., 97 F.2d 325.
The parties agree that to the extent that in any year there was no income offset by the deduction taken for accrued interest there was no tax benefit by reason of such deduction and the amount of such deduction did not constitute taxable income.
Whether or not the creditor or his executors filed a gift tax return or sought bad debt deductions by reason of the nonpayment of the notes is not in any way material or controlling. See Cocheco Woolen Manufacturing Company v. Commissioner, 4 T.C.M. 753.
Judgment is granted in favor of the plaintiff for the amount that the deductions made on account of accrued interest payable failed to result in any tax benefit, such amount to be determined by the court unless the parties can agree upon the same. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606077/ | 349 So. 2d 854 (1977)
James C. HARRIS, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 76-720.
District Court of Appeal of Florida, Second District.
September 21, 1977.
*855 Jack O. Johnson, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
BOARDMAN, Chief Judge.
Appellant/defendant, James C. Harris, Jr., was charged by information with robbery with a weapon. Section 812.13, Florida Statutes. After a jury trial he was found guilty of third-degree robbery (without the use of a weapon). Section 812.13(2)(c), Florida Statutes. The trial judge sentenced appellant to a term of 15 years imprisonment to include a "minimum time of imprisonment provided in FSA 775.087, subsection 2."[1]
Appellant has raised two meritorious points on this appeal. The first is whether it was error to limit appellant to six peremptory challenges during the jury selection for trial on a first-degree robbery charge which is punishable by life in prison. The second is whether the court erred by sentencing him to a mandatory three years.
Since appellant was charged with and tried for robbery with a weapon which is a felony punishable by life imprisonment he was entitled to ten peremptory challenges. *856 Bell v. State, 338 So. 2d 1328 (Fla. 2d DCA 1976); Section 812.13, Florida Statutes; Fla.R.Crim.P. 3.350. However, appellant has not alleged or shown, either at trial or on appeal, that there was a particular juror whom he would have removed by exercise of a seventh peremptory challenge. See, e.g., Young v. State, 234 So. 2d 341 (Fla. 1970). Although it was error to limit appellant to six challenges, since no prejudice resulted it was harmless error. Additionally, he was found guilty of a lesser offense, and if he had been initially charged with it he would have been entitled only to six challenges. We see no reason why he ought to be in any better position now that he has been convicted of that lesser offense than he would have been had such lesser offense been the original charge.
There is no case law precedent which supports or statute which authorizes imposition of a mandatory minimum sentence for conviction of robbery without a weapon. The sentence is reversed, and the cause remanded for correction of the sentence.
The remaining point raised by appellant is without merit, and we affirm the ruling of the trial court denying the motion to suppress.
AFFIRMED in part; REVERSED in part; REMANDED for proceedings consistent with this opinion.
McNULTY, J., concurs.
GRIMES, J., concurs in part, dissents in part.
GRIMES, Judge, dissenting in part.
In Bell v. State, 338 So. 2d 1328 (Fla. 2d DCA 1976), where the defendant had used all of the peremptory challenges which the court said he could have, we held that it was not necessary for him to seek to exercise an additional challenge in order to preserve the question of whether he should have been permitted a greater number of challenges. In Bell, as here, the defendant was entitled to ten rather than six peremptory challenges because he was charged with an offense for which he could receive a life sentence. Therefore, the sole difference between the cases is that Bell was convicted as charged, whereas the appellant was convicted only of a crime for which he could be sentenced to a maximum of fifteen years.
Since appellant was charged with a crime for which he could be imprisoned for life, he was entitled to use up to ten peremptory challenges in the course of selecting the jury which would try him. I cannot subscribe to the after-the-fact reasoning that the error was harmless because appellant was ultimately convicted of an offense which would have entitled him to only six challenges if he had been charged with it in the first place.
I respectfully dissent from that portion of the majority opinion which holds that limiting appellant to six peremptory challenges was harmless error. I concur with the balance of the opinion.
NOTES
[1] The trial judge stated in the judgment that there was sufficient evidence to find that appellant committed the robbery with a weapon. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605991/ | 7 So. 3d 25 (2009)
OAKVILLE COMMUNITY ACTION GROUP
v.
PLAQUEMINES PARISH COUNCIL, Benny Rousselle, In his Official Capacity as Executive Board Member and Parish President, and Joseph Clark, Amos Cormier, Rick Fremin, John Friedman, and Jerry Hodnet, In their Official Capacities as Plaquemines Parish Council Members.
No. 2008-CA-1286.
Court of Appeal of Louisiana, Fourth Circuit.
February 18, 2009.
Writ Denied May 1, 2009.
*26 Corinne Van Dalen, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiff/Appellant.
Kevin D. Conner, Belle Chasse, LA, for Plaquemines Parish Council.
Robert B. McNeal, Mark L. McNamara, Liskow & Lewis, New Orleans, LA, for Industrial Pipe, Inc.
(Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
MAX N. TOBIAS, JR., Judge.
Oakville Community Action Group ("Oakville"), the plaintiff appellant, appeals a judgment by the trial court declining to revoke the coastal use permit[1] issued by the defendants, the Plaquemines Parish Council, Benny Rousselle, in his official capacity as executive board member and parish president, and Joseph Clark, Amos Cormier, Rick Fremin, John Friedman, and Jerry Hodnet, in their official capacities as members of the Plaquemines Parish Council (referred to collectively as the "Council"), to the intervenor, Industrial Pipe, Inc. ("Industrial"). After reviewing the record and applicable law, we reverse the judgment of the trial court and remand the matter for further proceedings.
This case has been before us before. See Oakville Community Action Group v. Plaquemines Parish Council, 05-1501 (La. App. 4 Cir. 9/27/06), 942 So. 2d 1152 (hereinafter "Oakville I"). We summarized the facts and procedural history in that opinion as follows:
The Council conditionally approved an application by Industrial Pipe, Inc. ("Industrial Pipe") for a coastal use permit to expand a landfill it owned in Plaquemines Parish, Louisiana. Oakville. a nonprofit organization whose mission was to protect the Oakville community in Plaquemines Parish with respect to environmental, health, and safety issues, filed suit against the Council requesting that the trial court review all records compiled by the Council in connection with its consideration of the coastal use permit for the expansion of the Industrial, Pipe landfill.
In its suit, Oakville alleged that the Council's decision to conditionally approve an application for a coastal use permit for the expansion of Industrial *27 Pipe's landfill into coastal wetlands adjacent to the Oakville community would directly and irreparably harm the wetlands. Oakville also contended in its petition that, because a solid waste landfill is not a wetlands dependent land use, the Council had improperly granted the application for a coastal use permit for the proposed landfill expansion. Additionally, Oakville claimed that the Council had improperly issued a coastal use permit without complying with the applicable provisions of the Louisiana Administrative Code. Finally, Oakville asserted that the Council failed to comply with both statutory and constitutional mandates applicable to the approval of the application for a coastal use permit for the proposed landfill expansion.
In response to the petition filed by Oakville, the Council filed peremptory exceptions of no cause of action and no right of action. The Council contended that because Oakville had not first brought its claims before the Secretary of the Louisiana Department of Natural Resources (the "DNR") for review or sought the Council's reconsideration of the Industrial Pipe permit, Oakville did not have a right of action or cause of action. After a hearing on the exceptions filed by the Council, the trial court judge granted the exceptions and transferred the matter "to the Louisiana Department of Environmental Quality for a reconsideration and review...."[2]
Id. at pp. 2-3, 942 So.2d at 1154.
In Oakville I, we found that the trial court erred in declining to exercise its jurisdiction. We also found that Oakville had stated a cause of action based on its allegations in the petition that the Council had failed to comply with applicable laws and regulations in granting Industrial's application for a coastal use permit. In particular, Oakville contended that the Council failed to adhere to La. Admin. C. 43:1.723(8), which provides in relevant part as follows:
Permit decisions will be made only after a full and fair consideration of all information before the permitting body, and shall represent an appropriate balancing of social, environmental, and economic factors. The permitting body shall prepare a short and clear statement explaining the basis for its decision on all applications. This statement shall include the permitting body's conclusions on the conformity of the proposed use with the guidelines, the state program and approved local programs. The statement shall be dated, signed, and included in the record prior to final action on the application.[3]
Additionally, we noted that pursuant to La. Admin. C. 43:I.723(C)(8), the Council was required to prepare a statement explaining the basis of its decision on all permit applications. Id. at p. 7, 942 So.2d at 1157. [Emphasis added.]
In conclusion we held:
In the instant case, however, Oakville has based its cause of action on the failure of the Council to comply with the regulatory requirements set forth in La. Admin. C. 43:I.723(8) and other applicable laws and regulations in connection *28 with the Council's granting of Industrial Pipe's application for a coastal use permit. Thus, the issues upon which Oakville's cause of action in the instant case are based are legal issues, and legal issues are squarely within the conventional experience of the courts, not government agencies such as the DNR. For this reason, we conclude that the trial court erred in transferring this case to an agency for consideration. The trial court should consider the instant case to determine whether the Council complied with all applicable laws and regulations, including La. Admin. C. 43:I.723(C)(8), in approving Industrial Pipe's application for a coastal use permit.
Id. at p. 9, 942 So.2d at 1157-58. [Emphasis added.]
Following remand, Oakville filed a rule to show cause why the judgment it sought should not be granted. In connection therewith, the trial court permitted Industrial and the Council to file additional memoranda for the limited purpose of discussing the written decision document requirement in La. Admin. C. 43:I.723(C)(8). Following oral argument the trial court found that no decision document was required as the coastal permit was issued in accordance with the procedures of a Department of Natural Resources ("DNR") approved local permit program. As such, the court did not revoke the coastal use permit issued to Industrial.
Oakville has assigned two errors for review. First, it contends that the trial court erred in finding that the Council was not required to prepare a decision document pursuant to La. Admin. C. 43.I.723(C)(8). Oakville also argues that the trial court failed to follow our instruction on remand to determine if the Council had complied with the administrative regulation. In addition, Oakville asserts that the trial court erred in failing to determine whether the council fulfilled its public trustee duty under La. Const. Art. IX, § 1, as enunciated in Save Ourselves, Inc. v. La. Envtl. Control Comm'n, 452 So. 2d 1152 (La.1984).
Because the issues presented in this appeal are legal ones, the standard of review is de novo. Vanderhoff v. Beary, 03-0912, p. 2 (La.App. 4 Cir. 8/20/03), 853 So. 2d 752, 754, writ denied, 03-2895 (La.1/9/04), 862 So. 2d 987 (citing Cleco Evangeline, LLC v. Louisiana Tax Comm'n, 01-2162, p. 3 (La.4/03/02), 813 So. 2d 351, 353).
The first issue for our review is whether the Council was required to follow the requirements set forth in La. Admin. C. 43:I.723, and in particular § 723(C)(8) and, if so, whether the Council did, in fact, follow that administrative rule. The Council argues that because it has a local coastal zone management program sanctioned by the DNR, it is not required to follow the requirements set forth in the cited administrative rule and prepare a decision document. We disagree.
We need look no further than the administrative role itself, which we find applies to applications filed with both the state and/or local governments with an approved local coastal management program:
a. Any applicant for a coastal use permit shall file a complete application with the state, or at his option, in areas subject to an approved local coastal management program, with the local government. The department will provide the application forms and instructions, including example plats and interpretive assistance, to any interested party. The staffs of the coastal management section and approved local programs shall be available for consultation prior to submission of an application and *29 such consultation is strongly recommended. Application forms may be periodically revised to obtain all information necessary for review of the proposed project.
La. Admin. C. 43:I.723(C)(1)(a). [Emphasis added.] The rule continues:
c. Applicants for coastal use permits for uses of state concern shall include with their application filed with the state a certification that a copy of the application was forwarded by certified mail or hand delivered to the affected local parish(es) with an approved coastal management program.
d. Applicants for coastal use permits for uses of state concern, who elect to submit their application to the affected local parish(es) with an approved local coastal management program, shall include with their application a certification that a copy of the application was forwarded by certified mail or hand delivered to the state.
2. Content of Application. The application submitted shall contain the same information required for a permit from the U.S. Army Corps of Engineers and such additional information as the secretary determines to be reasonably necessary for proper evaluation of an application.
Nowhere does the rule distinguish between an application filed with the state and an application filed with a local parish with an approved local coastal management program. After the rule permits local government and parishes with approved programs to assess its own fees for processing and evaluating coastal use permit applications, the rule refers to "the permitting body." We interpret to mean both the state and a local parish with an approved local coastal management program, because when the rule means the state alone, that is written. With that in mind, we come to § 723(C)(8)(a), which, states:
8. Decisions on Permits
a. The permitting body will determine whether or not the permit should be issued. Permits shall be issued only for those uses which are consistent with the guidelines, the state program, and affected approved local programs. The secretary shall not consider the use to be consistent with the state program unless the permit includes condition(s) which, pursuant to § 724, ensure the mitigation of wetland ecological values which would be lost due to the use. Permit decisions will be made only after a full and fair consideration of all information before the permitting body, and shall represent an appropriate balancing of social, environmental, and economic factors. The permitting body shall prepare a short and clear statement explaining the basis for its decision on all applications. This statement shall include the permitting body's conclusions on the conformity of the proposed use with the guidelines, the state program and approved local programs. The statement shall be dated, signed, and included in the record prior to final action on the application. [Emphasis added.]
No ambiguity exists in the law. As we noted in Oakville I, the Council is required to prepare a statement explaining the basis for its decision on all applications. We find nothing that relieves the Council of this responsibility. Because the parties agree that a decision document was not prepared, it is undisputed that the Council did not follow the law, and, thus, did not have the authority to issue the coastal use permit to Industrial. Consequently, we reverse the trial court, thereby *30 revoking the coastal use permit that the Council issued to Industrial.[4]
Based on the foregoing, we reverse the trial court and remand the matter for further proceedings consistent with this opinion.
REVERSED; REMANDED.
NOTES
[1] Pursuant to the definitions contained in La. R.S. 49:214.23(7), a "coastal use permit shall mean the permits required by R.S. 49:214.30 of this Subpart and shall not mean or refer to, and shall be in addition to, any other permit or approval required or established pursuant to any other constitutional provision or statute."
La. R.S. 49:214.30(A) states:
A. No person shall commence a use of state or local concern without first applying for and receiving a coastal use permit. Decisions on coastal use permit applications shall be made by the secretary, except that the local government shall make coastal use permit decisions as to uses of local concern in areas where an approved local program is in effect. Conditions set forth in a coastal use permit shall supersede any and all variances or exceptions granted by the commissioner of conservation in accordance with R.S. 30:4(E)(1) for activities within the coastal zone as defined by R.S. 49:214.24.
[2] In Oakville I, we noted that the trial court erroneously referred to the Louisiana Department of Environmental Quality ("DEQ") as the agency to which a request for reconsideration should have been directed. Both the Council and Oakville agreed that the Department of Natural Resources was the appropriate agency and that the reference to the DEQ was in error. Id. at p. 3, 942 So.2d at 1154.
[3] La. Admin. C. 43:I.723 establishes the rules and procedures to be used in connection with, among other things, the issuance of coastal use permits.
[4] Because we find that the Council did not follow the law when issuing the permit to Industrial, we pretermit discussion of Oakville's second assignment of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605990/ | 349 So. 2d 1173 (1977)
STATE TENURE COMMISSION for the State of Alabama
v.
PIKE COUNTY BOARD OF EDUCATION.
Civ. 1186.
Court of Civil Appeals of Alabama.
September 14, 1977.
*1174 W. Troy Massey, Sp. Asst. Atty. Gen., Montgomery, for appellant.
Oliver W. Brantley, Troy, for appellee.
PER CURIAM.
This is an appeal by the State Tenure Commission. The Circuit Court of Pike County, by writ of mandamus, directed the State Tenure Commission to set aside its judgment setting aside the transfer of a teacher by the Board of Education of Pike County.
We affirm the action of the trial court.
The pertinent facts as revealed by the record disclose that Mrs. Ruth Crawford, the subject of the instant transfer, was a teacher with continuing service status. In fact, Mrs. Crawford has been a teacher in Pike County for over 25 years. For the past several years, Mrs. Crawford has held the position of Supervisor of Instruction. The Board of Education transferred Mrs. Crawford from the position of Supervisor of Instruction to that of classroom teacher. This transfer was without loss of status. The reason given by the Board of Education for the transfer was that economic reasons dictated that the position of Supervisor of Instruction be abolished and she be returned to the classroom. As indicated above, this transfer was without any reduction in pay.
A hearing was held by the Board and thereafter the transfer was ordered.
After the hearing before the Board, Mrs. Crawford appealed to the State Tenure Commission as provided for under Tit. 52, § 357, Code of Alabama. After consideration of the record of the hearing by the Board of Education, the Tenure Commission found as follows:
". . . that the action of the Board was arbitrarily unjust and was not in compliance with the teachers' tenure laws because the evidence fails to support the economic reasons cited by the Board for its action. The action of the Pike County Board of Education is, therefore, reversed."
From the order of the Commission, the Board sought writ of mandamus from the circuit court to be directed to the Commission as permitted by Tit. 52, § 361, Code of Alabama. The circuit court found that the "reason" given by the Board of Education *1175 to Mrs. Crawford for her transfer was supported by the undisputed evidence presented by the Board. The circuit court directed the Commission to set aside its order of reinstatement and enter an order affirming the order of the Board of Education transferring Mrs. Crawford. It is from this order that the Tenure Commission has taken this appeal.
Through able counsel, the Tenure Commission's main contention is that the transfer of Mrs. Crawford was arbitrary and unjust and, therefore, the order of the Tenure Commission should be upheld. We disagree.
At the outset, we deem it appropriate to quote what Presiding Judge Wright, speaking for this court, said in Tenure Commission v. Anniston City Board of Education, 57 Ala.App. 198, 201, 326 So. 2d 760, 763 (1976):
"A superintendent does not recommend nor does a board of education approve a transfer without a reason. Such reason must be stated if the transfer is contested. The stated reason must be shown by the evidence to serve a reasonable administrative function, not be personal or political or arbitrarily unjust. If the evidence does not sustain the reason given, the transfer is not sustained." [Emphasis supplied.]
It was not our intention to imply by our statement in Anniston City Board of Education, supra, that the teacher and, upon appeal, the Tenure Commission could challenge the wisdom or correctness of the administrative acts of the Board which may have precipitated the transfer. It is only the truth of the stated reason which may be attacked. If the transfer was not because of the "reason" but was in fact for political or personal reasons or was not reasonably supported by the "reason," such transfer could be determined to be arbitrary, capricious and unjust upon appeal. Tit. 52, § 357, Code of Alabama; Mills v. Board of Education, 449 F.2d 902 (5th Cir. 1971). The statutory duty to administer and supervise the public schools in a county is charged to the county board of education. Tit. 52, § 62, Code of Alabama. The setting of educational policy and the conduct and management of the schools is the responsibility of the county board of education. Tit. 52, §§ 73, 74, Code of Alabama.
In this case, the decision to terminate the position of Mrs. Crawford and reassign her to a teaching position was not subject to review as to its wisdom or necessity, but only as to whether it was made for personal or political reasons, or whether it was so unsupported in fact or reason as to be arbitrary and capricious. Robinson v. Jefferson County Board of Education, 485 F.2d 1381 (5th Cir. 1973); Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So. 2d 339 (1947).
As shown by the Tenure Commission's order, the issue then becomes whether the reason given by the Board (i. e., economic) is shown by the evidence to serve a reasonable administrative function. From our careful review of the evidence, we find that it was.
The record reveals without controversy that the Board intended to abolish the position of Supervisor of Instruction. This would result in a saving of some $12,000. Additionally, by returning Mrs. Crawford to the classroom, certain split-grades would be eliminated. These facts alone fall within the definition of a reasonable administrative function as discussed in Anniston City Board of Education, supra. We find no evidence regarding the transfer being made for political or personal reasons. Nor did the Tenure Commission so find.
We are well aware of the Alabama Supreme Court's decision in Alabama State Tenure Commission v. Mt. Brook Board of Education, Ala., 343 So. 2d 522 (1977), regarding the standard of review to be exercised by the circuit court in cases of this nature. However, we would note that Mt. Brook was a "termination proceeding," whereas, the instant appeal is a "transfer" *1176 case. In any event, our views regarding Mt. Brook can be found in Sumter County Board of Education v. Alabama State Tenure Commission, Civ. 1119, decided July 13, 1977.
It is clear that even in light of the supreme court's decision in Mt. Brook, there must be sufficient evidence before the Tenure Commission to support its conclusion that the decision of the Board of Education should be reversed. Here, in the instant appeal, we find no such sufficient evidence, or any reasonable tendency of such evidence.
The Tenure Commission, through able counsel, further contends that this court should reverse this matter for failure by the school board to allow the deposition of a certain witness to be taken and for failure to grant a continuance. We find no merit in either of these contentions.
The record reveals that for purposes of the contentions raised on this appeal, the teacher was notified on October 15, 1976, of the school board's intention to transfer the teacher. She was further notified to select the school she preferred to be assigned to. The teacher's reply to this notification was that she preferred to remain in her present position, i. e., Supervisor of Instruction. Thereafter, on October 29, 1976, the school board selected the school and notified the teacher of the Board's intention to transfer and the school to which she was assigned. This notification occurred on November 2, 1976. The teacher immediately demanded a hearing and the same was set for November 17, 1976.
On November 15 or 16, a letter was received by the office of the Superintendent of Education. The letter stated that "notice is hereby furnished of Mrs. Crawford's intention to take your deposition and deposition of the chairman of the Pike County Board of Education prior to the scheduled November 17, 1976 Board hearing."
Additionally, the letter requested a subpoena for the budget of the school years 1970-71 through 1976-77. A subpoena was issued for these documents on November 16, 1976, and they were available at the hearing.
As early as July 15, 1976, Mrs. Crawford received a letter from the Pike County Board of Education informing her of the Board's decision to reassign her due to economic reasons. This court held in Tenure Commission v. Anniston City Board of Education, supra:
"The object of stating the `reasons' for transfer is obviously for the purpose of allowing the teacher to examine witnesses and offer testimony to the end of determining the truth and validity of the stated `reasons' and if they serve legitimate or reasonable administrative purposes. . ." (57 Ala.App. at 201, 326 So.2d at 762)
As can be seen from the facts set out above, the appellant had sufficient time (approximately four months from notification of reassignment) in which to examine witnesses and study documents to determine if a legitimate economic reason exists. Instead, the appellant waited until the week of the Board hearing before such right was asserted.
The appellant first contends in this regard that the failure to allow the deposition requires reversal. We find no merit in this contention.
Rule 30(b)(1), ARCP, in pertinent part, reads:
"(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing.. . ." [Emphasis supplied.]
As can be seen from the facts as set out above, it could well have been concluded that reasonable notice was not given.
The appellant further argues in brief that the school board's failure to grant a continuance to allow counsel for the teacher to study the subpoenaed documents and to take the aforementioned deposition was a denial of due process of the law.
*1177 The Board of Education granted a 30 minute recess to allow counsel to study the requested documents. Quite frankly, we fail to fully comprehend appellant's argument regarding this aspect. The documents were supplied; they were produced and counsel, while perhaps not allowed an abundance of time to study the documents, was allowed some time. In any event, in view of the facts as seen from the above, we perceive no reversible error in this regard.
As stated by the Supreme Court of Alabama in County Board of Education of Clarke County v. Oliver, 270 Ala. 107, 109, 116 So. 2d 566, 567:
"The Teacher Tenure Law contemplates the rudimentary requirements of fair play with reasonable notice and opportunity to be present, information as to charges made, and opportunity to controvert such charges, the right to examine and cross-examine witnesses, and submit evidence and be heard in person or by counsel. . . ."
This court, after careful study of the record, can perceive no deprival of due process of law since all of the above requirements have been met.
We would further note, regarding the contention relating to the deposition, subpoenaed documents, and continuance, that these matters were apparently not considered by the Tenure Commission or the trial court. When this fact (the nonconsideration by the Tenure Commission and the trial court) coupled with the fact that the teacher prevailed before the Tenure Commission, is considered, it appears that these contentions are, in effect, being raised for the first time on appeal. This the law does not permit. See 2 Ala. Dig. Appeal & Error.
An argument which was not asserted in the answer or developed or passed on at trial cannot be considered on appeal. The failure to adequately present and develop an issue precludes this court from considering it on appeal. See American Lease Plans, Inc. v. Houghton Const. Co., Inc., 492 F.2d 34 (5th Cir. 1974).
This case is due to be affirmed.
AFFIRMED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606594/ | 7 So. 3d 38 (2009)
Arnold Victor WORLEY, et al., Plaintiffs-Appellees
v.
Loren F. CHANDLER, et al., Defendants-Appellants.
No. 44,047-CA.
Court of Appeal of Louisiana, Second Circuit.
March 4, 2009.
*40 Robert S. Tew, Monroe, for Appellants.
Paul L. Hurd, Monroe, for Appellees.
Before STEWART, PEATROSS and DREW, JJ.
STEWART, J.
Defendant-Appellant, Loren F. Chandler, et al., ("Chandlers"), is appealing a written judgment rendered in favor of Plaintiff-Appellee, Arnold Victor Worley, et al., ("Worleys"), awarding them damages totaling $71,705.48, in connection with a contract to buy and sell immovable property. Finding that the Chandlers' claims bear no merit, we affirm the trial court's judgment.
FACTS
The Worleys filed suit against the Chandlers, seeking damages for the Chandlers' failure to purchase the Worleys' home at 209 Canyon Road, West Monroe, Louisiana. The negotiations related to the sale of this home were reduced to writing in a Residential Agreement to Purchase and Sell.
On February 7, 2006, the Chandlers made the first offer on the home in the amount of $490,000.00 and deposited $5,000.00 in connection with the offer. The Residential Agreement to Purchase and Sell provided that the deposit would not be considered as earnest money and the parties opted for specific performance:
This deposit shall not be considered as earnest money and this contract shall be considered a Specific Performance Contract.
On February 7, 2006, the Worleys made a counter offer to sell for $530,000.00 and added a handwritten provision that occupancy would be granted seven days after the closing, or sooner if possible.
On February 10, 2006, the Chandlers made a counter offer for $528,000.00 and included the following handwritten language related to the deposit and obligations in the event the sale failed:
*41 The deposit shall be non-refundable after all inspections by purchaser and approval for a loan, appraisal completed. If the sale falls through after March 6, 2006, the deposit shall be given to sellers.
The Chandlers' realtor, Mr. Dwaine Sutton of Coldwell Banker, testified that he wrote this language contained in the counter offer.
In April of 2006, Mr. Chandler terminated his recently acquired employment as the Chief Financial Officer at the Glenwood Regional Medical Center. He then notified the Worleys that he would not be purchasing the home. The Worleys subsequently filed this suit seeking specific performance. The Chandlers filed a counterclaim seeking the return of their deposit.
On July 3, 2008, the trial court rendered a judgment in favor of the Worleys, awarding them $71,705.48 in damages. The trial court determined that the handwritten language did not "do away with" what is written before it, and that the $5,000.00 at issue was not earnest money. The Chandlers are now appealing this judgment.
LAW AND DISCUSSION
Assignments of Error One and Two: Validity and Modification of the Contract
The Chandlers assert three assignments of error in their appeal. In their first assignment of error, the Chandlers assert that the trial court erred in finding that the parties had a meeting of the minds and entered into a binding contract. In the second assignment of error, the Chandlers allege that the trial court erred in finding that the handwritten language in the buy/sell agreement did not modify the printed provisions relating to the deposit and obligations between the parties because the sale was not consummated.
Because the intent of the Chandlers was completely different from that of the Worleys, the Chandlers argue that there was no "meeting of the minds" as it relates to the handwritten language in the Residential Agreement to Purchase and Sell. Therefore, the Chandlers assert that the parties failed to enter into an enforceable contract. Since assignments of error one and two are interrelated, we will discuss these issues together.
On appeal, the reviewing court may not set aside a trial court's findings in the absence of manifest error or unless they are clearly wrong. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Even though an appellate court may feel its own evaluations and inference are more reasonable than those made by the trial court, reasonable evaluations of credibility and reasonable inferences of fact are not disturbed on appeal where conflicting testimony exists. To reverse a trial court's factual determinations, the appellate court must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings. Hanger One MLU, Inc. v. Unopened Succession of James C. Rogers, et al., 43,120 (La.App. 2 Cir. 4/16/08), 981 So. 2d 175; Green v. Nunley, 42,343 (La. App. 2 Cir. 8/15/07), 963 So. 2d 486.
A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art.1906. A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art 1927. The four elements of a valid *42 contract are: (1) the parties must possess the capacity to contract; (2) the parties' mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. Provenza v. Central & Southwest Services, Inc., 34,162 (La.App. 2 Cir. 12/15/00), 775 So. 2d 84. The court must find that there was a meeting of the minds of the parties to constitute consent. Hanger One MLU, Inc., supra. Consent may be vitiated by error, fraud, or duress. La. C.C. art.1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art 1949. The existence or nonexistence of a contract is a question of fact not to be disturbed unless clearly wrong. Chapman v. Ebeling, 41,710 (La. App. 2 Cir. 12/13/06), 945 So. 2d 222; Crowe v. Homeplus Manufactured Housing, 38,382 (La.App. 2 Cir. 6/21/04), 877 So. 2d 156. The words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical manner. La. C.C. art.2047.
A sum given by the buyer to the seller in connection with a contract to sell is regarded to be a deposit on account of the price, unless the parties have expressly provided otherwise. La. C.C. art. 2624. Under La. C.C. art 2624, when the parties' intention is that a sum of money be given as earnest, they must clearly express that intention. Edco Properties v. Landry, 371 So. 2d 1367 (La.App. 3d Cir.1979).
Both Mr. Sutton, the Worleys' realtor, and Mrs. Inabnett, the Chandlers' realtor, testified that the handwritten language in the agreement prevails over the typed language. Additionally, the Residential Agreement to Purchase and Sell states:
If any of the pre-printed portions of this agreement vary or are in conflict with any handwritten, typed (not pre-printed), or other conditions of the sale, the handwritten, typed (not pre-printed), or other conditions of the sale provisions will control.
Mr. Worley and Mr. Sutton testified that the Worleys accepted the counter offer containing the handwritten language with the understanding that if the sale fell through the Chandlers would forfeit their deposit and the Worleys would retain the right to sue for specific performance. To support the assertion that they had a right to sue for specific performance, the Worleys pointed out the portion of the Residential Agreement to Purchase and Sell that states:
In the event of default by either party, the non-defaulting party shall have all rights to demand specific performance or damages, at their option.
Sutton also testified that if the deposit was meant to be regarded as earnest money, then he would have addressed the money as earnest money, and not as a deposit.
Alternatively, Mr. Chandler and Mrs. Inabnett testified that the handwritten language altered the agreement to allow the Chandlers to forgo purchasing the property by forfeiting their deposit. The Chandlers argue that their intent in agreeing to the handwritten language was if the sale failed for any reason they would lose their deposit and nothing more. Additionally, Mr. Chandler testified that after the handwritten language was added, it became an earnest money contract.
The Residential Agreement to Purchase and Sell was a standard buy/sell agreement utilized by the Northeast Louisiana Realtors Association. The trial court found it to be clear and unambiguous. After reviewing the record, we must agree *43 with the trial court that there was a "meeting of the minds" when the Chandlers entered into this binding contract to buy the property in question. Therefore, the first assignment of error is without merit.
As stated above, jurisprudence has established that when the parties' intention is that a sum of money be given as earnest, they must clearly express that intention. Unfortunately in the instant case, there is no clear indication that the $5,000.00 was to be given as earnest money. The additional handwritten language, which would prevail over the preprinted portions of the Residential Agreement to Purchase and Sell, failed to indicate that the $5,000.00 was to be given as earnest money. Rather, the Residential Agreement to Purchase and Sell clearly states that the deposit shall not be considered as earnest money and this contract shall be considered a specific performance contract.
Based on the facts and evidence presented, we find that the trial court did not err in determining that the Worleys are entitled to enforce the specific remedies provided in the Purchase Agreement. Doing so in no way conflicts with the requirement that the Chandlers also lose their deposit. The second assignment of error is also without merit.
Assignment of Error Number Three: Assessment of Damages
In their third and final assignment of error, the Chandlers argue that the trial court erred in its assessment of damages. The Worleys introduced a summary of damages at trial:
A. Difference in the sale price agreed to
by Defendant ($528,000) and the actual
sale price obtained by Plaintiffs $25,000
B. Real Estate Broker Fees: HELP U
SELL $ 3,950.00
JOHN REA REALTY $ 9,504.00
C. Electricity for the Residence $ 1,804.06
D. Natural gas usage for the Residence $ 282.00
E. Water usage for the Residence $ 360.40
F. Summer lawn and garden care $ 1,615.00
G. Outdoor pool maintenance for
Residence $ 200.00
H. Sanitation Inspection performed for
subsequent purchaser of Residence $ 314.00
I. Ouachita Parish health inspection $ 100.00
J. Purchase of home warranty for subsequent
purchaser of Residence $ 350.00
K. Early rental of second home
(May-Oct)
(Plus Deposit of $1,500) $12,600.00
L. Early rental of storage room $ 1,738.52
M. Attorney FeesMr. Steve North $ 1,387.50
Mr. Paul Hurd (approximate) $12,500.00
The Chandlers assert that damages for the items listed above in bold print are not supported by the evidence and are clearly wrong. In regard to the broker fees of John Rea Realty, the Chandlers argue that there was no testimony that the Worleys have paid or will be required to pay the broker fees of the Chandlers' realtor, John Rea Realty. The Chandlers also assert that there is not any evidence that the Worleys paid or would be required to pay the broker fees of their own broker, Help-U-Sell. The Chandlers also argue that there is no testimony that the Worleys lost the deposit on the rental of their second home. Finally, the Chandlers argue that there is no testimony supporting the Worleys' reasoning for the early rental of a storage room when they rented another home.
The Worleys assert that the Chandlers are now erroneously contesting the expenses incurred by the Worleys for the first time and without support under law.
In the absence of an objection, the complaining party must be deemed to have waived his right to complain of the alleged impropriety on appeal. The reason therefor is that in the absence of an objection, the trial court is afforded no opportunity *44 to prevent or correct the alleged error. La. C.C.P. art. 1635; American Manufacturers Mutual Insurance Company v. General Motors, 582 So. 2d 934 (La.App. 2 Cir.1991).
The Residential Agreement to Purchase and Sell contained the following language:
The defaulting party shall also be liable for the brokerage fees and all other costs and fees including reasonable attorney's fees incurred as a result of the breach of this agreement.
In addition to the language contained within the Residential Agreement to Purchase and Sell, the Worleys presented various documents, check payments, and testimony to support their assertion of damages. More specifically, they introduced the $1,500.00 check to prove payment to the landlord for the rental of their second home. The Worleys also introduced personal checks in the amount of $1,738.52 for the early rental of a storage room. All of this evidence was admitted without objection. Based on the evidence presented, we agree with the trial court that the Worleys did confirm the damages they incurred and are entitled to damages amounting to $71,705.48. This assignment of error bears no merit.
CONCLUSION
After a thorough review of the record, we cannot say that the findings of the trial court made in favor of the Worleys were manifestly erroneous. Accordingly, we affirm the trial court's judgment. Costs of the appeal are assessed to the Chandlers.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606116/ | 349 So.2d 276 (1977)
In the Matter of the Succession of Joseph L. ROBINS.
No. 59138.
Supreme Court of Louisiana.
June 20, 1977.
Rehearing Denied September 2, 1977.
Ashton L. Stewart, Laycock, Stewart & Preis, Baton Rouge, for plaintiff-appellant.
Vanue B. Lacour, Lacour & Calloway, Baton Rouge, for defendants-appellees.
TATE, Justice.
May the state validly prohibit an illegitimate child from receiving a legacy intended for him by his father, solely because the child's conception resulted from an adultery committed by the father? Simply stated, that is the issue before this court.
The deceased testator willed his estate, composed entirely of his separate property, to two illegitimate sons. Relying upon Civil Code Article 1488 (1870), his surviving widow by a second marriage opposed the judicial recognition of these legacies. The trial court held the code article to be unconstitutional and, accordingly, dismissed the widow's claim to receive the decedent's estate instead of his testamentary heirs, i. e., his illegitimate sons. An appeal is taken for her claim.[1]
*277 Article 1488[2] prohibits natural parents from giving or willing any part of their estate to their illegitimate children, if these children were conceived as a result of an adultery or of incest. No such prohibition applies to gifts or legacies made by a father to his illegitimate children conceived under other circumstances, at least where (as here) the decedent is not survived by lawful descendants, ascendants, or collateral relations. Articles 1483-87.
The district court held that Article 1488 violates Article 1, Section 3, Louisiana Constitution of 1974[3], in that the code article unreasonably discriminates against adultery-conceived illegitimates solely on the basis of their birth. The constitutional provision states: "No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth * * *."
I.
In this direct appeal to this court from the judgment holding Article 1488 unconstitutional, see La.Const. Art. 5, Sec. 5(D)(1) (1974), the narrow legal issue is:
Does a statute unreasonably discriminate against illegitimate children because of their birth, in violation of our state constitution, when it prohibits a natural parent from giving or willing an illegitimate child any substantial part of the parent's estate solely because the child's conception resulted from the parent's adultery? (The narrowed issue essentially involves the reasonableness of the legislative classification of adultery-conceived illegitimates as being incapable of receiving testamentary dispositions from their parents, when such dispositions are not prohibited as to other illegitimate children, nor as to (technically) "illegitimate" children likewise conceived as the result of an adultery.)
Preliminarily, we emphasize that the present issue does not arise in the context of passing upon the reasonableness of legislative classifications of legitimate versus illegitimate children for purposes of intestate heirship, Articles 886-88, 902, 917-920, nor even for purposes of testamentary succession, Article 1483. Nor does it arise in the context of the legislative reasonableness of the intestate succession of a surviving widow to her husband's property in default of legitimate descendants, to the exclusion of the husband's illegitimate children. Articles 917, 919.
Rather, the issue is narrowed to the reasonableness of a legislative classification by which, solely because his conception resulted from an adultery, an illegitimate child is deprived of any right whatsoever to receive his father's estate should the latter desire to will it to his natural child.
In the present case, for instance, the sons' illegitimacy did not by itself invalidate the legacies by their deceased father to them. The testamentary disposition to these illegitimate sons would have been valid, except *278 for their adulterous conception.[4] Likewise, no statutory bar invalidated the right to the father to make a testamentary disposition of his estate to a third person (rather than to his adultery-conceived children), nor even to the adultery-conceived children of a third person, despite the existence of a surviving spouse (to whom the testator did not wish to will his separate property).
Thus, in all the world, only the children of this father conceived as a result of his adultery are prohibited from receiving his estate if he wills it to themand for the sole reason that their conception was a consequence of his adultery.[5]
II.
Article 1, Section 3, of our state constitution prohibits laws which "unreasonably discriminate against a person because of [his] birth * * *." In the constitutional debates, both proponents and opponents of the provision noted that it included within its scope unreasonable discrimination against persons because of illegitimacy.[6]
The equal protection guarantee of the constitution essentially requires that state laws affect alike all persons and interests similarly situated. Nevertheless, differences in legislative treatment may validly be accorded to persons or interests classified differently, provided there be shown a rational basis for the differentiation which is reasonably related to a legitimate governmental purpose.
See: Williams v. Williams, 331 So.2d 438 (La.1976); State v. Barton, 315 So.2d 289 (La.1975); Petition of Sewerage & Water Bd. of New Orleans, 257 La. 716, 243 So.2d 809, 813 (1971); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 6-10 (1974). See also: Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).
In the present instance, children were denied by statute the right to receive testamentary legacies intended for them by their father. The sole statutory reason was that, at the time of their conception, their father was married to another woman than their mother, i. e., because their conception resulted from a proven adultery.[7] Except for those conceived of an incestuous relationship, no other illegitimates are so penalized.
The thrust of our analysis must be: What valid state purpose is rationally served by a legislative classification which prevents only illegitimates conceived in adultery from having the capacity to receive testamentary legacies from their father, but (save for incestuous children) does not similarly prevent other illegitimates from doing so?
The valid state purpose said to be served is to help preserve the sanctity of the marriage by penalizing adulteries. Does the denial of any right of the adulterous children to receive legacies provide a rational basis for this differentiated effect accorded these illegitimates and no others?
*279 We find no rational basis for this hence-invidious discrimination against illegitimates solely because their birth resulted from an adultery.
Assuming that adulteries are a social evil that endanger the sanctity of marriages, we note that the legislature has not seen fit to provide sanctions against the adulterous parentsonly against their children. "* * * [V]isiting this condemnation [by society "of irresponsible liaisons beyond the bonds of marriage"] on the head of an infant is illogical and unjust. . . . Obviously, no child is responsible for this birth and penalizing the child is an ineffectualas well as unjustway of deterring the parent." Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972).[8]
The irrationality of the sanction provided by the legislative classification is highlighted by the arbitrariness by which it is brought into play so as to affect some children conceived of an adultery and not others.
In practical effect, the only adulterous children affected are those born of a married father and an unmarried motherand then only if the father admits his parentage, Article 209(1), (2), or else it be proved that "the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time the child was conceived," Article 209(3), Succession of Cervini, 228 La. 1054, 84 So.2d 818 (1956).[9]
On the other hand, children conceived of other adulterous connections are not practically subject to Article 1488's severe sanctions, which bar some illegitimates and not others from receiving testamentary dispositions from their own parents.
If both natural parents are married to other persons at the time of an adultery, or if an unmarried father has committed the adultery with a married woman, then any child thereby conceived is afforded protection from illegitimate status by the presumption that the husband of the mother is the father of children born or conceived during the marriage. Article 185. This presumption presents what until now has been an almost insurmountable bar to proving that the child's legal parent is not the mother's husband but is instead, the adulterer, Articles 185-90 (as amended in 1976). See Spaht, The Strongest Presumption Challenged, 37 La.L.Rev. 59, 64-67, 83-86 (1976). Children of such adulteries therefore ordinarily escape the sanction sought to be imposed against the present illegitimates, which deprives them alone of the right to receive testamentary legacies intended for them by their fatheressentially because their father claimed them as his own children conceived in adultery.
In the present case, for instance, if the father's ancient adulteries during his childless marriages had been with women separated from (but technically married to) legal husbands, the present father could have willed his property to his biological sons of these liaisons: Technically, they were then not adulterous bastards, but rather were legitimate offspring of their mothers' marriages with their respective husbands.
Thus, under the present circumstances, the deceased father could have willed his *280 estate not only to his own illegitimate children if not conceived in adultery, but also to any other "legitimate" or illegitimate children, whether or not they were conceived in adultery.
Without reaching other contentions of invidious discrimination against adulterous children solely because of their birth, it suffices in deciding the present litigation that we affirm the trial court's holding that Article 1488, by denying adulterous children the right to receive gifts or legacies intended for them by their parent, offends our state constitution's prohibition against unreasonable discrimination against persons because of their birth. This drastic penalty affecting only illegitimates proven to be conceived in adultery is not shown to be supported by any rational basis reasonably related to the governmental interest sought to be advanced by it. In similar context, the United States Supreme Court has observed: "* * * We have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships." Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 1464-65, 52 L.Ed.2d 31 (1977).
III.
In contending that the complete denial of inheritance rights to adulterous children is founded upon a rational basis, the appellant principally relies upon Succession of Vincent, 229 So.2d 449 (La.App. 3d Cir. 1969), certiorari denied 255 La. 480, 231 So.2d 395 (1970), affirmed eo nomine Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). In that case, no unreasonable discrimination under the federal constitution was found to result from Louisiana's denial to illegitimates of intestate inheritance rights which are granted to legitimate children.
The reliance is misplaced. The issue in Vincent involved the statutory regulation of the distribution of estates of decedents who died without making a will. The rational basis for the discrimination between legitimate and illegitimate children was found to exist in facilitating the prompt and definitive determination of property left by an intestate decedent, as well as in the social policy of encouraging marriage and discouraging illegitimacy.[10]
However valid these may be as rational bases for differentiated treatment of legitimate or illegitimate children for purposes of intestate succession, these reasons do not afford any rational basis to deny completely by statute any right of an illegitimate child to receive a legacy given him by his father's will solely because the child's conception resulted from his father's admitted adulteryespecially where, as here, the father could have willed his estate to non-adulterous illegitimates or to complete strangers.[11]
Our holding that Article 1488 constitutes invidious discrimination against adultery-conceived illegitimates solely because of their birth, where other illegitimate children of the parent are not so penalized, is in accord with similar interpretations of the federal constitution's equal protection guarantees: Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977);[12]Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).[13] See also Warren v. Richard, 296 *281 So.2d 813 (La.1974). However, since we have found that this invidious discrimination is barred by our state constitution, we need not ground our decision upon this additional basis.
Conclusion
Accordingly, we affirm the judgment of the district court, which granted judgment in favor of the decedent's sons and which held Civil Code Article 1488 violated our state constitution by denying the decedent's illegitimate sons the capacity to receive the legacies intended for them by their father's will. All costs to be paid by the appellee.
AFFIRMED.
DENNIS, J., concurs.
SANDERS, C. J., and MARCUS, J., dissent.
SUMMERS, J., dissents and assigns reasons.
SUMMERS, Justice (dissenting).
Decedent Joseph Lee Robins died in East Baton Rouge Parish on July 24, 1975 at the age of 93 leaving substantial property, both real and personal, belonging to his separate estate. He was first married to Fannie Holmes on March 19, 1908. During this marriage the child Ernest James Robins was born on September 21, 1918 of a liaison between decedent and Mamie Hausey. Fannie Holmes died on October 2, 1929. Her succession proceedings disclose there were no children born of her union with decedent, and decedent accordingly was placed in possession of her entire estate.
Thereafter decedent was married to Neonetta Hardnett on January 6, 1931. While married to Neonetta Hardnett a child named James Wilson was born on November 11, 1938 of a liaison between decedent and Dorothy Wilson.
By a statutory last will and testament dated June 12, 1970 and a codicil dated July 17, 1970 decedent bequeathed all of his property to Ernest James Robins and James Wilson, acknowledging by this will that they were his children. On July 17, 1970 decedent executed a notarial adoption of Ernest James Robins and on July 20, 1970 adopted James Wilson in the same manner. La.Rev.Stat. 9:461. These purported adoptions, however, are not relied upon and were ineffective because decedent could not under Louisiana law adopt anyone without the concurrence of his wife. La.Civil Code art. 214.
At the time of his death on July 24, 1975, decedent was survived by his widow Neonetta Hardnett. She intervened in his succession, alleging that Ernest James Robins and James Wilson were adulterine children, that there was no issue of the marriage, and asserting that, as surviving spouse of decedent and his sole heir, she was entitled to be placed in possession of his entire estate. While these proceedings were in progress Neonetta Hardnett died on June 7, 1976, and her sister Deola Hardnett as her universal legatee and sole heir was substituted in her stead.
It is contended on behalf of Neonetta Hardnett's succession that the legacies in favor of Ernest James Robins and James Wilson are absolute nullities upon the authority of Article 1488 of the Civil Code, which provides that: "Natural fathers and mothers can, in no case, dispose of property in favor of their adulterine or incestuous children, unless to the mere amount of what is necessary to their sustenance, or to procure them an occupation or profession by which to support themselves." Since both children are shown by this record to have occupations and to be fully capable of supporting themselves, the alimentary exception to the prohibition against parents disposing of property to their adulterine children is inapplicable to this case.
A plea to the constitutionality of Article 1488 was filed in the trial court on behalf of Ernest James Robins and James Wilson claiming that the article: 1) arbitrarily, capriciously, or unreasonably discriminates against them because of birth and culture contrary to Article I, Section 3, of the Louisiana Constitution of 1974; 2) deprives them of life, liberty and property without due process of law in contravention of Article *282 I, Section 2, of the Louisiana Constitution of 1974; 3) deprives them of life, liberty and property without due process of law and equal protection of laws in violation of the Fourteenth Amendment to the Constitution of the United States; and 4) constitutes a bill of attainder in violation of Article I, Section 9, of the Constitution of the United States.
The trial judge found that Article 1488 was not contrary to the United States Constitution on the basis of the decision of the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). He decided, however, that prohibiting a natural father from making a disposition of property to his adulterine children was a clear violation of Article I, Section 3, of the Louisiana Constitution. That article provides:
"No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime."
Based upon the trial court declaration of unconstitutionality, the case was appealed directly to this Court on behalf of the Succession of Neonetta Hardnett. La.Const. art. V, § 5(D)(1).
I.
In my view the trial judge erred in holding Article 1488 to be unconstitutional in contravention of Article I, Section 3, of the Louisiana Constitution of 1974 and this Court's majority erred in sustaining that holding. In an initial and careful analysis of Section 3 this Court noted in State v. Barton, 315 So.2d 289 (La.1975) that the first and second sentences of Section 3 point up the special consideration the framers of the Constitution gave to the third sentence, which is pertinent to this case. By stipulating in the third sentence that no law shall "arbitrarily, capriciously, or unreasonably discriminate" against a person because of "birth", the Constitution does not impose absolute prohibition as it does in the first two sentences of Section 3 which pertain to equal protection, race and religion. Consequently, if there is a rational basis for a birth classification the legislation is not unreasonably discriminatory and meets the constitutional test.
Distinctions based upon sex, legitimacy, minority and mental infirmity were referred to as "natural" distinctions by Domat. See 1 Domat, prel. bk. 2.73. Historically Louisiana has also recognized that rights in property are closely related to the family unit. Stability of the family and certainty of property rights are sought to be protected by the Civil Code. So interrelated with this purpose is the treatment of illegitimate children that our courts have declined attacks upon the elaborate plan regulating family life embodied in the Code.
Illustrations of this complex structure are pervasive in the Code. The class of legitimate children is limited to those who are conceived during the marriage of their parents. All other children are classed as illegitimate, while this class is further divided into numerous subclasses: Those illegitimate children who could not be acknowledged or legitimated, illegitimate children who obtained a judgment of paternity or maternity against the biological parent (La.Civ.Code arts. 208-12), illegitimates who were acknowledged by their biological parent (La.Civ.Code arts. 202-07), and illegitimate children who were legitimated. La.Civ.Code arts. 198-201.
Article 181 of the Civil Code mentions two sorts of illegitimates: "Those who are born from two persons, who, at the moment when such children were conceived might have legally contracted marriage with each other; and those who are born from persons to whose marriage there existed at the time some legal impediment." Into the latter category fall: 1) adulterous bastards, "those produced by an unlawful connection between two persons, who, at the time *283 when the child was conceived, were, either of them or both, connected by marriage with some other person," (La.Civ.Code art. 182) and 2) incestuous bastards, "those who are produced by the illegal connection of two persons who are relations within the degrees prohibited by law." La.Civ.Code art. 183.
Adulterous and incestuous bastards, generally speaking, cannot be acknowledged or legitimated. La.Civil Code arts. 198, 200 and 204. However, there are exceptions. In the case of adulterous bastards, if there is a subsequent legal marriage of the biological parents, after the impediment to the marriage is removed, the child may be acknowledged. La.Civil Code art. 204. If he is so acknowledged, he is automatically legitimated. La.Civ.Code art. 198.
Furthermore, once the impediment to the marriage is removed, a biological parent can in some instances legitimate the child by notarial act. La.Civ.Code art. 200. There is a specific prohibition in Article 198 of the Civil Code against legitimation of incestuous bastards by subsequent marriage of the natural parents.
Under Article 208 an illegitimate who has "not been legally acknowledged, may be allowed to prove" his paternal descent by proof as outlined in Articles 209 and 210. Upon establishing descent, the illegitimate becomes entitled to claim financial support in the form of alimony. La.Civ.Code arts. 240-45.
An illegitimate child who is acknowledged by his natural parent enjoys not only the right to claim alimony from the parent so acknowledging (La.Civ.Code art. 242), but also a restricted right of intestate inheritance. La.Civ.Code arts. 918-19. See 37 La.L.Rev. 59 (1976).
Legitimate descendants always exclude illegitimate descendants in intestate successions. La.Civ.Code art. 902, 915, 918-19. Legitimate descendants and fathers and mothers are forced heirs, but their illegitimate counterparts are not. La.Civ.Code arts. 1493-95. Legitimate ascendants and descendants in need may claim alimony from each other regardless of their abilities to provide for themselves (La.Civ.Code art. 229); illegitimates may claim alimony only if not able to provide for themselves. La.Civ.Code arts. 240-45. On the other hand, illegitimates cannot be said to be without substantial rights. From their mother who has acknowledged them, illegitimate children inherit her patrimony to the exclusion of her surviving spouse and of all relatives other than her legitimate descendants. La.Civ.Code art. 918. From their father who has acknowledged them, they inherit only in the absence of even remote legitimate relatives and a surviving spouse (La.Civ.Code art. 919); but the father may donate to his illegitimate acknowledged offspring up to one-fourth of his patrimony (and sometimes one-third) if he leaves legitimate relations. La.Civ.Code arts. 1486-87. All illegitimates who either have been acknowledged or, being acknowledgeable but not acknowledged, have proven who their parents are, may demand alimony from them. La.Civ.Code arts. 240-45. And, even the unacknowledgeable illegitimate may prove who his mother is, unless she is a married woman (La.Civ.Code art. 212), and may claim alimony from her and her ascendants. La.Civ.Code art. 245. See 46 Tul.L.Rev. 167, 173 (1971).
Considering the attention the drafters of the Code have devoted to this extensive and thorough legal system designed to sustain the family unit, protect the rights of property and accord to illegitimate children some benefits of inheritance, and a measure of support and sustenance, it is inconceivable that these classifications were intended to be abolished by Article I, Section 3, of the Constitution of 1974 as the holding of the trial judge and the majority would require. Reference to the debates at the Convention assures me that such a result was never intended. Verbatim Transcript, Vol. 12, August 29, 1973, pp. 57, 62, 76, 80, 90, 97; also Vol. 37, January 10, 1974, p. 3. It is implicit from these proceedings that the delegates intended that a reasonable classification should be sanctioned by the Constitution, and this Court has so held. See Williams v. Williams, 331 So.2d 438 (La. *284 1976); State v. Barton, 315 So.2d 289 (La. 1975). The classifications established by the Code between legitimate and illegitimate children are part of a logical and rational system. They are reasonably fair and humane. Since Article 1488 is such an integral component of this system the classification based upon birth which it embodies is neither arbitrary, capricious nor unreasonable and it does not offend the Constitution. The continuing legislative approval of these articles of the Code affecting illegitimates is illustrated by repeated rejection of proposals to alter them.
Without any record evidence to support its position, and without setting forth wherein the article of the Code constitutes an unreasonable classification, the majority has declared Article 1488 unconstitutional. In doing so the established doctrine that a presumption exists in favor of validity has been disregarded, a presumption which should be more compelling where the legislation has been an integral part of the body of Louisiana's vital domestic private law for more than 175 years.
Thus the careful deliberation which requires that a court never declare a statute void unless its invalidity is beyond reasonable doubt has been cast aside in this wholesale emasculation of Louisiana's laws affecting illegitimates. For, in my view, all other legislation affecting illegitimates is jeopardized with this decision. Parish of Jefferson v. Sharlo Corp., 283 So.2d 246 (La.1973); Hamilton v. McKeithen, 254 La. 683, 226 So.2d 494 (1969), appeal dismissed 397 U.S. 245, 90 S.Ct. 1104, 25 L.Ed.2d 278, reh'g den. 397 U.S. 1059, 90 S.Ct. 1351, 25 L.Ed.2d 680; Jones v. State Bd. of Ed., 219 La. 630, 53 So.2d 792 (1951); DeFrancis v. City of Bossier, 322 So.2d 333 (La.App. 2nd 1975), writ denied 325 So.2d 611 (La.1976), cert. den. 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81.
Since no contention has been advanced in argument to support the claim that Article 1488 offends the "culture" clause of Article I, Section 3, that part of the plea of unconstitutionality is considered abandoned.
II.
Insofar as the issues before us are concerned the due process and equal protection guarantees of the State and Federal Constitutions are essentially founded upon like principles. These principles limit the passage of legislation which imposes burdens upon or grants benefits to certain groups or classes of individuals without reason. They require that there be some justification in fact for the statutory classification drawn by the legislature to the end that those similarly situated are similarly classified and treated. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); see State v. Pebworth, 260 La. 647, 257 So.2d 136, 140-141 (1972).
The test is employed in Section 3 of Article I of the Louisiana Constitution of 1974: that the legislation not be arbitrary, capricious or unreasonable. It must rest upon some ground of difference having a fair and substantial relation to the object to be accomplished so that all persons similarly circumstanced are treated alike. The degree of accuracy required of birth-based classifications may be compared to that applied to sex-based classifications referred to in State v. Barton, 315 So.2d 289 (La.1975). The classification is tested by the traditional standards of review demanding only that there be a rational relation between the classification as drawn and the achievement of a legitimate state objective found to be the purpose of the statute. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).
Obviously Louisiana's system of testate and intestate succession is not more unfair or discriminatory than the laws of states which permit a man to leave his entire estate to one of his childrenor in some instances to strangersdisinheriting his remaining legitimate children entirely. Where is the rational basis for such a result? What stated purpose does such a system of laws serve? Is it not permissible under such a system for a person to discriminate against his legitimate children in favor of his illegitimate children?
*285 "It is surely entirely reasonable for Louisiana to provide that a man who has entered into a marital relationship thereby undertakes obligations to any resulting offspring beyond those which he owes to the products of a casual liaison, and this whether or not he admits the fact of fatherhood in the latter case. With respect to a substantial portion of a man's estate, these greater obligations stemming from marriage are imposed by the provisions of Louisiana law making a man's legitimate children his forced heirs. For the remainder of his estate, these obligations are not absolute, but are conditional upon his not disposing of his property in other ways." Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) (Harlan, J., concurring).
In Succession of Vincent, 229 So.2d 449 (La.App.1969), cert. denied, 255 La. 480, 231 So.2d 395 (1970), the Third Circuit held, with the author of the present opinion writing, that within the broad powers of classification invested in the state legislature, there is a reasonable basis for the denial of inheritance to illegitimates equal to that of legitimate children. The opinion continued: A state has a great latitude in regulating descent and distribution, matters peculiarly reserved to the states. United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675 (1950); Harris v. Zion's Savings Bank & Trust Co., 317 U.S. 447, 63 S.Ct. 354, 87 L.Ed. 390 (1943). The classification of illegitimate children in Louisiana law does, in the Legislature's discretion, have a tendency to encourage marriage and to discourage illegitimacy, valid social aims of the state. Since all men must die and leave their property for their successors, the denial of full rights of inheritance to illegitimate children may reasonably be viewed as encouraging marriage and legitimation of children.
I would add to the foregoing, what Louisiana has historically recognized, that the prohibition against incestuous children may reasonably guard against genetic abnormalities in the progeny. In either instance, whether the illegitimacy is adulterine or incestuous, public moral standards are sought to be preservedall legitimate state concerns. The decision today cannot be reconciled with the expressions in Succession of Vincent.
The Third Circuit's holding in Succession of Vincent, supra, was approved by this Court when we denied writs and by the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), where Mr. Justice Black as organ of the Court wrote: "[T]he power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State."
Counsel for Ernest James Robins and James Wilson has referred the Court to the recent decision of Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). As we read this decision it does not overrule Labine v. Vincent insofar as the rationale which we adopt for decision of the instant case. In any event the decision in Trimble v. Gordon is prospective in application and cannot constitutionally retroactively divest vested rights. U.S.Const. art. I, §§ 9 and 10; amends. 5 and 14. Here the rights of inheritance have vested to the exclusion of James Robins and James Wilson long before Trimble v. Gordon. I would, therefore, adhere to Louisiana's time-tested code structure until the laws upon which this case rests are specifically abrogated by the Legislature or declared unconstitutional by the United States Supreme Court. In my opinion Article 1488 of the Civil Code does not deny equal protection or due process of law.
While the majority professes to confine the rationale of today's holding to the particular facts of this case, the end result will effectively invalidate all laws of this state based upon illegitimate births. The decision directly invalidates Articles 204, 920 and 1488 of the Civil Code and Section 391 of Title 9 of the Revised Statutes. If I *286 understand the decision today, such a result will follow so long as this majority sits, whether the rights denied illegitimates are based upon a reasonable classification or notthe Constitution to the contrary notwithstanding.
Because the decision fails to declare whether its effect is prospective or retroactive, the titles to properties throughout the State will remain in question until the rights of illegitimates in them are fixed by a court more conscious of the law's stability.
This expansive interpretation of the law by this majority in this and many other decisions and decrees has caused principles and procedures designed to guarantee at least a minimum quality of justice to be abandoned. The resulting judicial proliferation of rights, legal principles and procedures in the legislative domain has cast the people of this State into a deluge of litigation producing a docket which this Court and many other courts of this State can no longer manage. Because of this the burdens the administration of justice has placed upon the taxpayers of this State has become inordinate and will continue. So long as this Court disregards judicial restraint, usurps the legislative, and indeed as in this case constitutional prerogatives, and seeks to impose upon Louisiana its innovative concepts of social and other reforms repugnant to this Nation's fundamental principles, the future holds no promise for a better day.
I would uphold Louisiana's laws of 175 years designed to strengthen and uphold the family unit, a concept which goes to the very fabric of an orderly society.
NOTES
[1] Actually, by the date of the trial judgment the widow had died. The widow's legatee, her sister, is substituted as the party who asserts the widow's claim to receive the decedent's entire estate in lieu of the illegitimate sons to whom he had willed his separate property.
[2] Article 1488 provides: "Natural fathers and mothers can, in no case, dispose of property in favor of their adulterine or incestuous children, unless to the mere amount of what is necessary to their sustenance, or to procure them an occupation or profession by which to support themselves."
See also:
Article 182: "Adulterous bastards are those produced by an unlawful connection between two persons, who, at the time when the child was conceived, were, either of them or both, connected by marriage with some other person."
Article 183: "Incestuous bastards are those who are produced by the illegal connection of two persons who are relations within the degrees prohibited by law." (Articles 94, 95 prescribe the degrees of relationships between whom marriage is prohibited by law, which for instance include first cousins.)
[3] Article 1, Section 3 is titled "Right to Individual Dignity"; it provides:
"No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime." (Italics ours.)
[4] The present widow claims to be the sole heir of her deceased husband, since the adultery-conceived sons were incapable of receiving their father's legacies. Article 1488. Where there is no valid testamentary disposition, a surviving wife succeeds to her husband's estate if there be no lawful descendants, ascendants, or collateral relations of the decedent. Article 917. However, if the present illegitimates had not been conceived of an adultery, the testamentary disposition to them of the decedent's separate estate is permitted by our code, despite the existence of a surviving widow. Articles 1483, 1486, 1487.
[5] The legislative classification distinguishing adulterous illegitimates from other illegitimates also prevents an adulterous child from inheriting by intestacy, even if there are no other surviving heirs or spouse, Article 920 (unlike other illegitimates, who may inherit by intestacy under these circumstances. Articles 919, 920). In the event the decedent is survived only by adulterous children, their parent's estate escheats to the state. Article 920.
[6] State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts (39 Volumes; 1973-1974) at 12 Proceedings (38th day, August 29) 57, 62, 63, 76, 90.
[7] If the father had not claimed the sons as his own, no such statutory bar prevented his willing his property to them. The son of a friend may receive a legacy from the decedent, but not his own illegitimate son if (and only if) that son was conceived in an adultery committed with that friend.
[8] In Weber, the United States Supreme Court (reversing our decision at 257 La. 424, 242 So.2d 567 (1970)) invalidated a provision of the Louisiana workmen's compensation act as offending the federal Equal Protection Clause of the Fourteenth Amendment. Our statutory provision prevented an un acknowledged illegitimate child from receiving dependency benefits available to acknowledged illegitimates, as well as to legitimate children. In doing so, the court also noted that article 204 of our Civil Code prevents a father from acknowledging his illegitimate child, if adulterous (as was the Weber claimant), and commented: "The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them." 406 U.S. 171, 92 S.Ct. 1404.
[9] Under certain limited circumstances, the oath of the mother can also prove paternity. Article 210; McConkey v. Pinto, 305 So.2d 469 (La.1974). We do not regard this possibility as practically applicable where the effect of the mother's oath and other testimony by her (as to information known only by her) would be to accomplish the disinhersion of her child.
[10] But note, for federal equal protection purposes, the United States Supreme Court's recent express modification of Vincent in Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).
[11] In Vincent, the United States Supreme Court itself recognized this contextual limiting circumstance of its ruling: "* * * There is not the slightest suggestion in this case that Louisiana has barred this illegitimate from inheriting from her father. * * *" 401 U.S. 539, 91 S.Ct. 1021.
[12] An Illinois statute which allowed illegitimate children to inherit by intestate succession only from their mothers was invalidated as denying equal protection to an illegitimate who sought recognition as an intestate heir of her father.
[13] A provision of the Louisiana workmen's compensation act was invalidated as denying equal protection to an un acknowledged illegitimate child, where acknowledged illegitimates were permitted to receive dependency benefits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606124/ | 349 So.2d 948 (1977)
Richard Wayne STEVENS, Plaintiff-Appellant,
v.
REX CHAINBELT, INC., Defendant-Appellee.
No. 11422.
Court of Appeal of Louisiana, First Circuit.
July 11, 1977.
Rehearing Denied August 24, 1977.
Writ Refused October 14, 1977.
Michael W. McKay, Baton Rouge, for plaintiff.
Wood Brown, III, New Orleans, for defendant.
Before SARTAIN, COVINGTON and LOTTINGER, JJ.
SARTAIN, Judge.
In this products liability case plaintiff appeals from an adverse jury verdict. We affirm.
On March 22, 1974, plaintiff sustained serious injuries to his right hand and fingers when they became entangled in a fan belt on a cement mixer manufactured by the defendant.
The mixer, which is portable and known as Model No. 6-S, was manufactured by the defendant in 1949-51. The motor is housed in a metal enclosure. Access thereto is through a side panel which hinges from the *949 bottom. The fan belt which caused the injury may be likened to a fan belt in a typical automobile.
While there is some conflict in the testimony as to how the accident occurred, we will accept plaintiff's version. He states that because there was no exterior cutoff switch to stop the motor, it was necessary to take a board or stick and press a metal tab against the motor housing to short out the magneto. He had picked up a stick to do just this when he tripped over a water pipe near the machine. This caused him to fall forward. The side panel was down at this time and his right hand went through the opening and came in contact with the fan belt.
Plaintiff contends that the mixer was improperly designed and therefore defective in four particulars. (1) There was no exterior kill switch. (2) There was no guard over the fan belt. (3) The side panel should have been hinged from the top so that the weight of the panel would keep it closed. (4) There was no interlock device, that is a safety feature which would have stopped the motor when the panel door was opened and the motor exposed.
The record amply supports the following findings of fact: The machine was purchased second hand by plaintiff's employer and during the course of the latter's ownership it had undergone numerous repairs with certain modifications. When the mixer was manufactured it contained a fan guard. This very guard was found on the ground near the mixer after the accident. It was also equipped with interior and exterior kill switches. The latter had long since been discarded by either the present or a previous owner.
An interlock device can best be described as a mechanism that will kill the motor when a moving part is exposed. If such a device were placed on an automobile, it would kill the motor of the vehicle when the hood is raised. Many heavy industrial machines are now equipped with one. However, plaintiff's own expert conceded that there were no interlock devices in 1949 and 1950.
With respect to the side panel, the testimony shows that it could not be closed at the time of the accident because several hoses which were attached to the motor were routed through this particular opening. Plaintiff's expert testified that the design of the panel was defective because had the panel been hinged from the top, it would have prevented exposure of the motor in spite of the presence of the hoses. The unalterable fact remains that the attachment of the hoses in the manner utilized by the owner at the time of the accident was a modification not contemplated in the original design.
For liability to attach in a products liability case, it is essential that the defect complained of exist at the time the product left the possession of the manufacturer. Frey v. Travelers Insurance Company, 271 So.2d 56 (La.App. 4th Cir. 1972), writs refused, 273 So.2d 840 (La.1973).
The verdict of the jury clearly reflects the clear preponderance of the evidence and the law applicable thereto.
Accordingly, the judgment of the district court is affirmed at appellant's costs.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606321/ | 359 Mich. 269 (1960)
102 N.W.2d 483
BURGESS
v.
CITY OF DETROIT.
Docket No. 20, Calendar No. 47,983.
Supreme Court of Michigan.
Decided April 11, 1960.
*271 Daniel G. Shea and Sidney E. Stephens, for plaintiffs.
Nathaniel H. Goldstick, Corporation Counsel, and Bert R. Sogge, Assistant Corporation Counsel, for defendants.
KAVANAGH, J.
This is a class action brought by plaintiffs for a declaratory judgment construing several sections of the charter of the city of Detroit These sections refer to the policemen and firemen retirement system. The plaintiffs are widows and beneficiaries of policemen and firemen killed in the performance of duty or receiving injuries resulting in death prior to July 1, 1941. Those plaintiffs who are widows and beneficiaries of firemen receive $100 per month pensions pursuant to section 16, chapter 15, title 4, of the charter, and those plaintiffs who are widows and beneficiaries of policemen receive a like amount pursuant to section 19, chapter 21, title 4, of the charter.[*]
Prior to a charter amendment made November 5, 1940, to be effective July 1, 1941, by chapter 7, title 9, of the charter, the provisions with reference to pensions and retirement and death benefits were under separate sections of the charter. The 1940 amendment provided a new joint plan for policemen and firemen including increased benefits, without disturbing the old plans. The new plan covered all policemen and firemen in service on the effective date of the act, which date was July 1, 1941, except those who had 20 or more years of service in either *272 department. Any member who had 20 or more years of service was excluded, unless he filed with the board a written election to become a member of the new system. If he did not so elect, he retained for himself, wife, children, dependent mother, and dependent sister all rights and privileges provided by chapters 15 and 21 of title 4 of the charter, commonly referred to as the "old system." Plaintiffs' husbands were never members of this new system, since their husbands died prior to the effective date of the new system. Plaintiffs seek to have the benefits of the new system applied to the so-called old plans under chapters 15 and 21.
The trial court found as a fact that the city of Detroit had had considerable trouble with the firemen and policemen pension programs. The difficulty was one of attempting to keep them financially sound. The attempt to correct these difficulties brought into being the new system. The trial court further found that although it would have been legally possible for the city of Detroit to have granted increased benefits to the plaintiffs herein, the city had intentionally failed to do so and, by appropriate language, had excluded them from the new system.
Plaintiffs appeal, claiming the trial court erred in finding that the amendments to the charter excluded plaintiffs from receiving the increased pension benefits provided by the 1940 amendment. Plaintiffs further claim that if the 1940 charter amendment be construed as denying widows whose husbands lost their lives in line of duty before July 1, 1941, the pension benefits therein allowed the widows whose husbands lost their lives after July 1, 1941, the amendment would be unconstitutional in that it discriminates between similarly situated members of the same class.
The trial court, in reviewing the history with reference to the amendment of the charter and the proceedings *273 before the common council, noted that 2 propositions had been submitted, one that would include the plaintiffs and one that would not. The one that would not include the plaintiffs was eventually submitted to the people, and adopted. The trial court concluded from this and other facts in the record that the common council was well acquainted with the needs of the plaintiff widows and that the specific provision that they might not enjoy the benefits of the increase under the new system was not inadvertent, but intentional. Since they were under consideration, the failure to mention them taken together with the language of article 4, § 1, and article 9, § 5, of chapter 7, title 9, is strong evidence of an intention to continue benefits to these plaintiff widows only under the old system.
To arrive at a proper understanding of the problem, it is necessary to review several sections of the charter:
"Title 9
"Chapter 7
"Article 2
"Sec. 4. `Member' shall mean any policeman or fireman included in the membership of the system as provided in article 4, § 1, of this amendment. * * *
"Sec. 1. `Beneficiary' shall mean any person in receipt of a pension, an annuity, a retirement allowance, or other benefit provided by the system. * * *
"Article 4
"Sec. 1. The membership of the system shall consist of the following:
"(a) All policemen and firemen as defined in sections 2 and 3 of article 2 of this amendment who are in service on the effective date of this amendment, provided, however, that any policeman or fireman who, on or before the effective date hereof, *274 shall have been in the employ of the police or fire department for a period of 20 years, or who shall have a total of 20 years of creditable service, shall be excluded from the provisions hereof and shall retain for himself, wife, children, dependent mother and dependent sister all rights and privileges provided by chapters 15 and 21 of title 4 of this charter, unless such policemen or firemen, on or before June 1, 1941, shall file with the city controller his written election to become a member of the system, in which event he shall be a member; such excluded policemen not electing to become members, from and after the effective date of this amendment, while they remain active members of the police department, shall pay 5% of each salary payment into the fund for retired policemen, and such excluded firemen not electing to become members, from and after the effective date of this amendment, while they remain active members of the fire department, shall pay 5% of each salary payment in to the fire department pension and retirement fund, and such salary contributions shall hereafter be used toward the payments of retirement allowances provided for under chapter 15, § 14, subsections (1), (2), and (3) thereof. On retirement, the contributions of such excluded members shall cease.
"(b) All persons who become policemen or firemen on or after the effective date of this amendment and who are confirmed as policemen or firemen according to the rules and regulations of the respective departments shall thereupon become members of the system; subject however, to the following provisions:
"1. Any person who shall become a policeman or fireman at an attained age of 31 years or more may become a member of the system only by vote of the board of trustees who shall fix the rate of contribution of such member on a basis recommended by the actuary for the attained age of such member.
"2. Any appointive official of the police department or fire department appointed from the membership thereof shall be permitted to remain a member *275 of the system, paying contributions and entitled to benefits as though he had remained in the rank, grade or position held at the date of his appointment.
"3. Any policeman or fireman who, prior to being confirmed, shall be killed or totally incapacitated as the result of the performance of active duty, shall be deemed to have been a member of the system.
"(c) Any member who shall be transferred to a civilian position in his department may retain his rights as a member, subject to all the obligations of a member."
"Article 9
"Sec. 5. No other provision of law, charter or ordinance, which provides wholly or partly at the expense of the city for pensions or retirement benefits for policemen or firemen, their widows, or other dependents, shall apply to members or beneficiaries of the system established by this amendment, their widows, or other dependents.
"(a) All provisions of laws, inconsistent with the provisions of this amendment, are hereby repealed to the extent of such inconsistency.
"(b) This amendment shall not apply to any person who, at the effective date of this amendment shall be receiving a pension or other benefit from the city under the provisions of chapter 15 or 21 of title 4 of this charter, or who is excluded from membership in this system as provided by article 4, section 1(a) of this amendment."
Widows' pensions for policemen who were killed or injured prior to July 1, 1941, are found in title 4, chapter 21, § 19, which reads as follows:
"Sec. 19. Whenever any member shall be killed or die from the effect of injuries received while in the performance of duty, the widow and children, if any, or the children if there is no widow, or the dependent mother if there is no widow or children, or the dependent sister if there is no widow, children, *276 or dependent mother, of any member who has been killed or has died, since October 1, 1924, from the effect of injuries received while in the performance of duty, shall by vote of the police pension committee herein provided be paid a pension. The widow, dependent mother, or dependent sister, as the case may be, shall receive the sum of $100 per month during the term of her natural life, or until she remarries, in which case all payment of moneys under this charter to such widow, dependent mother, or dependent sister shall cease. If there be a widow and child or children, there shall be paid in addition to pension granted said widow, the sum of $20 per month for each such child under the age of 16 years, which amount shall continue to be paid on account of each such child until it shall reach the age of 16 years, unless such widow shall die or remarry, in which case, or in case such deceased person shall leave no widow, but shall leave 1 or more children, there shall be paid to the person responsible for the care of each such child as shall be under the age of 16 years, the sum of $40 per month. Such payments shall be made monthly, shall continue on account of each such child until it shall have attained the age of 16 years, and shall be made in the manner herein provided. Any pension heretofore authorized shall hereafter be paid in accordance with the provisions of this section."
Widows' pensions for firemen who were killed or injured prior to July 1, 1941, are found in title 4, chapter 15, § 16, which reads as follows:
"Sec. 16. In case any person, a confirmed member of the fire department or an employee, shall be killed while in the discharge of his duties, or shall receive injuries which result in his death, since October 1, 1924, the widow first, or, if there be no widow, then the mother of such person, if dependent upon him for support, or, if there be no widow or dependent mother, then the sister of such person, if dependent upon him for support, shall, by vote of the fire *277 department pension committee, be paid a pension. The widow, dependent mother, or dependent sister, as the case may be, shall receive the sum of $100 per month during the term of her natural life, or until she remarries, in which case all payment of moneys under this charter to such widow, dependent mother, or dependent sister shall cease. If there be a widow and a child, or children, there shall be paid in addition to the pension granted said widow, the sum of $20 per month for each such child under the age of 16 years, which amount shall continue to be paid on account of each such child, until it shall reach the age of 16 years, unless such widow shall die or remarry, in which case, or in case such deceased person shall leave no widow, but shall leave 1 or more children, there shall be paid to the person responsible for the care of each such child as shall be under the age of 16 years, the sum of $40 per month. Any pension heretofore authorized shall hereafter be paid in accordance with the provisions of this section. Provided, however, that nothing shall be due hereunder except in consideration of a waiver of, and in lieu of any provisions of the `workmen's compensation act,' so-called; and provided further, that to or on account of any beneficiary hereunder who resides in any foreign country, payments of but 1/2 of the sums herein mentioned shall be made."
Plaintiff widows contend title 9, chapter 7, article 9, § 5, subd (b), is ambiguous and must be read in conjunction with article 4, § 1, which provides that policemen and firemen with 20 years or more of service have a right of election whether to become members of the new system or to remain under the old system. Certain policemen and firemen with long years of service would receive greater benefits under the old system than under the new one. Likewise, this was true of their widows in the event of their election. Therefore, the widows contend that *278 living firemen and policemen in service on July 1, 1941, had a right to elect to come under the old system and thereby to preserve their rights and benefits to themselves as well as to their widows. Plaintiff widows, however, contend, their husbands having died before July 1, 1941, no right of election could possibly accrue to them and that, therefore, they automatically receive the benefits and increases of the new system since they were made a part of it. Simply stated, they contend the only ones excluded were the widows of policemen and firemen who died after July 1, 1941, and after their husbands had elected to remain under the old system. Despite these contentions, consideration must be given to the language of section 5 of article 9 of the amendment, which provides:
"All provisions of laws inconsistent with the provisions of this amendment, are hereby repealed to the extent of such inconsistency."
The provisions of section 16 of chapter 15 and section 19 of chapter 21, title 4, of the charter under which plaintiff widows are now receiving pensions are on their face inconsistent with the provisions of title 9, chapter 7, article 6, part D, through which widows who became such after the passage of the amendment received increased benefits. All of the funds provided for payment of pensions in chapters 15 and 21 of title 4 (old system) are diverted either into retirement benefits for those members already retired or who were retiring under sections 14 and 23 of chapters 15 and 21 of title 4, or are diverted into the pension reserve fund. This results in widows' pensions becoming the direct obligation of the city under chapter 7, title 9 (new provision of charter), which would appear to be inconsistent with section 16 of chapter 15 and section 19 of chapter 21, title 4 (old system).
*279 Article 4, § 1(a), included all policemen and firemen in service on the effective date of the amendment within membership of the new system, specifically excluding all policemen and firemen having 20 years or more of service, unless such persons had expressly filed a written election to become members of the new system. Any excluded person retained "for himself, wife, children, dependent mother, and dependent sister all rights and privileges provided by chapters 15 and 21 of title 4."
Article 6, part D, of title 9, chapter 7, amended section 16, chapter 15, and section 19, chapter 21, with relation to death benefits for widows and children of members who come under the new system.
No question has been raised that any of plaintiffs' husbands were ever members of this new system, chapter 7, title 9, but plaintiffs seek to have the benefits of the new system apply when their husbands' rights and privileges were to be determined under chapters 15 and 21 of the so-called old plans.
As to those excluded policemen who did not come under the new system, article 4 provided that they were to pay 5% of their salaries into the fund for retired policemen, which is section 23, chapter 21 of title 4, and which has no provision for widows' pensions, but only relates to retirement benefits for policemen. This, it should be noted, is a fund exclusively for policemen.
As to excluded firemen, provision was made that they were to pay 5% of their salaries into the fire department pension and retirement fund, which is section 14, chapter 15 of title 4, to be used exclusively for retirement benefits without relation to widows.
Article 4 attempted to include certain members in the 1940 amendment benefits but, at the same time, it excluded certain members. It allowed them to retain benefits under section 14, chapter 15 and section 23, chapter 21 of title 4, and required them to pay *280 5% of their salary into a fund for retirement benefits from which widows are excluded.
We think the trial court was correct in holding that the language of the charter amendment clearly showed an intent to exclude the plaintiff widows from the increased benefits provided under the 1940 amendment.
The remaining question is whether such exclusion makes the amendment unconstitutional. All widows of policemen and firemen whose husbands were members of the new policemen and firemen retirement system at date of death or retirement are in one class and subject to the new provisions for benefits. All widows prior to the amendment are in another class. This Court has many times held that legislation is not unconstitutional because it is legislation of a particular kind or character, or because it benefits a particular class, so long as the law operates equally upon those within the particular class. In re Phillips, 305 Mich 636; Lake Shore Coach Lines, Inc., v. Secretary of State, 327 Mich 146; People's Appliance, Inc., v. City of Flint, 358 Mich 34. This amendment includes all within the respective classes; consequently, it is not arbitrary or unreasonable. The legislative body in its wisdom determines who shall receive benefits. In this instance it chose to exclude plaintiffs. This Court cannot and will not question its reasons unless they appear to be palpably arbitrary or unreasonable. Ver Hoven Woodward Chevrolet, Inc., v. Dunkirk, 351 Mich 190; Metropolitan Funeral System Association v. Commissioner of Insurance, 331 Mich 185.
The judgment of the lower court is affirmed. A public question being involved, no costs are allowed.
DETHMERS, C.J., and CARR, KELLY, and EDWARDS, JJ., concurred with KAVANAGH, J.
*281 BLACK, J. (concurring).
I agree with the construction given by the Court to these municipal charter provisions. But we part company on approach to the Court's redeclared conception of equal protection that a challenged enactment is good "so long as the law operates equally upon those within the particular class."
That which I continue to oppose (see separate opinion, Verberg v. Simplicity Pattern Co., 357 Mich 636, 645, 646) traces lineage back to the loose use of words found on page 339 of the report of In re Brewster Street Housing Site, 291 Mich 313. On that occasion Michigan's regularly cited decision of pertinence (Haynes v. Lapeer Circuit Judge, 201 Mich 138 [LRA1918D, 233]) was assigned as supporting Brewster's declaration that legislation is valid as against appeal to the right of equal protection provided it is found that those within "the particular class" are treated equally; whereas Haynes (p 14) holds properly and more accurately that legislation so challenged satisfies the test when it is made uniform "upon all persons of the class to which it naturally applies."
The trouble with Brewster and its progeny is not hard to find. Manifestly reading Haynes in somewhat of a hurry, the Court in Brewster eliminated the key word "natural" from Haynes' announcement of principle and substituted the word "particular" in the place thereof. Note that Haynes' rule was written from the uniformly accepted text of Ruling Case Law, quoted on page 142 of Haynes' report (also quoted below).[*] Note also that American Jurisprudence, the modern successor to Ruling Case Law, carries the identical text and cites Haynes, with numerous *282 other authorities, in support (12 Am Jur, Constitutional Law, § 482, pp 156, 157).
Brewster's unfortunate phrasing was repeated in In re Phillips, 305 Mich 636, 641; Rohan v. Detroit Racing Association, 314 Mich 326, 350 (166 ALR 1246); Fitzpatrick v. Liquor Control Commission, 316 Mich 83, 96 (172 ALR 608); and Lake Shore Coach Lines v. Secretary of State, 327 Mich 146, 153. Now it appears in this case of Burgess. What "particular class" is meant? All I can gather from iterated Brewster is that such class is the one claiming invidious discrimination. Is equal protection provided when all members of such "particular class" are treated alike? If so, the way to calculated evasion of this supposedly protected constitutional right is open for all who tend the fires of malignant discrimination.
When an appeal is made to the right of equal protection, the ultimately decisive question is whether the challenged classification is palpably or provably arbitrary. Here the plaintiffs' challenge is ineffective, it appearing that the substantial and nonarbitrary differences between the pre-1941 class of widowhood and the post-1941 class, such differences being manifest on the face of the scrutinized charter provisions, fairly justify favoring of the latter over the former in terms of increased benefits. The 2 classes were not carved out of "a natural class" the members of which, under germane provisions of the charter, are entitled to uniformity of benefits.
I concur in affirmance.
SMITH, J., concurred with BLACK, J.
SOURIS, J., took no part in the decision of this case.
NOTES
[*] For these, and other charter provisions referred to, see Municipal Code (1954), City of Detroit, charter section, particularly pp 89, 91, 114, 115, 244, 249, 254, 263. REPORTER.
[*] "`The legislature cannot take what might be termed a natural class of persons, split the same in two and then arbitrarily designate the dissevered factions of the original unit as 2 classes, and thereupon enact different rules for the government of each.' 6 RCL. Constitutional Law, § 375, p 383." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611445/ | RICHARD AND LINDA SUPPLE AND CORNELIA ROTH
v.
MAEGAN BERRIGAN AND SAFECO INSURANCE COMPANY
STATE FARM FIRE AND CASUALTY COMPANY
v.
MAEGAN E. BERRIGAN, GENERAL INSURANCE COMPANY OF AMERICA, ERIN GANT AND ABC INSURANCE COMPANY
No. 2008 CA2513, Consolidated with No. 2008 CA2514.
Court of Appeals of Louisiana, First Circuit.
June 12, 2009.
W. RANSOM PIPES, J. ALEXIS MYSHRALL, Attorneys for Appellant, State Farm Fire and Casualty Co.
MATTHEW J. UNGARINO, ALBERT D. GIRAUD, Attorney for Appellees, Maegan Berrigan and Safeco Ins. Co./General Ins. Co. of America
CRAIG S. WATSON, Attorney for Appellees, Richard and Linda Supple and Cornelia Roth.
STANLEY S. SPRING, Attorney for Appellee, Erin Gant.
Before: CARTER, C.J., WHIPPLE and DOWNING, JJ.
Not Designated for Publication
CARTER, C.J.
This appeal arises from an accident that occurred in the early afternoon of March 2, 2005, near the intersection of Highland Road and Leeward Drive in Baton Rouge. Maegan Berrigan was traveling on Highland Road (toward the LSU campus), as Erin Gant was traveling toward Highland Road on Leeward Drive (approaching Highland Road from Berrigan's right). When Gant reached Highland Road, she stopped, then pulled forward to see around some foliage blocking her view to the left. Berrigan observed Gant's vehicle pulling forward approximately three to five feet ahead of her, swerved to avoid what she perceived would be an accident, then lost control of her car. Berrigan's vehicle left the roadway, crashed through a fence and into the residence of Richard and Linda Supple. The accident ruptured a gas main and caused a fire that damaged the Supples' home.
Two suits were filed as a result of the accident. The Supples filed one suit against Berrigan and her insurer seeking damages for their personal injuries, loss of personal items within the home, inconvenience, mental anguish, loss of enjoyment of life and lost wages.[1] State Farm, the Supples' homeowners' insurer, filed a separate suit against Berrigan and her insurer, and Gant and her insurer, seeking subrogation for amounts it paid to or on behalf of the Supples. The two suits were consolidated. However, the trial court granted a motion to bifurcate the trial of the two suits, with the Supples' claims being tried by the judge and State Farm's being tried by a jury.
In considering the Supples' claims, the judge found Berrigan to be 100% at fault in causing the accident, and awarded Richard and Linda Supple each $29,000.00. In considering State Farm's claims, the jury found Berrigan to be 40% at fault and Gant 60% at fault in causing the accident. The jury determined that damages in the amount of $150,000.00 should be awarded to State Farm. Thereafter, the trial court rendered a single judgment in the consolidated cases including the rulings of both the judge and jury, and rendering judgment against Berrigan and her insurer in favor of State Farm in the amount of $60,000.00 (representing 40% of $150,000.00). State Farm's motion for judgment notwithstanding the verdict or new trial was denied. State Farm now appeals challenging the jury's fault determination and the damages awarded by the jury.[2]
A trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. Hebert v. Rapides Parish Police Jury, 06-2001 (La. 4/11/07), 974 So.2d 635, 654. When reviewing fault allocation, an appellate court should determine the highest and lowest percentage of fault that could reasonably be assessed to each party, upon consideration of the following factors: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607, 611. Allocation of fault is not an exact science, or the search for one precise ration, but rather an acceptable range, and any allocation of by the factfinder within that range cannot be clearly wrong. Hebert, 974 So.2d at 655.
Berrigan and Gant gave conflicting accounts regarding Gant's actions prior to the accident. Gant testified she stopped, then pulled forward and was at a complete stop when Berrigan swerved and lost control. Gant maintained that her vehicle was not in the roadway of Highland Road. Berrigan, however, testified that when she first saw Gant three to five feet ahead of her, Gant's car was entering Highland Road and was not stopped. Berrigan also indicated that Gant appeared to be talking on a cell phone, which Gant denied.
Clearly the jury's credibility determinations factored heavily in its decision. We find that the jury's assessment of 60% fault to Gant and 40% to Berrigan is within an acceptable range, and thus is not manifestly erroneous.
With regard to damages, State Farm claims it established that it paid a total of $277,657.59, to or on behalf of the Supples for repairs to their home, landscaping, value of home contents, and additional living expenses. State Farm presented evidence indicating amounts it paid. State Farm also presented the testimony of its claims representative. The claims representative was not qualified as an expert. The claims representative testified as to the amounts State Farm could recover under the policy and what portion of the expenses must be depreciated to determine the actual cash value. He explained that depreciation is not an exact science and that he considered a variety of factors to determine the depreciation figure and the items to which it should apply. Much of this, he explained, was based on judgment. He further acknowledged that using a different depreciation figure than his would yield a different actual cash value.
While we may have reached a different conclusion were we sitting as the trier of fact, we cannot conclude that the jury's calculations amount to manifest error. The jury was charged with calculating the amount owed under the policy, including the actual cash value of certain claims and was free to reject the opinion of the claims representative in doing so. Scoggins v. Frederick, 98-1814, 1815, 1816 (La. App. 1 Cir. 9/24/99), 744 So.2d 676, 687, writ denied, 99-3557 (La. 3/17/00), 756 So.2d 1141. Clearly the jury discredited the claims representative's testimony in calculating the actual cash value of amounts owed under the policy. Considering the record before us, we find no merit to this assignment of error.
For the foregoing reasons, the judgment of the trial court is affirmed in accordance with URCA Rule 2-16.1.B. Costs of this appeal are assessed to State Farm Fire and Casualty Company.
AFFIRMED.
NOTES
[1] The Supples were not at home at the time of the accident. Cornelia Roth, Ms. Supple's mother, was in the home with her sitter. Roth sustained injuries to her shoulder while escaping the burning house. Prior to the suit being filed, Roth suffered a stroke and died. The suit was filed by Richard and Linda Supple and Cornelia Roth. The claims related to Roth were resolved prior to trial. For ease of reference, we refer to the plaintiffs to that suit collectively as "the Supples."
[2] Initially, we note the facial inconsistencies of the judgment on appeal, with the judge and jury differing on allocation of fault. However, only State Farm's appeal of the judgment against Berrigan is before the court; thus our review is confined to that portion of the judgment. See Thornton v. Moran, 348 So.2d 79, 82-83 (La. App. 1 Cir. 5/9/77) (on rehearing). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605986/ | 349 So. 2d 370 (1977)
FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE
v.
NOVEM, INC.
No. 8270.
Court of Appeal of Louisiana, Fourth Circuit.
June 30, 1977.
Rehearing Denied September 9, 1977.
*371 Bridgeman & Conway, James R. Conway, III, Metairie, for First Wis. Nat. Bank of Milwaukee and Pioneer Nat. Title Ins. Co., plaintiffs-appellants.
Mmahat, Gagliano, Duffy & Giordano, Nicholas J. Gagliano, Metairie, for Mark A. Oswald, d/b/a Interior Trim Co., appellant.
Gerald P. Webre, Metairie, for Reverend C. T. "Preacher" Walker, appellant.
Bernhardt C. Heebe, New Orleans, for Nu-Way Steel & Supply, Inc. appellee.
Hoppe, Kelly & Dupepe, Henry B. Hoppe, Jr., and Don J. Dupepe, Metairie, for C. J. Christina, Inc., Advanced Painting, Inc., and H. C. Seals, Jr., appellees.
Cronvich & Wambsgans, Richard M. Michalczyk, Metairie, for Gats, Inc., appellee.
Joseph N. Naccari, New Orleans, for Louis Jordano, Jr., d/b/a Jordano Const. Co., appellee.
Mmahat, Gagliano, Duffy & Giordano, Nicholas J. Gagliano, Metairie, Dodge, Friend, Wilson & Spedale, Joseph E. Friend, William J. Oberhelman, Jr., New Orleans, for Crane Supply Co., Inc.; Cancienne Const. Co., Inc.; Mark A. Oswald, d/b/a Interior Trim Co., Tulane Hardwood Lumber Co., Inc. and Hill-Behan Lumber Co., appellees.
Sidney D. Torres, III, and George N. Bischof, Jr., Chalmette, for Custom Painting Contractors, Inc., and C. J. Kerner, d/b/a Kerner Builders, appellees.
Harold E. Kytle, Kenner, for Rite-Way Plumbing, Inc., appellee.
Jospeh S. Russo, Jefferson, for Dowdy Bros. Concrete Co., Inc., intervenor-appellee.
Before REDMANN, STOULIG and MORIAL, JJ.
STOULIG, Judge.
This appeal involves the ranking of claims by creditors of Novem, Inc. (Novem), a corporation that failed in an attempt to complete construction of a motel. The building contract was not recorded.
This litigation began on December 2, 1974 when the First Wisconsin National Bank of Milwaukee (bank) filed a petition to foreclose via executiva on a mortgage it held on property at 2731 Causeway Boulevard, Metairie, for Novem's failure to pay the amounts due on a $1,850,000 note. At this *372 time construction on the partially completed motel was at a standstill because Novem could not obtain funding to complete the job. Meanwhile, numerous liens had been filed against the property on behalf of unpaid laborers and/or materialmen for services rendered or materials used in the partial construction. Because the lienholders claimed a preference over the mortgage creditor, the bank and its mortgage insurer, Pioneer National Title Insurance Company, filed several rules to rank privileges with the object of having its mortgage adjudicated as priming the liens of the numerous creditors cited.
From a judgment giving priority to the lienholders whose affidavits were filed long after recordation of the mortgage, the bank and its title company have appealed. Although several lienholders also appealed, they are not before us because their appeals were either dismissed as untimely or voluntarily because of compromise. By answer to the appeal, the demand for an increased judgment by Dowdy Bros. Concrete Co., Inc., is before us.
Appellants claim the priority of the mortgage on either of two theories: (1) that it was recorded before any work was done or material delivered to the building site; and/or (2) appellees failed to file their respective lien affidavits within 60 days of the last work performed on the motel.
In this case the ranking of competing claims is governed by that section of the Private Works Act dealing with unrecorded building contracts, R.S. 9:4812, et seq. We quote the portion of that statute relevant to the issues before us:
"When the owner * * * undertakes * * * construction * * * for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation, and may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such cause of action shall prescribe within one year from the date of the recordation of the claim in the mortgage records of the office of the clerk of court or the office of the recorder of mortgages. * *
* * * * * *
"The said privilege shall be superior to all other claims against the land and improvements except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor's privilege, whether arising from a sale or arising from a sale and resale to and from a regularly organized homestead or building and loan association, if the vendor's privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished. * * *" (Emphasis added.)
A pivotal issue is whether the mortgage was recorded before any construction was begun or any materials furnished. R.S. 9:4819(A)(1) sets the criteria by which this determination may be made. We quote:
*373 "(A) The phrase, `before the work or labor is begun or any material is furnished', as used in R.S. 9:4801-9:4817, both inclusive, shall be defined as follows:
(1) In the event that the work or construction is new, then `work or labor is begun or material is furnished' is defined as having begun when either excavation has been started so that it can be observed on inspection, or material has been furnished and delivered to the job site which is visible upon inspection and which material when delivered had a value in excess of one hundred dollars provided, however, that test piling shall be excluded from this definition."
The trial judge found as a fact, and the record amply supports his findings, that the mortgage was not filed in time to prime the claim of the various lienholders because the following activities had taken place on the jobsite before the mortgage was recorded on December 13, 1972: (1) the jobsite had been cleared by a bulldozer at a cost of $300; (2) two portable construction shacks were placed on Novem's land; the corners of the building were staked as a guide to driving of test piles; (4) 18 pilings, valued at $16 each, were delivered to the jobsite, of which 15 were used in the structure itself and were not test pilings; and (5) wooden stakes valued at $500 were stored in one of the construction buildings. These activities constituted a construction beginning and a material delivery sufficient to give the lienholders priority over the mortgage creditor, whose security device was not recorded in sufficient time to give it the superior ranking afforded mortgagees by R.S. 9:4812.
The next issue raised by the bank is timeliness of filing the various liens. Briefly, construction was closed down on July 10, 1974. Novem continued in its efforts to secure financing to complete the motel and in the latter part of September 1974, had a fence constructed around the premises to discourage vandalism. On December 2, 1974, the foreclosure was filed and it is from this date that the trial court determined the 60-day period began to run within which laborers and materialmen could file liens.
Of the 13 lienholders now before this court as appellees (the balance of the claims have been compromised), appellants' second argument is not applicable because the liens were filed within 60 days of the last day appellants contend the job was abandoned by Novem, namely July 10, 1974. We note the creditors; the dates the liens were recorded that clearly brought them within the timely filing period of R.S. 9:4812 no matter whose computations are used; and the amount the judgment of the trial court recognized as due them:[1]
1. Gats, Inc., August 12, 1974, $994.35.
2. Rev. C. T. "Preacher" Walker, July 3, 1974, $726.80 plus $3.75 costs.[2]
3. Hill-Behan Lumber Co., September 6, 1974, $4,805.13.
4. R. J. Marchand & Co., Inc., August 22, 1974, $5,547.24.
5. Loy E. Ernest and John J. Orfanos, d/b/a Ernst & Orfanos, August 15, 1974, $3,752.
6. R. A. Louviere, Sr., August 26, 1974, $3,047.40 plus $3.75 costs.
7. Advanced Painting Company, June 7, 1974, $8,000.
8. Dowdy Brothers Concrete Company, Inc., August 8, 1974 $7,780.52.
9. Tulane Hardwood Lumber Co., Inc., August 12, 1974, $19,537.49.
10. Rite-Way Plumbing, Inc., April 22, 1974, $30,100.88.
11. H. C. Seals, Jr., August 1974, $1,215.20.
There remains two lienholders to whom the argument of timeliness of recordation might be applied were the bank's position *374 on the date of abandonment meritorious, that is, that the 60-day filing period began to run on July 11, 1974 (the day following the last physical construction activity on the property). These are Rodney Coco, Inc., whose lien was filed December 18, 1974 and C. J. Christina, Inc., whose lien was filed October 31, 1974. Both were filed timely.
In this case the time began to run only when it became apparent that the owner could not complete the job and had abandoned it. This did not become evident until December 2, 1974 when the bank initiated foreclosure proceedings. Until that time, Novem attempted to obtain more financing to finish the project that was stopped when it was nearly completed.
Before an abandonment date can be fixed on an incomplete construction project, there should be some outward manifestation of the owner's intent to give up the project. In Singer Lumber Co. v. King, 45 So. 2d 567 (La.App.Orl.1950), the court discussed this problem and its resolution is apposite here. We quote:
"We are, however, not concerned with the question of when to commence the sixty-day period when the work is completed. Our problem is when to commence the sixty-day period when the work is never completed and the job is abandoned. The District Judge decided that even if it should be properly held that where there is an actual abandonment and the owner decides not to have the work continued, the sixty-day period commences at the time the owner so decides, nevertheless the lien filed by the plaintiff here was not filed too late because long after the discontinuance of the actual work on the project and, in fact, until well within the period of sixty days before the lien was filed, the owners had not abandoned the project and were still hoping to be able to have the contractor recommence operations.
"We are not at all certain as to when the sixty-day period should commence when there is an actual definite abandonment of the job. We find it difficult to persuade ourselves that in such a case the beginning of the sixty-day period may be fixed by any mental determination of the owner. The statute, as interpreted by the Supreme Court, declares that where there is a contract, the materialmen and the laborers and others shall have sixty days from the acceptance of the work within which to file their liens, and that where there is no contract, they shall have sixty days from the completion of the work. A prospective lienor, therefore, need only watch the job to see when the work is completed since he knows that after it is completed he will still have sixty days within which to record his lien. So long as it is not completed, he knows that he still has ample time. How can he determine when the owner has agreed to an abandonment? How can he know that the time for the filing of his lien is running out? He will see that the work, in its incomplete state, is still unfinished and yet when he records his claim he will be told that more than sixty days before that the owner decided that he would go no further with the work and that, therefore, he has lost his lien.
"Still if we assume that such result may be accomplished by the mere mental determination of the owner that the work is abandoned, we must nevertheless agree with our brother of the District Court that at the time this lien was filed there had not expired sixty days from the time at which the defendants still hoped to be able to persuade the contractor to proceed with the work. * * *" 45 So.2d at 570.
Therefore, we conclude the liens of the appellees were timely recorded and were properly given higher priority than appellants' mortgage.
We note appellants are attempting to argue the proceeding below simply was for the purpose of ranking creditors and not for judicially recognizing the dollar amount to which each lienor is entitled. We disagree. This course would require a multiplicity of trials and appeals were we to first rank the creditor by name and remand for a second *375 trial to set the amount of money due to each. We further note appellant abandoned this issue by not raising it as a specification of error in brief.
Finally, we consider the request by Dowdy Bros. Concrete Co., Inc., that we revise the judgment recognizing it as a lien creditor for $7,780.52 to include interest and attorney fees. This appellee claims interest at the rate of 1.5% per month on the unpaid balance plus 20% attorney fees based on this printed caveat on each bill of lading presented at the jobsite when the material was delivered:
"Purchaser hereby agrees to pay 1½ interest per month plus all legal costs involved in the collection of this bill"
On the same dray receipt this contradictory provision appears:
"Purchaser hereby agrees to pay 8% per month plus all legal costs involved in the collection of this bill"
Dowdy Brothers has not asserted that any authorized agent of Novem, Inc., ever agreed to one or the other of the conflicting conditions, either before the material was initially ordered or at any point when the material was being delivered. The bills of lading, shipping tickets that accompanied the material when it was delivered, are signed by various individuals at the jobsite who accepted the material. None have been identified. Because appellee relies on the bill of lading to establish the alleged interest and fee agreement, we assume there was no discussion of this item when the parties contracted for the sale of cement.
Absent consent, there is no contract. C.C. art. 1800. In this case we are presumably dealing with an alleged modification of the initial agreement during the course of performance or delivery of the material. In theory the silence of Novem, Inc., in accepting material accompanied by a dray receipt stipulating interest for late payment and legal costs to collect, might constitute an implied acceptance of the condition. But the record before us does not contain sufficient proof to establish a modification of the terms by implied consent. In Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So. 2d 574 (1970), the Supreme Court stated the party claiming the modification in such cases must prove it as follows:
"While assent to a contract may be implied, that implication must be established and cannot be presumed. Defendant's burden was to establish a lease for a fixed term. He had to prove a meeting of the minds of the contracting parties that their relationship as lessor and lessee was for the alleged fixed term, by either express language or by circumstances (action or inaction) that necessarily implied the proposition. The facts and circumstances of the instant case establish only the existence of a lease by the month between the parties because of the reconduction of the written lease." 235 So.2d at 577.
For the reasons assigned, the judgment is affirmed. Appellants are to pay all costs of this appeal.
AFFIRMED.
REDMANN, J., dissents with written reasons.
REDMANN, Judge, dissenting in part.
I concur that the presence of 18 pilings worth $16 each included, within R.S. 9:4819(A)(1), "material . . . delivered to the job site which is visible upon inspection and . . . had a value in excess of" $100.[1] (Only three of the 18 were for *376 test piling, which is "excluded from this definition".)
Under § 4812, the general rule is that a building contract "privilege shall be superior to all other claims . . . ." A mortgagee can outrank a privilege claimant only by bringing himself within the exception to that general rule and therefore has the burden of proving that his mortgage "has been duly recorded before the work or labor is begun or any material furnished." Hortman-Salmen Co. v. White, 1929, 168 La. 1067, 123 So. 715. It is therefore the mortgagee's burden to establish that the pilings were delivered after recordation on December 13, 1972. (The recorded affidavit method of § 4819(A)(3) was not used.)
The evidence leaves the matter quite doubtful, and therefore the mortgagee has failed to carry its burden of proof. The mortgagee makes a plausible argument, based on other testimony of the pile-driver's business practice and of the owner's determination of the date for the test driving, that the order for the piles was not given until December 15 (the superscribed order form may be dated 12, 13 or 15), but that date is inconsistent with the seeming presence of the pilings in a December 14 photograph. The pile driver testified that he got the order on December 12 and delivered the piles by the next morning. We cannot say the trial judge erred in holding the mortgagee's proof insufficient to show delivery after the mortgage was recorded.
Ranking of the mortgagee as inferior to privilege claimants is therefore correct as to the 11 claims recorded within 60 days of July 10, 1974, the last day on which any labor was done or material furnished for the building.
I dissent from recognizing a privilege for two claimants who recorded more than 60 days after July 10. Singer Lbr. Co. v. King, La.App.Orl. 1950, 45 So. 2d 567, and R. F. Mestayer Lbr. Co. Inc. v. Tessner, La.App. Orl. 1958, 101 So. 2d 238, should (with en banc approval) be overruled.
Singer misread both the statute and National Homestead Ass'n v. Graham, 1933, 176 La. 1062, 147 So. 348, upon which it purported to rely. National's prime concern was one of statutory construction involving claimants who had recorded liens within 60 days of the last supply of labor or material by others, but more than 60 days after the last supply by the claimants themselves. National construed § 4812 (by pari materia construction, C.C. 17, with § 4802's 30 days from "notice of acceptance") to provide one 60-day period for all claimants, irrespective of when the claim arose, to run from (the later of) "the last delivery of all material . . . or the last performance of all services or labor". In effect, National interpreted the statute's clause "by said furnisher of material or said laborer" to modify "if done" rather than "the last delivery of all material . . . or the last performance of all services or labor".[2]
In the course of its pari materia comparison of § 4802's lien-inscription period running from "notice of acceptance" (in the case of a timely-recorded building contract), the court noted the analogy between "acceptance" and "completion", yet expressly related "completion" to the statutory last-labor-or-material scheme: "The work is completed when the last material is furnished and the last labor is performed."[3] 147 So. at 352.
But National is not a case in which the building had been completed. National is a case of an incompleted building. The chronologically last claimant, however, *377. . . says that he stayed on the work until October, 1930, and as to that he is not contradicted. Our conclusion is that the structure was never finally completed. . ., but that up to October, 1930, [the owner] hoped to complete it, and made efforts to do so.
Hope of being able to do so seems to have been abandoned about October 1, 1930, and Neville filed his claim on November 5. [147 So. at 353; emphasis added.]
Thus National, whether speaking decidend of abandonment or obiter of completion, ties the beginning of the lien-filing period precisely to the last-material-or-labor rule of the statute.
Singer somehow missed the identity between the statute's last-labor-or-material and National's abandonment, and concluded that the statute no longer controlled. That conclusion is insupportable because of the strict interpretation necessarily placed upon statutes granting privileges (that is, statutes granting to one creditor the right to be paid before others, thus not only escaping the pro-rata rule of C.C. 3183 himself, but, worse, taking away from other creditors the amount that would otherwise have been available to pay them, at least pro-rata). C.C. 3185 speaks out of elemental fairness: "Privilege can be claimed only for those debts to which it is expressly granted [by law]."
Under the law, recordation only "creates" a privilege in favor of those labor or material claimants who record within 60 days of "the last delivery of all material . . . or the last furnishing of services or the last performance of labor . . . ." In the case of non-completion of a not-timely-recorded contract[4] (governed by § 4812), "abandonment" cannot mark the beginning of that 60-day period unless it be the abandonment (just like National's) that occurs when the last material and labor have been supplied. In that sense, abandonment here occurred July 10.
Singer felt, perhaps, the natural and reasonable urge to protect the lien claimant who, after all, was powerless to record or not record the general contract, to which he was not a party. Why, indeed, should the position of the laborer or materialman be worse because of non-recordation (or non-existence) of a contract that was not his doing? These very considerations, however, have been acted upon by the legislature, whose solution was to provide 60 days for liens to be filed in the case of no timely-recorded contract, § 4812. The legislature provides 30 days more than in the case of a timely-recorded contract, § 4802. The legislature has rationally legislated, and we have, and Singer had, no basis to ignore its limitation on its grant of privilege.
Claimants Coco and Christina did not record their claims within the time period allowed by the statute which alone creates privilege, and they therefore do not have privileges. The contrary judgment by the trial court should be reversed.
Finally, I also agree with the rejection of Dowdy Bros.' claim for interest and attorney's fees.
NOTES
[1] Plaintiff did not appeal either the ranking or the amount of the judgment in favor of Custom Painting Contractors, Inc., for $481.89. Lienor's appeal to increase the amount of the award was dismissed by this court on February 28, 1977, for its failure to timely perfect the appeal.
[2] Walker's appeal to increase the amount of his award was dismissed by this court on February 28, 1977 because of his failure to timely perfect it.
[1] I doubt the majority's four other alternate ratios for ranking the timely lien claimants above the mortgagee:
"Clearing" the site is not "excavation", which is the statute's word for the only work or labor (without materials) that alters the mortgagee's rank (by application of § 4819(A)(1) to § 4812).
Portable construction shacks are not "material" used in the building-project.
Stakes placed to mark the corners of the building so that test piles may be properly located are not "material" for the building (nor is it work or labor, since not excavation).
Wooden stobs or stakes stored in a construction shack are not "visible upon inspection" of the job site.
[2] National's statute would thus read: "Any person furnishing . . . material or . . . labor may record . . . his claim . . ., which recordation, if done [here inserting "by said furnisher of material or laborer"] within sixty days after the date of the last delivery of all material . . . or the last performance of all services or labor . . ., [here omitting "by said furnisher of material or laborer"] shall create a lien and privilege . . . ."
[3] Not pertinent to our consideration are the subsequent jurisprudence that corrective measures do not start the 60-day period anew and the 1966 amendment to § 4812 authorizing recording an affidavit of completion from which the 60 days run.
[4] Whether there is no timely-recorded contract because (1) recordation is late or (2) non-existent, or because (3) the contract is not written or because (4) there is no general contract, all such cases are governed by § 4812. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1605993/ | 310 N.W.2d 118 (1981)
Joseph E. ROMAIN, et al., Appellants,
v.
PEBBLE CREEK PARTNERS, et al., Respondents,
The Griffin Companies, Inc., Respondent,
Raymond F. Vavrosky Realty, Respondent.
No. 51380.
Supreme Court of Minnesota.
September 18, 1981.
Stuurmans & Kelly and Timothy D. Kelly, Minneapolis, for appellants.
Faegre & Benson, Jerry W. Snider and Betsy L. Taylor, Minneapolis, for Pebble Creek Partners.
*119 Larkin, Hoffman, Daly & Lindgren and Joseph W. Anthony, Minneapolis, for The Griffin Companies, Inc.
Peter I. Orlins, Richfield, for Vavrosky Realty.
Heard, considered and decided by the court en banc.
SIMONETT, Justice.
In this declaratory judgment action the district court found a purchase agreement was not governed by the notice of contract cancellation requirement of Minn.Stat. § 559.21 (1978) and that the agreement came to an end by its own terms. In addition, the trial court awarded sellers, as the prevailing parties, their deposition expenses as taxable costs. Purchasers appeal from these two rulings. We affirm.
Pebble Creek Partners bought an apartment complex in Brooklyn Park, made improvements, and put it on the market for sale. Joseph E. Romain and Michael T. Murray were interested in buying. All parties involved were experienced real estate entrepreneurs. After negotiations, a real estate purchase agreement was prepared, revised, then signed.
The purchase agreement is dated February 25, 1979, but was signed on or about February 17, 1979. The first paragraph describes the property and acknowledges receipt of $5,000 earnest money, the second paragraph sets out the purchase price and terms of payment, and then follow 21 numbered paragraphs dealing with various terms of the transaction.
The purchase price was $4,100,000 payable as follows: $1,000,000 in cash at closing, including the earnest money; $2,675,000 by buyers assuming a first lien mortgage on the premises; and the balance of $425,000 by a note bearing 7½% interest, payable monthly, starting November 5, 1979, with the entire balance due October 1, 1989. The agreement goes on to say and this is the critical part on this appeal:
Said note shall be secured by security other than the subject property, such security to be satisfactory to seller and determined within thirty (30) days of the date hereof; or in the event agreement is not made, then this agreement shall be null and void, all earnest money shall be refunded and each party relieved of any liability hereunder.
From the testimony it appears that the $1,000,000 cash payment at closing was intended by sellers to cover their improvement costs and that the $425,000 note would represent their profit on the transaction.
The purchase agreement called for a closing on October 5, 1979, at which time buyers would be given a warranty deed. Another paragraph provided the parties would agree to certain items of construction to be completed by sellers by July 1, 1979, at which time buyers would deposit another $20,000 earnest money. If the items were not agreed on nor timely completed, then "the offer shall be null and void, at the option of buyers."
The parties never did agree on satisfactory security for the $425,000 note. The first 30 days after the signing of the purchase agreement went by with no security offered by Romain and Murray and, indeed, no discussion between the parties about it. The 30-day period expired on March 17, 1979, and sellers claim the agreement was, as of then, null and void by its terms. Buyers claim, however, that time was not of the essence and that all deadlines in the agreement were loosely followed by both sides. Thus buyers point out that negotiations on security for the note took place after March 17 and these negotiations constituted a waiver of the "null and void" clause. Sellers countered these later negotiations were simply an effort to arrive at the terms of a new purchase agreement, not a recognition of the continued existence of the original agreement. Buyers claim they did, at least by April 25, propose to Jan H. Susee, the partner serving as spokesman for Pebble Creek Partners, several properties as security for the note. Susee, on the other hand, says the proposal was undocumented, tentative and inadequate.
*120 Also, July 1 came and went without payment by buyers of the $20,000 additional earnest money. It appears there never was any agreement on what items had to be completed by July 1. The buyers claim the items to be completed were not completed, so the $20,000 did not have to be paid. Sellers claim there was satisfactory compliance on their part.
In any event, on August 28, 1979, Susee wrote a letter to Romain and Murray stating buyers were "in default" and "pursuant to the terms of the Purchase Agreement, we understand that because of the failure to approve the security within the thirty (30) days provided in the agreement, that the agreement is now void and that no further action is necessary." The buyers, however, took the position the agreement was still in force and could not be cancelled without a formal notice of cancellation pursuant to statute. Minn.Stat. § 559.21 (1978). The broker offered to refund the buyers their $5,000 earnest money if buyers would sign a memorandum of cancellation. This buyers refused to do. Sellers have never served a cancellation notice.
To resolve the standoff, Romain and Murray brought this declaratory judgment action. The parties seem to agree the property has increased substantially in value over the agreed purchase price.
The trial court decided in favor of sellers. It found there had been no waiver of the null and void provision of the agreement; that whatever work had to be completed by the designated time was done by the sellers; that buyers failed to make the additional $20,000 earnest money payment; and that buyers had failed to provide reasonably satisfactory security for payment of the $425,000 note. The court concluded the contract cancellation notice was not applicable to this purchase agreement and, consequently, that the agreement was void by its terms.
We hold the trial court's factual findings are not clearly erroneous and they are affirmed. This means it is established that the parties never did agree to what would be satisfactory security for the note and that sellers did not waive the provision in the agreement that failure to provide such security rendered the agreement null and void. We need not decide if the deadline for agreeing on the security was March 17, 1979, or if the sellers extended the time, since even if extended, there was never any compliance.
This brings us to the main issue: Does the contract for deed cancellation statute apply to this real estate purchase agreement? Minn.Stat. § 559.21 (1978) provides in relevant part:
When default is made in the conditions of any contract for the conveyance of real estate or any interest therein, whereby the vendor has a right to terminate the same, he may do so by serving upon the purchaser * * * a notice specifying the conditions in which default has been made, and stating that such contract will terminate * * * 30 days after the service of such notice * * *. Such notice must be given notwithstanding any provisions in the contract to the contrary * * *.[1]
Unquestionably, the statute applies to a contract for deed. While there is no definitive definition of a contract for deed, its main characteristics are well known: vendor and vendee are bound to sale and purchase by definite terms; the vendee usually takes possession; and the contract works an equitable conversion, the vendor retaining legal title and the vendee having equitable title. The statute was passed to protect the vendee, particularly in situations where the vendee was in possession, time of performance was made the essence of the contract, and a failure by the vendee to perform timely would work a forfeiture of the vendee's interest. Robitshek Investment Co. v. Wick, 171 Minn. 127, 129, 213 N.W. *121 551, 552 (1927). See also Graceville State Bank v. Hofschild, 166 Minn. 58, 62, 206 N.W. 948, 949-50 (1926) (purpose of statute is to ameliorate the harsh forfeiture rule of the common law and remove grounds for dispute).
On the other hand, the application of the statute to purchase agreements is less clear, perhaps because the distinction between contracts for deed and purchase agreements is similarly unclear. A purchase agreement (or earnest money contract) often is a preliminary contract "to bind the bargain" until the closing, at which time possession is delivered and title is passed by deed or contract for deed. The purchase agreement frequently is conditioned on certain material terms respecting title or financing being satisfied in the interim period before closing.
Minn.Stat. § 559.21 (1978) does not distinguish between contracts for deed and purchase agreements. It simply says it applies to "any contract for the conveyance of real estate or any interest therein, whereby the vendor has a right to terminate the same."
This language is broad enough and plain enough to include purchase agreements. Appellant buyers point out section 559.21 was amended by 1980 Minn.Laws, ch. 373, § 6, to require the cancellation notice to read, "This notice is to inform you that by this notice the seller has begun proceedings under Minnesota Statutes, section 559.21 to terminate your contract for deed * * *" (emphasis supplied). The notice language also refers to "mortgage registration tax," "right to possession" and "eviction." Respondent sellers argue these 1980 amendments show the legislature intended the statute not to apply to purchase agreements. We think this argument claims too much. Even with the amendments, section 1 still provides the notice requirements are to govern for "any contract for the conveyance of real estate or any interest therein * * *." Without clearer evidence that the legislature intended to abandon this broad statutory reach, we cannot say that the strengthening of the notice requirement was intended to reduce the scope of the statute's protection.
A review of our case law indicates the test for applicability of the statute is not whether the contract is a "contract for deed" or a "purchase agreement." The test remains, as the statute puts it, whether there is "any contract for the conveyance of real estate or an interest therein * * *." It is the nature of the parties' agreement, not its label, which is determinative. It is helpful to look at three cases where we held notice was not required and two cases where we held it was.
Notice was not necessary in Chapman v. Salem Lutheran Church, 301 Minn. 486, 221 N.W.2d 129 (1974); Liebsch v. Abbott, 265 Minn. 447, 122 N.W.2d 578 (1963); and Joslyn v. Schwend, 85 Minn. 130, 88 N.W. 410, 744 (1901). In Joslyn a purchase agreement stated if title could not be made good in 60 days, the agreement was void. Subsequently an event occurred, through no fault of the seller, making title unmarketable. We honored the parties' intent and held the agreement ended by its terms without need for a cancellation notice, saying the statute applied "only to contracts of actual purchase, and not to agreements, which, in their nature, are mere options depending upon some contingency." In Liebsch, we said by way of dicta that the seller had not shown the purchase agreement was one to which the statute applied, since the buyer's performance "was wholly dependent upon a contingency, that of obtaining a $20,000 mortgage loan * * *," and that "[u]nless such loan was obtained, performance of the purchase agreement could not be required by either party." Id., 265 Minn. at 456, 122 N.W.2d at 584. In Chapman, most recently, we dealt with the typical earnest money contract for the sale of a home containing a clause that if the buyers could not obtain a mortgage, the contract was void; we held the cancellation notice statute did not apply.
Two cases holding the cancellation notice statute did apply are Ballard v. Friedman, 151 Minn. 493, 187 N.W. 518 (1922), and Finnes v. Selover, Bates & Company, 102 Minn. 334, 113 N.W. 883 (1907). In Finnes *122 the buyer failed to make payments to seller on two contracts, each of which provided that in such a case it was null and void. We held the contracts were "contracts of purchase," that both parties "were bound by the terms thereof," and consequently that the seller had to give the statutory notice. Ballard dealt with a purchase agreement of a theater; the purchase price was $65,000 with $10,000 earnest money and the balance at closing payable $30,000 in cash and $25,000 by assumption of a mortgage in that amount. The seller was to operate the theater for the buyer until closing. The contract said time was of the essence and if the $30,000 cash was not paid at the closing date and time, the contract ended. The buyer was late with his $30,000 cash, but we held the contract was "one of purchase and sale" and could only be terminated by the seller's giving the statutory notice.
In the case before us, the parties each take language from our prior cases favorable to their position. Thus appellants argue we have a "contract for the conveyance of real estate," which requires statutory notice to terminate. They point out the purchase agreement is a carefully drafted document and calls for a warranty deed at closing. Respondents, using Liebsch and Joslyn language, argue the purchase agreement is wholly dependent upon a contingency, that it is like an option, and that it is a contract where the vendor does not have the right to terminate because the contract automatically terminates. Respondents argue the contingency is a condition subsequent; that a condition is something out of the control of the parties, unlike a covenant for breach of which specific performance will lie; and that breach of a condition cannot occur since the condition simply does not exist. Appellants counter by saying that, if true, this is a loophole for clever drafters; that a condition where the seller has control of the contingency is not a condition at all, but a covenant.
The test, it seems to us, still remains whether the agreement is a contract for the conveyance of real estate or any interest therein. This means a contract where both parties are bound by its terms. Finnes, 102 Minn. at 336, 113 N.W. at 883. And ordinarily it must be a contract where, as Liebsch says, either party can require performance by the other. In other words, the agreement must be sufficiently certain and complete in its essential terms that ordinarily specific performance will lie. For example, when the parties have left open an essential term for further negotiations, the court declines to make a contract for the parties and specific performance will not lie. Cf. Dial Toaster Corporation v. Waters-Genter Company, 181 Minn. 606, 233 N.W. 870 (1930). Whether the contract comes within Minn.Stat. § 559.21 (1980) is not dependent on how the parties may have manipulated the contract language. Rather, looking at the intent of the parties and the substance of the overall agreement, the inquiry is whether a term essential to the final bargain is left open for further negotiations or is dependent on a contingency. The trier of fact "must consider the transaction as a whole in light of the then-existing circumstances in order to ascertain the true nature of the relationship that was thereby created." Wurdemann v. Hjelm, 257 Minn. 450, 457, 102 N.W.2d 811, 816 (1960).
Here it seems to us there was an essential term left open. In their purchase agreement the parties agreed to negotiate on satisfactory security for the note in the interim period before closing. Agreeing on security for the note was a contingency for completion of the contract itself, a contingency on which the contract was wholly dependent. Agreement on the security was intended to be an essential term of the contract, for it assured payment of the $425,000 note, which represented sellers' sole expected profit. Having required only $5,000 earnest money on a $4.1 million property, the parties left open for further negotiation the security to be given for the note but put a deadline on those negotiations (perhaps extended, but a deadline nevertheless), after which, if no agreement was reached, the purchase agreement was void and the earnest money was to be returned.
We hold, therefore, this purchase agreement was not finally binding on both *123 parties in all its essential terms; that it became null and void by reason of the parties' not reaching agreement on security for the note; and, consequently, that notice under section 559.21 to terminate the purchasers' interest was not needed.
This leaves, we recognize, some uncertainty in the application of section 559.21, which the prudent counselor will have to take into account. Nevertheless, we believe what we have said here is consistent with the statute as the legislature has given it to us and with our prior decisions and that it affords a measure of needed flexibility in the use of earnest money purchase agreements.
Taxable Costs.
The trial court awarded seller-respondents costs and disbursements of approximately $2,700 for deposition expense. Appellants challenge this award, arguing that such costs are not "necessary" within the meaning of Minn.Stat. § 549.04 (1980). This is the only guideline provided by the statute, namely, that the prevailing party "shall be allowed his disbursements necessarily paid or incurred."
Not until the advent of the Rules of Civil Procedure some 30 years ago did the use of discovery depositions become prevalent, yet this is the first opportunity we have had to deal with the question of allowing deposition costs as a taxable disbursement. We have said, however, as long ago as Salo v. Duluth & I. R. R. Co., 124 Minn. 361, 364, 145 N.W. 114, 115 (1914), that allowance of disbursements as necessary "[t]o a large extent * * * involves an exercise of discretion and judgment" on the part of the trial judge. In Salo, we denied the cost of a trial transcript, acknowledging it was useful, but observing it would add to the cost of litigation and lead to abuse.
The federal statute, 28 U.S.C. § 1920(2) (1976), allows taxation of "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." Under this more explicit language, some federal courts have taken a more generous view with respect to taxing depositions. Yet others have cautioned that the trial judge's discretion "should be sparingly exercised," Chemical Bank v. Kimmel, 68 F.R.D. 679, 681 (D.Del. 1975), and that depositions "merely useful" should not be taxed, Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963), cert. denied, 375 U.S. 922, 84 S. Ct. 267, 11 L. Ed. 2d 165. The Eighth Circuit in Koppinger v. Cullen-Schiltz & Associates, 513 F.2d 901, 911 (8th Cir. 1975), recognized that the expense of depositions not used at trial could be taxed if they were reasonably necessary to the case and not "purely investigative" in nature. The court of appeals emphasized the bill of costs should always be given "careful scrutiny." However, the trial court has wide discretion in taxing costs and will be reversed only for abuse of that discretion.
Use of the discovery deposition is commonplace today. In many cases, conscientious counsel can prepare for trial in no other way. "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 391, 91 L. Ed. 451 (1947). At the same time, it is not unknown for a case to be overdeposed, both as to the persons examined and the length of the examinations. See, e. g., Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, 1980 Am. Bar Foundation Res. J. 789 (1980). There are occasions when interrogatories, requests for admissions, stipulations and exchange of reports would work just as well. There is still merit in the sentiments expressed by us in Salo that allowing costs, especially for discovery depositions, adds to the cost of litigation and may lead to abuse. Appellants here make the further argument that allowing depositions to be taxed as a matter of course may chill meritorious litigation. We agree to the extent that, as a general matter, courts should be reluctant to expand the list of costs taxable to a losing party. See Shterk v. Veitch, 135 Minn. 349, 352, 160 N.W. 863, 864 (1917).
Having said this, we think the rule should be, and we so hold, that the awarding of deposition costs to the prevailing *124 party lies within the sound discretion of the trial judge. Deposition costs may include the cost of taking the originals and the cost of copies of depositions taken by either the prevailing or losing party.
The trial judge should, however, take a hard look at costs claimed. The judge is familiar with the needs of the case, its importance and the strategies involved and is in the best position to judge what is truly necessary and what is only useful. Depositions or parts thereof which are cumulative or duplicative or taken on peripheral issues, or depositions taken when the information could have been obtained in some other less burdensome or expensive way, ordinarily will not be considered necessary. Thus each case is unique. The burden is on the prevailing party to show both that the depositions and copies were necessary to the conduct of the litigation and that they were effectively and pertinently used by the prevailing party.
Here the trial court found defendants' deposition expenses to have been necessarily incurred, and we hold this was a proper exercise by the trial court of its discretion.
Affirmed.
NOTES
[1] We have quoted the statute as it read in 1979, when the events here took place. That language has remained unchanged since its 1913 enactment. The 1980 legislature amended Minn.Stat. § 559.21, particularly by adding a form of notice provision and enlarging the time for compliance depending on the amount of the purchase price paid, but left the other language quoted above unchanged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3021660/ | Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-18-2006
Meehan v. PA Bd Probation
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3024
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-3024
MICHAEL K. MEEHAN
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE;
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA;
GERALD J. PAPPERT,
Appellants
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civ. No. 04-cv-00495)
District Judge: Hon. James M. Munley
Submitted pursuant to Third Circuit LAR 34.1(a)
March 27, 2006
Before: McKEE and VAN ANTWERPEN, Circuit Judges,
and POLLAK, Senior District Judge *
(Opinion filed: May 18, 2006)
OPINION
McKEE, Circuit Judge.
The Pennsylvania Board of Probation and Parole and Gerald J. Pappert, the
*
The Hon. Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
1
Attorney General of the Commonwealth of Pennsylvania, (collectively, the
“Commonwealth”) appeal the district court’s grant of § 2254 habeas relief to Michael K.
Meehan. For the reasons that follows, we will vacate the grant of relief and remand for
further proceedings consistent with our opinion in Richardson v. Pennsylvania Board of
Probation and Parole, 423 F.3d 282 (3d Cir. 2005).
I.
Meehan, a state prisoner, was convicted of aggravated assault and making
terroristic threats. In 1990, the state court imposed consecutive sentences with a
maximum of 16 years’ imprisonment. In July 1997, he was released on parole, but was
declared delinquent in October 1998 after two urine samples tested positive for opiates
and cocaine. He was subsequently recommitted as a technical parole violator and
sentenced to 12 months’ backtime. In December 1999, he pleaded guilty to three counts
of drunk driving. Based on those convictions, the Parole Board recommitted him as a
convicted parole violator in April 2000 and ordered him to serve 12 months’ backtime.
He has since been denied parole three times.
After exhausting his state remedies, Meehan filed a § 2254 habeas petition
alleging, inter alia, that the retroactive application of the 1996 amendments to the parole
statute (applying new criteria for parole) violated the ex post facto clause of the United
States Constitution. The district court agreed with him and granted habeas relief by
directing that the Parole Board re-adjudicate his parole application under the pre-1996
2
statute. The Commonwealth then filed this appeal.
II.
Our opinion in Richardson v. Pennsylvania Board of Probation and Parole, 423
F.3d 282 (3d Cir. 2005), controls this appeal. In that case, after an analysis of recent
Pennsylvania Supreme Court cases and our opinion in Mickens-Thomas v. Vaughn, 321
F.3d 374 (3d Cir. 2003), we held that even though the practical effect of the 1996
amendment may be that it increases an individual prisoner’s sentence, in order to obtain
habeas relief based on an ex post facto violation, the state prisoner must also show that he
was individually disadvantaged by the use of the 1996 amendments in his parole
determination.
However, Richardson was decided more than one year after the district court
granted relief to Meehan. Therefore, the district court did not have the benefit of our
opinion. Accordingly, we believe it prudent to vacate the grant of habeas relief and
remand so that the district court can consider whether Meehan was individually
disadvantaged by the application of the 1996 amendments to his parole determination.
III.
For the above reasons, we will vacate the grant of habeas relief and remand for the
district court to consider whether Meehan was individually disadvantaged by the
application of the 1996 amendments to his parole determination.
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1606013/ | 7 So. 3d 535 (2009)
PHILPOT
v.
McNEIL.
No. SC08-2420.
Supreme Court of Florida.
March 18, 2009.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606037/ | 349 So. 2d 1110 (1977)
James H. WOODHAM
v.
NATIONWIDE LIFE INSURANCE COMPANY, a corporation, and Max Bynum.
SC 2093.
Supreme Court of Alabama.
September 9, 1977.
*1111 Leo E. Costello, Birmingham, for appellant.
Edgar M. Elliott of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
ALMON, Justice.
James H. Woodham, appellant, brought suit against Nationwide Life Insurance Co., and Max Bynum, Agent for Nationwide, appellees, alleging misrepresentation. Summary judgment was granted in favor of appellees. We reverse.
Appellant, who had previously been employed by Fontaine Trucking Company, was employed by Mr. Glen H. Jarvis, President of Pinson Truck and Equipment Company. Pinson Truck had a group hospitalization insurance policy with Nationwide. Appellant claims that he was told by Bynum and Nationwide that he and his dependents were covered under a group policy with Nationwide and as a result he failed to continue his coverage with Blue Cross-Blue Shield which had been extended to him by his former employer.
On or about June 28, 1973, appellant's wife called him at work and told him their baby girl had to be admitted to the hospital. The child had rheumatic fever. According to the deposition of the appellant, the following transpired:
"Q. And now then, relate for me what happened there in the office after your wife had gone to admit the child to the hospital.
"A. Mrs. Jarvis got the files out on the insurance and everything and she said, `Jimmy, I don't think that your insurance is into effect.'
"She said, `You lack a couple of days on it.' Which would have been Sunday. That was on a Friday night. Best I recall it was Friday evening and it went into effect that Sunday.
"She said, `I don't believe it is.'
"She said, `We'll call Max [Bynum, agent for Nationwide Life Insurance Co.] out here and make sure about the thing, you know.'
"So she called Max out there and he was out there within thirty minutes, I reckon, and he went over everything and he said, `Yes.'
"Q. Were you still there?
"A. I was still in the office. All of us was in there.
"Q. All right. Go ahead.
"A. He says, `Yes, it will cover it.' And while I was in the office the admitting nurse at the hospital called the shop there to find out what coverage was, you know, what it would cover. And she herself talked to Max about it on the telephone and he told her to admit the baby, that it would cover it. Because at the time, why I said it didn't matter to me, I had quit Fontaine Trucking Company and I had a Blue Cross and I knew I still had a grace period on that. And I said, `Well if it ain't no good,' I said, `turn my Blue Shield-Cross in.'
"And Max said, `No.'" (Emphasis added.)
According to appellant's depostion, Bynum also called the Nationwide office in Atlanta to confirm his conclusion that appellant was covered. The answer from Atlanta was in the affirmative.
Nationwide later determined that the policy did not become effective until July 1, 1973, and, moreover, that any eligible member had to be in good health at the time the policy became effective before the member would be covered.
On motion for summary judgment, the burden rests on the movant to show there was no genuine issue respecting any material fact. Rule 56, Alabama Rules of Civil Procedure. Nationwide contends that as to it, the summary judgment was correct because no genuine issue of material fact exists regarding reliance on the misrepresentation or damages. Bynum admits there is a question of reliance, but also contends no issue of fact exists as to damages. Both reliance and damages are elements to be proven in an action for misrepresentation. Tit. 7, § 108, Code of Alabama 1940, Recompiled 1958; Davis Bluff Land & *1112 Timber Co. v. Cooper, 223 Ala. 137, 134 So. 639 (1931); Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970).
Nationwide's motion for summary judgment, filed March 27, 1975, was supported by excerpts from the depositions of the appellant including the above quotation, the appellant's wife, and the appellant's employer, Mr. Glen H. Jarvis, together with the appellant's application for insurance and a letter dated October 24, 1973, from the manager for Nationwide to Pinson Truck and Equipment Company, employer of appellant, telling the company that the appellant's daughter was not covered. Appellant responded by submitting additional excerpts from his deposition. The trial court indicated in its order that it had considered the entire depositions.
After the trial court granted Nationwide's motion (June 2, 1975), the appellant, on a motion to reconsider, submitted his own affidavit and a letter from Mr. Pervy W. Matthews, manager for Blue Cross-Blue Shield, indicating that the appellant had 30 days from July 13, 1973, in which to reinstate his Blue Cross-Blue Shield coverage.
Bynum was added as a party defendant on December 27, 1974, but was not served until July 24, 1975. Bynum filed his motion for summary judgment July 30, 1976, supported by the same material used by Nationwide in its motion. Appellant responded with the same material he had previously admitted, together with an affidavit of Pervy W. Matthews.
Nationwide argues that with regard to its motion the trial court was not required to consider the material that appellant submitted on his motion for rehearing citing, inter alia, Southern Rambler Sales, Inc. v. American Motors Corp., 375 F.2d 932 (5 Cir. 1967), and that without that additional material, appellant showed neither reliance nor damages.
We believe the above quoted part of the appellant's deposition shows reliance. The appellant alleges there that he would reinstate his Blue Cross-Blue Shield policy if his insurance with Nationwide did not cover his daughter.
Nationwide notes that appellant admits he would have put his daughter in the hospital regardless of the insurance coverage. While that is true, appellant's reliance on Bynum's representation relates to whether or not he would reinstate his Blue Cross-Blue Shield policy, not to whether he would place his daughter in the hospital.
As to damages, Nationwide contends that the appellant failed to show that his Blue Cross-Blue Shield policy would have covered his daughter. In Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 296 So. 2d 183 (1974), which Nationwide and Bynum contend is controlling, the Court of Civil Appeals reversed a "verdict and judgment" because the plaintiff failed to prove that the representation by the insurance agent that the plaintiff was covered caused any damage. The plaintiff did not show he could have obtained coverage elsewhere.
At trial, appellant will have to prove that his daughter would have been covered by the Blue Cross-Blue Shield policy had he reinstated it. However, on summary judgment the question is not whether the appellant has proved damages, but only whether he had presented a scintilla of evidence that a question of fact exists as to damages. Rule 56, ARCP (see comments to rule). The appeal in Old Southern Life Insurance Co., supra, was from a "verdict and judgment," not a summary judgment.
We again quote from appellant's deposition:
". . . Because at the time, why I said it didn't matter to me, I had quit Fontaine Trucking Company and I had a Blue Cross and I knew I still had a grace period on that. And I said, `Well, if it ain't no good,' I said, `turn my Blue Shield-Blue Cross in.'
"And Max said, No.'"
What has been said with regard to Nationwide also applies to Bynum.
The judgments are therefore reversed and the cause is remanded.
REVERSED AND REMANDED.
TORBERT, C. J., and BLOODWORTH, JONES and EMBRY. JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606078/ | 108 Mich. App. 258 (1981)
310 N.W.2d 355
GARRETT
v.
GARRETT.
Docket No. 53930.
Michigan Court of Appeals.
Decided July 28, 1981.
McAra & George, for plaintiff.
William J. Priehs, for defendant.
Before: M.J. KELLY, P.J., and BRONSON and R.M. DANIELS,[*] JJ.
M.J. KELLY, P.J.
Plaintiff filed a complaint for divorce on September 29, 1971. The judgment of divorce was entered on December 3, 1973. A modified judgment of divorce was subsequently entered on March 28, 1974, requiring the defendant-father to support a minor daughter until she reached the age of 18 years or finished high school, whichever event occurred later, or until the further order of the court.
On November 14, 1979, plaintiff filed a petition to amend the judgment of divorce seeking an order directing the defendant-father to continue support and maintenance for his daughter to enable her to obtain a college education. At that time, the daughter was 18 years and 7 months old. The hearing on plaintiff's petition was held on August 7, 1980. The trial court granted a defense motion for dismissal based upon a perceived lack of subject-matter jurisdiction. From that decision this appeal is taken as of right.
In this appeal, plaintiff submits a single issue. It is alleged that under the facts of the case the trial court erred in granting defendant's motion to dismiss because the trial court had subject-matter jurisdiction pursuant to MCL 552.17a; MSA 25.97(1). We affirm.
Plaintiff's reliance upon Price v Price, 395 Mich *260 6; 232 NW2d 630 (1975), and Charlton v Charlton, 397 Mich. 84; 243 NW2d 261 (1976), is misplaced. In Price, the Supreme Court construed the petition for modification as pending on the effective date of the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., thus placing the petition within the act's savings clause. MCL 722.54; MSA 25.244(54). The Court's decision in Charlton is subject to a similar characterization since that appeal involved an objection to the support provisions in the parties' original judgment of divorce. Because the plaintiff's complaint for divorce was filed in late 1971, prior to the Age of Majority Act's effective date, the Court held the proceedings also to be within the act's savings provision. The importance of this distinction was recently summarized in McNames v McNames, 93 Mich. App. 477, 481; 286 NW2d 892 (1979), a case bearing substantial factual similarity to the instant dispute:
"It should also be noted that in Price the Supreme Court made specific reference to a prior voluntary agreement to continue support between the parties. We deem this to be of significance because, in our review of those reported cases where support was allowed to be continued, we have noted that in each there was either a prior agreement (Price, supra), or some form of reservation for future support in the original judgment of divorce, Barbier v Barbier, 45 Mich. App. 402; 206 NW2d 464 (1973), Milbrand v Milbrand, 66 Mich. App. 730; 239 NW2d 730 (1976). See also Anno: Statutory Change of Age of Majority as Affecting Pre-Existing Status or Rights, 75 ALR3d 228, especially § 7, pp 256-259.
"Here, there was neither an agreement nor any reservation for future support beyond age 18. Further, as in Allen v Allen, 63 Mich. App. 475; 235 NW2d 22 (1975), the instant petition was filed well beyond the effective date of the Age of Majority Act. We therefore conclude that the trial court was without authority to *261 extend support in this case. We deem this result not necessarily desirable, but required." (Emphasis added.)
See also Wagner v Wagner, 105 Mich. App. 388; 306 NW2d 523 (1981), quoting the same passage but contrasting McNames on the basis that, in Wagner, a voluntary stipulation was entered providing for postmajority support.
In this case, the question of postmajority support was not raised prior to the Age of Majority Act's effective date. Thus, the savings provision of the act, under which prior orders for such support were upheld, is unavailable as a basis to vest the lower court with subject-matter jurisdiction to hear the plaintiff's petition. We conclude, therefore, that the trial court was correct in denying the petition for modification on jurisdictional grounds.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606071/ | 108 Mich. App. 346 (1981)
310 N.W.2d 238
PEOPLE
v.
JACKSON.
Docket No. 45443.
Michigan Court of Appeals.
Decided July 9, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
*348 Janet M. Tooley, Assistant State Appellate Defender, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and BRONSON and BASHARA, JJ.
PER CURIAM.
Defendant was convicted by a jury of armed robbery and felony-firearm contrary to MCL 750.529; MSA 28.797 and MCL 750.227b; MSA 28.424(2). He was sentenced to the mandatory two years imprisonment for felony-firearm and 5 to 15 years imprisonment for the armed robbery. He appeals as of right.
Of the issues raised on appeal only three merit extended discussion.
Defendant first argues that his right to confrontation was violated when the trial court limited the full scope of defense counsel's recross-examination of a key prosecution witness. Specifically, the defendant predicates error on the fact that he was precluded during recross-examination from showing that this witness had been unable to make an out-of-court identification of the three other persons who had been simultaneously arrested with defendant and, allegedly, were coparticipants in the robbery. He likewise complains about being precluded from showing that this witness misidentified an uninvolved person during a lineup identification. After reviewing the record, we are persuaded that the court's action in limiting the recross-examination in this regard did not constitute reversible error.
It is well settled that the permissible scope of cross-examination during a trial is vested in the sound discretion of the trial court. Such discretion is not to be disturbed unless a clear abuse of discretion is shown. People v Taylor, 386 Mich. 204; *349 191 NW2d 310 (1971), People v Johnston, 76 Mich. App. 332; 256 NW2d 782 (1977). The right of confrontation protected by the Sixth Amendment protects the right to cross-examine witnesses on evidence which is relevant to the matter being tried. People v Davis, 91 Mich. App. 434; 283 NW2d 768 (1979), lv den 407 Mich. 868 (1979), People v Thompson, 76 Mich. App. 705, 711-712; 257 NW2d 268 (1977). Conversely, the Sixth Amendment does not create a right to introduce irrelevant evidence. Id. The court in determining the admissibility of relevant evidence must balance many factors including: the time necessary for presenting the evidence; how directly it tends to prove the fact in support of which it is offered; the potential for confusion of the issues or misleading the jury; and whether the fact can be proved in another way. People v Oliphant, 399 Mich. 472; 250 NW2d 443 (1976), MRE 403. Relevant circumstantial evidence may be excluded if the above counterbalancing factors outweigh its probative value. People v Jordan, 23 Mich. App. 375; 178 NW2d 659 (1970).
Under the facts and circumstances of this case, the significance of the witness's ability to identify all the alleged participants in separate lineups is only minimally relevant to his unequivocal identification of defendant. The witness was able to make in-court identification of defendant; he was able to pick defendant out of a lineup; he was able to identify the clothing worn by defendant. Defense counsel was allowed complete latitude in his cross-examination as to this positive identification of defendant. Further, the record only suggests that the three other persons whom the witness failed to identify were truly the coparticipants in the robbery. Indeed, these three persons were named by defendant as "alibi witnesses" who, if his testimony is to be believed, never were present *350 at the scene of the crime. Additionally, two of the actual coparticipants stayed in the car outside of the restaurant so the witness never saw them except at a distance. Finally, this inability to identify the three other coparticipants from the lineup was fully developed and argued by defense counsel in the closing argument to the jury. As this challenged evidence only remotely bore upon the witness's positive, unequivocal identification of defendant, we find no abuse in the trial court's ruling and no improper restriction of defense counsel's scope of recross-examination amounting to a denial of the fundamental right of confrontation.
Defendant also argues on appeal that his felony-firearm conviction must be set aside because the prosecution did not offer positive proof that the weapon was in operable condition. We disagree. No such duty is imposed by Michigan case law, and defendant's argument, therefore, is without merit.
The general rule is that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. People v Stephenson, 94 Mich. App. 300; 288 NW2d 364 (1979), People v Gibson, 94 Mich. App. 172; 288 NW2d 366 (1979). As the Gibson Court stated:
"The Supreme Court has found that the legislative purpose behind the felony-firearm statute is to deter the use of firearms due to their inherent dangerousness. Wayne County Prosecutor, supra. Therefore, the felony-firearm statute requires a construction in harmony with that finding, MCL 8.3; MSA 2.212.
"It is our opinion that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. A contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur." Id., 177. *351 This rule was recently reaffirmed in People v Mason, 96 Mich. App. 47, 51; 292 NW2d 480 (1980), where the Court stated:
"We agree with the position taken in People v Gibson, 94 Mich. App. 172; 288 NW2d 366 (1979), that the prosecutor need not present proof of operability as an element of the prima facie case in a felony-firearm prosecution. To hold otherwise could prevent prosecution under the statute in cases where the weapon is not recovered, even though the victim testifies to its existence. Additionally, as was noted in Gibson, `[a] contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur'. People v Gibson, supra, 177."
See, also, People v Boswell, 95 Mich. App. 405; 291 NW2d 57 (1980).
Accordingly, we find defendant's argument to be without merit.
Defendant also asserts that the trial court erred in refusing defendant's request to explain to the jury the absence of an alibi witness with whom the defendant testified that he had spent the time in question. Defendant contends that he should have been permitted to call a process server to the stand to testify regarding the futile efforts to subpoena Mr. Coward. Defendant argues that this testimony was necessary to negate any adverse inference which the jury could draw from his failure to call the alibi witness and that this error was exacerbated by the prosecutor's comments in closing argument that the jury should evaluate defendant's testimony on the basis of whether or not it was corroborated. We find this argument to be without merit. It is well settled that a prosecutor is permitted to comment on a defendant's failure to produce "corroborating" witnesses whenever *352 the defendant takes the stand and testifies on his own behalf. People v Ovegian, 106 Mich. App. 279; 307 NW2d 472 (1981), People v Clemons, 91 Mich. App. 68, 73; 282 NW2d 838 (1979), remanded on other grounds 407 Mich. 939 (1979), People v Hunter, 218 Mich. 525, 528-529; 188 N.W. 346 (1922), People v Ford, 59 Mich. App. 35, 39; 228 NW2d 533 (1975), People v Hooper, 50 Mich. App. 186, 197; 212 NW2d 786 (1973), lv den 391 Mich. 808 (1974), People v Gant, 48 Mich. App. 5, 8-9; 209 NW2d 874 (1973), People v Fuller, 44 Mich. App. 297, 299; 205 NW2d 287 (1973), aff'd 395 Mich. 451; 236 NW2d 58 (1975), People v Falkner, 36 Mich. App. 101, 109; 193 NW2d 178 (1971), rev'd on other grounds 389 Mich. 682; 209 NW2d 193 (1973). In those decisions the defendant himself testified or produced witnesses on his behalf.
This is in contradistinction to comments which parade before the jury the fact that the defendant initially gave notice of alibi witnesses but subsequently was unable or unwilling to produce such witnesses to testify in his defense. It is in this latter situation that prosecutorial comment can result in reversible error. People v Hunter, 95 Mich. App. 734, 737; 291 NW2d 186 (1980), People v Shannon, 88 Mich. App. 138; 276 NW2d 546 (1979).
In the case at bar, the jury was never apprised of the fact that the defendant had originally intended to call alibi witnesses but was unable to do so. Therefore, we conclude that no error requiring reversal resulted from the prosecutor's brief reference to the fact that defendant's testimony was uncorroborated.
We have examined the other issues raised by defendant and find them to be without merit.
Defendant's conviction is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606095/ | 349 So. 2d 780 (1977)
Marlin CONNER and Otelia Conner, His Wife, Farmers and Dealers Bank of Lake Butler, Appellants,
v.
F.R. COGGINS, Appellee.
No. DD-471.
District Court of Appeal of Florida, First District.
September 2, 1977.
*781 Wayne M. Carroll, Gainesville, for appellant.
John F. Roscow, III, and Ray D. Helpling of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellee.
McCORD, Chief Judge.
This is an appeal from final judgment of foreclosure of a mortgage. Appellant contends the action is barred by the statute of limitations. We disagree and affirm.
The final judgment contains the following finding:
"That the defense of the running of the Statute of Limitations is not available to the Defendants in this case because Florida Statutes § 95.11(2)(c) setting forth a five (5) year period must be read in pari materia with Florida Statutes § 95.281(3) which provides: `If the record of the mortgage shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the time shall run from the maturity date of the final installment.' The Court finds that the Mortgage is of record. The Court finds that the maturity date of the final installment is ascertainable from the recorded Mortgage."
Neither the mortgage nor the installment contract were made a part of the record on this appeal. It is incumbent upon the appellant to bring to this court such parts of the record as are necessary to support his contentions on appeal. Howell v. State, 337 So. 2d 823 (Fla. 1 DCA 1976); Chipola Nurseries, Inc. v. Division of Adm. Dept. of Tr., 294 So. 2d 357 (Fla. 1 DCA 1974).
Appellant not having included the mortgage in the record, we must conclude that the facts contained in the above finding are correct.
From the briefs, it does not appear that there is any dispute that this suit was filed more than five years from the date of the mortgage and more than five years from the date of default, but within five years of the maturity date of the final installment; and that the instruments did not contain an acceleration clause in the event of default. We must assume from the above quoted findings of the trial court (which are undisputed by the record before us) that the maturity date of the final installment is ascertainable from the recorded mortgage.
§ 95.11, Florida Statutes (1975), provides that an action to foreclose a mortgage shall be commenced within five years. § 95.281, Florida Statutes (1975), provides *782 that if the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, the lien of the mortgage encumbering real property shall terminate five years after the date of maturity. That statute also provides that if the record of the mortgage shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the time shall run from the maturity date of the final installment. When we consider the foregoing statutes in pari materia, it is apparent that this suit was filed within the five years allowed by the statute of limitations in that it was filed within five years from the maturity date of the final installment.
Since the mortgage and the installment contract for which it was security did not contain an acceleration clause, the contract did not fully mature until there was a default in payment of the final installment. Appellee at his option could have foreclosed earlier upon a previous default, but had he done so, he would have lost the security for subsequent unmatured payments. This was a continuing contract which did not fully mature until default in payment of the final installment.
Affirmed.
BOYER and MILLS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606133/ | 349 So. 2d 887 (1977)
Gordon GOUDEAU
v.
DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
No. 11368.
Court of Appeal of Louisiana, First Circuit.
June 13, 1977.
Rehearing Denied August 24, 1977.
Writ Refused October 14, 1977.
Christopher J. Roy, Alexandria, for appellant Gordon Goudeau.
Howard P. Elliott, Jr., Baton Rouge, for appellee.
Before ELLIS, CHIASSON and PONDER, JJ.
ELLIS, Judge:
This is an appeal by Gordon Goudeau from a ruling of the State Civil Service Commission affirming his dismissal from his position as Senior Trooper with the Louisiana State Police.
The letter of dismissal, dated August 25, 1975, contains seven separate charges of alleged misconduct. The first of these was found to be not proven by the Commission and is not before us for consideration. In view of our findings as to Charges 5, 6, and 7, which were admitted by Trooper Goudeau and by the other parties involved, we do not find it necessary to discuss the merits of Charges 2, 3 and 4.
Charges 5, 6 and 7 are as follows:
"5. On or about April 4, 1974, you fixed or had fixed a traffic ticket issued to Johnny DeSoto on March 28, 1974, you did so at the request of Mr. Alonzo Lemoine.
*888 Mr. Lemoine and Mr. Gus Lachney have stated that you requested and they delivered to your residence sixty (60) gallons of diesel oil for having fixed the ticket. You did not deny fixing the ticket and you confirmed the delivery of the diesel oil. You have also stated that in the past, you have asked Judge Lee for assistance in nolle pressing tickets and you were aware that such actions were in violation of Procedural Order No. 302.5(a).
"6. Mr. John Gremillion of Bunkie has stated that he had in his possession a 39.5 radio, property of the City of Bunkie, sent to him for repairs by the Bunkie Chief of Police. He had had the radio about a year when you approached him and asked him if he wanted to get rid of it. You told him you had a buyer in Mansura, Louisiana, who wanted to purchase the radio.
"You then approached Mitchell Tassin of Tassin's Skelly's Service in Mansura and offered him the radio, which he reluctantly agreed to accept out of fear of incurring your enmity. You instructed Mr. Tassin to make out a check in the amount of $225.00 to Marvin Redman, which check is dated April 4, 1974. Mr. Redman has stated that you called him and had him meet you at the Bunkie Police Station. When he arrived, you instructed him to cash the check made out to him, and to return with the proceeds. He turned over the entire amount to you and you later gave $60.00 in cash to Mr. Gremillion for his part of the deal. This conduct was in violation of Procedural Order No. 302.5(a). Mr. Gremillion installed the radio in Mr. Tassin's wrecker. The radio, property of the City of Bunkie, bore no serial plate when it was installed in Mr. Tassin's wrecker. Mr. Gremillion has since been charged with theft and has pleaded guilty.
"7. On March 20, 1975, John Gremillion presented a bill for $1,130.25 to the Avoyelles Parish Police Jury for the purchase and installation of three (3) CB radios. You had approached Gremillion regarding the purchase and resale of these radios to the Police Jury. He installed two of the radios in Police units and the third in your personal car. He purchased the radios for $200.00 each in Alexandria, but he billed the Police Jury for $1,055.25 for the radios and $75.00 for installation.
"After charging the Avoyelles Police Jury $75.00 for installing the three CB radios, Mr. Gremillion presented a bill for $105.75 dated March 20, 1975, to the Ward 10 Marshal's for installation of the same three radios. Mr. Gremillion has stated that you and he conspired in this double billing and that you told him the Ward 10 Marshal's office was willing to pay a second installation charge. When he collected from both the Parish and the Ward 10 Marshal's office, he wrote out a check to you in the amount of $238.18 dated May 2, 1975, in return for your having helped him make the sale. The cancelled check is made out to you personally and bears your endorsement. This is in violation of Procedural Order No. 302.5(a). Mr. Gremillion has also pleaded guilty to this offense."
Procedural Order No. 302.5A, Sub-section B(4) governing Rules of Conduct, provides in part, as follows:
"No compensation, reward, or other consideration from private sources shall be solicited or accepted by members of the Division without special permission from the Superintendent."
The Commission found, and we agree, that each of the above charges was fully proven. We also note that all of the essential allegations thereof were admitted by the defendant. With respect to Charge No. 6, Trooper Goudeau testified that he had the check for the price of the radio made out to a third party because he knew that what he was doing was a violation of the regulations.
It is defendant's position that the foregoing actions, if proven, did not constitute legal cause for his discharge. In Leggett v. Northwestern State College, 242 La. 927, 140 So. 2d 5 (1962), the court said:
*889 "Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious."
In this case, the Commission found defendant's conduct to be "inimical to conduct becoming a police officer," and that "his discharge was justified." In our opinion, the conduct set forth in Charges 5, 6 and 7, which has been proven, and which is admitted by the defendant, constitutes legal cause for his discharge under the language of the Leggett case, supra.
Defendant has assigned as error a number of alleged technical errors made during and prior to the hearing held below.
First, he complains that he was not permitted to propound certain interrogatories to the appointing authority. The record shows that the interrogatories were filed with the Commission and served upon the Louisiana State Police. On February 19, 1976, the following letter was directed to defendant's counsel:
"Receipt is acknowledged of your correspondence of February 11, 1976 with enclosed "Interrogatories to Louisiana State Police".
"Rules of the Commission permit of no such discovery devices.
"Nevertheless, the pleading will be placed in the Commission's file folder for such disposition as it deems apropos."
No action was ever taken by the Commission relative thereto, and no objection was made by defendant until he appealed from the opinion of the Commission. There is, therefore, no ruling for us to review, and, in any event, we think defendant has waived his right to complain.
The hearing below was conducted before a referee, pursuant to the provisions of Article X, § 12 of the Constitution of 1974, which provides:
"Each commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final."
Civil Service Rule 13.20 provides:
"The Commission may refer the taking of testimony of any one or more witnesses to one or more of its members, or to the Director, or to any employee of the Department of Civil Service, who shall proceed in accordance with, and shall have the authority vested in referees by Part I of Article X of the Constitution of this State."
We think it clear that a referee appointed by the Commission has only the authority to take testimony, and has no decisional power whatsoever.
At the hearing, defendant asked the referee to rule on a motion for summary disposition of his suspension, which occurred prior to his dismissal. The referee referred the matter to the merits, and defendant alleges that her refusal to rule was error. As pointed out above, a referee has no such authority, and defendant's specification of error is without merit.
Defendant also assigns as error the manner in which the hearing was conducted by the referee, Donna W. Lee, alleging that she stepped outside of her constitutional role by addressing questions to the various witnesses. We find no error in her conduct of the hearing. We think the referee comported herself in a judicious and judicial manner, that her evidentiary rulings were fair and proper; and that the questions addressed by her to the witnesses were incisive and to the point, serving as a valuable *890 supplement to the testimony elicited from the witnesses by counsel. Such participation is permitted by Civil Service Rule 13.19(h). We find no evidence of any abuse of her authority, or of bias or prejudice on her part.
Defendant also alleges that the decision of the Commission was based on findings made by the referee, which form no part of the record. He further alleges that the testimony taken by the referee was not transcribed until after the opinion of the Commission was rendered. He assigns as error the refusal of the Commission to make available to him the report and opinion of the referee, and the alleged failure of the Commission to read the transcript before handing down its opinion.
The record does not reflect the date on which the testimony was transcribed and filed in the record. The hearing was held on June 21, 1976, and the opinion of the Commission was dated and filed on December 3, 1976. We further note that this appeal was perfected by the filing of the bond on January 3, 1977, and that the record was received in this Court on January 19, 1977.
The opinion of the Commission states that "A transcript of the hearing has been prepared and examined by all of the members of the Commission." There is nothing in the record to indicate that any report or opinion was made by the referee. Despite defendant's argument to the contrary, we find that the Commission members read the entire transcript, as required by law, before rendering the opinion. If any report, opinion or recommendations were made by the referee, it would properly form part of the record. However, it does not appear that is the case herein.
We find no reversible error, and the opinion of the State Civil Service Commission, affirming the dismissal of Gordon Goudeau, is therefore affirmed, at defendant's cost.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606102/ | 349 So. 2d 1107 (1977)
Grace BROTHERS
v.
Pauline MOORE et al.
In re ESTATE of Mattie L. MOORE, Deceased.
SC 2063.
Supreme Court of Alabama.
September 9, 1977.
*1108 Jack W. Torbert of Simmons & Torbert, Gadsden, for appellant.
James F. Hinton, Gadsden, for appellees.
TORBERT, Chief Justice.
Grace Moore Brothers, individually and as administratrix of the Estate of Mattie L. Moore, petitioned the trial court to set aside a deed which had been executed in 1961 by Mattie L. Moore. The case was heard ore tenus and after an extensive hearing the court upheld the validity of the deed and denied the relief sought. Mrs. Brothers then filed a motion for rehearing or alternatively a motion for a new trial, which was denied. The denial of the motion in the alternative is the basis for this appeal.
J. A. Moore and Mattie Moore were the parents of seven children, two of whom were Grace Moore Brothers and Grady Moore. In 1939, J. A. Moore, fearing a judgment decree, conveyed all of his real estate holdings to various members of his immediate family. The 40 acres in issue here was conveyed to Grady Moore. J. A. Moore died in June 1947 and in December 1947 Grady Moore and his wife Pauline conveyed the same 40 acre tract to Mattie Moore. Apparently there was no consideration involved in either of these conveyances. After J. A. Moore died Grady and Pauline Moore moved into the same house with Mattie Moore in order to care for her. Shortly thereafter, Grady and Pauline took up residence in a house next door to Mattie Moore and lived there for the remainder of Mattie Moore's life.
Mattie Moore executed a deed for the 40 acres to Grady and Pauline Moore on March 4, 1961. The deed was prepared and witnessed by a Notary Public. This deed was not filed for record until December 13, 1972. From March 1961 until December 1972 the 40 acre tract continued to be assessed in Mattie Moore's name and the taxes on the property were paid on her behalf by Grady Moore.
Mattie Moore died on February 17, 1971 and Grady Moore died on December 9, 1972. The defendants in this case were Pauline Moore and the two children of Grady Moore.
In the court below, the appellant based her case on three theories, those theories being Mattie Moore lacked the mental capacity to execute the 1961 deed, Grady and Pauline Moore held the land as constructive trustees for the heirs of Mattie Moore, and the deed was procured through the exercise of undue influence by Grady Moore over his mother.
The primary and almost exclusive thrust of the evidence put on in the trial court concerned the issue of mental capacity. There was contradictory evidence presented on this issue and it is apparent that the trial court after having heard all the evidence ruled that Mattie Moore did have the mental capacity in 1961 to convey the property. In cases such as this, the ore tenus rule requires that this Court uphold the trial court's finding unless it is plainly erroneous or manifestly unjust. Jones v. Ball, 294 Ala. 654, 320 So. 2d 665 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So. 2d 695 (1975); Smith v. Gill, 293 Ala. 736, 310 So. 2d 214 (1975). On the issue of competency we uphold the finding of the trial court.
The second contention of the appellant is that the property was held in constructive trust. A constructive trust is a creature of equity which operates to prevent unjust enrichment. A constructive trust will be found when property has been either acquired by fraud, or where in the absence of fraud it would not be equitable to allow it to be retained by him who holds it. Sims v. Reinert, 285 Ala. 658, 235 So. 2d 802 (1970); Putnam v. Putnam, 274 Ala. 472, 150 So. 2d 209 (1963). The issue of whether or not a constructive trust results is one of fact and as stated previously where the evidence is heard ore tenus the trial court's finding of fact will not be disturbed unless it is clearly erroneous or manifestly unjust. We find that the evidence in this case supports the trial court's *1109 finding that there was no constructive trust.
A consideration of the last issue raised, regarding the alleged undue influence of Grady Moore over Mattie Moore, must be viewed in light of their relationship of parent and child. This relationship is considered confidential and it is presumed that in all transactions between parent and child, the parent is the dominant party. However, this presumption is not conclusive and where it is made to appear that the child rather than the parent is the dominant party then the law raises a presumption of undue influence and casts upon the child the burden of proving that the transaction was fair, just, and equitable in every respect. Orton v. Gay, 285 Ala. 270, 231 So. 2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So. 2d 878 (1970); Jones v. Boothe, 270 Ala. 420, 119 So. 2d 203 (1960).
The evidence produced below tended to show that Grady Moore lived next door to his mother from 1947 until her death in 1971, that Mattie Moore suffered a stroke in 1955, that she could neither read nor write, that in 1961 Mattie Moore was 81, that Mattie Moore depended on Grady Moore for advice, and that Grady Moore handled all of her business affairs. No evidence was adduced that would allow any conclusion other than that Grady Moore was the dominant party in the deed transaction with his mother in 1961. Accordingly, the law raised a presumption that Grady Moore exercised undue influence over his mother in the conveyance of this property. Therefore, the burden to refute this presumption by satisfactory evidence was upon the defendants below.
The evidence adduced to refute this presumption was the testimony of Grady Moore's wife, Pauline, and the testimony of Grace Brothers. Pauline Moore, on direct examination by plaintiff's attorney, testified that in 1961 she and Grady Moore promised to pay Mattie Moore $2000.00 for the 40 acres and that this amount was paid in cash. She testified that there was no written evidence of the payment of $2000.00 because Mattie Moore did not want anyone to know about the sale for fear that she would lose her welfare payments. While no evidence was presented directly as to whether the $2000.00 represented a fair price for the 40 acres, the record indicates that another similar 40 acres was included in the estate inventory at a value of $2000.00.
Other evidence presented to meet the legal presumption of undue influence was the testimony of the plaintiff, Grace Brothers, to the effect that she did not believe Grady Moore would defraud his mother [Mattie Moore] nor would he use "any undue influence" on her.
It is well established that what constitutes undue influence to procure a deed depends on the facts and circumstances of each case. Terry v. Terry, 336 So. 2d 159 (Ala.1976); Orton v. Gay, 285 Ala. 270, 231 So. 2d 305 (1970); Tipton v. Tipton, 249 Ala. 537, 32 So. 2d 32 (1947). In such cases, the finding of the trial court will not be overturned upon review unless clearly in error. Jones v. Ball, 294 Ala. 654, 320 So. 2d 665 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So. 2d 695 (1975); Smith v. Gill, 293 Ala. 736, 310 So. 2d 214 (1975).
As to this issue raised on appeal, we hold that, in light of the foregoing documentary evidence and testimony, sufficient evidence was adduced to at least make this a question for the trial court. Thus, we consider the trial court's decree to be supported by credible evidence and free from reversible error.
AFFIRMED.
MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606136/ | 349 So. 2d 802 (1977)
STATE of Florida, Appellant,
v.
Erwin PERKINS, Appellee.
No. 76-1678.
District Court of Appeal of Florida, Second District.
September 9, 1977.
*803 Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
Erwin Perkins, pro se.
OTT, Judge.
Appellee's motion to dismiss the charges against him was granted. The State of Florida appeals the order granting the motion.
The facts giving rise to this appeal are as follows.
Pursuant to an investigation being conducted by the State Attorney's office, a subpoena duces tecum was issued to appellee, directing him to produce "all original checks, bank statements and any other documents pertaining to the business affairs of Perkins Pipe & Steel Supply, Inc. for the period between August 1, 1973 through December 1, 1974." The subpoena specified that the records were to be turned over on December 18, 1974, but at a discussion between appellee's attorney and an assistant state attorney held shortly after December 16, 1974, it was agreed that the records would be turned over at a future date. The records were given to the State Attorney's office on January 13, 1975.
On May 12, 1975, appellee was charged by information with two counts of buying, receiving or aiding in the concealment of stolen property. His first trial ended in a mistrial. Sometime subsequent to the conclusion of his first trial, appellee discharged his attorney and has since acted as his own counsel.
On April 22, 1976, appellee filed his pro se motion to dismiss. The trial court granted the motion, finding that the issuance of the subpoena duces tecum constituted a grant of total immunity to appellee. We disagree and reverse.
The immunity statute, Section 914.04, Florida Statutes (1975)[1] is not self-executing upon the mere issuance of a subpoena or unprotesting compliance therewith. The issuance of a subpoena compels only the witness' attendance (with the required documents in the case of a subpoena duces tecum). If the witness asserts his fifth amendment privilege upon being interrogated or requested to surrender the subpoenaed documents, the State may relieve him of providing incriminating evidence in compliance with the subpoena, see State ex rel. Foster v. Hall, 230 So. 2d 722 (Fla.2d DCA 1970), cited and quoted with approval in Tsavaris v. Scruggs, No. 48,637 (Fla. March 17, 1977), or may require him to testify or turn over the subpoenaed documents, in which event the witness will have immunity pursuant to Section 914.04, Florida Statutes (1975).
In order to invoke the immunity provided by the statute, the witness must assert his privilege against self-incrimination.[2] If he is nevertheless compelled to *804 provide incriminating evidence, his answers may not be used against him in a later criminal prosecution.[3] However, if he fails to assert his privilege, his failure to object may justifiably lead the state to assume that its compulsory process did not result in eliciting evidence that the witness deemed incriminating, and he should not be allowed to claim immunity after the fact. Orosz v. State, 334 So. 2d 26 (Fla.1st DCA 1976).
At no time during the investigatory proceedings here did either appellee or his counsel raise an objection on the ground of self-incrimination. Having failed to assert his fifth amendment privilege against self-incrimination, he may not now claim immunity from prosecution or use of the subpoenaed documents against him on the sole basis that he turned over the requested documents.
The trial court below relied on State v. Deems, 334 So. 2d 829 (Fla.3d DCA 1976) in granting appellee's motion to dismiss. Deems, however, dealt solely with the question of whether the subpoena directed to the defendant in that case unambiguously called for the production of corporate documents rather than personal records, an issue we deem unnecessary to decide in view of our disposition of this case.
Reversed and remanded for further proceedings not inconsistent with this opinion.
McNULTY, Acting C.J., concurs.
SCHOONOVER, JACK R., Associate Judge, dissents.
NOTES
[1] Section 914.04, Florida Statutes (1975) provides:
"No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding."
[2] We do not deal here with the issue of whether the investigation had focused upon the appellee at the time the records were produced, and if so, whether Miranda warnings were or should have been given. For a discussion of that issue, see State v. Newsome, 349 So. 2d 771 (Fla.2d DCA, 1977).
[3] And only the individual actually producing evidence or testifying in compliance with a subpoena is entitled to immunity under the statute, Tsavaris v. Scruggs, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606120/ | 349 So.2d 349 (1977)
Wade O. MARTIN, Jr.
v.
The LOUISIANA STADIUM AND EXPOSITION DISTRICT et al.
No. 8494.
Court of Appeal of Louisiana, Fourth Circuit.
June 7, 1977.
Rehearing Denied September 8, 1977.
*352 Sutterfield & Vickery, James R. Sutterfield, New Orleans, for plaintiff-appellant.
Dept. of Justice, William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, Donald Ensenat, Louis M. Jones, New Orleans, for defendants-appellees, Edwin W. Edwards, Governor, William J. Guste, Jr., Atty. Gen. and Charles E. Roemer, II, Commissioner of Administration.
Kronlage, Dittman & Caswell, Charles A. Kronlage, Jr., New Orleans, for defendants-appellees, The Louisiana Stadium and Exposition District, et al.
James R. Pertuit, New Orleans, for defendant-appellee, Building Engineering Services Co., Inc., Douglas, Nabonne & Wilkerson, Ronald P. Nabonne, Walter J. Wilkerson, New Orleans, Sobol & Trister, *353 Richard B. Sobol, Washington, D. C., for defendant-appellee, Superdome Services, Inc.
Before LEMMON, GULOTTA and BEER, JJ.
GULOTTA, Judge.
Plaintiff appeals from the dismissal of his suit for a declaratory judgment and an injunction in which he seeks to have declared invalid the contracts between the State, the Louisiana Stadium and Exposition District (LSED) and, respectively, Building Engineering Services Company, Inc. (BESCO) and Superdome Services Incorporated (SSI) and to enjoin LSED from making any further disbursements to BESCO and SSI under the terms of the contracts. We affirm.
A chronology of the constitutional amendments and legislative acts adopted in connection with the construction and operation of the Louisiana Superdome is helpful in the consideration of the issues raised in this appeal. In 1966, a constitutional amendment, LSA-Const.1921, Art. 14, § 47, was adopted to create LSED for the purpose of constructing and operating the Superdome. Pursuant to Paragraph (E) of this amendment, a lease and management and operation agreement between LSED and the State of Louisiana was signed on February 1, 1969, whereby the stadium was leased to the State, which in turn executed an agreement for the operation and management of the facility by LSED.
On May 10, 1974, an agreement was entered into between LSED and SSI for janitorial, ticket selling and taking, horticultural, field set-up and security work at the Superdome. On the same date, LSED also entered into an agreement with BESCO for the operation and maintenance of heating, air conditioning and ventilating equipment, plumbing fixtures, electrical equipment, fire protection systems, elevators and escalators and other mechanical equipment at the facility.
Subsequently, the question arose whether or not the agreements were in violation of LSA-R.S. 38:2211 requiring public work contracts exceeding the sum of $5,000.00 to be let out on public bids and also whether the agreements were in violation of LSA-R.S. 38:2217 which provides: "No contract shall be let on a cost-plus basis." Upon request, Attorney General's opinions addressed to these issues were rendered, stating in effect that the aforementioned statutes applied to LSED and that certain agreements were violative of these statutes.
In the wake of these opinions, the Louisiana Legislature adopted Act 651 of 1974 as a curative measure to validate these agreements. In Section 1. of this Act, reference is made to LSA-Const.1921, Art. 14, § 47(T) which authorizes the Legislature to "legislate in any manner and to any extent with regard to the Louisiana Stadium and Exposition District, its governing body and its powers, duties and functions, provided, however, no such changes or legislation shall impair the obligation of any contract or contracts theretofore entered into by the District". Act 651 further makes reference to the facts that LSED is a "body politic and corporate", that certain contracts were entered into between LSED and third parties relating to the operation of the Dome Stadium and that according to opinions rendered by the Attorney General those contracts were violative of the public bid act and of the prohibition in public work contracts against cost-plus agreements. Section 3. of the Act, in pertinent part, provides that the May 10 contracts between LSED and SSI and LSED and BESCO be "ratified, validated and confirmed and shall be deemed to bind the contracting parties, subject to the respective terms and conditions of the contracts".
The trial judge, in written reasons, in pertinent part, stated that BESCO and SSI "both were subject to public bid laws", but that "public bidding was accomplished with both of these contracts". The trial judge further concluded, however, that the SSI and BESCO contracts were "in fact cost plus contracts", but that Act 651 of 1974, which he determined to be constitutional, ratified, among others, the SSI and BESCO *354 contracts. Consistent with those reasons, the trial judge dismissed plaintiff's suit.
In this appeal, we are essentially confronted with three issues: 1) whether LSA-R.S. 38:2211[1] and LSA-R.S. 38:2217[2] apply to the SSI and BESCO contracts with LSED; 2) if these statutes are applicable, whether the contracts are violative of these two statutes; and, 3) whether Act 651 of 1974 validating the agreements is constitutional.
APPLICABILITY OF PUBLIC CONTRACT LAWS
It is LSED's contention that it is constitutionally exempt from compliance with the statutory provisions relating to public contracts. In support of its argument, LSED claims that LSA-Const.1921, Art. 14, § 47(C)[3] and (T)[4] accord to LSED the broad and all extensive authority until directed otherwise by the Legislature, to contract without compliance with the public contract laws. LSED further points out that Paragraph (C) of the constitutional amendment creating the Louisiana Stadium and Exposition District specifically subjects the District to the idle funds act and the Code of Ethics, but omits any requirement that LSED is subjected to the public contract laws. According to LSED this omission creates the implication that LSED is not subject to the public bid law and the law prohibiting cost-plus contracts. We do not agree.
As pointed out by plaintiff, the management and operating agreement between LSED and the State dated February 1, 1969, recites, in essence, that LSED shall comply with the Constitution and statutes of the State.[5] Furthermore, the constitutional amendment creating the Louisiana Stadium and Exposition District provides in Paragraph (A) that the District shall be a "body politic and corporate and political subdivision of the State of Louisiana *355. . . ." The public bid laws are applicable to the State and all political subdivisions of the State. Nowhere in the constitutional amendment creating the District are any exceptions made to the application of the public bid laws or the prohibition against cost-plus contracts.[6] Indeed, by way of contrast, the constitutional amendment creating the District does exempt the State from compliance with the statutes relating to the leasing of the facilities. Paragraph (E) of the amendment provides that the State shall have the right to lease the facilities of the District without compliance with any other constitutional or statutory provisions relative to the leasing of public facilities. Paragraph (F) provides that the District, with the approval of the State Bond and Tax Board, is authorized to issue bonds "without reference to any other provisions of this Constitution or any laws enacted thereunder . . . ." Significantly, however, LSA-Const.1921, Art. 14, § 47 contains no language authorizing the District to contract without compliance with LSA-R.S. 38:2211 and 38:2217. It would have been a relatively simple matter to include such exceptions in the constitutional amendment. The fact that it contains no such express exceptions leads to a conclusion that LSA-R.S. 38:2211 (the public bid law) and 38:2217 (the cost-plus prohibition) are applicable to LSED. Apparently the Legislature, in its wisdom, arrived at the same conclusion, resulting in the adoption of Act 651 of 1974, the stated purpose of which was to cure the problem created regarding non-compliance with the public contract laws in the May 10 agreements.
The State or any of its political subdivisions in public work contracts is compelled to follow the public bidding laws unless exemption from compliance has been provided. The public bid law is founded on public policy. It has been enacted in the interest of tax-paying citizens and has for is purpose the protection of the public. See New Orleans Transfer Company, Inc. v. City of New Orleans, 284 So.2d 362 (La.App. 4th Cir. 1973); Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943). The same rationale is applicable to the prohibition against cost-plus contracts.
In concluding that the public contract laws are applicable with regard to the SSI and BESCO agreements, we distinguish those cases relied upon by LSED. In Kliebert v. South Louisiana Port Commission, 182 So.2d 814 (La.App. 4th Cir. 1966), writ refused, 248 La. 1030, 183 So.2d 652 (1966), cited by defendants, the court held that the competitive bidding provisions of the Public Lease Law were not applicable to a lease negotiated between the South Louisiana Port Commission (which had been created by a self-operative constitutional amendment) and a private lessee. In so holding, however, the Kliebert court stated:
"* * * It would be an unwarranted restriction on the operation of the Commission to require it to submit an intricate agreement [the lease] of the type proposed here to the rigors of the competitive bidding statute. * * *" We are not convinced that the BESCO and SSI contracts deal with intricacies so complex as to necessitate the application of the rule established in Kliebert. We cannot conclude that contracts for the services provided by SSI and BESCO cannot be awarded through public bidding. Indeed, all parties concede that public bidding was accomplished *356 in the awarding of the BESCO contract. Further, in Act 651 of 1974, validating the agreements, the Legislature specifically stated in Section 4:
"* * * Furthermore, this Act is specifically intended and does hereby henceforth require full compliance of the Louisiana Stadium and Exposition District, or its governing authority, with all public bid and public contract laws of this state . . . ."
Obviously, the Legislature would not have made such a statement had it felt that the service contracts in question deal with subjects so specialized or intricate as to necessitate their being let without compliance with the public contract laws. Furthermore, the Legislature's statement in Section 4. that LSED is to comply with the public contract law is refutation of the argument that the constitutional amendment creating LSED authorizes the body, either expressly or implicitly, to negotiate contracts without regard to the public contract laws. We do not find that the holdings in Hotard v. City of New Orleans, 213 La. 843, 35 So.2d 752 (1948) and Herbert v. Police Jury of West Baton Rouge Parish, 200 So.2d 877 (La.App. 1st Cir. 1967), writ refused, 250 La. 1032, 201 So.2d 520 (1967), cited by LSED, compel us to reach a different conclusion. In Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), also relied upon by LSED, the constitutional amendment provided the District with express authority to issue bonds "without reference to any other provisions of this Constitution or any laws enacted thereunder. . . ." On the contrary, in the instant case, the constitutional amendment creating the District does not contain any provision allowing LSED to contract without compliance with the public contract laws. The Abbott case is clearly distinguishable.
Accordingly, we are in agreement with the trial judge that LSED is subject to the public bid law, LSA-R.S. 38-2211, and the prohibition against cost-plus contracts, LSA-R.S. 38:2217.
WERE THE SSI AND BESCO CONTRACTS LET IN VIOLATION OF PUBLIC CONTRACT LAWS?
Plaintiff attacks the validity of the SSI contract on two grounds: 1) that it was negotiated and not let out for public bidding and is therefore violative of LSA-R.S. 38:2211; and, 2) that it is a cost-plus contract in contravention of LSA-R.S. 38:2217. On the other hand, plaintiff concedes that the BESCO contract was let in compliance with the public bid statute, but contends that the contract is a cost-plus agreement. We find no necessity to discuss whether the SSI contract was violative of LSA-R.S. 38:2211 because we find that both contracts are cost-plus agreements in violation of LSA-R.S. 38:2217 and, absent any curative legislation, are invalid.
Examination of the contracts supports this conclusion. The agreement between LSED and SSI provides in Article 3 that SSI is to be reimbursed by the State for all direct expenditures in connection with the SSI operation, for all salaries and wages of personnel engaged in the work to be performed, for costs of workmen's compensation and other required insurance, for payroll taxes, for salaries and wages of supervisory and office personnel, for general expenses and for various other enumerated costs. The State agrees to pay SSI a specified management fee as a percentage of SSI's costs. Similar provisions providing for reimbursement of costs and payment of a management fee as a percentage of the total costs are found in the BESCO agreement. Furthermore, in oral argument on appeal, counsel for SSI and BESCO do not seriously dispute that the agreements are cost-plus in nature. Accordingly, we have no problem in concluding that the agreements were violative of LSA-R.S. 38:2217.
CONSTITUTIONALITY OF ACT 651 OF 1974
As pointed out hereinabove, the purpose of Act 651 of 1974 is to validate the otherwise invalid SSI and BESCO contracts. Plaintiff contends, however, that this legislation is unconstitutional and therefore ineffective as a curative measure. His attack *357 on the constitutionality of the Act is multi-faceted.
Plaintiff's initial contentions are that the SSI and BESCO contracts are not subject to ratification under any circumstances. Though we are in agreement with plaintiff that cost-plus contracts are prohibited by law and are contrary to the public policy of the State, we disagree with plaintiff's contention that Act 651 is an unlawful ratification of unlawful contracts. Although the Act refers to "ratification" of the contracts, the agreements were not actually approved by the Commissioner of Administration until subsequent to the passage of the 1974 Act. The effect of Act 651 was to give approval to the purported agreements, and based upon this approval the contracts were then entered into between LSED and SSI and BESCO. While the contracts were prohibited cost-plus in nature, nevertheless, they did come into existence at the time that the Commissioner of Administration signed the contracts after approval had been granted in the legislative Act.
The public contract laws, LSA-R.S. 38:2211, et seq., and LSA-C.C. arts. 11 and 12, cited by plaintiff, are based on public policy, but nevertheless are creatures of the Legislature. Likewise, Act 651 is a legislative enactment and since this Act supercedes LSA-R.S. 38:2211 and other legislative acts, the Legislature has the authority to enact that legislation which amends or supplements prior legislation. If the prohibition against cost-plus contracts and the provisions requiring public bids were incorporated in the Constitution, a mere legislative act would not be sufficient to circumvent the constitutional provisions. A constitutional amendment would be required under the circumstances. Such is not the case in the instant matter. Act 651 of 1974 is legislation which takes a specific class of contracts out of the realm of prior legislation. Clearly, this right is reserved to any legislative body. See Hainkel v. Henry, 313 So.2d 577, 579 (La.1975); In Re Gulf Oxygen Welder's Supply Profit Sharing Plan and Trust Agreement, 297 So.2d 663, 665 (La.1974); and Russell v. McKeithen, 257 La. 225, 242 So.2d 229, 235 (1970).
Additionally, we point out that in the constitutional amendment creating LSED, the right is reserved to the Legislature to more fully "define the rights and obligations of the District or otherwise legislate in any manner and to any extent with regard to the Louisiana Stadium and Exposition District, its governing body and its powers, duties and functions . . . ." We interpret this provision in itself to reserve to the Legislature the right to enact any legislation, within its wisdom, it deems proper in connection with LSED. Provided no constitutional infirmities exist, we find no merit to plaintiff's contention that the Legislature could not enact legislation exempting LSED from compliance with public contract laws.
We likewise find no merit to plaintiff's argument that Act 651 grants to the Legislature the power to make contracts and is a usurpation of the executive power of the government and therefore a violation of the separation of powers articles of the Constitution. Neither the constitutional amendment creating LSED nor Act 651 of 1974 grants the Legislature power to enter into contracts. The constitutional amendment creates LSED for the construction and operation of the Stadium and confers upon this political subdivision the authority to enter into contracts subject to approval and further legislation by the Legislature. As stated hereinbefore, Act 651 of 1974 authorizes LSED to enter into the contracts under the terms and conditions set forth in the Act. In this connection, it was not until after the adoption of the Act that the agreements were accepted by Charles Roemer, Commissioner of the Division of Administration. Roemer's position is with the executive branch of government. Under the circumstances, we conclude that no infringement exists on the separation of powers by the enactment of Act 651 of 1974.
Plaintiff's most serious attack on the constitutionality of Act 651 is that it is a special law in contravention of LSA-Const. *358 1921, Art. 4, § 4[7] which provides, in pertinent part:
§ 4. Local or special laws; prohibited subjects
"Section 4. The Legislature shall not pass any local or special law on the following specified subjects:
* * * * * *
"Granting to any corporation, association, or individual any special or exclusive right, privilege or immunity.
* * * * * *
"Legalizing the unauthorized or invalid acts of any officer, servant, or agent of the State, or of any parish or municipality thereof."
Plaintiff contends that Act 651 is legislation passed for the benefit of privileged corporations, namely BESCO and SSI, and legalizes the unauthorized or invalid acts of LSED in making the agreements in contravention of the public contract laws. We reject this argument. Act 651 of 1974 is not special legislation in derogation of LSA-Const. 1921, Art. 4, § 4.
In Teachers' Retirement System of Louisiana v. Vial, 317 So.2d 179, 183 (La.1975), the Louisiana Supreme Court stated:
"General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons. [footnote numbers deleted]"
In Section 1. of Act 651 the Legislature creates a class, i.e., service contracts for the operation of the Louisiana Superdome, the provisions of which are in contravention of LSA-R.S. 38:2211 and 38:2217. In Section 3. of Act 651 this class of contracts is more specifically defined as twelve enumerated contracts, including the SSI and BESCO agreements. We view this finite enumeration not as an exclusive list, but rather an illustrative enumeration of the members of the class defined in Section 1. of the Act. Presumably this list of twelve agreements, though not exclusive, is in reality a complete listing of the known agreements in existence at the time the legislation was adopted. No contention is made that other Superdome service agreements were in existence at the time of the adoption of the Act and were not listed. Nevertheless, all contracts with the characteristics of the class designated in the legislation are affected and, therefore, the Act is not special legislation prohibited by LSA-Const.1921, Art. 4, § 4.
Furthermore, the class established in the statute is "founded upon a reasonable and proper classification". As the Act states, the contracts in contravention of the public contract laws are to be validated because:
"* * * (7) . . . the completion of the stadium is placed in jeopardy by reason of the fact that to require the district to follow the contract laws of the state, with respect to the contracts herein to be ratified, would cause a substantial delay in completion and in placing the said facility into full operation; (8) to bid these projects and services at this time likely would be more costly than the contracts the district has already negotiated; (9) in order for the state to be able to receive revenues from this facility at the earliest possible date, to help defray the cost of the project, it is necessary that these contracts be validated, ratified and confirmed."
In view of the reasons underlying the passage of Act 651, we have no difficulty in concluding that the class created by the legislation is reasonable and proper. This is not to say, however, that we are in agreement with the wisdom of this legislation. Nevertheless, if the lawmaking body of this *359 State in its wisdom has seen fit to pass legislation which meets the test of reasonableness, we cannot interfere with the legislative will, provided that will is constitutionally exercised.
The Legislature, in attempting to bail a public body out of trouble, can only do what is constitutionally permissible. But the judiciary, in determining constitutionality of a legislative act, must consider not only the form of the act as measured against the literal constitutional provision, but also the substance of the act in the light of the surrounding circumstances, the reasons for passage and the purpose to be accomplished. Knapp v. Jefferson-Plaquemines Parish Drainage Dist., 224 La. 105, 68 So.2d 774 (1953); Sutherland, Statutes and Statutory Construction, § 40.02 (4th ed. 1973).
LSA-Const.1921, Art. 4, § 4 prohibits the Legislature from passing a special law on certain specified subjects, the pertinent one being a law granting a special right to a corporation or individual. The article is intended to prevent abuse of legislative power on behalf of special interests and to prohibit the exemption of an individual or private corporation from the operation of a general law; it was not intended to restrict the use of legislative power to further the State's interest. Thus, the constitution should not be inflexibly interpreted to prohibit the Legislature from passing a statute in an emergency situation to benefit a public body, even if several private corporations are incidentally[8] thereby benefited.
Since the record established that Act 651 was not passed to grant a special benefit to the private corporations, the legislation should be construed, within the reasonable meaning of LSA-Const.1921, Art. 4, § 4, not to be a prohibited special act.
This reasonableness of the classification is also dispositive of plaintiff's contention that Act 651 violates the equal protection provisions of the U.S. and State Constitutions.[9] As the Supreme Court stated in Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852, 854 (1971):
"* * * It is fundamental that: `The constitutional right to the equal protection of the laws means that every one is entitled to stand before the law on equal terms with, to enjoy the same rights, as belong to, and to bear the same burdens as are imposed upon others in a like situation. * * *'
"The constitutional restriction, however, does not operate so as to prevent a variety of classifications, or remove from the discretion of the State Legislature its right to provide a number of differences in the selection or classification of persons or property (geographical, or otherwise) so long as the discrimination is not invidious, unreasonable, or oppressive, but founded on just and equitable distinctions. In cases such as this one, where it is asserted that certain classifications or exemptions therefrom, are discriminatory and violative of the principles of `equal protection', the function of the courts is to determine whether the distinction is arbitrary or is based on practical and reasonable grounds with relation to the public purpose sought to be achieved by the legislation. * * *"
Clearly the distinction between the service contractors at the Superdome and other contractors in the State is not arbitrary in view of the emergency nature of the passage of Act 651 and the substantial delays and costs that would have been incurred in the absence of the curative legislation. Under the circumstances, we do not find Act 651 violative of the equal protection provisions of the U.S. and State Constitutions.
We also disagree with plaintiff's contention that Act 651 is without effect *360 because it does not have "a title indicative of its object" as required by LSA-Const. 1921, Art. 3, § 16.[10] The title to Act 651 provides in pertinent part that it is "An Act relative to the Louisiana Stadium and Exposition District . . . to ratify, validate and confirm certain contracts of the Louisiana Stadium and Exposition District . . ." We find no merit to plaintiff's contention that the failure to mention LSA-R.S. 38:2211 and 38:2217 in the title invalidates the provisions of the Act regarding the service contractors. The phrase in the title "to ratify, validate and confirm certain contracts" is indicative of the object of the legislation and no further specificity is required in the title.
Finally, we reject plaintiff's contention that the Act in effect uses public money for an unlawful purpose benefiting private individuals and therefore constitutes illegal taxation in violation of LSA-Const.1921, Art. 1, § 2[11] which forbids deprivation of rights of property without due process of law. We have previously concluded that the Act is not a special one benefiting private individuals, but is general legislation with the avowed purpose of benefiting the State. Plaintiff's argument in this regard, therefore, is without merit.
We conclude that although the public contract statutes are applicable to the Louisiana Stadium and Exposition District and the contracts with SSI and BESCO were violative of these statutes, nevertheless, the Legislature by Act 651 of 1974 effectively exempted the SSI and BESCO contracts from the public contract laws. Accordingly, the judgment dismissing plaintiff's suit is affirmed.
AFFIRMED.
NOTES
[1] LSA-R.S. 38:2211, in pertinent part, reads as follows:
§ 2211. Advertisement and letting to lowest responsible bidder
"A. (1) All public work exceeding the sum of five thousand dollars including both labor and materials to be done by the state of Louisiana, any public corporation or political subdivision of the state and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part. * * *"
[2] LSA-R.S. 38:2217 reads as follows:
§ 2217. Cost-plus contracts prohibited
"No contract shall be let on a cost-plus basis."
[3] LSA-Const.1921, Art. 14, § 47(C) reads as follows:
"* * * The District shall not be subject in any respect to the authority, control or supervision of any regulatory body of the State or any political subdivision thereof, but its books and records shall be subject to audit annually by the Legislative Auditor, its employees shall be listed on the central listing of State employees, and it shall invest its idle funds in accordance with the investment of idle funds act and it shall be subject to the provisions of the Code of Ethics."
[4] LSA-Const.1921, Art. 14, § 47(T) reads as follows:
"This amendment is to be regarded as self-sufficient and self-executing without any supplementary action on the part of the Legislature or any other State authority. The Legislature is nevertheless authorized to more fully define the rights and obligations of the District or otherwise legislate in any manner and to any extent with regard to the Louisiana Stadium and Exposition District, its governing body and its powers, duties and functions, provided, however, no such changes or legislation shall impair the obligation of any contract or contracts theretofore entered into by the District."
[5] Section 12. of the Management and Operating Agreement provides:
"Section 12. Compliance with State Laws.
"In carrying out this Agreement, the District shall comply with the Act and all other applicable laws. Nothing herein provided shall ever be interpreted or construed as permitting or authorizing the letting of any contracts for or the purchase of any supplies, materials and contractual services in violation of or contrary to any provisions of the Constitution and statutes of the State of Louisiana which may be applicable to such actions, it being the intent of this Agreement that all purchases and contracts be made strictly in compliance with applicable law on such subjects."
[6] See Arnold v. Board of Levee Commissioners of Orleans Levee District, 327 So.2d 495 (La.App. 4th Cir. 1976), application denied, 330 So.2d 318 (La.1976), wherein the Board argued that LSA-Const.1921, Art. 17, § 7(h) which granted the Board the power to lease certain lands likewise exempted it from compliance with LSA-R.S. 41:1211, the Public Lease Law. In holding that the Board was subject to the Public Lease Law, we stated at page 499:
"* * * A constitutional grant of power has as its source the sovereignty of the state, just as the revised statutes do, and in the absence of conflict between these enactments, both must be recognized. Thus, the Public Lease Law is inoperative only if the constitutional or statutory grant of power may be construed to expressly exempt the agency from its operation."
See also Upper Audubon Association v. Audubon Park Commission, 329 So.2d 206 (La.App. 4th Cir. 1976), writ denied, 333 So.2d 240 (La.1976).
[7] Carried over in substance as LSA-Const.1974, Art. 3, § 12.
[8] Parenthetically, we observe that the benefit to BESCO and SSI was substantial but, nevertheless, incidental in light of the overwhelming fiscal impact on the State and its citizens if the opening of the facility had been subjected to almost certain and extensive further delays.
[9] U.S.Const. Amend. 14, § 1; LSA-Const.1921, Art. 1, § 2; LSA-Const.1974, Art. 1, § 3.
[10] LSA-Const.1974, Art. 3, § 15.
[11] LSA-Const.1974, Art. 1, § 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/528840/ | 884 F.2d 945
28 Fed. R. Serv. 1394
UNITED STATES of America ex rel. Robert E. LEE, Petitioner-Appellant,v.Mary FLANNIGAN, Administrator of the Menard PsychiatricCenter, Respondent-Appellee.
No. 88-3355.
United States Court of Appeals,Seventh Circuit.
Argued June 2, 1989.Decided Sept. 18, 1989.Rehearing and Rehearing En Banc Denied Oct. 23, 1989.
Daniel R. Warren, Bradley P. Nelson, Jenner & Block, Chicago, Ill., for petitioner-appellant.
Terence M. Madsen, Jack Donatelli, Asst. Attys. Gen., Crim. Appeals Div., Chicago, Ill., for Mary Flannigan and Neil F. Hartigan, Atty. Gen. of State of Ill.
Before POSNER and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
1
Robert E. Lee, the petitioner-appellant, appeals from the district court's denial of his petition for a writ of habeas corpus. 701 F. Supp. 143. In separate trials, Lee was convicted of the murder and attempted armed robbery of William Hawbecker ("Hawbecker trial") and the armed robbery and attempted murder of Peter Larson ("Larson trial"). In a consolidated appeal, the Illinois Appellate Court reversed Lee's conviction for the attempted armed robbery of Hawbecker, but affirmed his other convictions. Lee was ultimately sentenced to a concurrent term of forty-years imprisonment for the murder of Hawbecker, twenty-years imprisonment for the attempted murder of Larson, and twenty-years imprisonment for the armed robbery of Larson.
2
On February 24, 1988, Lee filed a petition for a writ of habeas corpus, which the district court denied. On November 28, 1988, the district court granted Lee's request for a certificate of probable cause for appeal. On appeal, Lee raises five issues. First, Lee argues that the trial court erred in allowing Larson to identify Lee at both trials because the identification rested on an extremely suggestive hospital room show-up. Second, Lee contends that the admission of hearsay testimony concerning Hawbecker's description of his assailant at the Hawbecker trial violated Lee's sixth amendment right to confront witnesses. Third, Lee claims that the trial court erred in admitting evidence of the Larson shooting at the Hawbecker trial. Fourth, Lee argues that the prosecution improperly referred to his failure to testify at the Hawbecker trial and thereby violated the fifth amendment. Finally, Lee contends that his fourth amendment rights were violated at both trials when the government arrested him without probable cause and the district court relied on evidence obtained without probable cause in its harmless error analysis. For the reasons set forth below, we affirm the district court's denial of Lee's petition for a writ of habeas corpus.I. Statement of Facts
3
On January 26, 1984, William Hawbecker was shot in the head near 3400 North Lakewood Street Chicago between 7:00 and 7:15 p.m. Hawbecker immediately walked home and had a friend rush him to the hospital. At the hospital, Hawbecker told the emergency room doctor that he had been beaten and shot by two men as he was walking down the street. Later that evening, however, Hawbecker told two police officers that he was assaulted by a white male, 16-18 years old, approximately 5'8" tall, with long blond hair and wearing dark clothes. Hawbecker did not mention any other assailant, nor did he refer to an attempted robbery. The officers radioed this description of the culprit, excluding the reference to the dark clothes.
4
At approximately 8:15 p.m. that same evening, Chicago police officers Horstein and Eichler responded separately to a "man with a gun" call at 4200 North Kenmore Street. At the scene, at least one bystander named Lee as the person with the gun, and another bystander described the "man with a gun" as a young blond man, approximately 17-25 years old. Officer Horstein knew who Lee was, and Officer Eichler was familiar with Lee from past complaints to the police department about Lee shooting out street lights on Kenmore. Officers Horstein and Eichler then left the scene separately and drove through the area looking for the described person. Shortly thereafter, Officer Eichler spotted Lee. He stopped Lee and searched him, but found no gun. He then released Lee and radioed the details of this stop. Officer Horstein also spotted Lee approximately fifteen minutes later, but was unable to stop him due to traffic. Both officers had seen Lee in the general vicinity of the Hawbecker shooting.
5
At approximately 11:00 p.m. that same evening, Larson, a cab driver, picked up two young men. Larson described them as a Puerto Rican and a white male, approximately 18 years old, between 5'10" and 6' tall, with long blond hair. After following their directions to an alley, which was just a few blocks from the site where Hawbecker was shot, the white man pointed a gun at Larson and robbed him. He ordered Larson to give the Puerto Rican the money from his pocket and then demanded Larson's wallet. After Larson gave him his wallet, the white man shot him twice in the back of the head.
6
Officers Cesario and Allota responded to the Larson shooting and spoke briefly with Larson. They also talked with a bystander, Deborah Jones, who witnessed the two assailants leaving the scene. She described one as a male Hispanic and the other as a slender white man, 19 years old, between 5'8" and 5'10", with long blond hair. They sent this description over the police radio. Shortly thereafter, Paula Tomas was shot while she was sitting with a friend in front of her home. She did not see her assailant.
7
On January 30, four days after the three shootings, Officer Horstein who had been looking for Lee found him and arrested Lee. That same day, Detective Stachula brought eight photographs, including one of Lee, to Larson who was in the hospital. Larson declined to make any identification because his vision was blurry from recent surgery.
8
The next day, Detective Stachula and Assistant State's Attorney Epach questioned Lee at the police station. Lee initially told them that he was at home the entire evening of January 26. When Detective Stachula called Lee's mother and asked her, she indicated that Lee had been in and out numerous times that evening. Lee then told them that he witnessed two of the three shootings, which someone who looked like him committed. Eventually, however, Lee confessed to the three shootings. Since Lee is mildly retarded and cannot read or write very well, Epach wrote Lee's confession for him. Epach would ask Lee a question concerning the shootings and write down Lee's response in a narrative form. Afterwards, Epach read the entire confession to Lee, who then signed it.
9
Later that day, Stachula again visited Larson at the hospital and told him that he had an individual who confessed to shooting him. Lee then entered the room. Larson identified Lee as the man who shot him, and Lee apologized to Larson. Stachula also took Lee to Tomas' room at the hospital, but she could not identify Lee as her assailant because she had not seen who shot her. Approximately two weeks later, Hawbecker died. The Cook County Medical Examiner's Office performed an autopsy and determined that Hawbecker died as a result of the gunshot wound to his head.
10
Lee received separate trials for the murder and attempted armed robbery of Hawbecker and the armed robbery and attempted murder of Larson. He was tried by a jury in the Hawbecker case, and by stipulation, he received a bench trial in the Larson case based solely on excerpts from the transcript of the Hawbecker trial. He was found guilty in both trials. In a consolidated appeal, the Illinois Appellate Court reversed his conviction for the attempted armed robbery of Hawbecker, but affirmed his other convictions. See Illinois v. Lee, 151 Ill.App.3d 510, 104 Ill. Dec. 136, 502 N.E.2d 399 (1986). The Illinois Supreme Court denied leave to appeal. See Illinois v. Lee, 115 Ill.App.2d 546, 110 Ill. Dec. 461, 511 N.E.2d 433 (1987). Lee was eventually sentenced to a concurrent term of twenty-years imprisonment for the attempted murder of Larson, twenty-years imprisonment for the armed robbery of Larson, and forty-years imprisonment for the murder of Hawbecker. On February 24, 1988, Lee filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied his petition. We now affirm the denial of his petition.
II. Larson's Identification of Lee
11
Lee argues that the trial court should not have allowed Larson to identify Lee as his assailant at both trials. Lee contends that Larson's in-court identification was tainted by a prior unduly suggestive hospital room show-up; therefore, it is patently unreliable. In reviewing this issue, we note that the reliability of an identification is a mixed question of law and fact that is not governed by Sec. 2254(d)'s presumption of correctness. See Sumner v. Mata, 455 U.S. 591, 597, 102 S. Ct. 1303, 1306, 71 L. Ed. 2d 480 (1982); Love v. Young, 781 F.2d 1307, 1311 (7th Cir.), cert. denied, 476 U.S. 1185, 106 S. Ct. 2923, 91 L. Ed. 2d 551 (1986). However, the underlying factual determinations, such as whether the witness had an opportunity to observe the suspect, are presumed correct. See Sumner, 455 U.S. at 597, 102 S.Ct. at 1307; United States ex rel. Haywood v. O'Leary, 827 F.2d 52, 59 (7th Cir.1987).
12
It is well settled that courts must apply a two-step analysis in determining the admissibility of challenged police line-up identification testimony. First, the court must decide whether the police used an unduly suggestive pretrial procedure in obtaining an identification. Manson v. Brathwaite, 432 U.S. 98, 107, 97 S. Ct. 2243, 2249, 53 L. Ed. 2d 140 (1977); Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir.1989), petition for cert. filed (U.S. June 15, 1989). If the court finds that the police used an unduly suggestive procedure, then the court must determine whether, under all the circumstances, that suggestive procedure resulted in a substantial likelihood of irreparable misidentification. Manson, 432 U.S. at 107, 97 S.Ct. at 2249; United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1155 (7th Cir.1987). The state apparently concedes that the hospital room show-up was an unduly suggestive identification procedure. The state, however, argues that the trial court properly found that Larson's identification of Lee was still reliable.
13
Therefore, the precise issue before our court is whether, under all the circumstances, the hospital room show-up resulted in a substantial likelihood of irreparable misidentification by Larson. In making this reliability determination, we must consider the following five factors: (1) the opportunity of Larson to view his assailant at the time of the crime; (2) Larson's degree of attention towards his assailant; (3) the accuracy of Larson's prior description of his assailant; (4) Larson's level of certainty that Lee was his assailant; and (5) the length of time between the crime and Larson's identification of Lee at the hospital room show-up. See Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972); United States ex rel. Hudson v. Brierton, 699 F.2d 917, 924 (7th Cir.), cert. denied, 464 U.S. 833, 104 S. Ct. 114, 78 L. Ed. 2d 115 (1983). In applying these factors, we realize that our role is a limited one, requiring us to determine only whether Larson's identification was "so unreliable that [Lee's] due process right to fair judicial procedures should have precluded an identification at trial." Napoli, 814 F.2d at 1156; accord O'Leary, 827 F.2d at 59.
14
The first factor we consider was Larson's ability to view his assailant at the time of the crime. At that time, Larson had a few opportunities in which he could have formed a definite and specific impression of his assailant's appearance. Larson first noticed his assailant when he went to pick him and his confederate up on a well-lit street corner.1 See Tr. at 623-24. Additionally, Lee specifically testified that he saw the face of his assailant when he entered the cab while the dome light was on. See id. at 625. Moreover, Larson had other opportunities to view his assailant. For example, Larson testified that he saw his assailant when his assailant told him it was a robbery. Id. at 626. Lee also turned toward the back of the cab in order to give his wallet to his assailant. Id. at 628. From these circumstances, we conclude that Larson had ample opportunity to form an impression of his assailant's appearance at the time of the crime.
15
The second factor we weigh was Larson's attentiveness towards his assailant. This factor requires us to determine whether Larson took advantage of his opportunities to view his assailant. See O'Leary, 827 F.2d at 60; Napoli, 814 F.2d at 1158. The evidence supports the finding that he was attentive towards his assailant. Shortly after he was shot, Larson gave the police an accurate description of his assailant, including his height, approximate age, size, and hair color. See O'Leary, 827 F.2d at 60 (noting that the witness' "attentiveness to who his attacker was is borne out by the description he gave to" the police); Napoli, 814 F.2d at 1158 (noting that the witnesses were attentive in part because they were able to describe the suspects). Although Larson's description was not overly detailed and failed to note Lee's crossed eyes, it was still sufficient to show that he was attentive during the crime.
16
The third factor we consider was the accuracy of Larson's prior description of his assailant. On the same night that he was shot, Larson described his assailant as a slender white man, approximately 18 years old, between 5'10" and 6' tall, with long blond hair. See Tr. at 633, 851. This description accurately depicts Lee and thereby suggests that Larson's in-court identification of Lee was based on his observation of his assailant during the crime and not on the hospital room show-up.
17
The fourth factor we review was the level of certainty in Larson's identification of Lee at the hospital room show-up. When Lee was brought into Larson's hospital room, Larson identified him as his assailant and never wavered in his identification. Lee argues that Larson's identification lacked certainty because at his suppression hearing, Detective Stachula testified that Larson had said that Lee "appears to be the man." Id. at 203j (emphasis added). When Lee's counsel questioned him at trial, however, Detective Stachula made it clear that Larson never qualified his identification of Lee with the word "appear." Rather, that was Detective Stachula's choice of word in reiterating Larson's identification. Id. at 684-85.
18
Lee also contends that Larson's identification of him lacks certainty because Larson failed to identify Lee from the eight photos that Detective Stachula brought to Larson in the hospital the day before the show-up. Larson, however, testified at trial that he did not want to make an identification from the photos because his vision was still blurry from recent surgery. Id. at 644. By the next day, however, Larson's vision had improved, which thereby enabled him to make an identification. Id. at 647-49. Under these circumstances, we cannot conclude that Larson's failure to identify Lee from the photos made his later identification less certain. Indeed, our court has already held that "a previous failure to make a positive identification from a photo array does not necessarily, or even normally, make the later identification less certain." Napoli, 814 F.2d at 1160; see also United States v. Briggs, 700 F.2d 408, 413 (7th Cir.) ("[A] witness's prior inability to identify a defendant goes to the credibility of the in-court identification and not to its admissibility, and thus raises a proper question of fact for the jury to determine."), cert. denied, 461 U.S. 947, 103 S. Ct. 2129, 77 L. Ed. 2d 130783219264 (1983); 462 U.S. 1110, 103 S. Ct. 2463, 77 L. Ed. 2d 1340 (1983).
19
The fifth and final factor we weigh in determining the reliability of an identification was the amount of time between the crime and Larson's identification of Lee. Larson identified Lee five days after his attack. This five-day period is so short that it supports the view that Larson's identification of Lee was reliable. See Napoli, 814 F.2d at 1160-61 ("The time between the shooting incident and the various pretrial identifications was in no case greater than two months, which is not enough by itself to raise serious questions about reliability."); Jones v. Wisconsin, 562 F.2d 440, 443 (7th Cir.1977) ("[T]he two-week interval between the crime and the show-ups ... was [not] so great as to undercut a witness' reliability.").
20
The application of these factors to the facts before us establishes that there was not a substantial likelihood of irreparable misidentification. Therefore, the trial court did not err in allowing Larson to identify Lee at both trials.
III. Confrontation Clause
21
The sixth amendment to the Constitution requires that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. CONST. amend. VI. Lee argues that the trial court violated his sixth amendment right to confront a witness against him when it allowed the prosecution to present hearsay testimony consisting of Hawbecker's description to the police of his assailant. The Illinois Appellate Court ruled that the trial court erred in admitting this hearsay testimony. However, it found such error to be harmless. See Lee, 104 Ill. Dec. at 147-48, 502 N.E.2d at 409-10. Although we are not bound by a state court's ruling that a constitutional error is harmless, see United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987), we agree with this determination2 based on a de novo review of the record, see United States ex rel. Scarpelli v. George, 687 F.2d 1012, 1015 (7th Cir.1982), cert. denied, 459 U.S. 1171, 103 S. Ct. 817, 74 L. Ed. 2d 1015 (1983).
22
It is well settled that confrontation clause violations are subject to a harmless error analysis, see, e.g., Cruz v. New York, 481 U.S. 186, 194, 107 S. Ct. 1714, 1719, 95 L. Ed. 2d 162 (1987); Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986); Burns v. Clusen, 798 F.2d 931, 943 (7th Cir.1986), and that the harmless error standard applies in habeas review, see Savory, 832 F.2d at 1016-17. This analysis requires us to determine whether presenting testimony of Hawbecker's description of his assailant to the jury was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 251, 89 S. Ct. 1726, 1727, 23 L. Ed. 2d 284 (1969); Mattes v. Gagnon, 700 F.2d 1096, 1105 (7th Cir.1983).
23
Even without Hawbecker's description of his assailant, there was plenty of other evidence which linked Lee to this crime. For example, evidence showed that the police interviewed Hawbecker at the hospital the night he was attacked, sent a message over their radio after speaking with him, and then proceeded to look for the assailant. See Tr. at 474-76. The jury also properly heard testimony that similar descriptions of the assailants in the Hawbecker and Larson shootings were given over the police radio. See id. at 822. From this testimony, the jury could reasonably conclude that Hawbecker had given the police a description of his assailant and that it matched Larson's description of his assailant. Additionally, Officer Eichler testified that he had stopped Lee the night of the shootings and that he later realized that Lee fit the description of the man who attacked Hawbecker. Id. at 823. The officer then sent this information along with Lee's name over the police radio. Id. Moreover, another police officer spotted Lee in the general vicinity of Hawbecker's attack, id. at 568, and at least one bystander gave a description of a "man with a gun" that matched Lee, id. at 821. From this testimony, the jury could conclude that Lee was seen with a gun in the area near Hawbecker's attack. Finally, without having remarked upon all the evidence linking Lee to Hawbecker's shooting, we note that the jury also knew that Lee confessed to shooting Hawbecker.3 See id. at 725-26. Thus, the state presented overwhelming evidence from which the jury could conclude that Lee shot Hawbecker.
24
Lee, however, argues that his confession is highly unreliable and therefore, not probative of his guilt. He contends that his confession, written by Assistant State's Attorney Epach, was nothing more than a summary of the police reports and that because he is mildly retarded, he could not possibly remember all the details contained in the confession. This argument is without merit. First, the confession states that Lee used "a silver .22 revolver" when he shot Hawbecker. Id. at 818. The police report on the Hawbecker shooting, however, does not state the color or the caliber of the gun. Id. at 817. Therefore, this fact supports the reliability of Lee's confession as being more than a mere summary of the police reports. Additionally, Lee apologized to Larson, see id. at 647, which also supports the reliability of his confession.
25
Lee also claims that his confession is unreliable because he presented a strong alibi, which demonstrated that he could not have possibly committed the shootings. At trial, Lee presented two witnesses, one of whom was his mother, who testified that Lee was at home at the time of the shootings. Id. at 905-08, 971-75. Lee's alibi, however, did not go unimpeached. Detective Stachula testified that a few days after the shootings, Lee's mother told him that Lee had been in and out numerous times the evening of the shootings. Id. at 1065. Moreover, the jury could not have found Lee guilty if they had believed his alibi. Therefore, the fact that Lee presented an alibi does not render his confession unreliable, and thus, we can use it to judge whether any confrontation clause violation was harmless beyond a reasonable doubt. See Cruz, 481 U.S. at 193-94, 107 S.Ct. at 1719.
26
Finally, as part of our harmless error analysis, we note that the tainted evidence was not that significant. Hawbecker described his assailant to the police as a slender white male, between 15-18 years old, 5'8" to 5'10", with long blond hair. Tr. at 851. As the district court aptly noted, this is only a general description of Lee, without any specific details which would make a strong impression on a jury. See District Court's Order, Rec. 29, at 4. The fact that this tainted evidence would not make a strong impression on the jury supports the view that the confrontation clause violation was harmless. See United States ex rel. Sanders v. Lane, 835 F.2d 1204, 1207 (7th Cir.1987) (noting that a harmless error analysis for a confrontation clause violation "must focus on the potential contribution of the tainted evidence"); Savory, 832 F.2d at 1020 (finding a confrontation clause violation harmless in part because the tainted evidence lacked probative value). Therefore, because the evidence implicating Lee as Hawbecker's assailant was overwhelming and the tainted evidence was insubstantial, we hold that the confrontation clause violation was harmless beyond a reasonable doubt.
IV. Other Crime Evidence
27
The due process clause of the fourteenth amendment "guarantees the fundamental elements of fairness in a criminal trial." Spencer v. Texas, 385 U.S. 554, 563-64, 87 S. Ct. 648, 653, 17 L. Ed. 2d 606 (1967). Lee argues that he was denied a fundamentally fair trial because the trial court allowed in evidence concerning the Larson shooting at the Hawbecker trial. The Illinois Appellate Court reviewed this issue and found that the trial court properly admitted the evidence of the Larson shooting because that evidence tended to show identity, time and place proximity, and intent, to rebut Lee's alibi, and to corroborate Lee's confession. Lee, 104 Ill. Dec. at 144, 502 N.E.2d at 407.
28
Federal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law. See Wainwright v. Goode, 464 U.S. 78, 83-84, 104 S. Ct. 378, 382, 78 L. Ed. 2d 187 (1983); Cole v. Young, 817 F.2d 412, 416 (7th Cir.1987). The admissibility of evidence in a state criminal trial, however, is generally a matter of state law. See Gross v. Greer, 773 F.2d 116, 119 (7th Cir.1985); United States ex rel. Searcy v. Greer, 768 F.2d 906, 910 (7th Cir.), cert. denied, 474 U.S. 996, 106 S. Ct. 412, 88 L. Ed. 2d 363 (1985). Therefore, unless a specific constitutional right has been violated, a federal court can issue a writ of habeas corpus only when a state evidentiary ruling violates the defendant's due process rights by denying him a fundamentally fair trial. See Woodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir.1987); Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S. Ct. 376, 74 L. Ed. 2d 509 (1982). In regard to the specific issue before us, Lee would have been denied a fundamentally fair trial only if the probative value of the other crime evidence (the Larson shooting) is greatly outweighed by its prejudicial effect. Woodruff, 818 F.2d at 1373; United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir.1974); United States ex rel. Durso v. Pate, 426 F.2d 1083, 1086 (7th Cir.1970), cert. denied, 400 U.S. 995, 91 S. Ct. 469, 27 L. Ed. 2d 445 (1971).
29
After reviewing the record, we cannot conclude that the probative value of the evidence concerning the Larson shooting is greatly outweighed by its prejudicial effect. That evidence was extremely probative on various issues that linked Lee to the Hawbecker shooting. First, the evidence of the Larson shooting tended to corroborate Lee's confession, in which he admitted to shooting Hawbecker. Second, the evidence of the Larson shooting also tended to rebut Lee's alibi that he was at home at the time of both shootings. By showing that Lee was not at home at the time Larson was shot, the state undermined the truthfulness and credibility of his alibi as a whole. Additionally, this evidence placed Lee, carrying a gun, in the general vicinity of the Hawbecker shooting on the night Hawbecker was shot. Finally, the evidence concerning the Larson shooting helped to establish Lee's intent to shoot people.
30
Of course, this evidence was also prejudicial to Lee. However, "granting a petition for habeas corpus requires more than a mere finding of prejudice." Woodruff, 818 F.2d at 1373; see United States ex rel. Bleimehl v. Cannon, 525 F.2d 414, 421 (7th Cir.1975). Because we cannot say that the prejudicial effect of the evidence concerning the Larson shooting greatly outweighed its highly probative value, Lee was not denied his due process right to a fundamentally fair trial by the admitting of this evidence at the Hawbecker trial.4
V. Lee's Fifth Amendment Claim
31
At trial, Lee presented Dr. Arbit, a psychologist, as an expert witness. Dr. Arbit testified that Lee was mentally deficient and had poor memory skills. Tr. at 1016-19. Dr. Arbit also testified that because of Lee's poor memory skills, Lee was prone to confabulation--he would make up things he simply could not remember. Id. at 1020-21. From Dr. Arbit's testimony, Lee wanted the jury to infer that his confession was unreliable because it was a confabulation. See id. at 1121-23 (closing argument). On cross-examination, the prosecution asked Dr. Arbit, "As he sits here he would be able to tell us, if he chose, if he shot somebody in the head four days ago, wouldn't he?" Id. at 1044. Lee objected to this question, and the trial court sustained that objection. Id.
32
Lee contends that the prosecution violated his fifth amendment right not to testify by referring to his failure to take the stand. The fifth amendment forbids the prosecution to comment on a defendant's failure to testify. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106 (1965); United States v. Dominguez, 835 F.2d 694, 699 (7th Cir.1987), cert. denied, --- U.S. ----, 108 S. Ct. 1234, 99 L. Ed. 2d 433 (1988). A prosecutor's direct reference to a defendant's failure to take the stand is clearly a violation of the fifth amendment. United States ex rel. Burke v. Greer, 756 F.2d 1295, 1300 (7th Cir.1985); United States v. Buege, 578 F.2d 187, 188 (7th Cir.), cert. denied, 439 U.S. 871, 99 S. Ct. 203, 58 L. Ed. 2d 183 (1978). An indirect reference, however, is a violation only if "the language appears 'manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' " United States v. DiCaro, 852 F.2d 259, 263 (7th Cir.1988) (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied, 393 U.S. 846, 89 S. Ct. 131, 21 L. Ed. 2d 117 (1968)); accord United States v. Perez, 870 F.2d 1222, 1229 (7th Cir.1989), petition for cert. filed (U.S. June 28, 1989).
33
In reviewing this issue, the Illinois Appellate Court refused to reverse his conviction and found that the prosecution "clearly was trying to rebut the inference resulting from defense counsel's direct examination of Dr. Arbit." Lee, 104 Ill. Dec. at 148, 502 N.E.2d at 411. On habeas review, we must presume that this finding of fact that the prosecution intended only to rebut an inference from Dr. Arbit's testimony is correct so long as this factual finding is supported by the record. See 28 U.S.C. Sec. 2254(d). After reviewing the record, we agree with and defer to the Illinois Appellate Court's determination that the prosecution was merely trying to rebut an inference that the confession was a confabulation. Therefore, we do not believe that this question was either a direct or indirect reference to Lee's failure to testify.
34
Even if we were to assume that this question was an indirect reference to Lee's failure to take the stand, we would still reject Lee's fifth amendment claim. By examining the prosecution's question in the context in which it was asked, see United States v. Robinson, 485 U.S. 25, ----, 108 S. Ct. 864, 869, 99 L. Ed. 2d 23 (1988); United States v. Hernandez, 865 F.2d 925, 929 (7th Cir.1989), it seems eminently clear that this question was not manifestly intended nor naturally or necessarily interpreted by the jury as a comment on Lee's failure to testify. As we already observed, Lee wanted the jury to conclude that he could not have possibly remembered all the details in the confession; therefore, the confession was nothing more than a confabulation. By asking Dr. Arbit whether Lee could state whether he shot someone four days ago, the prosecution was merely trying to show that the confession was reliable because Lee confessed to shooting Larson and Hawbecker a few days after he shot them. In other words, even with Lee's poor memory skills, the prosecution wanted the jury to conclude that Lee could still have reliably remembered shooting Larson and Hawbecker on the day that he confessed. The jury undoubtedly understood this question as focusing on Lee's ability to remember, the subject of Dr. Arbit's testimony, rather than his failure to take the stand. Therefore, even if this question indirectly referred to Lee's failure to testify, it did not constitute a fifth amendment violation.
35
Finally, even if we were to consider this question a violation of Lee's fifth amendment right not to testify, such a violation would be harmless beyond a reasonable doubt. A prosecution's improper reference to a defendant's failure to testify is harmless beyond a reasonable doubt if, absent the reference, "the jury would have returned a verdict of guilty." United States v. Hasting, 461 U.S. 499, 510-11, 103 S. Ct. 1974, 1981, 76 L. Ed. 2d 96 (1983); see Williams v. Lane, 826 F.2d 654, 666 (7th Cir.), cert. denied, 484 U.S. 957, 108 S. Ct. 353, 98 L. Ed. 2d 378 (1987). After reviewing the record, we conclude that the jury would have convicted Lee even without the alleged reference to Lee's failure to testify. As we already noted, the evidence against Lee was overwhelming. Additionally, we find it significant that there was only one comment that contained the allegedly offending material, and the trial court sustained Lee's objection to the question. Tr. at 1044. Under these circumstances, even if there was a fifth amendment violation, such violation was harmless beyond a reasonable doubt.
VI. Conclusion
36
For all the foregoing reasons, the district court's decision to deny Lee's petition for a writ of habeas corpus is
37
AFFIRMED.
1
The Illinois Appellate Court found that the street corner was well-lit. See Lee, 104 Ill. Dec. at 144-45, 502 N.E.2d at 407-08. Lee, however, strenuously argues that there is no evidence in the record to support this fact. Although Larson did not directly testify that the street was well-lit, he did testify that he saw both men standing on the corner. He also testified that from his cab he observed that the white man was 5'10" to 6"" tall, approximately 18 years old, with shoulder length blond hair. See Tr. at 624. From this testimony, the Illinois Appellate Court could properly make a factual finding that the street was well-lit. Therefore, because this finding of fact is supported by the record, we must presume that it is correct. See Sumner v. Mata, 449 U.S. 539, 546-47, 101 S. Ct. 764, 769, 66 L. Ed. 2d 722 (1981); 28 U.S.C. Sec. 2254(d)
2
The state argues that we do not need to decide whether there was harmless error because Lee procedurally defaulted on his right to pursue this sixth amendment claim, and alternatively, Hawbecker's hearsay description of Lee was properly admitted since it had sufficient indicia of reliability. We reject both these arguments. First, Lee properly preserved his right to pursue this claim by presenting it to the Illinois Appellate Court. See Brief for Appellant, Rec.Supp. at 57-58 (Lee's brief submitted to the Illinois Appellate Court). Second, Hawbecker's description of his assailant to the police lacks adequate indicia of reliability because it was not given "under circumstances which 'indicate that its content is probably true' ... and which provide the jury with a sufficient basis for judging its truthfulness." United States v. Snyder, 872 F.2d 1351, 1355 (7th Cir.1989) (citations omitted)
3
Lee contends that we should not rely on his confession or any other evidence allegedly obtained in violation of his fourth amendment rights in our harmless error analysis. We reject this argument. A fourth amendment claim for the suppression of evidence seized from an allegedly illegal arrest is not cognizable in habeas corpus so long as the state court gave the petitioner a full and fair opportunity to litigate this claim. See, e.g., Stone v. Powell, 428 U.S. 465, 495, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976); Willard v. Pearson, 823 F.2d 1141, 1149 (7th Cir.1987); United States ex rel. Patton v. Thieret, 791 F.2d 543, 547 (7th Cir.), cert. denied, 479 U.S. 888, 107 S. Ct. 284, 93 L. Ed. 2d 259 (1986). The trial court conducted a full evidentiary hearing based on Lee's pretrial motion to suppress the arrest due to lack of probable cause, which the court denied. See Tr. at 45-185. Lee appealed the trial court's finding of probable cause to the Illinois Appellate Court. After fully reviewing this issue based on the record, the Illinois Appellate Court affirmed the decision of the trial court. See Lee, 104 Ill. Dec. at 141-42, 502 N.E.2d at 404-05. Thus, since Lee received a full and fair hearing of his fourth amendment claim in the state court, we will not revisit this issue on habeas review
Because the Illinois Appellate Court affirmed the trial court's finding of probable cause, Lee's confession and other evidence obtained from his arrest were properly admitted at trial. "We will therefore consider this properly admitted evidence in our determination of whether the evidence against the petitioner was so overwhelming that the ... [the sixth amendment violation] was harmless error." Dortch v. O'Leary, 863 F.2d 1337, 1345 n. 6 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S. Ct. 1961, 104 L. Ed. 2d 429 (1989). Lee, however, argues that we can reach his fourth amendment claim because the state court's determination was not supported by the record as a whole. See Howard v. Pung, 862 F.2d 1348, 1350 (8th Cir.1988) ("[A] state court evidentiary hearing may be less than full and fair if it yields factual determinations not fairly supported by the record as a whole." (emphasis added)), cert. denied, --- U.S. ----, 109 S. Ct. 3247, 106 L. Ed. 2d 593 (1989). Since we have already determined that Lee received a full and fair hearing in the state court, we reject this argument.
4
Lee relies on our recent case of United States v. DeGeratto, 876 F.2d 576 (7th Cir.1989), to support his claim that he was denied a fundamentally fair trial by the admitting of evidence concerning the Larson shooting at the Hawbecker trial. In DeGeratto, the defendant was convicted of transporting and receiving stolen property and of conspiring to transport and receive stolen property. On appeal, our court reversed his conviction because the government had continually focused on other crime evidence suggesting that the defendant was involved in a prostitution conspiracy even though there was "no actual evidence of prior prostitution crimes" or "even a prior allegation against [the defendant] regarding prostitution." Id. at 583. Indeed, our court noted that the trial transcript suggested that the government tried to depict the defendant as a bad man and to convict the defendant "of an uncharged prostitution conspiracy." Id. at 584
Lee's reliance upon DeGeratto is misplaced. First, unlike the situation in DeGeratto, there was ample evidence to link Lee to the Larson shooting. Additionally, this evidence was not presented to the jury to show that Lee was a bad man, nor to convict him of the Larson shooting at the Hawbecker trial. Rather, evidence concerning the Larson shooting was admitted because it was relevant to issues involved in the Hawbecker trial. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1553247/ | 37 B.R. 979 (1984)
In re Elmer D. WERTH, Taxpayer No. XXX-XX-XXXX, Debtor.
Bankruptcy No. 80 B 3483 M.
United States Bankruptcy Court, D. Colorado.
January 31, 1984.
*980 Harold A. Feder, of Feder, Morris & Tamblyn, Denver, Colo., for debtor.
John F. Head, of Head & Moye, Denver, Colo., for creditor, IntraWest Bank of Denver.
MEMORANDUM OPINION AND ORDER
DEBTOR'S OBJECTION TO CLAIM NO. 39
JAY L. GUECK, Bankruptcy Judge.
I. INTRODUCTION
IntraWest Bank of Denver (formerly the First National Bank of Denver, (hereinafter "IntraWest" or "Bank")) filed a proof of claim as an unsecured claimant in the personal bankruptcy of Elmer D. Werth (hereinafter "Werth"). This claim is denominated as Claim No. 39, and is for approximately $525,630.00 plus accrued interest. The claim is based upon a continuing personal guarantee given by Werth to IntraWest to secure payment of crop loans made to Fairview Farms, Inc. (hereinafter *981 "Fairview" or the "Farm"), an entity in which Werth was a 50% stockholder.
Werth objected to the claim of the Bank pursuant to 11 U.S.C. Sec. 502(b)(1). Generally, the debtor argues that the claim should be disallowed, based upon breach of contract, breach of trust and promissory estoppel. The Bank contends that Werth is barred from objecting to its claim by res judicata, collateral estoppel, lack of standing, waiver, equitable estoppel, unclean hands, failure of consideration, failure of condition and false representations. In effect, Werth, as guarantor of the principal obligor, Fairview Farms, seeks to use the defenses of the principal obligor to avoid liability to IntraWest.
II. FINDINGS OF FACT
On August 19, 1980 Werth filed for protection under Chapter 11 U.S.C. Sec. 101, et seq.) of the Bankruptcy Code. His wife, Donna Mae Werth, filed on November 20, 1981. The filing concluded a period of complex and tumultuous financial dealings of Werth. Werth is a Vice-President of Special Products and Food Products Acquisition for Coors and has been employed by Coors for 36 years. In the past he invested extensively in real estate, oil and gas, gold mines and coal mine ventures. Some of the entities in which he has been involved, and which were mentioned in this litigation, are the Don-Mark Partnership, Tiempo Enterprises, Eldon, H & R Farms, Futura Properties and the Fogg investment deal. Most importantly, Werth was a 50% shareholder in a large farm located in the San Luis Valley in southern Colorado. This was Fairview Farms. The Farm primarily grew potatoes, wheat and barley. It has an area of approximately 2760 acres on which various improvements are located, including an 80,000 square foot warehouse and related farm processing facilities. Also involved in the operation of the Farm were Allen and Wayne Remington, cousins of Elmer Werth. They were stockholders with Werth in Fairview Farms, Inc.
The real property on which the Farm was located was heavily encumbered. Prudential Insurance Company held a first deed of trust. The Bank held a second deed of trust. Beginning in 1974, IntraWest financed the operation of the Farm through "crop loans". Crop loans were loans whereby the funds advanced were utilized to raise crops, with the loans being repaid annually from proceeds of the harvest. The manner of funding was through overdraft protection. The Farm would negotiate checks in the ordinary course of business and IntraWest would "cover" the checks written through its correspondent bank in the San Luis Valley, the First National Bank of Center. Normally, the loans had a term of one year and were due in the fall, after harvest.
As the years passed, proceeds of the annual harvests were insufficient to retire the yearly debt due to poor harvests, fluctuating crop prices and mismanagement. Thus, the unpaid balances were "rolled over" into loans made for the succeeding years. In June of 1975 the Bank extracted continuing personal guarantees from Elmer and Donna Werth, Wayne and Marilyn Remington and Allen and Janet Remington. In July, 1978, Allen Remington, the Farm manager and an experienced farmer, died in a freak accident. Later, in July 1979, Wayne Remington was discharged when Werth discovered he was embezzling from the Farm. By the end of 1978, the Farm owed IntraWest $2,250,000 in crop loans.
In February, 1979, the Bank was sufficiently concerned about the outstanding indebtedness that it advised Werth no further funding would be forthcoming. The Bank wanted a plan to liquidate the Farm. As Ralph Adams, the loan officer responsible for the loan and the Bank's Policy Administrator, testified, the Bank's primary, if not sole, effort from this time forward was simply to get paid. Werth was still trying to salvage the Farm operation and satisfy the Bank's concerns so that continued financing might be obtained. To this end, he hired Acie Gunnels, an experienced farmer, as a farm manager. Gunnels and Danny Cook, the Farm's bookkeeper, *982 began to devise a plan to liquidate, in accordance with the Bank's wishes.
Their efforts persuaded the Bank to rewrite the Fairview Farms loan, which was accomplished on March 26, 1979. This loan was in the amount of $1,750,000. Shortly thereafter, the Bank asked Werth to put up $1,000,000 in personal assets to secure his continuing personal guarantee of that loan. At this time, Werth assigned to IntraWest a second deed of trust he held on real property he once owned at 52nd and Garrison in Arvada, Colorado (hereinafter the "Garrison Property").
In August of 1979 the Farm borrowed $400,000 from the Farmers Home Administration (hereinafter "FmHA") for the 1979 farm operations, under an emergency program. The loan was made only after the FmHA received confirmation from IntraWest that the Bank would not extend a 1979 crop loan. The United States of America, acting through the FmHA, received a deed of trust on the farm and Werth co-signed the promissory note in his individual capacity.
By February of 1980 the Farm had reduced its loan with IntraWest from $2,250,000 to approximately $635,871, due to payments from various sources. The proceeds from the 1979 crop were not sufficient to retire the FmHA 1979 loan. By early 1980 the Farm still owed the FmHA $360,000. The FmHA has filed a proof of claim against Werth personally, based on his co-signing the 1979 note, in the amount of approximately $315,000.
Prospects for financing the 1980 crop were dimmed when the FmHA advised that no 1980 crop loan could be made until the 1979 loan was paid down. Additionally, the Bank again refused to finance the operations of the Farm. Negotiations to sell the property were conducted with various potential purchasers, but none came to fruition.
In late March of 1980, Werth met with Ralph Adams, who had just assumed responsibility for the Fairview Farms loan. Also present were the Farm's bookkeeper, Danny Cook; Werth's attorney, Reid Lichtenfels; and Werth's business partner in Futura Properties, Mark Scanlan. The purpose of this meeting was to advise Adams of a potential sale of the Farm to Prudential Insurance Co., the first mortgage holder, and to present projections to the Bank in an effort to secure financing for at least a portion of the 1980 operation.
Subsequently, at the request of Adams, a budget for the 1980 season was submitted to the Bank. The Bank continued to be primarily concerned with prompt repayment and wanted the property liquidated. It was agreed that saleability was enhanced if the Farm had a growing crop. Thus, the Bank was willing to consider funding this crop.
Adams authored a memo on April 21, 1980 outlining Fairview's presentation and recommending a loan in the amount of $675,000, based upon the projections presented and the collateral then held by the Bank.
Adams testified that five conditions precedent were placed on the loan:
(1) That the Farm was to pledge a second deed of trust to the Bank on the potato warehousing facilities;
(2) That an FmHA crop loan was to be obtained for the 1980 season;
(3) That Werth was to secure his personal, continuing guarantee with a deed of trust on his personal residence;
(4) That the Farm was to give to the Bank a second deed of trust on the Farm itself, a second deed of trust on farm equipment not leased and a second deed of trust on the prior year's crops;
(5) That Werth was to give the Bank a pledge of his stock in the Farm and an assignment of a second deed of trust held on the condominium project on the Garrison Property; all other conditions for the then-outstanding loan were to remain intact.
The requirement of an FmHA crop loan was not mentioned in the memo to the file of April 21, 1980. The memo did mention Adams' concern that if the Farm were unable *983 to plant a crop and, thus, receive no revenue it "could conceivable (sic) trigger a bankruptcy."
Danny Cook, the Farm's bookkeeper, who was present at the meeting could recall no conditions on the loan. No mention of bankruptcy was recalled, either.
Similarly, Werth specifically testified that no mention was made of the FmHA loan as a condition to the IntraWest loan. Further, he stated there was no indication of an anticipated bankruptcy and no discussion of any "insecure provisions" which might be used to terminate funding.
I find the Bank neither communicated to Werth nor reflected in any intra-office communications presented in evidence any requirement that an FmHA loan for 1980 crops be obtained as a condition to the $675,000 loan by the Bank. Adams may have assumed an FmHA loan would be obtained, but it was not a communicated condition of the IntraWest loan.
The Bank approved the loan, and an oral commitment was made when Adams called Werth in late April or May, 1980 to advise that the loan had been approved. Evidence was introduced showing that Adams had caused the amount to be increased to $750,000, with interest at 3% over prime. Earlier discussions had contemplated 2% over prime. The security required was the security interest in all Fairview Farms land, warehouse, equipment and machinery, and crop proceeds, together with the personal guarantee of Elmer Werth and his pledge of his interest in the Garrison Property, a deed of trust on his residence and a pledge of his stock in the Farm. The loan was to be repaid from the sale of the crop, for which a separate account was opened. In reliance upon this commitment, and pending completion of the paperwork evidencing this loan, personnel of the Farm went about purchasing seed, planting, and operating the farm. Efforts to obtain funds elsewhere ceased.
Disbursements on this new loan were begun through the aforementioned overdraft protection in mid-May, 1980. By May 30, 1980, the sum of $32,284 had been advanced. As of June 16, 1980, the sum of $108,531 in additional advances had been made. Further advances of $16,280 were afforded by June 20, 1980, for a total of $157,095 as of that date.
On or about June 23, 1980 the Bank terminated all funding on the loan and refused to proceed any further. The uncontradicted testimony was that the Bank's action was without prior notice to Werth or anyone else on behalf of Fairview Farms, without prior explanation and without giving the Farm or Werth a chance to remedy the situation. The cessation of funding was discovered when checks issued by the Farm were returned for insufficient funds. By Adams' own admission, the Bank had felt the loan was substandard, Adams regarded it as a disgrace and, according to one memo he authored, a "snake". Adams knew of the Farm's extensive reliance on the promise of the Bank, he knew of the action taken by the Farm in its continued operation in reliance upon the loan commitment and he perceived that a bankruptcy could occur if the 1980 operations were unable to return a substantial portion of the Farm's debt. Adams also agreed that there was no "insecure clause" in the oral agreement or any discussion of such a right which would justify the action of the Bank.
The evidence reflects that the Farm attempted to procure financing from various alternative sources upon termination of funding by IntraWest. Inquiries were made of the First National Bank in Golden, the First National Bank of Wheatridge and the American National Bank of Montbello. However, in mid-season all available crop funds were committed. By July 1, 1983, the crop was "made", meaning it was in an insurable state, it was growing well and was in need of continued attention so that it could ultimately be sold and return a profit to the Farm. Additionally, drought conditions existed in Idaho which diminished the supply of potatoes in the United States, thereby dramatically raising the price of available potatoes. Werth and others on behalf of the Farm expended extensive *984 efforts attempting to convince the Bank to reinstate the 1980 loan, but all attempts were futile.
The reasons given by Adams on behalf of the Bank in justification of its action terminating funding were varied and not totally consistent.
Adams originally indicated that he became concerned that the "collateral was not as originally represented." This referred to the assignment of Werth's security interest in the Garrison Property. Adams expressed concern that the first mortgage to Megapolitan Mortgage was in default and a foreclosure had been initiated, all of which caused him concern and resulted in termination of the IntraWest funding. However, the evidence overwhelmingly reflects that it was not until very late June or early July of 1980 that the Bank learned of any foreclosure by Megapolitan.
The first date when the Bank might have learned of any difficulty in the Megapolitan loan was June 25, 1980. The Bank had already taken its action to terminate funding on its loan to Fairview Farms. Additionally, it is noted that the Garrison loan was current and Werth did not even learn of any difficulties until June, 1980. Werth's interest had already been pledged to the Bank on approximately April 19, 1980, at which time there was no reason to be concerned about that security interest. In short, it appears the Bank made its decision to cease, and actually accomplished the cessation of, funding to Fairview Farms before it ever learned of any potential difficulty with its security interest in the Garrison Property.
Next, Adams testified the FmHA crop loan was a condition to the IntraWest loan, and he learned the crop loan had not been obtained. However, Exhibit G, dated June 26, 1980, is a letter to Ralph Adams from Asset Management Group on behalf of Fairview Farms. That communication clearly reflects the efforts Fairview Farms was making to accomplish a loan with FmHA and noted that "FHA will begin processing of loan if FNB notifies them of their commitment." It is admitted that the Bank failed to notify FmHA of its commitment. Additionally, the memorandum notes that FmHA advised it would take thirty days to process the application and such application should be made immediately lest funds no longer be available. Adams was also advised of the necessity that funds be forthcoming to avoid shutting down the operation which would result in a total loss of the harvest.
The Bank's own action thwarted any viable effort to obtain a loan from the Farmer's Home Administration and was taken with full knowledge that it would likely result in an inability to obtain that loan, would cause the Farm to be shut down, and the crop to be lost, with the probability that bankruptcy would ensue. It should be noted that FmHA had no loan program available to fund a 1980 loan in any event.
I have previously found that obtaining an FmHA crop loan was not a condition to the IntraWest loan. Further, if it were, IntraWest effectively blocked any further efforts in this regard.
It is also noteworthy that Adams acknowledged that after June, 1980, even if the Farmer's Home Administration had committed to loan $400,000 to Fairview Farms, IntraWest would not have funded its loan. Thus, this cannot be a rational reason for terminating funding of the IntraWest loan.
Next, Adams stated that one of the reasons he determined to pull the loan was that financial statements submitted by Elmer Werth under date of April 8, 1980 and July 3, 1980, were so drastically different that Mr. Adams was "shocked" by the information. This cannot be a reason for termination of funding, since it already occurred before the presentation of Werth's financial statement of July 3, 1980.
In the final analysis, Adams concluded, in response to questioning by the Bank's own counsel, that the "sole reason" he shut down the loan was that he had heard the loan to Megapolitan on the first deed of trust to the Garrison Property was in default. As previously indicated, termination *985 of funding occurred before the Bank learned of any such problem on the Garrison security.
I shall not speculate on the reason the Bank chose to suddenly stop funding its loan commitment to Fairview Farms. Suffice it to say it was not for any of the reasons proffered by testimony on behalf of the Bank. Further, there is no other cause set forth in the evidence to explain the Bank's conduct.
This requires amplification in the Findings of Fact.
Mr. Gunnels noted that the first checks returned for insufficient funds occurred in the first part of July. He called for Mr. Adams, but received no reply. Gunnels paid these checks from his own resources. This resulted in the agreement (Exhibit I), dated August 4, 1980, which is the Crop Management Agreement granting Gunnels 75% of the net profits from the grain harvest, 80% of the net profits from the potato harvest and 20% of the net proceeds of Fairview Farms in sharecropping arrangements with third parties. This arrangement was totally the result of the Bank's decision to abrogate its agreement to fund the Farm.
Gunnels further testified that in his many years of farming he had never heard of a Bank terminating funding in mid-season. He knew of nothing Werth or Fairview Farms had done to cause the Bank to break its agreement. I accept this testimony.
G. Boyce Baumgardner, a former employee of the First National Bank of Center, IntraWest's correspondent bank, acted as a specialist in farm loans. He advised Ed Salvi, Werth's "personal banker" with IntraWest, that the crop was harvestable and would be profitable and that he knew of no reason to cut off funding. This was a most "unusual" action for a bank to take in mid-season, according to this witness. I accept this testimony.
Ray Fox, the President of the First National Bank of Center, expressed his surprise at IntraWest's action. He "never dared to cut off funds in mid-season" as it would be "disastrous" to both the farm and the Bank. His "bewilderment" was expressed to IntraWest. None of the importunities of this or the previous witnesses resulted in any change in IntraWest's position. I accept this testimony.
Tom Ammerman, the County Supervisor for the Farmer's Home Administration, was called as a witness by the Bank. Mr. Ammerman expressed that he had relied upon Mr. Salvi at IntraWest when Salvi stated that the Bank would fund Fairview Farms and such funds would be available. Based upon this representation, Ammerman co-signed checks for Fairview Farms. It was only when checks were returned for insufficient funds that Salvi advised Ammerman, in response to Ammerman's telephone communication, that there would be no more funding. This witness also expressed the concern that a Bank should not cut off funds in mid-season, especially without contacting the borrower. I accept this testimony.
Finally, Gordon Kennedy, the Investment Manager over Real Estate Operations for Prudential Insurance Company, testified with respect to cessation of funding. He expressed his concern that it was after Prudential declined to purchase the property that the Bank quit funding its loan. He attempted to contact Adams, but was only afforded approximately a four to five minute meeting. No explanation was forthcoming. In thirty three years of farming, Mr. Kennedy indicated he never saw a loan terminated in mid-season. I also accept this testimony.
Based upon the evidence presented in this matter, it is clear no plausible or believable, rational reason has ever been forthcoming to explain the Bank's unilateral decision not to continue the loan and to abandon it's participation. This conduct resulted in the destruction of Fairview Farms, forcing it and Elmer Werth into bankruptcy.
III. CONCLUSIONS OF LAW
A. Defenses of Res Judicata and Collateral Estoppel
IntraWest contends that Werth is barred by the doctrines of res judicata and collateral *986 estoppel from objecting to the Bank's claim because he had an opportunity to object in the Chapter 7 bankruptcy proceeding of Fairview Farms, Inc. In fact, there was an adversary proceeding (81 MC 451 now closed) wherein the farm was sold free and clear of liens. Among the numerous defendants were the Bank, the Prudential Insurance Company, the United States acting for the FmHA and Werth. The Farm, IntraWest and the United States entered into a Stipulation there wherein the Farm admitted it owed IntraWest $800,000, secured by the real property and improvements thereon in the amount of $300,000. An order approving the Stipulation was entered on December 7, 1981.
The doctrines of res judicata and collateral estoppel apply in the bankruptcy context. Katchen v. Landy, 382 U.S. 323, 86 S. Ct. 467, 15 L. Ed. 2d 391 (1966); Matter of Exten, 24 B.R. 888 (D.C.Md.1982). The definitions and applications of res judicata and collateral estoppel have recently been reiterated in a group of United States Supreme Court cases: Federated Department Stores v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981); Brown v. Felsen, 442 U.S. 127, 99 S. Ct. 2205, 60 L. Ed. 2d 767 (1979); Montana v. U.S., 440 U.S. 147, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979).
In Montana, supra, the United States Supreme Court defined the doctrines thusly:
A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a `right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . .' Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. . . . Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. . . . Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions.
Further, the Court in Brown, supra cautioned that a very careful inquiry should be made when applying these doctrines to foreclose an action.
Clearly, the doctrine of collateral estoppel does not apply because the issue of Werth's liability as a personal guarantor pursuant to a secured, continuing, personal guarantee, and defenses thereto, were simply never litigated in any court.
The determination of the application of res judicata is more intricate because the doctrine prohibits litigation of grounds for, or defenses to, recovery previously available to a litigant regardless of whether such matters were asserted or determined in the prior proceeding; Brown, supra. The important consideration is whether this matter could have been raised before.
I conclude Werth is not barred by res judicata in asserting his defenses to Claim No. 39. This conclusion requires explanation.
First, Werth had no standing to object to the claim of the Bank in the Fairview Farms bankruptcy proceeding. In that Chapter 7 proceeding it was the duty of the Trustee to object to the claim of the Bank. Collier, Bankruptcy, Sec. 502-01, p. 502.11 (15th Rev.Ed.1979). Further, since that bankruptcy proceeding is still pending the Trustee may still object to claims. 11 U.S.C. Sec. 502(j), Collier, Bankruptcy, (15th Rev.Ed.1979) Sec. 502.1, p. 502-18.
Also, the adversary proceeding was resolved by way of a stipulation entered into by the Farm, IntraWest, and the United States. A stipulated judgment is a bar only as to matters actually litigated, not as to matter which could have been litigated. Tyson v. New York City Housing Authority, *987 369 F. Supp. 513 (D.C.N.Y.1974); Moore v. Deal, 240 F. Supp. 1004 (D.C.Pa.1965).
Further, and most importantly, the issues in 81 Mc 451 and this proceeding are different. Therefore, the matters do not contain the same cause of action. Causes of action are identical for purposes of res judicata if the same evidence would be relied upon in the two proceedings. City of Westminster v. Church, 167 Colo. 1, 445 P.2d 52 (1968). In the Complaint to Sell Free and Clear of Liens adversary proceeding, the issues were what entities held valid mortgages on the real property, in what amount and was the proposed sale price sufficient to satisfy non-consenting lienors. See 11 U.S.C. Sec. 363(f). The issues here are whether the actions of the Bank gave rise to various defenses, assertible by a guarantor, to enforcement of the personal guarantee.
Thus, it is my determination that Werth is not barred by collateral estoppel or res judicata.
B. Defense of Lack of Standing
IntraWest argues that Werth lacks standing to object to it's claim. The Bank contends that a guarantor cannot recover damages for breach of contract by the obligee, that only parties for whom a contract is made have a right of action based in contract and that a guarantor remains liable even where the lender-obligee refuses to advance further amounts to the obligor.
As to the general availability of defenses to guarantors, 38 C.J.S. Guaranty, Sec. 88 at 1259-1260 (1943), provides:
It may be stated generally that, in order that any matter may constitute a good defense to an action on a guaranty, it must be germane to the cause of action pleaded and present a legal reason why the guarantee should not recover.
In general, the guarantor may set up any defense that would have been available to the principal obligor, against the guarantee.
A number of federal courts have permitted guarantors to set up defenses of obligors. U.S. v. Willis, 593 F.2d 247 (6th Cir.1979); U.S. v. Terrey, 554 F.2d 685 (5th Cir.1977); Mercantile Financial Corp. v. Miller, 292 F. Supp. 797 (D.C.Pa.1968).
Here, Werth is not pursuing an action for damages based upon breach of contract. Rather the debtor is in a defensive position in an objection to claim proceeding. A proof of claim is prima facie evidence of its validity. In re John J. Orr & Sons, 22 B.R. 874 (Bkrtcy.R.I.1982); 11 U.S.C. Sec. 502(a). However, where the evidence raises factual questions the creditor bears the ultimate burden of proving its claim. John J. Orr & Sons, supra. The same result was reached under the Bankruptcy Act. In the Matter of King Resources, Inc., 20 B.R. 191 (D.C.Colo.1982). Thus, Werth is not attempting to recover damages; rather, he is defending against the Bank's enforcement of it's claim. Werth also has a direct interest in asserting these defenses, since if the Bank had not acted as it did, Werth may not have been called upon to respond on his guarantee.
The cases offered by the Bank to support its proposition that a guarantor remains liable, even where the lender refuses to advance further sums to the principal obligee are distinguishable. The Bank cites Grill v. Driad Construction Corp., et al, 34 N.Y.S.2d 593 (Sup.1942) for the principle that a guarantor cannot use defenses of the primary obligor. In fact, Grill, supra, merely holds that a guarantor, in New York, cannot use the defense of fraud upon the principle to escape liability.
Professor Simpson on Suretyship, Sec. 60, p. 291 (1942), states, "The termination of the principal's obligation by a failure of consideration discharges the surety." Simpson also points out, at pages 278-279, that there exists a split of authority on the issue of the availability to the guarantor of a defense of fraud on the principal debtor. The majority view is opposite that of the New York rule. In any event, the availability of a fraud defense is not relevant here, since no fraud defense is involved. No New York cases were cited or discovered *988 which extended this principle to other possible defenses.
A line of Georgia authorities is also cited by the Bank. The decision in Hornsby v. First National Bank of Atlanta, 154 Ga. App. 155, 267 S.E.2d 780 (1980), is cited for the proposition that a guarantor remains liable when the lender refuses to advance further amounts to the primary debtor. A reading of that decision indicates two loans were contemplated, with the guarantors obligated on both loans. Due to various circumstances, including foreclosure of the primary obligor, the Bank brought an action against the guarantors on their guarantee of certain lease payments. The guarantors defended on the basis that the Bank had committed to enter into other commitments which, if they had been funded, could have saved the foreclosure. The Supreme Court of Georgia held such a defense would not bar the lender from recovery of the amount owed under its first loan. Further, there were valid reasons for termination of the second loan commitment.
In the case of Federal Deposit Insurance Corp. v. Lattimore, 656 F.2d 139 (5th Cir.1981), the Fifth Circuit applied Georgia law, explaining as follows:
As a general proposition under Georgia law, an action for fraud cannot be predicated on statements which are promissory in their nature as to future acts. . . . Under this state of the Georgia law, the obligors may not assert a breach of promise to extend future credit. Federal Deposit Insurance Corp. v. Lattimore, supra, at page 145.
Lattimore noted that the breach of an agreement to make a loan will not support an action for fraud under Georgia law even if the purported lendor had no intention of making such advances at the time the promise was made. This, of course, is contrary to Colorado law that an action for fraud may be based on misrepresentation of a present intent to do a future act. Teare v. Sussman, 120 Colo. 488, 210 P.2d 446 (1949); Stalos v. Booras, 34 Colo. App. 252, 528 P.2d 254 (1974).
In short, neither the New York nor the Georgia lines of authority are persuasive under the facts or the law in this action.
In my view, under the facts of this case the rights of Fairview Farms based on breach of contract and failure of consideration are available to Werth in defense of the Bank's claim against him on his guarantee.
C. Fiduciary Relationship
Werth contends that a fiduciary relationship was created between the Bank, Fairview Farms and himself from the longstanding lender-borrower-guarantor relationship. He produced evidence through which he attempted to show that the Bank invited and induced his trust and confidence.
Ordinarily, a bank does not act in a fiduciary capacity towards its customers or depositors absent special circumstances. Dolton v. Capitol Federal Savings & Loan Association, 642 P.2d 21 (Colo.App. 1981); Klein v. First Edina National Bank, 293 Minn. 418, 196 N.W.2d 619 (1972). In Dolton, supra, the Colorado Court of Appeals stated:
While there is no per se fiduciary relationship between a borrower and lender, a fiduciary duty may arise from a business or confidential relationship which impels or induces one party to relax the care and vigilance it would and should have ordinarily exercised in dealing with a stranger. (citations omitted). In Dolton, supra, at p. 23.
IntraWest has argued at great length, both orally and in briefs, that no fiduciary relationship was created as a result of any trust and confidence reposed in the Bank. Indeed, the Bank has persuasively contended that its advertising and the image it endeavors to portray to the public is not intended to solicit trust and confidence of the public.
While the Bank's position is somewhat bizarre and extraordinary, I do not find facts here that indicate special circumstances were extant to reflect that IntraWest *989 induced the Farm or Werth to relax their usual care and vigilance.
The Tenth Circuit in Rader v. Boyd, 252 F.2d 585 (10th Cir.1957), at page 587 held:
While fiducial or confidential relationships recognized and enforced in equity do not rest upon any particular legal relationship, they do necessarily spring from an attitude of trust and confidence and are based on some form of agreement, either express or implied, from which it can be said that the minds have met to create a mutual obligation. (emphasis added).
After a close examination of the surrounding facts and history of this tripartite relationship, I conclude that Werth did not meet the burden imposed on the party who is asserting the existence of a fiduciary relationship. There was no express or implied agreement from which it can be said that the minds of the parties met to form such a unique legal relationship. The Bank always dealt with Werth and the Farm at arm's length and its unwillingness to finance the Farm in 1977 and 1980 is a clear indication of this attitude.
The Bank's primary objective of getting paid is not to be condemned. It must be noted that the Bank owed duties not merely to it's borrowers, but also to it's depositors and to it's stockholders.
D. Breach of Oral Agreement
Actions for breach of oral agreement to loan money have been recognized in Colorado. See Leach v. Fuller, 65 Colo. 68, 173 P. 427 (1918).
Here, I have already found the parties agreed in approximately May, 1980 that the IntraWest Bank would provide Fairview Farms with a loan in the form of overdraft protection in the amount of $675,000 at 3% over prime, secured by previously described security and guarantees. Adams admits the Bank agreed to fund this amount and that the written documents were being prepared to evidence this agreement. All necessary elements of a contract were present. There was agreement between the parties. Consideration was present in the form of mutual promises. The contract was definite in its terms. The Farm complied with the Bank's request for a budget and a plan of liquidation and acted in accordance with all terms of the agreement.
There was a valid and enforceable contract between the parties.
Werth's defense of breach of contract is not precluded by the Statute of Frauds. Although contracts to lend money must ordinarily be in writing, North Denver Bank v. Bell, 528 P.2d 413, (Colo.App.1974) (not selected for official publication) part performance of a contract will remove the case from the statute. Ridgeway v. Pope, 163 Colo. 160, 430 P.2d 77 (1967); Burnford v. Blanning, 33 Colo. App. 444, 525 P.2d 494 (1974). The Bank's part performance of its obligation through partial funding pursuant to the oral agreement was clearly sufficient evidence to create an enforceable contract. Additionally, the Farm's action in reliance on the Bank's agreement also operates to remove the matter from the Statute of Frauds.
However, the absence of a writing bears critically on the existence of conditions in the contract.
The intent to create a condition must appear expressly or by clear implication. St. Germain v. Boshouwers, 646 P.2d 952 (Colo.App.1982); Charles Ilfeld Co. v. Taylor, 156 Colo. 204, 397 P.2d 748 (1964). Of course, if a condition precedent is found, the failure to satisfy it excuses the first party from performing the contract. North Denver Bank, supra.
The only conditions established by the evidence were the security interests previously discussed and the personal guarantee of Elmer Werth, secured by further security interests, including the assignment of his second deed of trust on the Garrison Property.
All of these conditions were met. Werth did assign his interest in a second deed of trust on the Garrison Property to IntraWest. The second mortgage assigned by *990 Werth was not in default. The note executed with the second mortgage provided that no principal payments were to be made until condominium sales on the property were consummated. Interest payments on the principal amount of $570,000 were to be made in quarterly installments, beginning on February 21, 1980.
Jackie Chipman, an accountant retained by the debtor-in-possession, indicated that a payment was made on the second mortgage on June 6, 1980 in the amount of $597,592.77. The sum of $570,000 was allocated to principal and $27,592.77 to interest. Approximately $30,000 was actually due on interest at that time. Had the debtor directed application of payments first to interest, which he had a right to do (Jackson v. ABZ Lumber, 155 Colo. 33, 392 P.2d 288 (1964)), there would be no default. Payment on the principal was then actually early.
The evidence showed that the first mortgage was in default and eventually was the subject of foreclosure. However, keeping the first mortgage current was not a condition of the loan. When the Bank accepted the second mortgage it also assumed the risks inherent in a junior position. At the time the funding was terminated, the first mortgage was in default by approximately 10% of the total obligation owed. Notice of election and demand was not filed until ten weeks after termination of funding. The Bank admittedly had no "insecure clause" in the oral contract which might be utilized in justification of its action.
The deposition testimony of Ed Salvi, a former bank officer who was in charge of the Fairview Farms loan in the years 1975 through 1978, established that Werth was always totally honest in his dealings with IntraWest. Because the stability of the first mortgage was not a condition to the contract, Werth had no duty to inform the Bank of its particular circumstances. He had no right, of course, to deliberately conceal vital information in agreeing to provide the Bank with the assignment of his interest in exchange for the loan to Fairview Farms. But he did not conceal information. Difficulties with the first deed of trust were not even known to him at that time.
Further, the evidence demonstrated that the Bank was in constant contact with the owners of the Garrison Property, and it also relied on those owners for information. When Werth learned of the foreclosure, he promptly relayed the information to IntraWest.
Insofar as condominium sales were concerned, Werth thought sales were going well. He was led to believe that 34 condominium units were sold. There was no intentional concealment or misrepresentation on the part of Elmer Werth. The information which the Bank contends was concealed was equally available to the Bank. See Ackmann v. Merchants Mortgage and Trust Corp., 645 P.2d 7 (Colo. 1982).
All essential elements of the condition relating to assignment of Werth's second deed of trust on the Garrison Property were met, and there was no misrepresentation by Werth which would excuse performance by the Bank.
The conditions precedent to the agreement herein were met by Werth and Fairview Farms. The Bank breached this agreement, without legal basis, by failing to honor its commitment on or about June 23, 1980.
E. Promissory Estoppel
The defense of promissory estoppel is equitable in nature and is designed to "create binding agreements in the interest of fairness to one detrimentally relying on the promise of another." Shoemaker v. Mountain States Telephone and Telegraph, 38 Colo. App. 321, 324, 559 P.2d 721 (1976). "The remedy is not co-extensive with that for breach of contract." Bixler v. First National Bank of Oregon, 49 Or.App. 195, 619 P.2d 895, 898, n. 4 (1980).
Inasmuch as I conclude that Werth's breach of contract defense is well founded, it is unnecessary to delve into the *991 defense of promissory estoppel. Suffice it to say that if a defense of breach of contract is established, a fortiori, the defense of promissory estoppel is made.
F. Damages
Pursuant to 11 U.S.C. Sec. 502(b)(1) the claim of IntraWest shall be allowed except to the extent that it would be unenforceable against the debtor under any applicable law. In this objection to claim proceeding, the damages sustained by Werth are relevant to the extent that they offset the amount claimed by the Bank. Claim No. 39, filed herein by IntraWest, requests $525,634.39 plus accrued interest. Thus, the claim will be disallowed to the extent Werth establishes damages under Colorado law, resulting from the Bank's breach. However, in light of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), I will not enter judgment for damages. Such damages will only be considered as a defense to the claim filed by IntraWest.
In general, the measure of damages for breach of contract is the loss in value to the injured party which flowed from the breaching party's failure to perform plus any other incidental or consequential loss, less any loss the injured party has avoided by not having to perform. General Insurance Co. v. City of Colorado Springs, 638 P.2d 752, 759 (Colo.1981). That is, the court should place the injured party in the position in which he would have been had the contract not been breached. Carriage Bags, Ltd. v. Aerolinas Argentinas, 521 F. Supp. 1363, 1367 (D.C.Colo.1981).
More specifically:
Damages for breach of contract to lend money are measured by the cost of obtaining the use of money during the agreed period of credit, less interest at the rate provided in the contract, plus compensation for other unavoidable harm that the defendant had reason to foresee when the contract was made.
BA Mortgage Co., Inc. v. Unisal Development, Inc., 469 F. Supp. 1258, 1268 (D.C. Colo.1979), quoting Restatement of Contracts, 1st, Sec. 343 (1932).
Werth must prove facts which provide a reasonable basis for calculation of damages if he is to prove actual or consequential damages in an amount sufficient to disallow the Bank's claim. Colorado National Bank v. Ashcraft, 83 Colo. 136, 263 P. 23 (1928); Cope v. Vermeer Sales and Service Corp., 650 P.2d 1307 (Colo.App.1982). Werth may prove consequential damages in the form of lost profits if those lost profits were reasonably foreseeable and are capable of calculation. Prutch v. Ford Motor Company, 618 P.2d 657 (Colo.1980).
The overwhelming impact of the testimony indicated the Bank's breach was the cause of the corporate bankruptcy of Fairview Farms and the personal bankruptcy of Elmer Werth. This testimony came primarily from Werth, Terry McGovern and Earl Wright, President of Asset Management Group, who was hired to assist in the financial affairs of Fairview Farms and Werth. Further, documents from the Bank's file in the form of memoranda from Ralph Adams acknowledged and predicted that a bankruptcy could conceivably occur if a 1980 crop loan wasn't in place. The Bank also had knowledge of the state of the potato market at all relevant times and should reasonably have foreseen the disastrous loss of profits which would be sustained by Fairview Farms if the loan to which the Bank had committed itself were not funded.
The Bank endeavored to show that the Farm was going to lose money in 1980 in any event and that, thus, the bankruptcy of Fairview Farms and Werth were not caused by any conduct on the part of the Bank. However, Mr. Wright stated that a break-even or deficit year in 1980 did not forecast bankruptcy for the Farm or Werth. It was his professional testimony that a reasonably successful year in 1980 would have enabled the Farm to pay off its debts over a period of time. It is evident to me from the weight of the testimony that *992 the abrupt cessation of funding by the IntraWest Bank resulted in the bankruptcy of Fairview Farms and Elmer Werth, and that each entity sustained damages thereby.
Both the Farm and Werth suffered extensive foreseeable and unavoidable harm as a result of the Bank's breach of contract to provide funding for the 1980 crop year. In its Chapter 7 bankruptcy, the Farm was sold free and clear of liens. The Bank's Proof of Claim filed in that action represents in part a measure of damages sustained by Werth. The 1980 crop year would have enabled the Farm and Werth to retire a substantial portion of the Farm's debt. Additionally, First National Leasing Company and Equitable Leasing Company filed claims for deficiencies on farm equipment leases, which were personally guaranteed by Werth. Werth also claims that his personal liability to the FmHA in the amount of $315,000 was a result of the Bank's failure to fund. I agree the evidence establishes this to be a fact.
The value of lost equity in the Farm was between $400,000 and $500,000, of which Elmer Werth's share was 50% as a 50% stockholder. A significant item of damage resulting from the breach was a requirement that Werth enter into a crop-sharing agreement with Acie Gunnels, wherein Gunnels recouped 75% to 80% of crop profits in exchange for his financing and operating the Farm. Gunnels stated that he realized a profit of $400,000 when, at best, he had expected a $60,000 gain. It cannot be assumed the Farm would have enjoyed such profits in the absence of Gunnels' management. However, it is evident from the past performance of the Farm that it would have enjoyed similar profits. It is also to be observed that Gunnels had already been hired as the Farm Manager before the Crop Management Agreement. There is nothing in the evidence to indicate Gunnels would have performed with any less degree of professionalism had he not achieved the Property Management Agreement.
I also conclude the claim of IntraWest in its Claim No. 39 in the amount of $525,000 would not have occurred but for its own conduct. Thus, this is an item of damage to Elmer Werth.
The damages sustained by Elmer Werth as a result of the conduct of IntraWest Bank of Denver far exceed the claim of IntraWest in the amount of $525,630 plus accrued interest. Therefore, the Claim will be disallowed in its entirety. An Order disallowing this Claim will be entered contemporaneously with these Findings of Fact and Conclusions of Law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607087/ | 333 F. Supp. 1318 (1971)
UNITED STATES of America ex rel. Milton ELLINGTON, Petitioner,
v.
J. P. CONBOY, Superintendent, Great Meadow Correctional Facility, Comstock, New York, Respondent.
No. 71 Civ. 2743.
United States District Court, S. D. New York.
October 6, 1971.
*1319 Milton Ellington, pro se.
GURFEIN, District Judge.
This is a petition pro se by a State prisoner for a writ of habeas corpus. Petitioner was convicted of second degree robbery by the New York State Supreme Court and on October 22, 1969 was sentenced to an indeterminate term of imprisonment not to exceed seven years. Assigned counsel handled the appeal to the Appellate Division which affirmed the conviction on February 18, 1971, 318 N.Y.S.2d 668.
*1320 Petitioner contends that counsel did not cooperate with him in the preparation of the appeal, that she failed to supply him with a copy of the trial record, that she did not abide by her alleged agreement to consult with him before submitting the brief and that the brief itself was inadequate. Petitioner had received a copy of the brief on October 8, 1970.
After the affirmance by the Appellate Division on February 18, 1971 petitioner wrote a letter dated February 22, 1971 to that court setting forth his dissatisfaction with counsel's performance on the brief. In the letter petitioner moved for permission to file a supplemental brief, to reargue the appeal and to be assigned new counsel. It is not clear that petitioner knew that his conviction had already been affirmed. The motion was set down to be argued on March 9, 1971. On March 11, 1971 petitioner submitted a motion for a free transcript to be used in prosecuting his appeal and in pursuit of collateral relief.
The motion for reargument was denied by order of the Appellate Division on March 18, 1971. The Clerk of the Appellate Division informed petitioner by letter of the same date that petitioner's motion to dismiss assigned counsel was unnecessary because the Appellate Division's order affirming the conviction automatically terminated assignment of counsel. Additionally, the Clerk noted that because the Appellate Division had denied petitioner's motion for reargument, the Appellate Division had no power to direct that petitioner be furnished with a transcript of the trial record.
A subsequent letter dated April 5, 1971 from the Clerk of the Appellate Division informed petitioner that his remedies in that Court had been exhausted.
Application for leave to appeal from the Appellate Division's affirmance was made to the New York Court of Appeals by petitioner's same assigned counsel despite his efforts to dismiss her and despite the statement of the Appellate Division Clerk that her assignment had been automatically terminated. On March 25, 1971 Chief Judge Fuld denied leave to appeal. Petitioner has not sought relief in the State Courts by writ of error coram nobis or in any collateral proceeding. A petition to the Supreme Court for a writ of certiorari was not filed. Petitioner's communications with the Appellate Division constitute the whole of his efforts in the State Courts to raise the issues of counsel's incompetence and petitioner's right to a free transcript. Petitioner now brings a petition for a writ of habeas corpus.
In this petition he contends (1) that he was not warned of his rights before he gave an inculpatory statement and that the statement was erroneously admitted at his trial, claiming that Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) applied to him because, even if he was not in custody, he was a known suspect; (2) that the eye-witness identification of himself was constitutionally improper under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); (3) that denying him a free transcript of his trial violated his constitutional rights; and (4) that his assigned counsel argued his Miranda point in the Appellate Division in an inadequate manner and failed to raise the Wade problem as a constitutional issue.
EXHAUSTION OF REMEDIES
28 U.S.C. § 2254(b) requires that an application for a writ of habeas corpus shall not be granted "unless it appears that the applicant has exhausted the remedies available in the courts of the State. * * *" Subsection (c) of § 2254 provides that there is no exhaustion of remedies if the applicant "has the right under the law of the State to raise, by any available procedure, the question presented."
To exhaust his remedies in the State Courts petitioner need only raise the issue and pursue it to a conclusion in the highest State Court either by appeal from the conviction or from denial of collateral relief. There is no need to *1321 petition the United States Supreme Court for a writ of certiorari. Fay v. Noia, 372 U.S. 391, 435-438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
The issues presented by this petition and their status with respect to exhaustion of State remedies are as follows:
1. The Miranda claim was raised at a People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) hearing and decided against the petitioner. The issue was raised again on appeal to the Appellate Division. The issue was presented to the Court of Appeals by way of the petitioner's Appellate Division brief which went to the Court of Appeals as part of assigned counsel's application for leave to appeal. Having gone to the highest State Court on this issue, the petitioner has exhausted his State remedies. The issue is properly before the Federal Court.
2. The Wade claim was raised at an identification hearing in the New York Supreme Court and decided against the petitioner. His counsel in her brief to the Appellate Division failed to raise the out-of-court identification as a constitutional issue under Wade, although she did argue that the identification was too weak to support a conviction beyond a reasonable doubt. Although the petitioner did fail to exhaust his State remedy by direct appeal this failure was, he contends, the fault of his "inadequate" counsel. The requirement of exhaustion of remedies is based upon the belief that the State Courts should have an opportunity to pass upon Federal constitutional questions before Federal District Courts assume jurisdiction. Whether his counsel was adequate or not, the State Court has had no opportunity by way of direct appeal or coram nobis to pass on the Wade question.
If the Wade question were the sole question on an application for a Federal writ of habeas corpus, this Court would have remanded for a State coram nobis determination. But since the Miranda issue is here quite properly this Court will also, as a matter of discretion, take cognizance of Wade to eliminate further time consuming action by State and Federal Judges. See Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); United States ex rel. Wilson v. Follette, 316 F. Supp. 178, 179-180 (S.D.N.Y.1970); United States ex rel. Di Niro v. Mancusi, 298 F. Supp. 1294, 1295 n. 2 (S.D.N.Y.1969).
3. Petitioner first raised the issue of the free transcript by making a motion in the Appellate Division after that Court had affirmed his conviction. He requested a free transcript in order to facilitate direct appeal and to seek collateral remedies. Petitioner did not exhaust his State remedies with respect to the free transcript and he is not in a position to claim that he has been deprived of any constitutional right. On his appeal his counsel did have a transcript. New York provides one free transcript (N.Y.Code Crim.Proc. § 456(2), McKinney Supp.1970) which his counsel received. Petitioner's argument is that he was entitled to two copies, one for counsel and one for himself. The New York Courts reject that view. See People v. Preston, 22 A.D.2d 708, 253 N.Y.S.2d 797 (2d Dept. 1964). So apparently did the Supreme Court with respect to a similar California practice. See Wade v. Wilson, 396 U.S. 282, 286, 90 S. Ct. 501, 24 L. Ed. 2d 470 (1970). With respect to collateral attack, as distinguished from appeal, there is no showing that before making his application for a writ of habeas corpus petitioner sought to obtain a transcript for that purpose in the State Court. In Wade v. Wilson, supra, the Supreme Court noted that there was no constitutional question until the petitioner in habeas corpus could, at least, affirmatively show that the State had refused him a transcript for habeas corpus purposes (396 U.S. at 286-287, 90 S. Ct. 501, 24 L. Ed. 2d 470). The Supreme Court has not yet said whether the problem would attain a constitutional dimension if New York now refuses a transcript. It teaches us that on the present record *1322 "the District Court should not have reached the merits of petitioner's claim" (id. at 287, 90 S.Ct. at 504).
4. The issue of competency of counsel was first raised by petitioner in his letter to the Appellate Division. Before that letter reached the Court, petitioner's conviction had been affirmed. By letter of March 18 the Clerk of the Appellate Division advised petitioner that assignment of counsel was terminated by affirmance of the conviction. Nevertheless, assigned counsel proceeded to petition the Court of Appeals for leave to appeal, which was denied on March 25.
As to the incompetency claim, the State courts have never passed on the petitioner's allegations. Research has uncovered no case where a prisoner asserts, after affirmance of his conviction, that his counsel on the appeal was incompetent. The New York Court of Appeals in People v. Lampkins, 21 N.Y.2d 138, 286 N.Y.S.2d 844, 233 N.E.2d 849 (1967), indicated that coram nobis is the appropriate remedy where the right to appeal is frustrated by counsel's incompetencyas where the appeal was dismissed. Unlike the situation in Lampkins, petitioner's appeal was heard. But coram nobis may still be available to him upon an allegation of facts showing that representation by appointed counsel was a "mockery of justice." People v. Brown, 7 N.Y.2d 359, 197 N.Y.S.2d 705, 165 N.E.2d 557 (1960), cert. denied, 365 U.S. 821, 81 S. Ct. 703, 5 L. Ed. 2d 698 (1961); People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E.2d 551 (1960). Whatever the likelihood of petitioner's success in petitioning for a writ of error coram nobis on this issue, the State courts have a clear interest in passing on matters of this kind. The petitioner must first make his claim in the State Court.
As to the Appellate Division's failure to substitute new counsel for petitioner's appointed counsel, if what petitioner describes is a deprivation of the right to counsel, the remedy is coram nobis in the State court. Hogan v. Culkin, 18 N.Y.2d 330, 332 n. 1, 274 N. Y.S.2d 881, 221 N.E.2d 546 (1966); People ex rel. Sedlak v. Foster, 299 N.Y. 291, 294, 86 N.E.2d 752 (1949).
THE MIRANDA ISSUE
We now turn to the Miranda issue with respect to which there has been exhaustion of State remedy.
Petitioner was standing in the midst of a group of persons in the lobby of one of the buildings in a housing project in which he resided. He was seen by a policeman Eversly, who had been told that petitioner was suspected of aiding in the robbery of a restaurant, The Twin Donut Shop. Eversly and another patrolman approached petitioner and asked him whether his name was Milton Ellington. Ellington answered "yes." Patrolman Eversly then said to petitioner, "You took off the Twin Donut." Ellington said, "Oh, I thought they forgot all about it. I've been walking around there for the last four or five days." The patrolman then asked the petitioner to accompany him to his office. No guns were drawn. Eversly conceded, however, that the petitioner could not have walked away from him. Two persons were then brought to Patrolman Eversly's office to view the petitioner, and the petitioner was thereafter formally arrested by Eversly who informed him of his rights. On the way to the precinct station petitioner said, "Maybe this is the best thing that could have happened to me. I need treatment."
Both statements were admitted in evidence. The petitioner claims that his constitutional rights were violated under the doctrine of Miranda v. Arizona, supra and under the requirements of statutory law, N.Y.Code Crim.Proc. §§ 177, 180 (McKinney Supp.1970). The sections he refers to deal with the lawfulness of arrest and not with warnings to suspects. "In any event, noncompliance with a state rule is not, in and of itself, a violation of one's federally protected rights." United States ex rel. *1323 Coffey v. Fay, 242 F. Supp. 382, 385 (S. D.N.Y.1965).
The constitutional issue is not whether there was compliance with the State's Criminal Code but whether there was a violation of the petitioner's constitutional right against compulsory self-incrimination. The State contends that when the petitioner made the first statement he was not yet in custody and when he made the second statement he had already been warned. The Supreme Court noted in Miranda that "[v]olunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding. * * *" (384 U.S. at 478, 86 S. Ct. at 1630).
As the Court of Appeals for the Ninth Circuit said in Arnold v. United States, 382 F.2d 4, 7 n. 3 (1967): "Neither Escobedo, 378 U.S. at 492 [84 S. Ct. 1758, 12 L. Ed. 977] * * * nor Miranda v. State of Arizona, 384 U.S. 436, 477-478 [86 S. Ct. 1602, 16 L. Ed. 2d 694] * * * (1966) applies to on-the-scene questioning before the process has shifted from the investigatory to the accusatory stage." And our own Circuit has said: "The purpose of the Miranda requirement is to protect a suspect, detained by the police, from coercion effected by the police to compel the suspect to make inculpatory admissions or confessions. * * * It is only when inculpatory statements are made in a context in which rationality and free choice are likely to be overborne by the Government's investigatory or prosecutorial agents or authority that Miranda comes into play." United States v. Viviano, 437 F.2d 295, 300-301 (2 Cir. 1971).
It is true that the Supreme Court has held that interrogation may be custodial even outside the stationhouse. Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969). In Orozco the petitioner was questioned by four police officers in his bedroom. He "was not free to go where he pleased but was `under arrest.'" Id. at 325, 89 S.Ct. at 1096. But this Circuit has interpreted the Orozco decision to mean "that something more than official interrogation must be shown. It is hard to suppose that suspicion alone was thought to constitute that something. * * *" United States v. Hall, 421 F.2d 540, 544 (2 Cir. 1969) (Friendly, J.), cert. denied, 397 U.S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970).
The unexpressed intention of police officers to arrest him, not known to the defendant, does not amount to detention. Williams v. United States, 381 F.2d 20, 22 (9 Cir. 1967). Moreover, Judge Friendly in Hall cited the New York Court of Appeals ruling in People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967) with approval. In that case the defendant was a 16 year old boy who, while standing by the side of his house with two other boys, was approached and questioned by a detective. The detective was acting on the statement of another youthwho had been arrestedthat the defendant was an accomplice to a crime. The two boys were asked by the detective to leave and did so. The defendant was not told he was under arrest. No gun was drawn and the defendant was not restrained. The New York Court of Appeals held that such questioning "is little different from routine police investigation of crime or suspicious conduct at a person's home, his place of business or on the streetthe kind of questioning which has uniformly been held not to require the Miranda warnings." 21 N.Y.2d at 10-11, 286 N.Y.S.2d at 233, 233 N.E.2d at 261 (citations omitted).
In sum, the petitioner made an inculpatory statement which, even if deemed a response to interrogation, would not be a response to an "in custody" interrogation. The only doubt remaining is whether Patrolman Eversly's statement "You took off the Twin Donut" was an accusation which, if believed by Eversly, actually expressed his intention to arrest the petitioner. If enough time elapses between the accusation and the response for the Miranda warnings to be given, perhaps, in some circumstances, *1324 it should be given, although the additional test would still be an awareness by the defendant that he is not free to leave. Here the spontaneous exclamation followed immediately upon the accusation. There is no rule that requires a police officer, before an arrest has been made, to couple a statement that the defendant is suspect with a warning to make no spontaneous comment.
We have read the brief to the Appellate Division of which complaint is made. We think that his counsel quite competently asked the Appellate Division to rule that the Miranda requirement applied not only to "in custody" situations but also to situations where the defendant was a suspect in a known crime.[1] The State Court refused to so hold. This Court agrees. In any event, there was no interrogation here but an accusation which elicited a spontaneous non-responsive admission that the police officer had not requested the petitioner to make.
THE WADE ISSUE
In response to motions by petitioner and his co-defendant to suppress in-court identifications, the State Court held a pre-trial identification (Wade) hearing on August 8, 1969. The sole witness at that hearing was Soula Paikopoulos, a counter-woman employed at the Twin Donut Shop where the robbery occurred. She identified petitioner and his co-defendant at the hearing and testified that in the early morning of January 4, 1969 the two men were in the shop from about 12:30 a. m. until 5 a. m. They ordered food and refused to pay, but Miss Paikopoulos was afraid of them and made no effort to remove them or to call the police. The shop was well-lit and the men sat at the only counter. Miss Paikopoulos was the only waitress and so was able to observe them continually during their four and one-half hour stay. At about 5:25 a. m. the two men reappeared. Petitioner took money from the register and from a cardboard box below the register, while his co-defendant held Miss Paikopoulos at gunpoint.
Immediately after the robbery Miss Paikopoulos described the men to the police. She said they were about 17 or 18 years old, that one was white and one black. The papers before this Court do not indicate what further description, if any, she made of the black man. Petitioner, who is black, was 19 years old at the time of the hearing.
Miss Paikopoulos saw petitioner and his co-defendant next at his arraignment on January 10, 1969. She sat in the first row of the courtroom with the arresting officer. The officer asked her if they were the two men, and she told him they were. The substance of the Wade claim is that Miss Paikopoulos' in-court identification was thereby infected.
The petitioner was granted a full and fair hearing by the State Court (Mr. Justice Fraiman) resulting in reliable findings. In such case the Federal District Court should accept the facts as found in the hearing. Townsend v. Sain, 372 U.S. 293, 318, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). The salient fact found by Mr. Justice Fraiman was that the eye witness who made the identification at the Wade hearing had had four and one-half hours in a well lighted restaurant to observe the petitioner both before and during the commission of the crime. He specifically found "that the in-court identification (at the Wade hearing) was not based on or tainted by the pre-trial identification." While the informal identification was wrong under Wade standards, United States v. Roth, 430 F.2d 1137, 1140-1141 (2 Cir. 1970), cert. denied, 400 U.S. 1021, 91 S. Ct. 583, 27 L. Ed. 2d 633 (1971), there is no indication whatever that the State Court Judge failed to adhere to recognized constitutional principles in finding the in-court identification untainted. This was *1325 not the case of a robber who leaped out of the shadows to confront a victim who had never seen him before. The witness had known the defendant earlier and even knew his first name. This made the identification air-tight. Wade cannot be stretched to unreal limits where "the in-court identifications had an independent origin." See Wade, 388 U.S. at 242, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. And while it might have been better for the petitioner's counsel squarely to have raised the Wade point in the Appellate Division, the chances of her success would have been meager indeed.
In any event, the petitioner did have a full and fair hearing in the State Court with the assistance of counsel. There is no serious dispute on the facts and the State Court did make careful findings, within the limits of constitutional doctrine, with which this Court upon independent review of the Wade hearing transcript agrees. 28 U.S.C. § 2254(d).
The petitioner has, however, raised questions of some substance. In order that he may take an appeal from this decision, the Court will issue a certificate of probable cause pursuant to 28 U.S.C. § 2253 and Fed.R.App.P. 22(b).
The petition is dismissed.
NOTES
[1] We adopt the test suggested by Judge Fuld in People v. Tomaselli, 7 N.Y.2d 350, 356, 197 N.Y.S.2d 697, 702, 165 N.E.2d 551, 555 (1960): "[T]here is denial of effective representation of counsel only when the representation given is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of it and correct it." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645382/ | 994 So.2d 311 (2008)
LAKE
v.
STATE.
No. 2D08-1179.
District Court of Appeal of Florida, Second District.
November 14, 2008.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606115/ | 7 So. 3d 865 (2009)
Darwin Weymon WART, Plaintiff-Appellee,
v.
PROGRESSIVE SECURITY INSURANCE COMPANY, et al., Defendant-Appellant.
No. 43,954-CA.
Court of Appeal of Louisiana, Second Circuit.
April 8, 2009.
*866 Cook, Yancey, King & Galloway, APLC by Brian Allen Homza, Robert Kennedy, Jr., Shreveport, for Defendant-Appellant, Travelers Property Casualty Co.
Nix, Patterson & Roach, LLP by Christopher R. Johnson, for Plaintiff-Appellee, Darwin Weymon Wart.
Thomas Anthony Bordelon, for Defendant-Appellee, State FarmMutual Automobile Insurance Company.
Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.
DREW, J.
From a partial summary judgment finding that the selection of lower Uninsured/Underinsured Motorist Coverage (UM) was improperly done, Peterson Contractors, Inc., and its vehicular liability insurer, Travelers Property Casualty Company,[1] appealed. The judgment below granted the plaintiff's motion for partial summary judgment while denying Travelers' motion for partial summary judgment. Both motions concerned the validity of the UM coverage selection in the auto liability policy issued by Travelers to Peterson Contractors. For the following reasons, the judgment is reversed and this difficult matter is remanded for further proceedings.
*867 This dispute arose out of an accident which occurred on July 5, 2006, in which Darwin Weymon Wart sustained serious injuries requiring surgery. Wart stated in brief that his medical bills alone exceed $44,000, that his injuries may result in future surgery, and that he continues to have pain due to his injuries.
The accident allegedly occurred when Charity Myers ran a stop sign and pulled suddenly into the path of the Peterson Contractors truck being driven by Wart in the course and scope of his employment. Progressive, Myers' insurer, tendered the policy limits of $10,000 and was dismissed from the suit. The worker's compensation insurer settled its claim with Wart by taking the entire $10,000.
Peterson Contractors had liability insurance with UM motorist coverage applicable to Wart's injuries. Wart sought to recover damages under the UM coverage of Peterson Contractor's policy. The Travelers policy with Peterson Contractors was a single-limit[2] policy of $1,000,000 per accident. The UM form in the Peterson Contractors' policy contained a UM liability coverage selection of $30,000 per person, while the blank for selecting a lower per-accident UM limit is blank. The UM form is reproduced here as an appendix to this opinion.
DISCUSSION
Citing Duncan v. U.S.A.A. Ins. Co., 2006-363 (La.11/29/06), 950 So. 2d 544, the trial court found Peterson's UM rejection form in this case was incomplete and invalid. The trial court stated, "[I]f the form is not perfectly filled out, then you don't have a proper rejection."
In Duncan, Justice Kimball explained that a motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The purpose of this favored procedure is to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Appellate courts make a de novo review of summary judgments under the same criteria that govern the district court's consideration of motions for summary judgment. A summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. In ruling on the cross motions for summary judgment, the court must determine whether either party has established there are no genuine issues of material fact and it is entitled to judgment as a matter of law.
Louisiana's strong public policy favors UM coverage which is mandated by statute. UM coverage is determined not only by policy provisions but also by applicable statutes. UM coverage will be read into the policy unless validly rejected. Because the UM statute is to be liberally construed, the statutory exceptions to coverage must be strictly interpreted. Any exclusion from coverage in an insurance policy must be clear and unmistakable. Therefore, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. The law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment. To reject UM coverage validly, the insured must express in a single document rejection of UM coverage as of a specific date in a particular policy. *868 Regardless of the insured's intention, a less precise expression is insufficient to effect a valid rejection. See discussion in Duncan, supra.
The Duncan issue was whether the UM statute required that the policy number blank on the Insurance Commissioner's form had to be filled in to effectuate a valid waiver of UM coverage. The current La. R.S. 22:1295 (formerly La. R.S. 22:680 at the time of this accident) states, in part:
[S]uch rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.
In Duncan, supra, at p. 551, Chief Justice Kimball explained:
Before we determine whether the statute requires that all aspects of the form be complied with, let us now consider what the prescribed form entails. Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
The Duncan supreme court rejected the argument that the statute required only those components explicitly mentioned in the statute while others were optional or precatory. The Commissioner of Insurance required all six tasks to be performed.
As stated above, the legislature gave the commissioner of insurance the authority to create a form and stated that "such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance." Pursuant to that mandate, compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid. The insurer cannot rely on the insured's intent to waive UM coverage to cure a defect in the form of the waiver. By failing to include the policy number in the blank provided on the form, the insurer failed to effectuate a valid rejection of UM coverage.
Duncan, supra, at p. 553. Justices Victory and Weimer dissented.
The supreme court reiterated its Duncan analysis in Gray v. American National Prop. & Cas. Co., XXXX-XXXX (La.2/26/08), 977 So. 2d 839, 849:
We now hold that compliance with the form prescribed by the Insurance Commissioner involves more than the rote completion of the "six tasks" identified in Duncan by someone at sometime. Instead, we find that, in order for the form to be valid, the six tasks must be completed before the UM selection form is signed by the insured, such that the signature of the insured or the insured's *869 representative signifies an acceptance of and agreement with all of the information contained on the form. An insurer who is unable to prove that the UM selection form was completed before it was signed by the insured simply cannot meet its burden of proving by clear and unmistakable evidence that the UM selection form is valid.
The trial court ruled that Peterson's UM coverage decision was not clear enough to comply with controlling jurisprudence. See Duncan v. U.S.A.A., supra, and Carter v. State Farm Mutual Auto. Ins. Co., XXXX-XXXX (La.10/5/07), 964 So. 2d 375. Consequently, the trial court granted Wart's motion for partial summary judgment and denied Travelers', holding that no effective downward departure election as to UM coverage occurred. The ruling was certified for immediate appeal. Travelers argued that the trial court erred in finding Peterson's UM section was invalid with the result that up to the $1,000,000 policy limit was available for recovery by Wart, depending on his proof of damages.
At the time the Peterson policy was purchased, the State of Louisiana allowed policyholders to choose whether to carry uninsured coverage with lower limits than basic liability coverage limits in the policy. The decision to choose lower UM coverage than the policy limits had to be clear and unambiguous. If a purported election for the lesser coverage is unclear, then the full policy limits would apply to UM situations.
The problem is that the state had in effect a usable UM coverage form for split-limit policies, but not for single-limit policies, such as Peterson's Travelers policy at issue here. Accordingly, at the time the representative of Peterson set out to address the issue of UM coverage, there existed no form that fit hand in glove with a single-limit policy. Thus the insured and the agent sought to make an election of lower UM limits on a form that was not designed for a single-limit policy. Travelers should not have to suffer for the state's failure to supply adequate and appropriate UM coverage forms.
Peterson's decision to elect lower limits of UM protection per person could not be more clear and unambiguous. Peterson's representative clearly opted for a UM limitation of $30,000 per person. As no aggregate UM limitation was inserted onto the form, Travelers' aggregate exposure could have been up to $1 million per accident.[3]
We quite understand the quandary of the trial court in examining this issue. The language in Duncan, supra, requires demanding and precise observance of form and procedure.[4] Notwithstanding Wart's inventive alternative theories as to other possible interpretations of this UM selection, we decline to elevate form over the triad of substance, common sense, and logic. The UM election of lower limits by Peterson was clear and unambiguous. When the UM election was made, Peterson bought and Travelers sold UM coverage of *870 $30,000 per person, but with $1 million UM coverage per accident. In our view, that is the logical way to interpret the form before this court. We suggest that insurers and policy holders in Louisiana should be assisted by the Insurance Commissioner in supplying UM election forms for both single-limit and split-limit policies.
The judgments of the trial court, granting summary judgment to Wart, and denying summary judgment to Travelers, are reversed. This matter is remanded to the trial court for further action in conformity with this opinion. All costs relative to these matters are assessed against Wart.
DECREE
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
BROWN, C.J., dissents with written reasons.
WILLIAMS, J., dissents for the reasons assigned by Brown, C.J. and assigns additional reasons.
*871 APPENDIX
BROWN, CHIEF JUDGE, dissenting.
Louisiana imposes UM coverage notwithstanding the language in the policy. Louisiana has a strong public policy favoring UM coverage. As stated by the trial court, Duncan v. U.S.A.A. Ins. Co., supra, requires that a UM rejection form must be fully completed according to statutory requirements *872 set forth in La. R.S. 22:680. In this case, the UM rejection form was not completed. See Gingles v. Dardenne, 08-2995 (La.03/13/09), 4 So. 2d 799.
WILLIAMS, J., dissenting.
I respectfully dissent for the reasons assigned by my colleague and write to assign additional reasons:
LSA-R.S. 22:1295 provides, in part:
.... [A] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. (Emphasis added)
In Duncan v. USAA Ins. Co., 2006-363 (La.11/29/06), 950 So. 2d 544, Chief Justice Kimball stated:
... [T]he legislature gave the commissioner of insurance the authority to create a [UM rejection] form and stated that `such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance.' Pursuant to that mandate, compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid. The insurer cannot rely on the insured's intent to waive UM coverage to cure a defect in the form of the waiver. By failing to include the policy number in the blank provided on the form, the insurer failed to effectuate a valid rejection of UM coverage.
Duncan, supra, at p. 553. [emphasis added]. See also, Carter v. State Farm Mutual Auto. Ins. Co., XXXX-XXXX (La.10/5/07), 964 So. 2d 375; Gray v. American National Prop. & Cas. Co., XXXX-XXXX (La.2/26/08), 977 So. 2d 839, 849; Gingles v. Dardenne, 08-2995, (La.3/13/09) 4 So. 2d 799.
The majority opinion finds that "the language in Duncan, supra, requires demanding and precise observance of form and procedure." It then concludes "[W]e decline to elevate form over the triad of substance, common sense, and logic."
The purpose of both the legislative mandate and the rulings in the above-cited cases was to abrogate the prior procedure of our courts in interpretating the "logical" intent of the insured in executing UM coverage (and consequently, determining whether any rejection/selection was knowingly made).
Here the majority reverts back to this pre-legislative and pre-Duncan procedure, and concludes that although all of the required spaces on the form at issue were not filled out, because it was reviewing a single-limit policy and the insured "clearly" decided to obtain lower limits per person, the UM rejection form was valid. Obviously, this omission of an amount of coverage per accident could just as readily be interpreted as proof that the insured's representative did not understand the UM rejection form and thus did not knowingly waive full UM automobile liability coverage.[1]
In an attempt to further justify the validity of the partially completed UM rejection form, the majority then finds that the state had in effect a usable UM coverage rejection form for split-limit policies, but did not have a UM rejection form for single-limit policies, such as the policy at issue. The majority writes:
[A]ccordingly, at the time the representative of Peterson set out to address the *873 issue of UM coverage, there existed no form that fit glove-in-hand with a single-limit policy. Travelers should not have to suffer for the state's failure to supply adequate and appropriate UM coverage forms ... We suggest that insurers and policy holders in Louisiana should be assisted by the Insurance Commissioner in supplying Um election[sic] forms for both single-limit and split-limit policies.
Because of our state's strong public policy in favor of UM coverage, the insurer, who chose to issue automobile liability policies in this state, had the obligation to obtain a UM rejection form from the commissioner of insurance that conformed with the terms of its single-limit policy.[2] For the majority to place this obligation in any part on the public/insured, rather than completely on the insurer, belittles or ignores this state's strong public policy in favor of uninsured motorist coverage and its steadfast imposition of UM coverage notwithstanding the language of the policy.
I would affirm the trial court's judgment.
NOTES
[1] Peterson Contractors, Inc., had liability insurance with St. Paul Fire and Marine Insurance Company (subsequently purchased by Travelers, the named defendant) covering Wart's injuries.
[2] As opposed to a "split" limit policy. Either type of policy is lawful in Louisiana.
[3] Of course, to exceed the $1 million limit would have required at least 34 injured plaintiffs since the per person limit selected was $30,000. We have one injured plaintiff here.
[4] In Gingles v. Dardenne, 08-2995, (La.3/13/09), 4 So. 2d 799, the supreme court considered the validity of a UM rejection form that did not contain the name of the insurance company. The Insurance Commissioner's form did not have a blank for the insurer's name but La. Bulletin LIRC 98-01 accompanying the form stated for identification purposes, the company name must be put at the lower left of the form. In a per curiam opinion, the supreme court found the rejection was valid because all the designated spaces on the form were filled out and the form satisfied all the Duncan requirements, even though the insurer's name was not on the form.
[1] The UM rejection form at issue was executed on July 1, 2006 five days before the accident, which occurred on July 6, 2006.
[2] In its supplemental brief to this court, the insurer, Travelers Property Casualty Company, notified this court of a revised UM rejection form attached to Commissioner of Insurance bulletin No. 08-02 that now provides an alternative blank for insurance agents and insureds to "clearly" indicate the lower limit for a policy with combined single limits.
Travelers argues:
Had the revised form (See Exhibit 3, UM form attached to Bulletin No. 08-02) been available to Peterson Contractors (plaintiff's employer), Peterson Contractors' representative, and Peterson Contractors' insurance agent, the plaintiff would have no perceived ambiguity to exploit in this matter. Had the revised UM form (See Exhibit #, UM form attached to Bulletin No. 08-02) been available, Peterson Contractors' representative would have simply written the number "30,000" in the blank contained in the line:
`$____ each accident/occurrence.'
This supplemental brief was submitted to our court at least seven days prior to the final distribution of the majority opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606137/ | 7 So. 3d 110 (2009)
Sheila Gail Romero COMEAUX
v.
Douglas Julien COMEAUX.
No. 2008-1330.
Court of Appeal of Louisiana, Third Circuit.
April 1, 2009.
*112 Lee W. Boyer, Lynsay M. Fontenot Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Sheila Gail Romero Comeaux.
Alvis J. Roche, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Douglas Julien Comeaux.
Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
PETERS, J.
Douglas Julien Comeaux appeals a portion of the trial court judgment partitioning the community of acquets and gains previously existing between himself and his former wife, Sheila Gail Romero Comeaux, wherein he was ordered to pay her an equalizing payment of $35,965.87. For the following reasons, we amend the trial court judgment and affirm as amended.
DISCUSSION OF THE RECORD
Sheila Gail Romero Comeaux (Sheila) and Douglas Julien Comeaux (Douglas) were married on December 7, 1996, and physically separated in September of 2005. In her October 12, 2005 petition for a divorce under La.Civ.Code art. 102, Sheila sought, among other relief, a judicial partition of the community of acquets and gains previously existing between her and her husband. The matter went to trial on the partition issue on March 14, 2007.[1]
Prior to trial, the parties had agreed upon the classification and value of most of their assets. Thus, the primary issue facing the trial court was the status of the social security benefits Douglas had earned during the marriage. After completion of the evidence phase of the trial, the trial court informed the litigants that it would appoint an appraiser to assess the value of the property still in dispute, allowed the attorneys to address the social security issue through briefs to the court, and took the remaining matters under advisement. After receiving the report of the court-appointed appraiser as well as the briefs of the attorneys,[2] the trial court issued written reasons for judgment on June 2, 2008.
In its written reasons for judgment, the trial court recognized that the value of the social security benefits Douglas earned during the marriage is not community property, noting that "the Supremacy Clause of the United States Constitution preempts classification of social security benefits under the Louisiana community property laws." However, the trial court also noted the discretion afforded it by La.R.S. 9:2801.1 to award a spouse community property equal in value to social security benefits that cannot be considered as community property.
On the same day it released its reasons for judgment, the trial court executed a judgment wherein it assigned the various community assets and liabilities to each party. The judgment first noted that the social security benefits Douglas earned during the marriage had a value of $42,586.00 and expressed the trial court's intention to use its discretion, afforded by La.R.S. 9:2801.1, "to equalize an unequal *113 net distribution," stating that it would do so by awarding Sheila the couple's home.[3] Next, the judgment awarded Sheila community assets totaling $97,595.00,[4] and awarded Douglas community assets totaling $35,709.73. It then assigned $91,529.21 in community debts to Sheila[5] and $31,171.32 in community debts to Douglas, leaving Sheila with a net community property recovery of $6,065.79 and Douglas with a net community property recovery of $4,538.41. The judgment also recognized that Sheila was entitled to reimbursement for one-half of the $21,224.48 she had paid on community obligations, or $10,612.24. The trial court judgment awarded Sheila an equalizing payment of $35,965.87 to balance the assets and liabilities allotted to both after taking into consideration Douglas' social security benefits, as allowed by La.R.S. 9:2801.1.
Douglas has appealed this judgment, and his nine assignments of error on appeal can be condensed into four issues:
1) Did the trial court err in awarding Sheila community property equal in value to the social security benefits earned by Douglas during the marriage;
2) Did the trial court err in valuing the social security benefits Douglas earned during the marriage at $42,586.00;
3) Did the trial court err in stating that the total value of the guns awarded to Douglas was $1,145.00; and
4) Did the trial court err in ordering Douglas to pay Sheila an equalizing payment of $35,965.87?
OPINION
Award of community property equal in value to social security benefits
The determination whether a former spouse's social security benefits are community property is preempted by federal law. U.S. Const. art. VI, cl. 2; 42 U.S.C. § 407 (2002); and Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So. 2d 541. Under federal law, Douglas' social security benefits are his separate property because Sheila and Douglas were married fewer than ten years before they divorced. 20 C.F.R. § 404.331(a)(2). However, La. R.S. 9:2801.1 provides:
When federal law or the provisions of a statutory pension or retirement plan, state or federal, preempt or preclude community classification of property that would have been classified as community property under the principles of the Civil Code, the spouse of the person entitled to such property shall be allocated or assigned the ownership of community property equal in value to such property prior to the division of the rest of the community property. Nevertheless, if such property consists of a spouse's right to receive social security benefits or the benefits themselves, then the court in its discretion may allocate or assign other community property equal in value to the other spouse.
(Emphasis added.) Thus, under La.R.S. 9:2801.1, a trial court has the discretion to assign a spouse community property equal to the amount the other spouse will receive in social security benefits.
*114 Louisiana Revised Statutes 9:2801.1 was not enacted until 2001, and only became effective August 15, 2001. Douglas argues that the statute cannot be applied retroactively to a marriage that began in December of 1996.[6] When a trial court interprets and applies state statutes, the appellate court reviews that statutory interpretation under the de novo standard of review. Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So. 2d 1118.
This is the first time that a court has been faced with the question whether La. R.S. 9:2801.1 applies to social security benefits that were earned prior to the statute's effective date.[7] Louisiana Civil Code Article 6 provides that "[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary," and La.R.S. 1:2 states that "[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated."
Our supreme court has recognized that "[d]etermining whether a statute operates retroactively can be difficult when the statute must be applied to a case in which some operative facts pre-date the law while others occurred after the law's effective date," stating that "[i]t is imperative to understand that a law may permissibly change the future consequences of an act and even the consequences of acts committed prior to the law's enactment without operating retroactively." Walls v. Am. Optical Corp., 98-455, p. 4 (La.9/8/99), 740 So. 2d 1262, 1266 (citing 1 M. Planiol, Treatise on the Civil Law, Sec. 243 (La.St. L.Inst.Trans.1959)). The supreme court adopted Planiol's rule for determining the two situations in which a law operates retroactively: "[A] law is retroactive when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity." Id. at 1267 (citations omitted).
Employing Planiol's formula in this case, we find that La.R.S. 9:2801.1 neither evaluates the conditions of the legality of a past act, nor modifies or suppresses the effects of a right already acquired. Nothing in the statute attempts to disturb, modify, or suppress any of Douglas' acquired or vested rights in his social security benefits, nor does it attempt to change Douglas' right to the social security benefits he earned during the marriage. Instead, it allows the trial court to allocate additional community property to Sheila in light of the fact that those social security benefits are Douglas' separate property. Douglas did not have a vested right in how their community property would be divided *115 prior to October 12, 2005, when Sheila filed her petition. That being the case, the trial court did not abuse its discretion in applying the balancing provisions of La. R.S. 9:2801.1. We find no merit in this assignment of error.
Value of social security benefits
Douglas also contends that the trial court erred by accepting the valuation of his social security benefits set out in the report prepared by True North Assets Management. We find no merit in this argument. At trial, Sheila's counsel submitted this report as a joint offering. The report states that the marital amount of Douglas' social security benefits is $42,586.00. Douglas' counsel did not object to the amount, but stated that he wanted to "retain and reserve my rights to submit to the Court the issue over the 10-year requirement that a party has to be married before the Social Security law in Louisiana is applicable," and that "I'm agreeing to the report being offered as an exhibit. I'm reserving my rights to brief it, Judge." At trial, Douglas offered no evidence to contradict this valuation of his social security benefits.
We may not reverse the trial court's valuation of property absent an abuse of discretion. Alford v. Alford, 94-1464 (La.App. 3 Cir. 4/5/95), 653 So. 2d 133. Where the trial court relied on the only evidence presented at trial, we find no abuse of the trial court's discretion in setting the value of the social security benefits earned during the marriage at $42,586.00.
Value of the pistols, rifles, and shotguns
In its judgment, the trial court set the value of nine guns at $1,145.00 and assigned the guns to Douglas. On appeal, Douglas contends that this was an error, that Mr. Peterson actually assigned a value of $695.00 to the guns he appraised. The appellate record does not contain a copy of Mr. Peterson's appraisal; Douglas filed a motion to correct the record, seeking to supplement the record with a March 28, 2007 letter listing the values that Mr. Peterson set on the disputed property. Sheila, in brief, agrees that the guns were actually valued at $695.00. That being the case, we find that Douglas' motion to correct the record is moot and reduce the total of the community assets awarded to Douglas by the difference between $1,145.00 and $695.00, to a total of $35,259.73.
Equalizing payment
On appeal, Douglas questions the amount of the $35,965.87 equalizing payment; in her brief to this court, Sheila agrees that the trial court erred in awarding that amount. We also agree that the trial court erred.
Unfortunately, neither the reasons for judgment nor the judgment itself explains how the trial court reached the $35,965.87 total. Douglas offers us no alternative figure, but Sheila asserts that the total amount due to her is $19,627.99. According to Sheila, that amount is the sum of $9,015.72 (the amount necessary to balance the distribution of the community assets) and $10,612.24 (the amount due to her for payment of community debts). She reached the first amount by accepting the trial court's statement that it intended to balance the social security benefits by the net value of the family home.[8] She then removed that figure from the balancing equation and balanced the then-remaining assets and liabilities. We accept her calculations *116 and amend the trial court judgment to provide that the equalizing payment necessary to balance the community of acquets and gains and to reimburse Sheila for payments she made for the community is $19,627.99.
DISPOSITION
For the foregoing reasons, we amend the trial court judgment to set the value of the guns allotted to Douglas Julien Comeaux at $695.00 instead of $1,145.00 and amend the judgment to set the equalizing payment at $19,627.99 instead of $35,965.87. Because the only relief granted Douglas Julien Comeaux on appeal was stipulated to by Sheila Gail Romero Comeaux, we assess all costs of this appeal to Douglas Julien Comeaux.
AFFIRMED AS AMENDED.
NOTES
[1] The divorce and other ancillary matters had been ruled upon by this time.
[2] Although the trial court's June 2, 2008 reasons for judgment state that it considered the post-trial memoranda, the record does not contain any briefs or memoranda submitted after the March 14, 2007 trial.
[3] The judgment is somewhat confusing in this respect because, in the next paragraph after allocating the family home to Sheila as an equalizing payment, the judgment again assigns the same property to Sheila as an overall asset of the community estate.
[4] As stated in footnote 3, this included the family home valued at $78,750.00.
[5] The list included two mortgage obligations secured by the family home: one to CitiMortgage totaling $51,766.00 and the other to Hibernia National Bank totaling $6,975.19.
[6] Douglas also argues that because he entered the social security system in January 1, 1988, the statute cannot be applied to him.
[7] In McKinstry v. McKinstry, 36,285, p. 6 (La. App. 2 Cir. 8/14/02), 824 So. 2d 1260, 1263, writ denied, 02-2361 (La. 1/10/03), 834 So. 2d 438, the court specifically did not address whether La.R.S. 9:2801.1 could be applied retroactively, but said:
We only note that prior to the enactment of R.S. 9:2801.1, no Louisiana statute recognized a party's interest in property which, but for federal preemption, would be classified as community. The classification of a spouse's Social Security benefits is preempted by federal law. Thibodeaux v. Thibodeaux, 97-1297 (La.App. 1 Cir. 5/15/98), 712 So. 2d 1024, and citations therein. A statute does not normally change the character of property which has already been classified as community or separate. See, e.g., Wood v. Wood, 424 So. 2d 1143, 1150 (La.App. 1 Cir.1982). Nothing in R.S. 9:2801.1 purports to change the character of social security benefits as separate property.
[8] She reached this net value by subtracting the balance due on the two mortgages against the family home from the gross value of the home. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606132/ | 7 So. 3d 946 (2009)
Dimple G. WHITAKER and Clyde Whitaker, Appellants
v.
T & M FOODS, LTD. and Robert Y. Kent, Appellees.
No. 2006-CA-01365-COA.
Court of Appeals of Mississippi.
September 25, 2007.
Rehearing Denied January 29, 2008.
*948 Jim Waide, D. Kirk Tharp, Tupelo, Richard Shane McLaughlin, W. Brent McBride, attorneys for appellant.
James H. Heidelberg, Jessica Marie Dupont, Pascagoula, attorneys for appellee.
Before KING, C.J., IRVING and CARLTON, JJ.
KING, C.J., for the Court.
¶ 1. Dimple and Clyde Whitaker appeal the dismissal of their case with prejudice. Relying upon the Mississippi Supreme Court's recent decision in J & J Timber Co. v. Broome, 932 So. 2d 1 (Miss.2006), the trial court granted T & M Foods's Rule 60(b) motion for relief from the trial court's previous order denying summary judgment to both T & M Foods and Kent. The trial court dismissed the case and denied the Whitakers' post-trial motions. Finding no error, this Court affirms.
FACTS
¶ 2. In December 1999, Kent was working as a delivery driver for T & M Foods, which operated a Steak-Out franchise, when he "rear-ended" the Whitakers' car. As a result of the accident, Mrs. Whitaker sustained some injuries and incurred medical expenses in the amount of $881.06. Mrs. Whitaker was concerned about her outstanding medical bills and their impact on her credit rating. On January 20, 2000, Kent's insurer, Progressive, obtained a release from the Whitakers. In exchange for the release, the Whitakers received a payment for $1381.06 for reimbursement of Mrs. Whitaker's medical expenses. When the Whitakers questioned the additional $500 payment, Progressive advised the Whitakers that it was reimbursement for any inconvenience caused by the automobile accident.
¶ 3. Several months after the accident and after the Whitakers signed the release with Progressive, Mrs. Whitaker began experiencing pain. She was diagnosed with temporalmandibular joint pain syndrome. Her physician cited the automobile accident *949 as the cause of the problem. At the time of trial, Mrs. Whitaker had accumulated approximately $114,000 in medical expenses.
¶ 4. In February 2001, the Whitakers filed suit against Progressive, Kent, and T & M Foods. The Whitakers sought to set aside the release with Progressive on the grounds of mutual mistake as to the extent of Mrs. Whitaker's injuries and to obtain money damages from Kent and T & M Foods. In their answer, Kent and T & M Foods[1] contended that the January 2000 release operated to release them both from liability.
¶ 5. On September 17, 2002, Progressive entered into a second release with the Whitakers. The second release declared that the first release was null and void. In exchange for an additional payment of $8608.05, which exhausted the $10,000 policy limits on Kent's insurance policy with Progressive, the Whitakers agreed to release Progressive. They also agreed "that in making any pursuit of their claim with respect to the automobile accident, they will not seek execution against personal assets of Robert Y. Kent and, instead, will seek to satisfy any judgment only from assets of T & M Foods, and from any liability insurance carrier of T & M Foods, Ltd. applicable to the accident involving Robert Y. Kent and Dimple Whitaker, if any." Thereafter, the trial court signed an order dismissing Progressive with prejudice.
¶ 6. Kent and T & M Foods filed a motion for summary judgment in July 2004, arguing that the January 2000 release was a valid contract extinguishing all claims against both Kent and T & M Foods and that the contract constituted an accord and satisfaction of the Whitakers' claims. Alternatively, if the trial court determined that the second release was the operative release, then Kent was entitled to summary judgment. Kent contended that by virtue of the agreement not to execute on his personal assets, the Whitakers could not recover damages and, therefore, Kent was not a necessary party to the litigation. The trial court denied the motion for summary judgment in part but granted the motion with respect to the agreement not to execute on Kent's personal assets. The trial court also granted a motion for default judgment against Kent because he failed to appear for his deposition.
¶ 7. On the day of trial, May 8, 2006, T & M Foods filed a Rule 60(b) motion for relief, asking the trial court to reconsider its decision to deny summary judgment on the grounds that a new Mississippi Supreme case, J & J Timber Co. v. Broome, 932 So. 2d 1 (Miss.2006), had changed the law on vicarious liability and the release of the tortfeasor so that the release of the tortfeasor acted to release the employer as well. T & M Foods argued that, under J & J Timber, T & M Foods could not, as a matter of law, be liable for any of Kent's actions because the Whitakers had released Kent. The trial judge granted T & M Foods' Rule 60(b) motion, relieving T & M Foods of the summary judgment order previously entered and stating that T & M Foods and Kent were "entitled to Judgment as a matter of law."
¶ 8. Thereafter, the Whitakers filed a motion to alter or amend the judgment, a motion to disqualify defense counsel from representing both Kent and T & M Foods, a motion for an evidentiary hearing on the issue of the potential conflict in representing *950 both Kent and T & M Foods, and a motion to file a second amended complaint, in which the Whitakers alleged that the second release should be set aside because of a mutual mistake in understanding the law in light of the recent J & J Timber decision. The trial court denied those motions and entered a final judgment. The Whitakers timely appealed.
¶ 9. The Whitakers raise the following issues on appeal, which are taken verbatim from their appellate brief:
(1) Whether the Trial Court erred in dismissing Defendant Kent, since the Court had already entered a default judgment against Kent, since Kent never requested dismissal and since there was no basis for the dismissal of Plaintiffs' claims against Kent.
(2) Whether the Trial Court erroneously applied the Supreme Court's holding in J & J Timber Company v. Broome as a bar to Plaintiffs' vicarious liability claims against T & M Foods, Ltd., since the company's negligent employee had not been released from liability.
(3) In the event that J & J Timber Company v. Broome was applicable to this case, whether a retroactive application of the case would violate the Contracts Clause of the Mississippi Constitution.
(4) Whether the Trial Court abused its discretion in denying Plaintiffs leave to amend their Complaint.
¶ 10. Because the trial court correctly applied J & J Timber to the case sub judice, and because the application of J & J Timber did not implicate the Contracts Clause of the Mississippi Constitution, this Court finds that the trial court did not err in granting T & M Foods's Rule 60(b) motion and dismissing the case. With regard to the trial court's decision to include Kent in the dismissal, the dismissal was proper as a matter of law although not properly done. Finally, this Court finds that the trial court did not abuse its discretion in denying the Whitakers' motions filed after the trial court granted T & M Foods's Rule 60(b) motion. Accordingly, this Court affirms.
STANDARD OF REVIEW
¶ 11. This Court conducts a limited review of a trial court's decision to grant or deny relief from a judgment under Mississippi Rule of Civil Procedure 60. The Court's review is limited to whether the trial court abused its discretion by ordering or denying relief. January v. Barnes, 621 So. 2d 915, 927 (Miss.1992). See also Overbey v. Murray, 569 So. 2d 303, 306 (Miss.1990). This Court reviews all issues of law de novo. Maldonado v. Kelly, 768 So. 2d 906, 908(¶ 4) (Miss.2000).
ANALYSIS
1. Applicability of the Contracts Clause
¶ 12. The Mississippi Supreme Court decided the J & J Timber case on May 4, 2006. T & M Foods presented the J & J Timber case to the trial court on May 8, 2006, the day of trial. Mississippi law is clear that "newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation." Thompson v. City of Vicksburg, 813 So. 2d 717, 721 (¶¶ 15-16) (Miss.2002). The Whitakers argue that J & J Timber should not be applied retroactively because a retroactive application would interfere with the release contract between Progressive and the Whitakers and would, therefore, violate the Contracts Clause of the Mississippi Constitution. The Whitakers' argument is without merit.
*951 ¶ 13. The Contracts Clause of the Mississippi Constitution states that "[e]x post facto laws, or laws impairing the obligation of contracts, shall not be passed." Miss. Const. Art 3, § 16. As the Mississippi Supreme Court explained in Tucker Printing Co. v. Board of Supervisors, 171 Miss. 608, 158 So. 336 (Miss. 1934),
The obligation of a contract, in the meaning of these constitutional provisions, depends on the law in existence when the contract was made. By the obligation of a contract is meant the law under which the contract was made as well as all the remedies for its enforcement, or after provided remedies equally adequate. Legislation of a state impairing the obligation of a contract made under its authority is void, and the courts, in enforcing the contract, will pursue the same course and apply the same remedies as though such void legislation had never existed. The law in force at the time the contract was made forms a part of it, and is written into the contract as much as if expressly incorporated therein.
Id. at 338. As Tucker clearly states, in order for a party to invoke this provision of the Mississippi Constitution, the contract at issue must have been made under the authority of a statute that affects the ability of the parties to enforce the contract, either because the statute has been amended or repealed. In other words, the Mississippi Constitution "prohibits the states from passing laws which impair the obligations of contracts." Gulf & S.I.R. Co. v. Adams, 90 Miss. 559, 45 So. 91 (1907). In this case, the Whitakers did not rely on any statutory authority when they entered into the contract with Progressive. Instead, they entered into the contract based upon prior judicial decisions regarding the release of a tortfeasor in a vicarious liability situation. Accordingly, the contracts clause of the Mississippi Constitution is not applicable.
2. The trial court properly applied J & J Timber Co. v. Broome
¶ 14. In J & J Timber, the plaintiffs were wrongful death beneficiaries of two persons killed in a collision between a J & J Timber truck and a tour bus. J & J Timber, 932 So.2d at 2 (¶¶ 2-3). The driver of the J & J Timber truck was an employee of Jim Smith Trucking, a company that contracted with J & J Timber to provide drivers to haul cut timber to timber mills. Id. at 2(¶ 2). Before filing suit against J & J Timber, the plaintiffs reached a settlement with the driver and with Jim Smith Trucking. In that settlement agreement and release, the plaintiffs released the driver and Jim Smith Trucking from any and all claims related in any way to the accident, but the plaintiffs specifically reserved their right to pursue "any and all claims we may have of any kind and type whatsoever relating to the incident against J & J Timber...." Id. at 2-3(¶ 4). The plaintiffs further agreed "to defend, indemnify, and hold harmless the Releasees [the driver and Jim Smith Trucking] from any and all claims and damages, including third-party claims for damages resulting from or in any way arising out of" the accident. Id.
¶ 15. The plaintiffs then filed suit against J & J Timber and alleged that J & J Timber was vicariously liable for the negligence of the driver, who the plaintiffs claimed was an employee of J & J Timber. Id. at 3(¶ 5). Following a trial, the jury returned a verdict in favor of J & J Timber. The trial court, however, granted the plaintiffs a new trial. The Mississippi Supreme Court granted J & J Timber's interlocutory appeal.
¶ 16. The Mississippi Supreme Court held that J & J Timber was entitled to a *952 dismissal as a matter of law. Id. at 9(¶ 30). The Court held that "[a]n action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment." Id. at 6(¶ 19). Once the claim against the sole tortfeasor is settled, the vicarious liability claim becomes barred because the "vicarious liability claim itself is extinguished when the solely negligent employee is released. There can be no assessment of damages against the employer when no action can be brought against the only negligent partythe employee." Id. at 6 (¶¶ 19, 21).
¶ 17. The Court also discussed the "circle of indemnity" as another reason for its decision. Because the driver was the only negligent party, if the plaintiffs were to recover damages from J & J Timber under the vicarious liability theory, J & J Timber would have a common law right of indemnity against the driver. The driver, having contracted with the plaintiffs to have them indemnify him for any damages, would then seek indemnity from the plaintiffs, to whom the original judgment was paid. In effect, the plaintiffs would have to pay back their own judgment, which would render the judgment moot. Id. at 7 (¶¶ 22-24).
¶ 18. In the case sub judice, the Whitakers argue that they did not release Kent but simply agreed not to seek execution for a judgment against Kent's personal assets. The release provided as follows:
3. It is the intent of this Settlement Agreement and Release to settle all claims and controversies between Dimple Whitaker and Clyde Whitaker and Progressive arising out of the suit referenced in paragraph 1 above. It is further understood by the Whitakers and their counsel that this agreement and the payment of the sums noted below does not constitute an admission of liability on behalf of Progressive or Robert Y. Kent, the same being expressly denied. It is further understood that Progressive, by negotiating this settlement agreement, does not admit that the accident that occurred in December 1999 is covered under the liability provisions of the policy issued to Kent.
4. Dimple Whitaker and Clyde Whitaker do hereby release, discharge and give up all claims and causes of action they have against Progressive arising out of the automobile accident in December 1999 in which Dimple Whitaker and Robert Y. Kent were involved, or any efforts on behalf of Progressive to settle the claims of Clyde and Dimple Whitaker as more fully referenced in Civil Action No. 01-039(G)L in the Circuit Court of Lee County, Mississippi.
5. Additionally, Dimple Whitaker and Clyde Whitaker do hereby agree that in making any pursuit of their claim with respect to the automobile accident, they will not seek execution against personal assets of Robert Y. Kent and, instead, will seek to satisfy any judgment only from assets of T & M Foods, and from any liability insurance carrier of T & M Foods, Ltd. applicable to the accident involving Robert Y. Kent and Dimple Whitaker, if any.
¶ 19. While the third and fourth paragraphs of the release purport to release Progressive only, and not Robert Y. Kent, the language of the fifth paragraph clearly indicates that, for all intents and purposes, the Whitakers did not intend to pursue any claims against Kent personally. The language of the release clearly indicates *953 that Kent is intended to remain in the litigation for the sole purpose of the Whitakers' pursuit of T & M Foods. Kent was covered only by the Progressive policy; therefore, the Whitakers could not collect damages from any other source in order to satisfy a judgment against Kent. Accordingly, the Court finds that the Whitakers effectively released Kent when they agreed not to execute on his personal assets because there were no other damages to be recovered.
¶ 20. The "circle of indemnity" argument also applies in this case and supports the argument that Kent was released from liability. T & M Foods argues that, in the event the Whitakers successfully obtained a judgment against T & M Foods, T & M Foods would exercise its common law right of indemnity against Kent, which would include a judgment against Kent's personal assets. Kent would then seek to enforce the clause in the release in which the Whitakers agreed "to hold Progressive and the personal assets of Robert Kent harmless from any claim that may be asserted against them by way of subrogation, assignment, lien or otherwise. ..." (emphasis added). The Whitakers would be obligated to reimburse Kent, who would, in turn, reimburse T & M Foods. As in J & J Timber, the plaintiffs would pay their own judgment.
¶ 21. The Whitakers argue that no such circle of indemnity exists because T & M Foods' insurer could not seek indemnity against Kent. This argument fails for two reasons. First, the Court's review of the insurance policy at issue clearly establishes that T & M Foods is the only insured under the terms of the policy. Kent is in no way protected as an insured. Accordingly, Kent is not protected from an action against him seeking indemnification. Second, nothing in the amended complaint or in any of the Whitakers' other court filings indicates that they were seeking judgment against T & M Foods' insurer only. In the event that the Whitakers obtained a judgment in excess of the policy limits or that the policy did not apply, T & M Foods would be responsible for payment of the judgment and would be able to seek indemnification from Kent.
¶ 22. Under the rule of law articulated in J & J Timber, the release of Kent operated to release T & M Foods as well. As discussed supra, the trial court was correct in applying the J & J Timber decision retroactively to the case sub judice. This Court holds that the trial court acted properly in granting T & M Foods' Rule 60(b) motion for relief from the denial of summary judgment.
3. The trial court did not err in dismissing Kent.
¶ 23. The Whitakers argue that the trial court erred in dismissing Kent in the order granting T & M Foods' Rule 60(b) motion for relief from the denial of summary judgment. The Whitakers contend that because the trial court already had entered a default judgment against Kent on September 2, 2004, for his failure to appear for his deposition, the trial court could not enter an order granting Kent judgment as a matter of law unless Kent requested that relief pursuant to Rule 60(b).
¶ 24. The Whitakers' argument is technically correct. The record reflects that Kent did not participate in the Rule 60(b) judgment. T & M Foods alone sought relief from the denial of the summary judgment motion. Mississippi law requires that, in order to receive relief from a default judgment, a defendant must seek that relief following the procedures set forth in Mississippi Rule of Civil Procedure 60(b). See State of Mississippi ex rel. Mississippi Bureau of Narcotics v. *954 One (1) Chevrolet Nova Automobile and Nine Thousand Eight Hundred Dollars Case Seized Money, 573 So. 2d 787, 789 (Miss.1990). The trial court may not grant relief from a default judgment sua sponte.
¶ 25. In this case, however, even if the Court were to reverse the portion of the order on the Rule 60(b) motion dismissing Kent on the grounds that the trial court improperly granted relief to Kent, such a ruling would be pointless. The trial court apparently granted the relief to Kent in recognition of the fact that the default judgment was void ab initio in light of the J & J Timber case. As a matter of law, the date that the Whitakers entered into the release with Progressive was the date that Kent effectively was dismissed from the litigation with prejudice and the date that T & M Foods became entitled to summary judgment as a matter of law. The Whitakers entered into that release with Progressive on September 17, 2002. The default judgment was not entered until May 26, 2006.
¶ 26. This Court has the ability to take notice of the state of the law and the state of the record and, in the interests of judicial economy, has adopted the standard practice of affirming the holding of a trial court where the trial court's holding reached the right conclusion for the wrong reasons. See Tedford v. Dempsey, 437 So. 2d 410, 418 (Miss.1983). Although the trial court erred procedurally in noting Kent's dismissal from the case via the order granting T & M Foods' Rule 60(b) motion, the reality of the case is that Kent was dismissed from the case by the Whitakers' own actions on September 17, 2002. Accordingly, this Court holds that the trial court did not err in dismissing Kent as a matter of law, although the Court acknowledges that the trial court erred in the procedure by which it dismissed Kent.
4. The trial court did not err in denying the Whitakers' motion to amend.
¶ 27. The Whitakers argue that the trial court erred in failing to permit them to amend their complaint. Following the trial court's decision on the Rule 60(b) motion, which applied the recent J & J Timber decision, the Whitakers sought to set aside the September 17, 2002, release in their proposed second amended complaint, citing a mutual mistake of the law.
¶ 28. This Court reviews a trial court's denial of a motion to amend a complaint under the abuse of discretion standard. See Pratt v. City of Greenville, 804 So. 2d 972, 976(¶ 9) (Miss.2001). As long as the trial court properly applied Mississippi Rule of Civil Procedure 15(a), this Court will not disturb the trial court's decision to deny the motion to amend.
¶ 29. Mississippi Rule of Civil Procedure 15(a) governs a plaintiff's right to amend his complaint and provides as follows:
Amendments. A party may amend his pleading as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), thirty days leave to amend shall be granted, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise, a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given *955 when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
Miss. R. Civ. P. 15(a) (emphasis added). In the case sub judice, the Whitakers could only argue that they had a right to amend under the phrase "when justice so requires." A key factor to be considered in granting leave to amend in the interests of justice is "prejudice to the opposing party" and "the court will ordinarily refuse to grant such permission where the motion comes so late and in such circumstances that the right of the adverse party will necessarily be prejudicially affected." Pratt, 804 So.2d at 976(¶ 12).
¶ 30. In this case, had the trial court granted the Whitakers leave to amend, the rights of all the defendants would be prejudicially affected. In particular, Progressive, who had been dismissed as a result of the settlement agreement, would have been most prejudicially affected. Progressive paid consideration of the policy limits of $10,000 in exchange for a release of both Progressive and Kent. Additionally, to grant the Whitakers permission to amend their complaint at such a late dateessentially on the eve of trialwould prejudice T & M Foods. Accordingly, the Court finds that the trial court did not abuse its discretion in denying the Whitakers' motion to amend.
¶ 31. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANTS.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. CHANDLER AND BARNES, JJ., NOT PARTICIPATING.
NOTES
[1] At all times in this litigation, Kent and T & M Foods have been represented by the same attorney. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3021658/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1953
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Tony C. Stafford, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 7, 1998
Filed: October 14, 1998
___________
Before FAGG, BEAM, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Tony C. Stafford pleaded guilty to one count of conspiring to manufacture and
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. Based on a
total offense level of 32 and a Category III criminal history, the presentence report
(PSR) recommended a Guidelines imprisonment range of 151 to 188 months. Stafford
sought a downward departure from this Guidelines range pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (1997), arguing that his Category III criminal history
was overstated; the government moved for downward departure pursuant to U.S.
Sentencing Guidelines Manual § 5K1.1, p.s. (1997) and 18 U.S.C. § 3553(e), based on
Stafford&s assistance to the government. The district court1 granted the government&s
motion and sentenced Stafford to 120 months imprisonment and five years supervised
release. Stafford appeals, and we affirm.
Stafford first argues that the district court erred in denying him an acceptance-of-
responsibility reduction under U.S. Sentencing Guidelines Manual § 3E1.1 (1997). We
conclude the district court did not clearly err in doing so, because, among other things,
it is undisputed that Stafford tested positive for methamphetamine use on three
occasions while free on bond. See United States v. Thomas, 72 F.3d 92, 93 (8th Cir.
1995) (per curiam); United States v. Evans, 51 F.3d 764, 766 (8th Cir. 1995) (standard
of review); United States v. Poplawski, 46 F.3d 42, 42-43 (8th Cir.), cert. denied, 515
U.S. 1109 (1995).
Stafford also argues the district court abused its discretion in denying his
departure motion. This argument is not reviewable, because we conclude from our
review of the sentencing transcript as a whole that the district court&s refusal to depart
was discretionary. See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993). We
also note Stafford&s 120-month sentence is below the sentencing range that would result
from a total offense level of 32 and the reduced Category II criminal history he
requested (or, for that matter, a Category I criminal history). Cf. United States v.
Baker, 64 F.3d 439, 441 (8th Cir. 1995) (where district court departs below applicable
Guidelines range with or without challenged offense-level enhancement, this court has
consistently held sentence is not reviewable).
Accordingly, we affirm.
1
The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1606375/ | 10 Wis. 2d 398 (1960)
GILBERT, Appellant,
v.
REID and another, Respondents.[*]
Supreme Court of Wisconsin.
April 7, 1960.
May 3, 1960.
*402 For the appellant there were briefs and oral argument by Frank X. Kinast of Beloit.
For the respondents there was a brief and oral argument by Crosby H. Summers of Janesville.
BROWN, J.
The plaintiff submits that there is credible, competent evidence to sustain the jury in each of its answers in the verdict. If there is any such evidence to support any of the answers given by the jury it would be error to change that answer. Van Galder v. Snyder (1948), 254 Wis. 120, 35 N. W. (2d) 187.
In the matter of the failure to exercise ordinary care in lookout by Reid there is such sustaining evidence. Although *403 Reid testified that he was not blinded by the wrecker's headlights after he had come onto the west shoulder, 150 feet before reaching the wrecker, Reid did not see the flashing red light on the wrecker. Except Mrs. Reid, the other witnesses who arrived at the scene saw the red light in operation. The jury was entitled to believe these witnesses and to find that Reid did not see what was there to be seen and therefore was negligent in lookout.
There is also evidence to sustain the jury finding that Reid failed to exercise ordinary care in the speed at which he was driving under the circumstances. We need not depend on the weight to be given to Mrs. Backman's estimate that Reid went past her at 40 miles per hour. If we disregard that testimony, as respondents urge us to do, it is undisputed that Reid scraped by the wrecking car, struck a 170-pound man and with no propulsive power except momentum dragged his inert body for 500 feet. Even accepting Reid's own testimony that his speed in passing had been reduced to 10 to 15 miles per hour the jury could conclude that that speed in passing so close to the other cars was, under the circumstances, a negligent speed.
However, the trial court's memorandum decision correctly states that Reid's failure to exercise ordinary care in speed and lookout could not be causes of running into Gilbert unless there is evidence that Gilbert came into Reid's path sufficiently long before the contact for an exercise of ordinary care by Reid in those respects to have made any difference in avoiding the collision. Both Mr. and Mrs. Reid testified that they never saw Gilbert until they found his body under their automobile. Mrs. Backman was the last person to see Gilbert alive. He was then crouching between his automobile and that of Bohlman. He was in a place of safety there and one in which Reid could not see him. There is no evidence to tell when it was that Gilbert moved from there *404 into Reid's path or when Gilbert assumed, if ever, such a posture that a driver could see him over the hood of an approaching car.
The damage to Reid's car was all in the vicinity of the left headlight. A step in distance and an instant of time could take Gilbert from a safe place to the point of collision. To say that he was in Reid's path so long a time that Reid by exercising ordinary care could see and avoid striking him is pure speculation.
Moreover, except by speculation, there can be no comparison of the causal negligence of the parties unless there is evidence of the time and space which separated Gilbert and the car of Reid when Gilbert's visible presence first gave warning to a driver exercising ordinary care that Gilbert was already in or was coming into the driver's path. That evidence is lacking.
By the Court.Judgment affirmed.
FAIRCHILD, J. (dissenting).
Defendant Reid testified that visibility was reduced because of blowing snow. The jury was entitled to consider this fact, together with the testimony as to the quantity of alcohol in his blood, in determining whether he was negligent as to speed as he approached the scene of the accident. Had he observed the flashing red light on the wrecker vehicle, he would have realized what it was. The jury could reasonably consider that the presence of the stationary wrecker was some notice that extraordinary conditions prevailed, including the possibility that people on foot might be working or moving about it; that ordinary care required an approaching driver to stop, or slow down sufficiently to appraise the situation, before attempting to go around the wrecker, and that Reid's rate of speed and inadequate lookout prevented him from doing so. Had he done so, he would not have struck Gilbert. In my opinion, the evidence supports the jury's answers, and they should not have been changed.
*405 I am authorized to state that Mr. Justice CURRIE and Mr. Justice DIETERICH join in this dissent.
NOTES
[*] Motion for rehearing denied, with $25 costs, on June 28, 1960. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606354/ | 102 N.W.2d 76 (1960)
In the Matter of the ESTATE of Harriette M. Bartlett LONG.
Thomas M. LONG, Appellant,
v.
Curden S. BARTLETT, Appellee.
No. 49953.
Supreme Court of Iowa.
April 5, 1960.
Rehearing Denied June 17, 1960.
*77 McManus & McManus, of Keokuk, for appellant.
Charles P. Beard, of Keokuk, for appellee.
PETERSON, Justice.
There is only one important question in this case. It is primarily a question of fact. Were Thomas M. Long and Harriette M. Bartlett husband and wife, either by ceremonial or common-law marriage at the time of her death on June 14, 1956?
She died intestate. Shortly after her death Thomas M. Long made application for appointment as administrator, filing the application under the name of Harriette M. Bartlett Long and claiming in the petition he was her surviving husband. Letters of administration were issued to him on June 25, 1956.
On January 7, 1959, Gurden S. Bartlett, decedent's brother and only heir, filed application in the probate proceeding alleging there had never been any marriage between his sister and Thomas M. Long. He prayed that the court determine what interest, if any, Thomas M. Long has in her estate. Mr. Long filed answer thereto alleging marriage between him and decedent and denying all other allegations in the application and an amendment filed later.
A motion to dismiss was filed and overruled. Appellant now claims he should have been granted a jury trial. There is no basis for this claim in this court. We will consider the question later.
The trial court decided in favor of applicant, decedent's brother. Respondent has appealed. We will refer to respondent as appellant.
I. We will first consider respondent's contention that he entered into a ceremonial marriage with Harriette M. Bartlett. He testified that in October of 1932 he and Miss Bartlett traveled by automobile from Canton, Missouri, where they were living at that time, to some town near Chicago, Illinois. He states they were there married by a Justice of the Peace. He could not remember the name of the town. He offered no license in evidence. He claimed he had written to a number of towns near *78 Chicago to try to get a copy of the license, but had been unable to do so.
They drove back toward their home on the same day, and stopped at a tourist home for the night, but he does not remember the name of the town where they stopped. As to his testimony concerning this matter he was an incompetent witness under Section 622.4, 1958 Code of Iowa, I.C.A. Worthington v. Diffenbach, 184 Iowa 577, 168 N.W. 257; In re Wittick's Estate, 164 Iowa 485, 145 N.W. 913; In re Boyington's Estate, 157 Iowa 467, 137 N.W. 949.
The only other evidence in the record in connection with the ceremonial marriage was the testimony of two residents of Keokuk, Iowa. They could not remember the time, but they testified that decedent told them some years ago that she had been married to Thomas M. Long in some town near Chicago. However, in 1946, a longtime friend of decedent testified that she and her husband met decedent one day at Quincy, Illinois. Mr. Long came up to them while they were visiting, and the witness testified that decedent said: "Mr. and Mrs. Azinger I want you to meet my boy friend."
While there is an abundance of evidence, as we will hereafter outline, as to the parties living together most of the time between 1932 and 1956, there is no other evidence with reference to the occurrence of a ceremonial marriage. In view of Mr. Long's incompetency as a witness and his failure, and that of decedent, throughout many years to announce any marriage to friends or relatives, the proof as to the existence of a ceremonial marriage is not persuasive. We sustain the position of the trial court in holding that respondent failed to carry the burden of proof as to such a marriage.
II. Many states recognize the validity of common-law marriages, if the proper elements of proof are present. Some states have abolished common-law marriage by statute. Missouri, in which the decedent and the respondent lived up until 1948, abolished such marriage by statute adopted in the year 1921.
Iowa has recognized common-law marriage in decisions extending back almost one hundred years. The policy has been reinforced throughout the years by periodical decisions of approval. One of the early cases was Blanchard v. Lambert, 43 Iowa 228. Other decisions of approval are: Our recent cases of In re Estate of Stopps, 244 Iowa 931, 57 N.W.2d 221, and Gammelgaard v. Gammelgaard, 247 Iowa 979, 77 N.W.2d 479. Also see McFarland v. McFarland, 51 Iowa 565, 570, 2 N.W. 269; Leach v. Hall, 95 Iowa 611, 64 N.W. 790; Gibbs v. Farmers' & Merchants' State Bank, 123 Iowa 736, 99 N.W. 703; Brisbin v. Huntington, 128 Iowa 166, 103 N.W. 144; State v. Rocker, 130 Iowa 239, 106 N.W. 645; Pegg v. Pegg, 138 Iowa 572, 576, 115 N.W. 1027; In re Estate of Boyington, supra; In re Wittick's Estate, supra; Worthington v. Diffenbach, supra; Reppert v. Reppert, 214 Iowa 17, 241 N.W. 487; State v. Grimes, 215 Iowa 1287, 247 N.W. 664.
Mississippi acknowledges common-law marriage. Its decisions are quite similar to ours. The case of Ladnier v. Ladnier, 235 Miss. 374, 109 So. 2d 338, is almost identical with case at bar. The court denied existence of a common-law marriage. Meister v. Moore, 96 U.S. 76, 24 L. Ed. 826, is a leading common-law marriage case.
In general terms common-law marriage is defined in 55 C.J.S. Marriage § 6: "* * there should be an actual and mutual agreement to enter into a matrimonial relation * * * between parties capable in law of making such a contract * * * consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. * * * It has been held that, if any of the essentials of a common-law marriage are lacking, the relationship is illicit and meretricious and is not a marriage."
*79 Also see 55 C.J.S. Marriage § 43a as follows: "There is no presumption that persons are married. Accordingly the burden of proving a marriage rests on the party who asserts it, particularly where a common-law marriage is asserted."
Also 55 C.J.S. Marriage § 45b: "A claim of common-law marriage is regarded with suspicion and will be closely scrutinized. Thus, in order to establish a common-law marriage, all the essential elements of such a relationship * * * must be shown by clear, consistent, and convincing evidence, especially must all the essential elements of such relationship be shown when one of the parties is dead; and such marriage must be proved by a preponderance of the evidence."
From consideration of the many Iowa decisions, and of the principles stated in decisions in many other states, we are outlining the elements and conditions necessary to establish the existence of a common-law marriage: 1. Intent and agreement in praesenti, as to marriage, on the part of both parties, together with continuous cohabitation and public declaration that they are husband and wife. 2. The burden of proof is on the one asserting the claim. 3. All elements of relationship as to marriage must be shown to exist. 4. A claim of such marriage is regarded with suspicion, and will be closely scrutinized. 5. When one party is dead, the essential elements must be shown by clear, consistent and convincing evidence.
In order to consider the weight of the evidence as to common-law marriage, we will present a synopsis of the testimony offered by the respective parties.
III. The following was offered by respondent. He had the burden. He testified that he and decedent had cohabitated together from 1932 until her death in 1956, with two exceptions. He testified: "Hattie and my mother didn't get along and Hattie came to Keokuk (early in 1933) and stayed in her house (Hattie's) here until my mother died in 1934. After that Hattie * * * came back to Keokuk to do washing and clean up her home here and to cook meals for Gurden." There is a serious question as to the witness being competent as to the details of such cohabitation in view of Section 622.4. See cases cited in Division I.
The trial court reserved ruling on objections as the evidence was being presented. We have held, however, that the witness is competent as to some of such type of evidence in order to show intent. In In re Wittick's Estate, supra [164 Iowa 485, 145 N.W. 915], we said: "Much of the testimony objected to in this case was of conversations between the appellee and Wittick, as to which no other witness had testified, and we think it comes clearly within the rule of the statute, and is incompetent as proving an agreement, but is in part admissible as proof of her intent and the circumstances under which their relations commenced."
Four witnesses testified they had known decedent and respondent, in recent years in Iowa, and from their observations, they testified the parties lived together as husband and wife.
In Missouri decedent had an auto driver's license issued to her in the name of Harriette Bartlett Long.
A few letters and many Christmas cards were introduced in evidence directed to Mr. and Mrs. Tom Long.
Three health and hospital policies were introduced showing the insured under the name of Harriette Bartlett Long.
An election official testified she voted in Iowa in 1952, 1954, and 1956 under the name of Harriette Long.
IV. The testimony offered by and on behalf of applicant, brother of decedent, was in substance as follows:
Decedent purchased a farm in 1947 and the deed was issued to her under the name of Harriette Mary Bartlett. She also *80 owned a house in Keokuk which stood in her name, but this was apparently purchased before the alleged marriage.
In July of 1950 she purchased ten one thousand dollar Series E United States Government bonds under the name of Miss Harriette M. Bartlett. She also owned five one thousand dollar Series E United States bonds, which she purchased in September of 1943, under the name of Harriette M. Bartlett.
October 15, 1936, respondent executed a deed to his sister conveying his interest in land in Missouri. The deed stated as to the grantor: "Thomas Long single and unmarried man." The acknowledgment before a notary public stated: "and the said Thomas Long further declared himself to be single and unmarried." A similar deed from respondent to his sister with similar wording in the deed and acknowledgment was executed on October 10, 1938.
On September 24, 1951, a real estate contract was made between "Thomas M. Long unmarried first party and Thomas L. Varner and Alice V. Varner, second parties." The acknowledgment stated: "Personally appeared Thomas M. Long, unmarried."
On September 19, 1955, a real estate contract of sale was made by "Thomas M. Long, unmarried, first party, and Keith E. Gaibel and Dora V. Gaibel, second parties." The acknowledgment before a notary public stated: "Personally appeared Thomas M. Long, unmarried."
Thomas M. Long testified he took title in his own name to the farm he sold under contract, because Harriette M. Bartlett refused to sign mortgages with him as his wife, to secure money which he needed to pay part of the purchase price. He signed and acknowledged two mortgages, one in 1947 and one in 1949 as "Thomas M. Long, a single person."
In 1951 a notice was served by the sheriff on behalf of the highway commission on "Harriette Mary Bartlett" as to condemnation of some land listed in her name as owner. She filed a petition appealing from the sheriff's jury appraisal. The case was entitled "Harriette Mary Bartlett, plaintiff, v. Iowa State Highway Commission, defendant." In a stipulation of settlement and a dismissal of the case decedent signed her name as "Harriette Mary Bartlett". The settlement check was made to Harriette Mary Bartlett.
In 1951 decedent filed an ouster suit against a tenant, naming herself as Harriette Mary Bartlett, plaintiff. She verified the petition under said name before a notary public.
In 1952 she filed a suit against Lee County for an injunction to abate a nuisance as to wash water running over on her farm from the County Home naming herself as plaintiff under her maiden name.
In 1950 decedent made a lease from Harriette Bartlett to Harold Keck and wife. She was defendant under said name in a rent control suit and filed a verified answer signed "Harriette M. Bartlett."
Starting in 1939 and running through 1948 applications for homestead tax credit as to the property she owned in Keokuk, Iowa, were filed as follows: "I, Bartlett, Hattie, being first duly sworn upon my oath depose and say that I am the owner of a homestead as defined by the Code of Iowa, which is located at 211 South 8th Street, Keokuk, Iowa, and I intend to occupy said dwelling in good faith as a home. Hattie Bartlett, owner." The application was duly verified before the assessor.
Applicant testified he was the only brother of decedent. He said Mr. Long and his sister came to visit him about every six weeks and would often stay overnight, but never occupied the same bedroom. Respondent in rebuttal denied this testimony.
A veterinary testified he carried his account for services rendered at the farm where the parties lived under the name of "Long & Bartlett" and mailed statements to them in such form.
*81 The Vice President of Keokuk Savings Bank testified decedent's account was carried under the name of "H. M. Bartlett" and it averaged from three to five checks a month. On February 20, 1950, decedent rented a safety deposit box in the bank under the name of "H. M. Bartlett." The bank records indicated entry to her box seven times from May 13, 1950 to February 26, 1952, under entry cards signed "H. M. Bartlett." She surrendered the box on February 26, 1952.
Four insurance agents testified as to issuing policies on decedent's property in Keokuk. Applications were signed and policies issued to "Harriette M. Bartlett, H. M. Bartlett or Harriette Bartlett." The last policy was issued on April 6, 1956, about two months before her death.
Decedent's father died in 1937 in Keokuk. She was listed as an heir under the name of "Hattie Mary Bartlett". She signed a receipt for her share in the estate in 1939 under said name.
On January 24, 1939, decedent joined in and acknowledged a warranty deed to her mother as to an undivided interest in some real estate under the name of "Hattie Mary Bartlett."
V. Establishment by respondent of the important element of intent is very questionable. If it served Mr. Long and decedent's purpose, they held themselves out as husband and wife. If business transactions, homestead exemption, or actions in court arose and it served their purpose better to be single, then they so signed and ignored any claim of marriage.
The evidence of actions, signatures and statements by both parties, many of them under oath, negative existence of a common-law marriage. These actions were not rare and with long intervals between them. They were numerous and continuous from the nineteen thirties until shortly before decedent's death in 1956.
A significant statement was quoted by the trial court, and has been repeatedly quoted in common-law cases by this court. Justice Morling said in Hoese v. Hoese, 205 Iowa 313, 314, 217 N.W. 860: "Common-law marriages do exist. Concubinage also exists."
Respondent has not carried the burden, and has not shown by clear, consistent and convincing evidence that a commonlaw marriage existed. While in the Gammelgaard case a marriage was established under the facts of that case, a statement by the court in the opinion is pertinent to the case at bar. "The total of the various contentions must be added and the weight determined. So far as they are in dispute, we give weight to the findings of the able trial court, and are satisfied with them." [247 Iowa 979, 77 N.W.2d 484.] From the complete record we decide in favor of appellee.
VI. We will discuss the questions of the forum, and jury trial, very briefly. Appellant now contends he was in the wrong forum; in probate. He contends he was entitled to a jury trial at law. Apparently both parties were content to try the case as an equitable action in the trial court. We cannot reverse on this basis. If appellant was not satisfied with the forum accepted by both parties, his remedy was to file motion to transfer to the proper docket. By failure to do so he waived the question. Section 611.9, 1958 Iowa Code, I.C.A. In re Allen's Estate, 247 Iowa 618, 75 N.W.2d 241; Beem v. Beem, 241 Iowa 247, 41 N.W.2d 107; In re Estate of Pierce, 245 Iowa 22, 60 N.W.2d 894; Cleghorn v. Benjamin, 239 Iowa 455, 31 N.W.2d 887; In re Ander's Estate, 238 Iowa 344, 26 N.W.2d 67.
In re Lenders' Estate, 247 Iowa 1205, 78 N.W.2d 536, 539 we said: "We have repeatedly pointed out the district court in this state is only one court. Before it all proceedings come, whether law, equity or probate. If no motion is made to transfer to another docket the district court, sitting in probate, may hear and determine litigation which could or should have been *82 brought at law or in equity. The point the executrices now raise relates at most to a mere procedural irregularity which they waived, and does not go to the court's jurisdiction. See In re Allen's Estate, 247 Iowa 618, 75 N.W.2d 241, and citations; Williams v. Morrison, 242 Iowa 1054, 1062-1063, 48 N.W.2d 666, 670 and citations."
The judgment and decree of the trial court is affirmed.
Affirmed.
All Justices concur except OLIVER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606167/ | 349 So. 2d 223 (1977)
BARNETT BANK OF COCOA, N.A., a National Banking Corporation, Appellant,
v.
Eugene H. OSBORNE and Faye Osborne, Appellees.
No. 76-1873.
District Court of Appeal of Florida, Fourth District.
August 9, 1977.
Robert T. Westman of Stromire, Westman & Lintz, Cocoa, for appellant.
Barbara T. Taylor of Jamieson & Taylor, Cocoa Beach, for appellee-Eugene H. Osborne.
PER CURIAM.
Upon consideration of the record, briefs and the argument of counsel for the respective parties, we determine the trial court correctly ruled that the property was subject to the homestead exemption claimed by the former husband, notwithstanding the former husband and wife having been divorced and the wife entrusted by the decree with custody of the children and possession of the home. Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929); Daniels v. Katz, 237 So. 2d 58 (Fla.3d DCA 1976).
Affirmed.
CROSS and DAUKSCH, JJ., concur.
ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge, dissenting:
I would reverse the trial court's order that the appellant, Barnett Bank of Cocoa, could not levy on the undivided one-half interest of the appellee, Eugene H. Osborne, in the real estate owned by Osborne with his former wife.
Barnett has a judgment against Eugene who is divorced from Faye Osborne but owns real estate with her as a tenancy in common. Faye was granted exclusive possession of the property in the dissolution proceedings, until her youngest child reached age 18. When Barnett attempted to levy on Eugene's interest in the land, Eugene sought and received an order protecting the property from levy as a homestead under Article X, Section 4(a), Florida Constitution. Faye does not object to the levy. The trial court found that Eugene was not the head of a family but that nevertheless since Faye Osborne was the head of a family, the homestead exemption applies to Eugene's interest.
On appeal Eugene claims the homestead exemption of his former wife extends to the entire property, his interest included. The First District has ruled directly to the contrary:
While it is not necessary that the entire estate in property be vested in one occupying land as a homestead before it may be impressed as homestead in character, the homestead exemption applies only to the beneficial interest owned by the head of a family. Morgan v. Bailey, 90 Fla. 47, *224 105 So. 143 (1925). Homestead exemption extends to any right or interest the head of a family may hold in land. Bessemer Properties, Inc. v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946). Thus, Don [the former husband] is entitled to homestead exemption upon his 50% interest in the subject property, but he has no exemption in relation to Shirley's 50% interest.[1]
This court has held in a similar factual situation not involving the homestead issue:
Each of the parties, after dissolution of the marriage, owned an undivided one-half interest in the home as tenants in common. The undivided one-half interest of the appellant-husband is restricted by the right of appellee-wife, under the terms of the final judgment, to possession and occupancy of the home until the youngest child of the parties is eighteen. Subject to this restriction, appellant-husband should be able otherwise to encumber or dispose of his interest. Any purchaser of appellant-husband's undivided interest would have to take title subject to appellee-wife's right of possession, as provided in the final judgment.[2]
Here, Eugene's undivided interest in the property is subject to the exclusive possession granted Faye Osborne in the dissolution proceedings, so a purchaser at an execution sale would take subject to this restriction. But the conclusion is inescapable that if the homestead exemption only extends to the "[beneficial interest] owned by the head of a family", that Eugene's undivided one-half interest, subject to Faye's right of possession, is subject to levy just as it is subject to disposition by Eugene himself.
NOTES
[1] Tullis v. Tullis, 342 So. 2d 88, 89 (Fla. 1st DCA 1977). The issue in Tullis was whether the husband, claiming homestead and occupying the land with his child, could prevent a partition of the property where the final judgment of dissolution gave neither spouse the right of possession to the property.
[2] Robinson v. Robinson, 340 So. 2d 935, 936-937 (Fla. 4th DCA 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606168/ | 7 So. 3d 160 (2009)
Kim WILLIAMS
v.
AVERITT EXPRESS, INC.
No. 2008-1343.
Court of Appeal of Louisiana, Third Circuit.
April 1, 2009.
*162 Kirk L. Landry Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant-Appellant, Averitt Express, Inc.
Louis Wellan, Attorney at Law, Alexandria, LA, for Plaintiff-Appellee, Kim Williams.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
PAINTER, Judge.
Defendant, Averitt Express, Inc., appeals the workers' compensation judge's ruling in favor of Kim Williams. The WCJ found that Williams met his burden of proving a work-related injury, that he was entitled to Supplemental Earnings Benefits (SEB), and that he had not violated the provisions of La.R.S. 23:1208. The WCJ awarded SEB from the date of termination including interest as well as indemnity and medical benefits from the time Defendant claimed a violation of La. R.S. 23:1208. The WCJ also found that Defendant was arbitrary and capricious in its termination of benefits and awarded $2,000.00 in penalties and $6,500.00 in attorney's fees. For the following reasons, we affirm as amended.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2003, Williams was employed by Defendant as a truck driver. Williams contends that on April 29, 2003, while in the course and scope of his employment, he injured his cervical spine while attempting to hook/unhook a trailer in Defendant's work yard in Shreveport, Louisiana. Williams finished his work for the day and reported the injury to his supervisor the same day. His supervisor sent him to Louisiana Occupational Health Services at that time. Williams saw Dr. Gordon Webb on April 29, 2003. Dr. Webb returned Williams to "regular duty." Williams continued to treat with Dr. Webb until May 15, 2003, when Dr. Webb referred him to Dr. Lawrence Drerup, a neurosurgeon. Williams saw Dr. Drerup on June 3, 2003, and Dr. Drerup took Williams off work pending further evaluation and testing.
A cervical myelogram was performed on June 6, 2003. The findings of that study indicated that Williams was suffering from bulging discs. Williams then began *163 seeing Dr. Stephen Katz for cervical epidural steroid injections. In January 2004, Williams was still under the restriction that he was not to drive commercial vehicles. There was no recommendation of surgery, however, Williams was advised to curtail his activities.
Defendant paid Williams weekly indemnity payments in the amount of $416.00 until October 3, 2003. Benefits were discontinued at that time on Defendant's assertion that Williams was working. Williams then filed a disputed claim for compensation alleging wrongful termination/reduction of benefits. On February 3, 2004, Defendant answered and filed a reconventional demand alleging that Williams violated La.R.S. 23:1208 and had, therefore, forfeited all benefits. According to Defendant, Williams made statements to the claims handler that he was not working while Defendant had obtained video surveillance purporting to show that Williams was working at his brother's tractor shop. Williams denied this allegation. Williams did not receive any medical or indemnity benefits after the filing of the reconventional demand.
Following a trial on the merits, the WCJ found that Williams proved that he sustained a work-related injury on April 29, 2003. The WCJ went on to find that Williams had not violated the provisions of La.R.S. 23:1208. The WCJ then found that Williams established that he was entitled to SEB from the date indemnity benefits were terminated and to indemnity and medical benefits from the time that Defendant claimed the La.R.S. 23:1208 violation. Finally, the WCJ found that the termination of benefits was arbitrary and capricious and awarded a $2,000.00 penalty and $6,500.00 in attorney's fees. Defendant is now before us on appeal, asserting that Williams is not entitled to SEB, that the WCJ erred in awarding penalties and attorney's fees, that the WCJ failed to consider its fraud defense, and that the WCJ committed manifest error in finding that Williams sustained a work-related injury. We note that Williams has neither answered the appeal nor filed his own appeal.
DISCUSSION
It is well-settled that:
The standard of review applied to factual findings in workers' compensation matters is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So. 2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So. 2d 880 (La.1993).
Lollis v. Shaw Global Energy Serv., 07-395, p. 3 (La.App. 3 Cir. 10/03/07), 966 So. 2d 1118, 1120. When the fact finder's conclusions are reasonable in light of the record reviewed in its entirety, this court cannot reverse, even if it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106 (La.1990).
This court has also recognized:
As stated in Bruno v. Harbert Int. Inc., 593 So. 2d 357, 361 (La.1992):
A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So. 2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, *164 § 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So. 2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
Lollis, 966 So.2d at 1120-21.
In this case, Defendant argues that "[t]he trial court committed manifest error finding that the claimant had sustained an injury by accident in the course and scope of his employment in the first place, pretermitting all other assignments of error and issues in the case." Accordingly, we will consider this argument first.
Defendant asserts that two unbiased witnesses testified that Williams had been injured in a car race the weekend before the alleged work-related accident. Eve and Kenneth Fulmar both testified, via deposition, that they told Edgar Wade Webb, Williams'"front line leader" at Averitt, that one of his employees had been racing at Thunder Valley Speedway and had "hit the wall" the weekend before Williams' alleged work-related accident. Mr. Fulmar testified that he did not think anyone was injured in the crash. However, Mr. Fulmar admitted that he did not know for sure that Williams was driving the car that wrecked and the only way that he knew that it had anything to do with Williams is because Webb told him what Williams' car looked like. Webb also testified at trial as to what the Fulmars told him. Williams testified that he was not involved in any racetrack accident. We agree with the WCJ in his statement:
[T]he employer is relying primarily upon double hearsay evidence that is that the Fulmars related what they heard an announcer at a racetrack announce. They had no personal knowledge of who Mr. Kim Williams was. There is no corroborating evidence submitted on behalf of the employer that this particular Mr. Kim Williams involved in this litigation, was involved in any car wreck at any racetrack or sought any medical care as a result of any alleged car wreck at any racetrack.
The WCJ also found that Williams' version of the accident was corroborated by the report of injury form filled out by the employer and that the relation of the occurrence of the accident was further corroborated in the medical records from each and every physician from whom Williams sought treatment. The WCJ found Williams to be a credible witness. As we have recognized, under the manifest error standard of review, reasonable credibility evaluations and factual inferences should not be disturbed upon review where conflict exists in the testimony or the facts. Such is the case here. Based on the record before us, we cannot say the WCJ was manifestly erroneous or clearly wrong in its factual finding on this issue. Accordingly, we affirm the WCJ's ruling that Williams proved he sustained an injury in a work-related accident.
We next consider Defendant's argument that the WCJ committed legal error in awarding SEB to Williams by failing to include a decree in the judgment and by misstating and misapplying the applicable burden of proof. According to the provision of La.R.S. 23:1221(3)(a), in order to be entitled to receive SEB, a claimant must prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. The burden of proof is as follows:
The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the *165 facts and circumstances of the case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So. 2d 733. If the claimant meets this burden, then the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant or that the job was available to her or within her or the employer's geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So. 2d 551. If the employer satisfies that burden, then the claimant must show by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the offered or available employment, solely as the result of substantial pain. LSA-R.S. 23:1221(3)(c)(ii); Payne v. Lawn Lourd Lawn Service, 35,491 (La.App.2d Cir.12/5/01), 803 So. 2d 321.
Brooks v. Madison Parish Serv. Dist. Hosp., 41,957, p. 13 (La.App. 2 Cir. 3/7/07), 954 So. 2d 207, 215, writ denied, 07-720 (La.5/18/07), 957 So. 2d 155.
Furthermore,
The SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and suitable jobs are available. Blanchard v. Federal Exp. Corp., 95-0349, p. 4 (La.App. 1 Cir. 11/9/95), 665 So. 2d 11, 13. However, a "suitable job" is one that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant's age experience, and education. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 11 (La.7/1/97), 696 So. 2d 551, 557.
Adams v. Dependable Source Corp., 06-1331, p. 6 (La.App. 1 Cir. 5/4/07), 961 So. 2d 1183, 1187.
Williams' major job activity was as a commercial truck driver. He testified that pre-accident, he was earning approximately $60,000.00 per year. Post-accident, Williams was earning $14,000.00 to $31,000.00 per year. Williams returned to work sometime in 2004. At the time of trial, he was employed as a school bus driver for Rapides Parish School Board and ran his own business as a delivery driver. He testified that he made about $14,000.00 from the school board and from $400.00 to $600.00 per week in his delivery business. Defendants produced records showing that Williams had revenues from deliveries of $21,583.00 in 2005, and $26,613.00 in 2006. Defendant contends that Williams is working when he chooses to, earning what he chooses to, and is in complete unilateral control of his own earnings. Williams, on the other hand contends that he is unable to return to his previous employment with Defendant and that he is unable to earn at least ninety percent of his pre-injury wages.
We conclude that the medical exhibits reflect that the WCJ had sufficient evidence from which to conclude that Williams' earning capacity was severely curtailed and that he was not engaged in suitable employment. As such, Williams met his burden of proof, and the burden shifted to Defendant. The WCJ noted, and we agree, that "there has been no showing that he has ever been release[d] by any physician to return to the operation of a commercial vehicles [sic] and that "[t]he employer made absolutely no showing of any available job that would pay Mr. Williams 90 percent of his pre-injury wage." Accordingly, we conclude that the WCJ did not err in awarding SEB to Williams because he was not employed in a suitable job. This assignment of error lacks merit.
Defendant also complains that the WCJ performed no calculations as to the *166 rate of SEB and that the judgment does not specify a start time or ending time for SEB. Defendant's assertion is not entirely correct. The judgment does specify that SEB is owed "from the date defendant, Averitt Express terminated his indemnity benefits." The method of determining the amount of an award of SEBs is provided in La. R.S. 23:1221(3)(a):
For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve.
The WCJ determined that Williams' average weekly wage was $1,131.36, giving him an average monthly wage of $4,902.56. From the record, we have determined that Williams actually earned an average of $3,174.84 per month post-accident. The difference between his pre-accident average monthly wage and his post-accident average monthly earnings is $1,727.72. Sixty-six and two-thirds percent of that figure is $1,151.87. We conclude that Williams is entitled to monthly SEBs of $1,151.87 beginning October 3, 2003, the date benefits were terminated. Accordingly, we amend the judgment to reflect this figure and start date. No end date is required in judgment as SEB discontinues by operation of law upon the occurrence of one of the events listed in La.R.S. 23:1221(3)(d) or the passage of five hundred and twenty weeks (the maximum period for which the right to SEB extends).
We next turn to the issue of penalties and attorney's fees. Defendant contends that the law does not allow the award of a penalty for not continuing to pay SEB. As stated above, Williams received weekly indemnity payments in the amount of $416.00 until October 3, 2003. Williams contended that Defendant wrongfully terminated said benefits and the WCJ agreed.
Louisiana Revised Statutes 23:1201(I) provides, in pertinent part:
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
This portion of the statute became effective in 2003 when La.R.S. 23:1201.2 (cited by Defendant) was repealed. Thus, this provision was effective when benefits were terminated in this case. A WCJ's decision to award penalties and attorney's fees is subject to the manifest error standard of review. Bolton v. Mike Fleming Const., 36,521 (La.App. 2 Cir. 12/11/02), 833 So. 2d 1177. We find no manifest error in the WCJ's imposition of penalties and attorney's fees.
Defendants finally contend that the WCJ failed to actually consider its fraud defense in that the WCJ did not *167 consider Williams' alleged false statements to the claims handler. Instead, according to Defendant, the WCJ focused on whether or not Williams was actually working. In Cotton v. First Fleet, 07-29, p. 5 (La. App. 3 Cir. 5/2/07), 957 So. 2d 229, 234-35, writs denied, 07-1488, 07-1543 (La.10/5/07), 964 So. 2d 947, 948, this court noted that:
Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove "that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment." Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So. 2d 7, 12. If the WCJ finds that all three of "these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced." Id. at 14.
The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers' compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So. 2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So. 2d 14; Olander v. Schillilaegh's, 04-725 (La.App. 3 Cir. 3/23/05), 899 So. 2d 97.
Defendant contends that it is not "splitting hairs" in this assignment of error, but we do not agree. The WCJ necessarily had to analyze whether or not claimant was actually working to determine whether or not he made a false statement concerning the same to the claims handler. The WCJ concluded the Williams was not actually working during the period in question. We agree with the WCJ and with Williams' assertion that the evidence supports the conclusion that Williams was not, in fact, working at the time the alleged statements were made to the claims handler. There was testimony that Williams did not work for his brother, was never paid for work by his brother, and the video surveillance did not prove that he was employed there. We find no manifest error in the WCJ's findings in this regard.
DECREE
For the foregoing reasons, we amend the judgment of the WCJ to reflect that SEB is to be paid in the amount of $1,151.87 per month, beginning October 3, 2003, the date benefits were terminated, plus interest. In all other respects, the judgment of the WCJ is affirmed. Costs of this appeal are assessed against Defendant-Appellant, Averitt Express, Inc.
AFFIRMED AS AMENDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2749768/ | Order entered October 17, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01555-CR
No. 05-13-01556-CR
No. 05-13-01557-CR
THOMAS COREA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F12-00737-Y, F13-00406-Y, F13-00407-Y
ORDER
The Court REINSTATES this appeal.
On September 26, 2014, we ordered the trial court to make findings to determine whether
there was a subsequent hearing regarding restitution in these cases. We ADOPT the trial court’s
finding that there was not a hearing regarding restitution subsequent to appellant’s guilty plea
and sentencing hearing.
We ORDER Riann C. Moore to file appellant’s brief within THIRTY (30) DAYS from
the date of this order.
/s/ ADA BROWN
JUSTICE | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1606183/ | 310 N.W.2d 162 (1981)
STANLEY COUNTY SCHOOL DISTRICT NO. 57-1, Appellant,
v.
STANLEY COUNTY EDUCATION ASSOCIATION, Appellee.
No. 13312.
Supreme Court of South Dakota.
Argued May 28, 1981.
Decided September 16, 1981.
Charles M. Thompson of May, Adam, Gerdes & Thompson, Pierre, for appellant.
James Robbennolt of Duncan, Olinger, Srstka, Lovald & Robbennolt, Pierre, for appellee.
WOLLMAN, Chief Justice.
This is an appeal by Stanley County School District No. 57-1 (appellant) from a final judgment of the circuit court finding appellant's appeal from a Department of Labor order moot. We reverse and remand.
The action was a grievance commenced by the Stanley County Education Association (appellee) against appellant relating to the collective bargaining process during the spring of 1979. We find that the circumstances as hereafter described effectively precluded appellant from seeking judicial review of this unfair labor practice complaint. Accordingly, we reverse the judgment of the circuit court and remand to that court for a hearing of the issues on their merits.
In order to appreciate the procedural dilemma faced by appellant in seeking judicial review of the Department of Labor's order, we offer the following synopsis of events. Representatives of appellant and appellee engaged in collective bargaining negotiations between March 20 and April 26, 1979. Appellant issued employment contracts to employee teachers on May 1, 1979, in accordance with SDCL 13-43-11. On May 23, 1979, appellee filed a petition with the Department of Labor alleging that appellant was guilty of an unfair labor practice during the spring negotiating sessions. A hearing before a Department of Labor hearing officer was conducted on *163 September 18, 1979. Contract negotiations for the 1980-1981 school year were held pursuant to SDCL 3-18-3 during March and April of 1980. Contracts were offered for the 1980-1981 school year on or before May 1, 1980, again as required by SDCL 13-43-11. It was not until May 2, 1980, that the Department of Labor entered its findings of fact, conclusions of law and order to the effect that appellant had engaged in unfair labor practices in its spring 1979 negotiations with appellee's representatives. Among other things, the order commanded appellant to "cease and desist from its attempts to undermine the status and prestige of the [appellee] as the negotiating representative of the employee association." Appellant appealed the Department's order to the circuit court on May 16, 1980. A hearing was held on October 9, 1980. On October 28, 1980, the circuit court issued its judgment, which reversed the cease and desist portion of the order and dismissed the remainder of the appeal on the ground that it had been rendered "moot as a result of the voluntary actions of the parties in entering into a two year agreement ...."
The primary issue is whether appellant is effectively denied its right of appeal if the issues appealed to the circuit court from the Department of Labor are held to be moot.
At the outset it must be recognized that in each step set forth in the preceding case history, from the commencement of contract negotiations in the spring of 1979 through the appeal to this Court, the parties met each procedural deadline. The circuit court held that the issues in the appeal were moot because the parties had entered into an agreement in May 1980 which covered the same items negotiated in the May 1979 agreement. If the issues argued before the circuit court are technically moot, then appellant is penalized for following the mandatory time guidelines throughout this action. Consequently, appellant could never exercise its right to judicial review of a finding that an unfair labor practice existed if it also meets its statutory obligation to bargain collectively.[*]
This Court has held that:
... [it] will not dismiss an appeal upon the ground that the questions involved have become moot unless it appears clearly and convincingly that actual controversy has ceased; it must appear that the only judgment which could be entered would be ineffectual for any purpose and would be an idle act so far as concerns rights involved in the action (citations omitted).
City of Plankinton v. Kieffer, 69 S.D. 597, 604, 13 N.W.2d 298, 301 (1944); Dodds v. Bickle, 77 S.D. 54, 58, 85 N.W.2d 284, 286 (1957). It does not appear that the actual controversy here has ceased because the parties are mandated by SDCL 3-18-3 to engage in collective bargaining "in respect to rates of pay, wages, hours of employment, or other conditions of employment" on a yearly basis. Contracts must be issued prior to May 1 pursuant to SDCL 13-43-11. Appellant is entitled to judicial review of the hearing officer's determination because such review will guide the parties' conduct in subsequent negotiations.
The reversal of the trial court's decision would not in itself give effectual relief inasmuch as the 1979 dispute was superseded by subsequent negotiations. However,
[i]t is a well-established rule that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the particular action or the parties are concerned.... The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.... *164 5 Am.Jur.2d Appeal and Error § 768 (1962). In order to invoke the public interest exception three criteria must be met: "(1) general public importance, (2) probable future recurrence, and (3) probable future mootness." Anderson v. Kennedy, 264 N.W.2d 714, 717 (S.D.1978); United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897); Southern Pacific Terminal Co. v. Interstate Com. Com., 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911); 5 Am.Jur.2d Appeal and Error § 768 (1962); 5 C.J.S. Appeal & Error § 1354(1) (1958).
This case satisfies the first prong of the test. It is of vital interest to the many school districts and teacher associations in this state to better know and understand the permissible latitude in mandatory bargaining. The second prong of the test is satisfied in that a dispute still exists whether appellant did engage in an unfair labor practice during the 1979 negotiations. The existence of the dispute portends a recurrence of the exact situation complained of here. The third prong, probable future mootness, is met as the same situation is likely to arise because of the yearly negotiation procedure. Accordingly, the judgment of the circuit court dismissing the appeal as moot is vacated and the case is remanded to the circuit court for consideration of those issues not disposed of by the October 28, 1980, judgment.
The second issue presented for determination is whether the circuit court erred when it allowed in evidence a document comprising the collective bargaining agreement between the parties for the 1980-1981 school year. SDCL 1-26-35 provides:
The review shall be conducted by the court without a jury and shall be confined to the record. A trial de novo shall not be granted unless otherwise authorized by law, but in cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
The negotiated package for the 1980-1981 school year was neither an alleged irregularity before the agency, nor was it part of the administrative record. The trial court should have excluded this document and the testimony referring to it pursuant to appellant's objection. On remand, the circuit court will confine its determination of the existence of an unfair labor practice to the administrative record.
That portion of the judgment dismissing the appeal is reversed, and the case is remanded to the circuit court for further proceedings.
DUNN and HENDERSON and FOSHEIM, JJ., concur.
MORGAN, J., dissents.
MORGAN, Justice (dissenting). I dissent.
As I read Judge Jones' Judgment of October 28, 1980, after reversing the cease and desist order as overly broad, he found the balance of the Order of the Department of Labor to be moot:
"and that [sic] rest and remainder of the order in its entirety and any issues arising therefrom are hereby declared to be moot."
I agree with the judgment inasmuch as the order was not entered until May 2, 1980, after the negotiations and offer of the new contracts. Since the order is moot, however, appellant has nothing to complain about. None of the parties addressed the issue from this viewpoint. Instead, they treated it as though the order, other than the cease and desist portion, was left standing and had some deleterious effect on the school district which could not be reached if the appeal was moot. That simply is not the case.
If the Department of Labor wants their decisions to have any effect, they should not take over eleven months to process, hear and decide the case. There was almost a four-month delay between petition and hearing, and then a five and one-half month delay until a decision was made.
I would affirm the judgment.
NOTES
[*] It is this feature that distinguishes the instant case from the situation discussed in Camp v. Bjerke, 273 N.W.2d 161 (S.D.1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606175/ | 349 So. 2d 546 (1977)
Thomas MALLETTE
v.
STATE of Mississippi.
No. 49882.
Supreme Court of Mississippi.
September 7, 1977.
*547 Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellant.
A.F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, BROOM and LEE, JJ.
LEE, Justice, for the Court:
Thomas Mallette was indicted and tried for murder in the Circuit Court of Jackson County. From a conviction of manslaughter and sentence of eighteen (18) years, he appeals here.
Appellant assigns the following errors in the trial of the case:
(1) The trial court erred in failing to grant appellant's motion to dismiss for the reason that two mistrials had resulted because of hung juries, and the trial court erred in failing to allow proof of that fact on behalf of appellant.
*548 (2) The trial court erred in allowing the State to impeach its own witness by improper means.
(3) The trial court erred in failing to sustain appellant's motion for a directed verdict.
(4) The trial court erred in admitting in evidence photographs of the deceased's nude body.
(5) The trial court erred in granting State's Instruction S-4 (a manslaughter instruction) which was not supported by the evidence.
(6) The trial court erred in refusing to grant appellant's Instructions 1-D, 4-D, 6-D, 8-D, 9-D and 11-D.
On March 27, 1974, the Jackson County Sheriff's Office received a call at approximately 3:00 or 3:30 p.m. indicating that there had been a suicide at the Thomas Mallette residence (a small house trailer). Officers responded to the call and, upon arriving at the scene, appellant met them in the front yard and told them that his wife, Betty Jean Mallette, had committed suicide by slipping in the bathtub. Appellant appeared to be upset, his clothes were wet, a pocket was torn, there were some bloodstains on his clothing, and he was intoxicated. When the officers entered the trailer, they found the nude body of Mrs. Mallette on a sofa in the front room. She had been brutally beaten, bruises and cuts appearing over most of her body. Bloodstains were found on clothes and pillowcases and in all the rooms except the bathroom, which contained a shower, lavatory, and commode, but no bathtub. There was no evidence to indicate the deceased had been in the bathroom. Clothes and broken glass were scattered around the trailer, a bloodstained 2 x 4 with hair on it, wrapped in a newspaper, was found in the front room under a pile of clothes. In the same room, a broom was found with blood and red hair (the victim was red-headed) on it. Marks on the floor of the front room indicated it had been swept with a broom. The body appeared to have been wiped or cleaned up, and four-inch marks (bruises) could be seen on it. Autopsy of the body indicated that the causes of death were punctures and collapse of the lungs (by broken ribs) and hemorrhages of the brain. Alcohol content of the body was .265 mg. percent. Appellant gave no statement other than the initial statement that his wife committed suicide by slipping in the bathtub, nor did he testify on the trial. There were no eyewitnesses to the homicide.
I.
Did the trial court err in refusing to dismiss the case because of two previous mistrials?
At the outset of the trial, appellant filed a motion to dismiss the cause on the ground that it had been tried twice before, that both trials resulted in mistrials (hung juries) and that he had been placed in double jeopardy. Appellant attempted to introduce proof of such facts, but the trial court declined to permit same. The record reflects that there were two mistrials and, therefore, there was a proffer of that evidence. Jones v. State, 306 So. 2d 57 (Miss. 1975).
Appellant argues that permitting the State to try a defendant twice or more enables the State to "shop" for a jury until an accused is convicted and circumvents the constitutional prohibition against double jeopardy. However, this is a two-way street. Experienced practitioners sometimes refer to the "sinker juror." If this contention were sound, defendant might be able to impanel a sinker on the jury during two trials, and the State could never proceed to a final judgment in the case.
Art. 3, § 22, Miss.Const. 1890 provides:
"No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution."
Suffice it to say, in order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted. Illinois v. Somerville, 410 *549 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); Bounds v. State, 271 So. 2d 435 (Miss. 1973); Smith v. State, 158 Miss. 355, 128 So. 891 (1930); State v. Moor, 1 Miss. [Walk.] 134 (1823).
II.
Did the trial court commit error in allowing the State to impeach its own witness by improper means?
The State introduced as a witness, Mary Ellen Mallette, the eleven-year-old daughter of appellant and deceased, who testified that she left the trailer on the morning of the homicide at about 7:00 a.m., that her mother and father were in the trailer, and that she did not return during the rest of the day. In the absence of the jury, a stipulation, which was introduced at a previous trial, was placed in the record to the effect that after Mary Ellen Mallette left the trailer at 7:00 a.m., she returned around noon and her mother (deceased) was asleep on the sofa and her father was asleep in bed. Subsequently, the district attorney, who participated in the previous trials but not in this trial, testified to facts told him by Mary Ellen Mallette. They were substantially the same as those contained in the stipulation. The State did not claim surprise or that she was a hostile witness, and no predicate was laid for the testimony. However, no objection was made, and, since failure to enter timely objection constitutes a waiver of the objection, there is no merit in this contention. Kelly v. King, 196 So. 2d 525 (Miss. 1967).
III.
Did the trial court commit error in overruling appellant's motion for a directed verdict?
All the evidence introduced on the trial was circumstantial evidence except the statement of appellant that his wife slipped in the bathtub and committed suicide. There was no proof that any persons had been in the trailer other than appellant and the deceased, and all the evidence was sufficient to present a question for the jury to determine whether or not appellant killed his wife. Burrill v. State, 328 So. 2d 334 (Miss. 1976); Brown v. State, 293 So. 2d 425 (Miss. 1974); Sanders v. State, 286 So. 2d 825 (Miss. 1973); Pryor v. State, 239 So. 2d 911 (Miss. 1970). The trial court correctly overruled the motion for a directed verdict.
IV.
Did the trial court err in admitting photographs of deceased's body?
The State offered in evidence eight color photographs taken of the victim's body. They were admitted over objection that they were cumulative. Appellant now contends that the photographs were gruesome, that they served no evidentiary purpose and were introduced solely to inflame the jury.
Without question, the photographs depicted a brutal beating of the deceased and were gruesome. However, we are of the opinion that the photographs had evidentiary value. Appellant was convicted of manslaughter and that part of the manslaughter statute which applies here sets forth the words, "killed in a cruel and unusual manner." The photographs show better than testimony (certainly in corroboration of the testimony) that the deceased was killed by being beaten in a cruel, unusual and savage manner. There was admitted in evidence a 2 X 4 stained with blood. It was not identified as the murder weapon, but, upon viewing the body, together with the marks and bruises on it (some were four inches in width) the jury had a right to decide whether or not, in its opinion, the 2 X 4 was used in beating the victim. Admission of photographs in evidence is within the sound discretion of the trial judge, and, unless he abuses that discretion, it is not reversible error. Curry v. State, 328 So. 2d 328 (Miss. 1976); West v. State, 218 Miss. 397, 67 So. 2d 366 (1953).
V.
Did the trial court commit error in granting State's Instruction S-4, a manslaughter instruction?
*550 Appellant objected to Instruction S-4 on the ground that the evidence did not support it. On appeal, he argues that an essential part of the instruction "in a cruel or unusual manner or by the use of a dangerous weapon" was not included and that it was fatally defective. In Robinson v. State, 223 Miss. 303, 78 So. 2d 134 (Miss. 1955), the Court held that omission of the words "by the use of a dangerous weapon," did not constitute reversible error. In that case, it was not controverted that the murder weapon, a 28-gauge shotgun, was a deadly weapon. In the present case, it is uncontroverted that the deceased was killed in a cruel and unusual manner. The same rationale that applied to the Robinson case applies here. A defendant cannot complain of a manslaughter verdict where the evidence would support a conviction of murder. King v. State, 251 Miss. 161, 168 So. 2d 637 (1964). The trial court did not commit error in granting the instruction.
VI.
Did the trial court err in refusing to grant appellant's Instructions 1-D, 4-D, 6-D, 8-D, 9-D and 11-D?
The Instruction 1-D is lengthy, but it simply sets forth the principle of presumption of innocence, and the two-theory principle. Instructions 5-D and 13-D cover the two-theory principle and C-13 covers the presumption of innocence principle, and it was not error to refuse that instruction.
Instruction 4-D was not supported by any evidence, and it was properly refused.
Instruction 6-D was repetitive of principles covered in other instructions and was properly refused.
Instruction 8-D, likewise, was covered by other instructions, and Instruction 11-D was a peremptory instruction and both were properly refused by the court.
Instruction 9-D is the one-juror instruction. This Court has held that, in proper cases, it should be granted. Easter v. State, 191 Miss. 651, 4 So. 2d 227 (1941); Cartee v. State, 162 Miss. 263, 139 So. 618 (1932). However, Instruction S-1, although it did not go into length on the principle stated in Instruction 9-D, did instruct the jury that twelve jurors must agree upon the verdict. With that instruction, and considering all instructions together, we are of the opinion that it was not error to refuse Instruction 9-D.
There being no reversible errors in the record, the case must be and is affirmed.
AFFIRMED.
PATTERSON, C.J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and BOWLING, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606275/ | 333 F. Supp. 1364 (1971)
Bruce NOLOP, President of the University of South Dakota Student Association, an unincorporated association, on his behalf and on behalf of all other members of the Association; and Peter Kolbeck, individually, a citizen, and as Chairman of the Student Ecology Committee of the University of South Dakota Student Association, an unincorporated association, Plaintiffs,
v.
John VOLPE, individually and as Secretary of Transportation, Washington, D. C., et al., Defendants.
Civ. No. 71-79S.
United States District Court, D. South Dakota, S. D.
November 11, 1971.
*1365 Lee McCahren, Vermillion, S. D., for plaintiffs.
R. D. Hurd, Asst. U. S. Atty., for defendants Volpe, Kemp and Bue.
Carl W. Quist and Larry M. Von Wald, Asst. Attys. Gen., Pierre, S. D., for defendants Allmon, Feinstein, Stenson, Delzer and Kneip.
Martin Weeks, Vermillion, S. D., for intervenor defendant City of Vermillion.
MEMORANDUM DECISION
NICHOL, Chief Judge.
The plaintiffs bring this suit as a class under Rule 23 of the Federal Rules of Civil Procedure on behalf of their *1366 fellow students.[1] Jurisdiction is based on 28 U.S.C.A. Sec. 1331(a) with a federal question arising out of the applicability of 42 U.S.C.A. Secs. 4321-4347. This being a suit for injunction the court finds the amount in controversy to exceed $10,000 exclusive of interest and costs.
Plaintiffs seek a preliminary injunction enjoining the construction of a proposed four lane highway through the campus of the University of South Dakota in Vermillion. The road is presently designed for two lane traffic on what is known as South Dakota Trunk Highway 50 or City of Vermillion Cherry Street. The basis of the plaintiffs' claim is noncompliance by the state and federal authorities with Section 102(2) (C) of the National Environmental Policy Act of 1969 (42 U.S.C.A. Sec. 4332(2) (C) (hereinafter referred to as NEPA). Plaintiffs allege that such noncompliance will cause them irreparable harm through increased noise pollution, destruction of trees, increased traffic endangering the safety of pedestrian students and by ending the possibility of an all pedestrian campus.
The following issues have been presented: (1) whether plaintiffs have capacity to maintain this action; (2) whether plaintiffs can maintain a class action under Rule 23 of the Federal Rules of Civil Procedure; (3) whether plaintiffs have standing to maintain this action; (4) whether plaintiffs are barred by the doctrine of laches from maintaining this action; (5) whether the National Environmental Policy Act of 1969 (42 U.S.C.A. Secs. 4321-4347) should be applied retroactively and (6) whether plaintiffs will suffer irreparable damage.
At trial the testimony showed that both plaintiffs were under 21 years of age. By leave of court plaintiffs were allowed to appoint Father Willert as guardian ad litem for the infant plaintiffs. All of the defendants waived their right to object during the trial. Defendant City of Vermillion now objects contending that the plaintiffs lack legal capacity under Rules 17(b) & (c) of the Federal Rules of Civil Procedure to represent the class under Rule 23 of the Federal Rules of Civil Procedure.
Rule 17(b) of the Federal Rules of Civil Procedure requires the law of the infant's domicile to control his capacity to sue. Plaintiffs are domiciled in South Dakota. In Fink v. Fink, 70 S.D. 366, 17 N.W.2d 717 (1945), the South Dakota Supreme Court held that under S.D. Code Sec. 33.0405 (1939) an infant plaintiff must have a guardian appointed before he commences his suit. However, that statute prescribed an exclusive method for bringing an action on behalf of a minor. S.D.Comp.Laws Ann. Sec. 15-6-17(a) (Supp.1970) and S.D. Comp.Laws Ann. Sec. 15-6-17(c) (1967) now in effect do not have such a mandatory requirement. S.D.Comp.Laws Sec. 15-6-17(a) (Supp.1971) specifically allows the real party in interest a reasonable time to ratify, which Father Willert as guardian ad litem has done.
As to the City of Vermillion's claim that a class action cannot be maintained in the name of a minor plaintiff this court answers with the question: Who can better represent minor students than a fellow minor student? Defendants cite no authority for their contention. The plaintiffs fulfill all of the Rule 23(a) requirements for maintaining a class action. There are 5,625 members of the University of South Dakota student body. Thus the class is so numerous that joinder of all members is impracticable. The applicability of the National Environmental Policy Act of 1969 (42 U.S.C.A. Secs. 4321-4347) is common to all members of the class and the claims are typical of the entire class. A student poll received in evidence indicated that over 80% of the students support *1367 this action and the students are represented by competent counsel so that the representative parties do fairly and adequately protect the interests of the class. The Rule 23(b) (2 & 3) requirements are met in that the defendants' failure to file an environmental impact statement affects the entire class generally, thereby making appropriate injunctive relief with respect to the class as a whole. The common questions of fact and law predominate and therefore a class action will best aid a fair and efficient adjudication of the controversy. The central issues are: was an environmental impact statement filed and was it necessary to file such?[2]
This Court orders the plaintiffs to give the proper Rule 23(c) notice to the other members of the class by publishing such notice conspicuously in the official student body newspaper of the University of South Dakota (the Volante) and by airing such notice over the University of South Dakota radio and television stations (KUSD). The Court deems this to be the best notice practicable under the circumstances because of the high cost of individual mailing.
To have standing the plaintiffs need only show that the challenged action has caused them injury in fact, economic or otherwise, and that the interest asserted is within the interest sought to be regulated by statute. Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238 (M.D.Pa.1970). The plaintiffs have met these tests. If the road project is executed the plaintiffs will be subjected to increased noise pollution and dangerous trafficpedestrian conflicts. The plaintiffs assert their interest under a Congressional mandate requiring federal agencies to file an environmental impact statement.
The City of Vermillion[3] raises the doctrine of laches to bar plaintiffs' suit. It is the city's contention that the recently completed two lane Highway 50 by-pass would have been four lanes if the Cherry Street project were not contemplated. The city chooses to view the two projects as one. Their theory is that plaintiffs should have sued before the Highway 50 by-pass project was undertaken. However, the doctrine of laches is to be determined in light of all the circumstances and requires an unreasonable and prejudicial delay to the adversary. The mere lapse of time does not constitute laches. Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F. Supp. 918, 924 (M.D.Pa. 1971); Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238, 246 (M.D.Pa.1970). Here construction of the Cherry Street project is not to begin until the spring of 1972. That leaves an entire winter for the matter to be administratively determined. There will be no unreasonable or prejudicial delay.
The cases of Brooks v. Volpe, 319 F. Supp. 90 (W.D.Wash.1970); Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038 (D.Or.1970); and Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238 (M.D.Pa.1970), all hold that the National Environmental Policy Act of 1969 is not to be given retroactive application. The reasoning of these cases is seriously questioned in 1 ELR 50048-49. As is pointed out in the Environmental Law Reporter, 1 ELR 50048, "Congress showed its intent that the Act be applied to action initiated prior to January 1, 1970, by omitting the traditional `grandfather clause' and by stressing the inclusive applicability of the policy." In addition, the guidelines set out by the Council on Environmental Quality for preparing the 42 U.S.C.A. Sec. 4332(2) (C) environmental impact statements require federal agencies to prepare statements on major federal actions *1368 even though they arise from projects or programs initiated prior to the enactment of NEPA. 35 Fed.Reg. 7391 (1970). Those guidelines further state:
Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program. 35 Fed.Reg. 7391 (1970).
Thus more enlightened reasoning shows that the NEPA can be applied retroactively. In Texas Committee on Natural Resources v. United States, 1 ER 1303 (W.D.Tex.1970), the Western District of Texas, per Roberts, District Judge, granted plaintiffs a preliminary injunction until the NEPA was complied with. The court stressed that "Congress has expressed in strong and clear language their concern over what we are doing to our environment" and that no funds had yet been expended.
This court is in full agreement with and adopts Judge Eisele's decision in Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army, 325 F. Supp. 749 (W.D.Ark.1971). The defendants should follow Judge Eisele's suggestions very closely in preparing the necessary environmental impact statement required by this opinion.
Judge Eisele's words are particularly applicable to defendants' theory of retroactive application which would permit a double standard with respect to projects envisioned before the NEPA was passed. He says:
(T)he degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project as required by NEPA. Although the attitude of the defendants is understandable, nevertheless, as the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States government, such as the defendants here, to objectively evaluate all of their projects, regardless of how much money has already been spent thereon and regardless of the degree of completion of the work. Id. at 752.
* * * * * *
At the very least, NEPA is an environmental full disclosure law. The Congress, by enacting it, may not have intended to alter the then existing decisionmaking responsibilities or to take away any then existing freedom of decisionmaking, but it certainly intended to make such decisionmaking more responsive and more responsible. Id. at 759.
We need not rest on a retroactive application of NEPA under the facts of this case. United States Department of Transportation Policy and Procedure Memorandum 90-1 (1971) (hereinafter referred to as PPM 90-1) in paragraph 5(b) requires an environmental statement to be prepared and processed as required by 42 U.S.C.A. Sec. 4332(2) (C) "for each highway section which received design approval on or after January 1, 1970. * * *" Design approval is defined in PPM 90-1 paragraph 5(e) (1) as:
That action or series of actions by which the FHWA (Federal Highway Administration) indicated to the HA (Highway Administration) that the essential elements of the highway as set out in paragraph 10 of PPM 20-8 were satisfactory or acceptable for preparation of the PS&E (plans, specifications and estimate).
PPM 90-1 at Appendix F-1(a) further requires environmental impact statements "where organized opposition has occurred or is anticipated to occur." The mere existence of this lawsuit shows that organized opposition has occurred. Polls showed that over 80% of the 5625 University of South Dakota students oppose the project.
*1369 The Cherry Street road project began in 1964 with an authorization for a survey. A temporary design sheet was approved in November of 1965. In February of 1968 another proposed design sheet was approved. A design and location hearing was held in Vermillion in July of 1969. In June of 1970 a final location and design approval was requested from the Bureau of Public Roads by the South Dakota Highway Department Preconstruction Engineer. That approval was received in July of 1970. The contract for construction was not approved until October of 1970. The facts are clear from the state's own evidence that the PPM 90-1 design approval was not received until after the NEPA was in effect. Therefore, the plaintiffs are not seeking a retroactive application of the NEPA. In Brooks v. Volpe, 319 F. Supp. 90 (W.D.Wash.1970), the date of highway location seemed to be the deciding factor as to PPM 90-1 design approval. In Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038 (D.Or.1970), the Congressional appropriation of funds controlled, while in Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238, 248 (M.D.Pa.1970), the date the contract was awarded and finalized controlled. Thus it can be seen that each case must turn on its own facts. Here the contract was approved and final design and location approval were received after the NEPA was in effect and, therefore, the provisions of the NEPA must be met. The defendants are enjoined from further proceedings on project F-012-4(2) until they have complied with the NEPA by filing an environmental impact statement.
The defendants' contention that the plaintiffs will suffer no irreparable harm is completely without merit. PPM 90-1 Appendix F-1 paragraph (3) (c) specifically states that
(a) highway section that divides or disrupts an established community or disrupts orderly, planned development or is inconsistent with plans or goals that have been adopted by the community in which the project is located or causes increased congestion
should be considered as significantly affecting the quality of the human environment. When seeking a preliminary injunction the plaintiffs need only establish a reasonable probability of success in a trial on the merits. Brooks v. Volpe, 319 F. Supp. 90 (W.D.Wash.1970).
(I)t is sufficient if the court is satisfied that there is a probable right and a probable danger and that the right may be defeated, unless the injunction is issued, and considerable weight is given to the need of protection to the plaintiff as contrasted with probable injury to the defendant * * *. West Virginia Highlands Conservancy v. Island Creek Coal Company, 441 F.2d 232, 235 (4th Cir. 1971).
It is apparent that the plaintiffs have raised substantial issues concerning the procedural requirements of the NEPA. Defendants make no contention that the 42 U.S.C.A. Sec. 4332(2) (C) environmental impact statement was filed.
Upon the basis of the evidence and the law, the Court now concludes that the plaintiffs are entitled to an order enjoining the defendants from continuing with the Cherry Street road project F-012-4(2) unless and until they comply with the provisions of NEPA, especially 42 U.S.C.A. Sec. 4332(2) (C).
This memorandum decision shall constitute the Court's findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.
NOTES
[1] Plaintiff Nolop is the president of the University of South Dakota Student Association while plaintiff Kolbeck is chairman of the Student Ecology Committee.
[2] See Eisen v. Carlisle & Jacqueln, 391 F.2d 555 (2 Cir. 1968), for an excellent discussion of Rule 23 of the Federal Rules of Civil Procedure.
[3] The city of Vermillion was allowed to intervene by stipulation of the parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606295/ | 10 Wis. 2d 352 (1960)
SMITH, Appellant,
v.
TOWN OF PERSHING, Respondent.
Supreme Court of Wisconsin.
April 6, 1960.
May 3, 1960.
*354 For the appellant there was a brief by Clifford F. Curran and Charles G. Giles, both of Medford, and oral argument by Mr. Giles.
For the respondent there was a brief by Nikolay, Jensen & Scott of Medford, and oral argument by Raymond H. Scott.
*355 CURRIE, J.
The plaintiff's cause of action against the town is grounded upon the holding of this court in Cowin & Co. v. Merrill (1930), 202 Wis. 614, 233 N.W. 561. It was therein held that a municipal corporation could be held directly liable by a materialman, who had supplied materials to a principal contractor with whom the municipality had entered into a public contract, if the municipality failed to obtain a bond from the principal contractor to protect subcontractors as required by sec. 289.16 (1), Stats. It is conceded that no bond was required by the town from the principal contractor, Brost, and that Brost has not paid the plaintiff for the gravel crushed and hauled by the plaintiff. In fact, Brost has been adjudicated a bankrupt.
The issue before us on this appeal is whether the plaintiff's cause of action against the town is barred because of the failure of the plaintiff to comply with sec. 60.36, Stats., before commencing his action. Such statute provides in part as follows:
"No action upon any claim or cause of action for which a money judgment only is demandable, except upon town orders, bonds, coupons, or written promises to pay any sum of money, shall be maintained against any town unless a statement or bill of such claim shall have been filed with the town clerk to be laid before the town board of audit, nor until five days after the adjournment of the next regular meeting of the board of audit thereafter."
The purpose to be served by such a notice-of-claim statute is stated in 17 McQuillin, Mun. Corp. (3d ed.), p. 63, sec. 48.02, to be:
"The principal purpose of the requirement that claims be presented or filed is to provide the city with full information of the rights asserted against it, enable it to make proper investigation concerning the merits of the claim, and to settle those of merit without the expense of litigation."
*356 While the author is only speaking of notice-of-claim statutes pertaining to cities, the quoted statement is equally applicable to those applying to other municipalities such as towns. See also Wentworth v. Town of Summit (1884), 60 Wis. 281, 283, 19 N.W. 97, and Firemen's Ins. Co. v. Washburn County (1957), 2 Wis. (2d) 214, 227, 228, 85 N. W. (2d) 840.
Such being the purpose of sec. 60.36, Stats., we can perceive of no reason why the statute should not be applicable with respect to the plaintiff's instant cause of action against the town. There is nothing in sec. 289.16 (1) which in any way conflicts with sec. 60.36. We deem that the circuit court properly determined that the plaintiff's failure to file a statement of his claim with the town clerk bars his action against the town.
The plaintiff has cited Town of Ettrick v. Town of Bangor (1893), 84 Wis. 256, 54 N.W. 401. In that case the plaintiff town sought to recover from the defendant town for public assistance rendered to poor persons. Because the statute regulating such poor assistance prescribed the entire procedure for enforcing a claim by one municipality against another, the court held it was unnecessary to file a statement of claim under sec. 824, R. S., predecessor to sec. 60.36. In the instant situation no such procedure for enforcing the plaintiff's claim against the defendant town is set forth in sec. 289.16 (1).
In Firemen's Ins. Co. v. Washburn County, supra, it was held that provisions of sec. 81.15, Stats., which section imposes liability upon municipalities for damages incurred as a result of a street defect and provides for service of a notice of injury upon the municipality, do not relieve the damaged party from complying with the notice-of-claim statutes, such as sec. 60.36.
Although entirely outside of the record, the plaintiff's brief states that since the commencement of the action he *357 has filed a statement of his claim with the town clerk. Because of this he requests us to pass upon the issue of whether the measure of his recovery against the town under sec. 289.16 (1), Stats., is the price for crushing and hauling agreed upon between Brost and himself, or whether it is limited to reasonable rent for his crusher and trucks exclusive of the cost of any labor to operate the same. However, for us to pass on such issue would be to render an advisory opinion. This is because it is not relevant to the instant action, but would only be of value in another action which plaintiff contemplates commencing if we affirm the judgment below. This court declines to render advisory opinions.
The entry of judgment dismissing the plaintiff's complaint and our affirmance of such judgment have rendered moot the issue of whether it was error to deny plaintiff's motion for summary judgment. Mitler v. Associated Contractors (1958), 3 Wis. (2d) 331, 88 N. W. (2d) 672. Therefore, the appeal from such order will be dismissed.
By the Court.Judgment affirmed; appeal from order dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607304/ | 366 So. 2d 473 (1979)
STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant,
v.
STATE of Florida, CAREER SERVICE COMMISSION and Eugene Woodard, Appellees.
No. KK-239.
District Court of Appeal of Florida, First District.
January 9, 1979.
Alan E. DeSerio, Frank H. King and H. Reynolds Sampson, Tallahassee, for appellant.
Robert L. Shevin, Atty. Gen., David K. Miller, Asst. Atty. Gen., Daniel Conley, Miami, for appellees.
MILLS, Judge.
Case Summary
The Department of Transportation (D.O.T.) appeals from an order of the Career Service Commission (Commission) reversing D.O.T.'s dismissal of its employee, Woodard. Woodard cross appeals on the ground that the Commission abused its discretion by failing to award him an attorney's fee. We affirm.
*474 Facts
By letter of 14 March 1977, a maintenance engineer of D.O.T. advised Woodard that he was suspended for five days due to misuse of state equipment. By letter of 16 March 1977, a district engineer of D.O.T. advised Woodard that he was dismissed for the same reason. Woodard appealed both the suspension and the dismissal to the Commission.
The Commission concluded that Woodard was guilty of the offenses charged by D.O.T. and that D.O.T. had good cause to suspend him but its subsequent dismissal of Woodard for the same offense constituted double jeopardy. The Commission sustained the suspension of Woodard but reversed his dismissal and ordered that he be reinstated with back pay.
Issue
The only issue properly before us is whether the Commission erred in reversing D.O.T.'s dismissal of Woodard after finding him guilty of all charges made by D.O.T.
D.O.T. contends double jeopardy is not applicable to a disciplinary proceeding such as this and the Commission is precluded from modifying D.O.T.'s dismissal.
The Commission and Woodard contend that D.O.T. lacks authority to discipline Woodard twice for a single offense.
We will not address the issue raised by the cross appeal because the record does not reflect that Woodard moved the Commission for an attorney's fee.
Decision
The authority of D.O.T. to discipline career service employees is limited by Section 110.061(2)(a), Florida Statutes (1977), and Rules 22A-7.10(6)(a) and 22A-10(7)(a), Florida Administrative Code.
Section 110.061(2)(a) provides that the Department of Administration shall establish rules and procedure for the suspension and dismissal of employees in the career service.
Rule 22A-7.10(6)(a) states:
"A suspension is defined as the action taken by an agency against an employee to temporarily relieve the employee of duties and place the employee on leave without pay."
Rule 22A-7.10(7)(a) states:
"A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service."
Although the Commission may have inartfully used the term "double jeopardy", its reversal was based on sound reasoning. D.O.T. not only lacked authority to discipline Woodard twice for the same offense but its action was fundamentally unfair. The same offense may be a proper ground for either a suspension or a dismissal but the statute and rules contemplate that these are mutually exclusive disciplinary alternatives. Otherwise, an agency could repeatedly punish an employee and the employee would never be secure in his employment. By this, we do not mean that an agency in an appropriate case, with proper notice to an employee, may not temporarily suspend an employee for the purpose of concluding its investigation of misconduct and for the purpose of arriving at just disciplinary action. Nevertheless, having concluded its investigation and reached its decision as to the disciplinary action it will administer to an employee, the disciplinary action administered may not be increased at a later date nor may an agency discipline an employee twice for the same offense.
D.O.T.'s argument that the Commission modified its dismissal of Woodard is without merit. The Commission clearly affirmed D.O.T.'s suspension and just as clearly reversed its dismissal. Woodard served his suspension time and that is not an issue here.
Judgment
The order appealed is affirmed.
BOYER, Acting C.J., and BOOTH, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606233/ | 7 So. 3d 978 (2009)
Bobby DIDON, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-CA-00928-COA.
Court of Appeals of Mississippi.
April 7, 2009.
*979 William E. Goodwin, attorney for appellant.
Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.
Before KING, C.J., ROBERTS and CARLTON, JJ.
ROBERTS, J., for the Court:
¶ 1. Following his conviction of child molestation and sentence as a habitual offender of life imprisonment in the custody of the Mississippi Department of Corrections (MDOC), Bobby Didon filed a motion for post-conviction relief in the Circuit Court of Lawrence County, claiming ineffective assistance of counsel. Didon's motion was denied. Aggrieved by this ruling, Didon appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Didon was indicted by a Lawrence County grand jury on December 16, 2003, for the crime of touching, handling, and fondling a nine-year-old girl. Following that, Didon was convicted by a jury of child molestation. Didon waived a presentence investigation and was sentenced to life imprisonment without parole pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007) because of his status as a habitual offender. Didon had previously been convicted on two counts of sexual battery, indecency with a child, and grand larceny.
¶ 3. Didon filed a notice of appeal with the Mississippi Supreme Court on April 13, 2006, but he later filed a motion for a voluntary dismissal on August 24, 2006, when it "became clear that a direct appeal was not supported by the trial record or the post-trial record." The Mississippi Supreme Court granted the motion on September 12, 2006. Didon then filed a motion for post-conviction relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated section 99-39-1 to-29 (Rev.2007) on July 12, 2007. Following an evidentiary hearing, Didon's motion for post-conviction relief was denied on May 5, 2008. Didon now appeals that decision.
STANDARD OF REVIEW
¶ 4. Ineffective assistance of counsel is a mixed question of law and fact that this Court reviews de novo. Sayre v. Anderson, 238 F.3d 631, 634-35 (5th Cir. 2001). Unless clearly erroneous, this *980 Court credits "the trial court's express or implied findings of discrete, historic facts." Id. at 635.
¶ 5. A petitioner who alleges ineffective assistance of counsel must show that his counsel's performance was deficient and that this deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "Stated somewhat differently, the defendant must prove that `the lawyer's errors were of such a serious magnitude as to deprive the defendant of a fair trial because of a reasonable probability that, but for counselor's unprofessional errors, the results would have been different.'" Cole v. State, 666 So. 2d 767, 775 (Miss.1995) (quoting Martin v. State, 609 So. 2d 435, 438 (Miss.1992)). Furthermore, judicial scrutiny of counsel's performance must be "highly deferential," and the court must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's alleged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669, 104 S. Ct. 2052. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id.
¶ 6. Didon's motion claims that his trial counsel, Dwayne Deer, provided him ineffective assistance of counsel. His primary assertions to support this accusation are that Deer failed to interview witnesses, failed to view a video that was taken at the Children's Advocacy Center during an interview with the child victim, and failed to visit the home where the events occurred. In response, the State asserts that Didon's appeal is barred because the trial court lacked jurisdiction to hear Didon's motion because Didon did not request leave by Mississippi Supreme Court prior to his filing the post-conviction relief motion in the circuit court. Additionally, the State claims that Didon is procedurally barred because he failed to place an adequate record before this Court. Because jurisdiction is a fundamental prerequisite in any proceeding, this Court will address that issue first.
ANALYSIS
I. PROCEDURAL BAR
¶ 7. Relying on Lyons v. State, 881 So. 2d 373 (Miss.Ct.App.2004), the State asserts that Didon's appeal should be dismissed because Didon was not granted leave by the Mississippi Supreme Court to file his motion for post-conviction relief in the circuit court. However, Lyons is distinguishable from the case at hand. In Lyons, the appellant filed an appeal following his trial, but he withdrew the appeal as part of a plea agreement wherein two counts of sale of a controlled substance were dropped. Id. at 375(¶ 3). About a year later, Lyons filed a motion for post-conviction relief, but the trial judge ruled that Lyons could not proceed in the trial court because "authority to do so had not been granted by the supreme court pursuant to Mississippi Code Annotated [s]ection 99-39-7." Id. at 375(¶ 4). The supreme court affirmed stating, "Lyons'[s] motion for post-conviction relief is procedurally barred [because] [t]he dismissal of his direct appeal from the supreme court was a final judgment." Id. at 376(¶9). Regarding Lyons's direct appeal, the supreme court issued a mandate from the direct appeal stating that there had been proceedings in the supreme court and the court had issued a "final judgment." Id. Because the facts in Lyons are somewhat different from the case at hand, this Court finds that Martin v. State, 556 So. 2d 357 (Miss.1990) provides a more thorough explanation of the jurisdictional directive of Mississippi Code Annotated section 99-39-7 and is applicable to the case at hand.
*981 ¶ 8. Stemming from the revocation of his probation, the defendant in Martin filed a direct appeal to the Mississippi Supreme Court. Martin, 556 So.2d at 357. The State then filed a motion to dismiss Martin's appeal arguing that an order revoking probation was not directly appealable. Id. The court granted the motion without prejudice so Martin could institute post-conviction relief action. Id. Following the dismissal of the direct appeal, Martin initiated post-conviction relief proceedings in the supreme court, but the court determined that the post-conviction proceedings should be dismissed because Martin had filed his petition in the wrong court. Id. The supreme court stated, "[w]hen we dismissed Martin's direct appeal ... without prejudice to institute post-conviction proceedings... we did not direct in which court said proceedings should be initiated. We assumed that the jurisdictional directive of section 99-39-7 would be followed, and furthermore, that it would be clear." Id. at 358. Recognizing that the jurisdictional directive of section 99-39-7 must have needed clarification, the court explained as follows:
Section 99-39-7 of the Post-Conviction Relief Act sets forth the circumstances in which a motion for relief under the Act must be filed originally in the trial court and in what circumstances the motion must first be filed in the Supreme Court of Mississippi. The only time that the motion must first be filed in this Court is when "the prisoner's conviction and sentence have been appealed to the [S]upreme [C]ourt of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this chapter shall not be filed in the trial court until the motion shall have been presented to a quorum of the justices of the [S]upreme [C]ourt of Mississippi,"....
....
[O]ne could argue that by dismissing Martin's direct appeal, ... this Court thereby became the last court to exercise jurisdiction in this cause and should, therefore, be the court of first resort for Martin's post-conviction petition.
However, implicit in the scheme of the Post-Conviction Relief Act is the requirement that in order for this Court to acquire exclusive, original jurisdiction over a petition filed thereunder, this Court must have previously made some final determination going to the merits of the underlying conviction and sentence. It is not enough to confer exclusive jurisdiction on this Court under [section] 99-39-7 that we dismissed an appeal without prejudice for lack of jurisdiction, and incident to attempted post-conviction proceedings, that we granted a temporary stay of execution.
....
The actions taken by this Court in this cause have been merely procedural in nature, and have in no way touched on the merits of Martin's conviction and sentence.
Id. at 358-59 (emphasis added). Didon's situation is similar.
¶ 9. After filing his notice of appeal, Didon determined that a better course of action was to seek redress via a post-conviction relief motion. Didon then filed a motion for voluntary dismissal with the Mississippi Supreme Court. The dismissal was granted on September 12, 2006, pursuant to Mississippi Rule of Appellate Procedure 42(b). There is nothing in the record indicating that the supreme court made any decision based upon the merits of Didon's case, nor was the case dismissed by the court for any procedural defects such as failure to file within the statute of limitations. *982 The dismissal notice merely states that "[p]ursuant to [Mississippi Rule of Appellate Procedure] 42(b),[1] appellant's Motion for Voluntary Dismissal of Appeal is granted. Costs are taxed to the appellant."[2] Also, there is nothing in the record to indicate that Didon withdrew his appeal on the basis of a plea agreement, or that it was dismissed by the supreme court for filing it in the wrong court. The supreme court's actions in this matter were merely procedural. Therefore, just as the trial court in Martin had exclusive original jurisdiction to hear the post-conviction relief motion, so did the circuit court in this case when it held an evidentiary hearing and ruled on Didon's post-conviction relief motion. See Martin, 556 So.2d at 359-60. Therefore, the State's claim that the circuit court lacked jurisdiction fails.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 10. Didon asserts that Deer failed to interview witnesses in preparation for trial. In addition, he takes issue with the fact that Deer did not elicit testimony from certain family members during the trial. In an attempt to support this assertion, Didon submits deposition transcripts of three of his family members that were taken in preparation for Didon's motion for post-conviction relief. The family members deposed were Didon's sister, Kay Colvin (Kay), his brother-in-law, William Colvin (William), and his wife, Nora Didon (Nora). We will address each of them in turn.
A. Kay Colvin's Testimony
¶ 11. Didon contends that the jury would have been swayed by Kay's testimony relating to the victim's interview with the Child Advocacy Center in McComb, Mississippi. Kay stated that she believed the victim was coaxed by her mother prior to the interview at the Child Advocacy Center about what she should say during that interview. In her post-trial deposition, Kay stated that although she voiced these concerns to Deer, she did not believe he followed up on her perceptions related to the events of that day. Didon asserts that Kay should have been allowed to present her opinions to the jury. However, it is impossible for this Court to scrutinize Deer's performance relating to that interview because Didon has not furnished this Court with a transcript of the trial below to determine what testimony was given or what questions or objections were, or should have been, raised related to the child's interview at the Child Advocacy Center.
¶ 12. Furthermore, when deciding whether or not to place Kay on the stand, Deer had the responsibility of determining what the best trial strategy would be. Supported by Kay's own statements, Deer had to weigh any possible benefit of Kay's testimony against the risk. Kay's post-trial deposition reveals that she had accompanied the victim's mother to press charges against Didon, and even more disparaging, she later offered the victim's mother money for the child as an incentive to drop the charges against Didon. Kay avers that Didon had told her to do this based upon Deer's advice, but there is no way to discern the validity of this statement from the record.
¶ 13. Additionally, Kay states that Deer failed to communicate with her, Didon, and *983 other potential witnesses. However, Kay's deposition reveals information somewhat contradictory to this allegation. Kay testified that she accompanied Didon to Deer's office on "numerous occasions," and she sometimes attended the meetings "back [in] the office." Although Didon may feel as if these encounters were too few, it is not for this Court to determine how many interviews would or would not have been sufficient based upon hindsight and one-sided accounts of what preparation took place. While represented by Deer, two years elapsed between the time of Didon's indictment and his trial. If Didon sensed that neither he nor other witnesses were being interviewed or prepared adequately, he had the opportunity to seek other counsel.
¶ 14. Because deciding whether to call witnesses is a strategic trial decision, the Fifth Circuit Court of Appeals has held that "complaints of uncalled witness[es] are `disfavored' as a source of Strickland... review." United States v. Harris, 408 F.3d 186, 190 (5th Cir.2005) (citations omitted). We agree. Furthermore, "counsel's [choice of whether or not] to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall[s] within the ambit of trial strategy." Cole, 666 So.2d at 777. In light of case law and the facts stated above, this Court finds that Deer's decision not to call Kay was not objectively unreasonable, and certainly, it was within the ambit of trial strategy.
B. William Colvin's Assertions
¶ 15. Just as with Kay, any possible testimony by William, Didon's brother-in-law, may have been suspect. William testified in his post-trial deposition that everything he knew about the Didon home and the events surrounding the incident came from Didon, not from any first-hand knowledge or experience. Deer may not have called William because William's testimony likely would not have been admissible as it was hearsay. William also declares that after Didon's trial, Deer confessed that his advocacy was deficient and that Didon could file a motion asserting ineffective assistance of counsel. William's allegation alone is insufficient to support a finding that Deer actually confessed that he had inadequately represented Didon. There are nearly thirty pages of testimony from William about what he heard from Didon or Kay concerning the events, but there is nothing in the record that indicates that Deer has been questioned or given an opportunity to defend or explain his performance. Nor is there a transcript from the trial or the evidentiary hearing included in the record that would allow this Court to analyze the prior proceedings and Deer's performance. Furthermore, even Didon recognized that the transcript from the trial would not support a successful appeal.
¶ 16. Just as there would have been legitimate doubt with any testimony Kay that could have given, it is unlikely that the jury would have been persuaded to find differently if William had testified. As stated, William's post-trial deposition reveals that he had no personal or first-hand knowledge of the events surrounding the incident. The circuit judge correctly stated in his order denying Didon's motion for post-conviction relief, "[such] statements... [would have been] offered by persons related either by blood or marriage... [and][h]ad the jury been presented this information, they would have been aware of possible bias and inconsistencies found within these statements."
¶ 17. Based upon the post-trial depositions, Didon's assertion of ineffective assistance of counsel fails to pass the Strickland two-prong test. Under Strickland, Didon has the burden of proof to show that *984 his attorney's performance was deficient, and he must show that such deficiency was prejudicial to the defense. See Moody v. State, 644 So. 2d 451, 456 (Miss.1994). Also, as the supreme court has stated, "[t]here is ... a presumption that counsel's decisions are strategic in nature, rather than negligent." Swington v. State, 742 So. 2d 1106, 1114(¶ 23) (Miss.1999). It is not evident that, but for Deer's decision to abstain from using Kay or her husband as witnesses, the outcome of the trial would have been different or that Deer's decisions stemmed from anything other than trial strategy.
C. Nora Didon's Testimony
¶ 18. This leaves the issue of what Nora "could have" testified about at trial. Uncontradicted by Didon, the State's brief to this Court states that Nora testified during the trial as follows: "that the victim and the defendant were in the bedroom together, that she was cooking in the kitchen most of the time while the victim was there, and that the victim visited her home on numerous occasions and she could not remember each visit."[3] Didon now claims that his wife was shy and would not have spoken forthrightly on her own during the trial. To reiterate, Didon has not provided this Court with a transcript of the trial in which to analyze whether Nora was questioned appropriately at trial or not, or whether she appeared hesitant in her answers. Furthermore, Didon has not shown this Court that Nora was denied the opportunity to testify accurately about what she knew about that day, or that she was inadequately questioned during the trial. Moreover, in his order denying Didon's motion for post-conviction relief, the circuit judge stated, "[he] knew [the trial judge] to be a learned judge and [was] confident that had this attorney displayed such inability to rise to the level of undue prejudice against the Defendant, the presiding Judge would have acted accordingly." It stands to reason that such a learned judge would have noticed if Nora was not responding properly to questions and whether she acted appropriately.
¶ 19. Nora now wants to change her testimony. In her post-trial deposition, she stated that because of the layout of the home, she would have been able to see into the bedroom every time she went anywhere in the house. She testified in the deposition that she was "up and down all the time," and "[e]ven if [she] went into the kitchen, [she] was only there a minute...." As stated, the record does not support the assertion that Nora was denied the opportunity to give a precise account at trial. If Nora was given the opportunity to testify again she would vouch for her husband by stating that she was present and that she knew that no molestation had occurred. Although this *985 Court cannot divine which of Nora's testimonies are accurate, Didon is not entitled to another bite at the apple because his witness failed to give complete and truthful testimony at trial.
¶ 20. Didon also takes issue with the fact that Deer did not visit the home where the incident occurred, nor did he ask Nora to create a drawing of the home, which could have been shown to the jury. Given the nature and content of Nora's testimony, it is not persuasive that any such drawing would have affected the outcome of the trial.
¶ 21. To prevail in his ineffectiveness argument, "[a] defendant ... must ... state with particularity what the investigation would have revealed and specify how it would have altered the outcome of trial... [or] how such additional investigation would have significantly aided his cause at trial." Cole, 666 So.2d at 776 (internal citations and quotations omitted). Although Didon has "particularly" stated that he believes that his wife should have been questioned differently and his relatives allowed to testify at trial, this Court is not persuaded, based upon the evidence presented in the post-trial depositions, that Didon was prejudiced by Deer's decisions.
¶ 22. "Hindsight ... is always 20/20. It is easy to criticize counsel with the aid of `backfocal' lenses." Id. But, mere hindsight judgment does not provide a window of opportunity to retry a case. Id. When ruling on Didon's post-conviction relief motion, the circuit judge stated that "[w]hile Deer's performance might not have been as good as it could have been, it [is] very suspect that it actually reache[d] the level of incompetency. Even though deficient, ... Deer's actions did not reach a level of prejudice to be deemed outcome determinative." As this Court has stated, a trial court's denial of a motion for post-conviction relief should not be reversed "absent a finding that the trial court's [decision] was clearly erroneous." Holland v. State, 956 So. 2d 322, 325(¶ 6) (Miss. Ct.App.2007) (citation omitted). Based upon the record and applicable case law, this Court finds that Didon has failed to meet his burden under Strickland to show that Deer's performance was deficient and that deficiency prejudiced his defense. Accordingly, this Court affirms the judgment of the circuit court.
¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. MAXWELL, J., NOT PARTICIPATING.
NOTES
[1] Mississippi Rule of Appellate Procedure 42(b) states, "[a]fter the appeal has been docketed with the clerk of the Supreme Court, an appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the Supreme Court...."
[2] The case number of Didon's direct appeal to the supreme court is 2006-KA-00629-SCT.
[3] As stated, the record does not include a transcript of the trial or the evidentiary hearing from which to test the information set forth in the parties' briefs. As this Court has clearly stated, "[a]s with any appeal, it is solely the appellant's duty to ensure that the record is sufficiently populated to support the error claimed. [And][i]f the record is found lacking in this regard, the lower court's order must stand." Ross v. State, 936 So. 2d 983, 985(¶ 4) (Miss.Ct.App.2006) (internal citations omitted). Accordingly, if there was an inaccurate representation of Nora's trial testimony, it was incumbent upon Didon to refute the appellee's account of Nora's trial testimony in a reply brief or, better yet, by providing a transcript of the actual trial. However, we remind the appellee that it too has a duty to provide necessary portions of the record if it deems them necessary. Mississippi Rule of Appellate Procedure 10(b) provides that "the appellee shall, within 14 days after the service of the designation and the statement of the appellant, file with the clerk and serve on the appellant and the court reporter a designation of additional parts to be included." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606319/ | 349 So.2d 1078 (1977)
James H. WHIGHAM, Individually, et al.
v.
TRAVELODGE INTERNATIONAL, INC., et al.
SC 2235.
Supreme Court of Alabama.
August 19, 1977.
Rehearing Denied September 30, 1977.
*1079 E. D. McDuffie, of McDuffie, Holcombe & Prince, Tuscaloosa, for appellants.
N. Lee Cooper, Donald J. Stewart, Birmingham, Sam M. Phelps, Tuscaloosa, for appellees.
EMBRY, Justice.
This appeal, by James H. Whigham, Individually and as Executor of the Estate of Bessie A. Whigham, is from a judgment that denied recovery from Travelodge International, Inc., a corporation; Tuscaloosa TraveLodge, a copartnership; and Lloyd M. Baker and Janice Ann Baker, of the sum of approximately $180,000 plus, which Whigham claimed the estate of Bessie A. Whigham was compelled to expend for defendants' benefit in order to protect an interest in certain improved real estate.
We affirm.
Whigham sought recovery under the theories that: there was fraud or overreaching by defendants resulting in execution of a 1973 mortgage by him and Mrs. Whigham; there was breach of a contract obligation regarding the 1973 mortgage; and defendants were liable to him or Mrs. Whigham's estate as sureties for monies paid on their behalf by Whigham or the estate of Mrs. Whigham.
The trial court heard this action without a jury and its findings of fact is an excellent summary of the evidence, and amply supported by it:
"On December 12, 1962, the TraveLodge Corporation, a California corporation, and Loyd M. and Janice Ann Baker entered a `Joint Venture Agreement.' The stated purpose of this joint venture, which was named the Tuscaloosa TraveLodge, was to jointly construct and operate a motel. TraveLodge Corporation assigned to the joint venture a lease of certain property upon which a motel had been partially completed.
"In March of 1963, a lease was executed. TraveLodge Corporation entered the agreement as lessee and throughout the lease Bessie A. Whigham was referred to as lessor. However, in executing the lease both Bessie A. Whigham and James H. Whigham signed as lessor. The lease was for a term of forty-eight years and five months expiring August 31, 2011, on a parcel of property located in Tuscaloosa, Alabama, on which TraveLodge proposed to build and operate a motel as a joint venture with Defendants Loyd and Janice Baker. Prior to that time, TraveLodge, with the approval of the lessor, had executed a mortgage to Life and Casualty Insurance Company of the property in question to secure a loan of $140,000 financing the construction of the motel. Under the terms of the lease, Travelodge agreed to pay rent of $400 per month plus 7½% of the gross annual income in excess of $64,000 and to make the payments on the mortgage to Life and Casualty Insurance Company. The lease also stated that TraveLodge had the right at any time before the full payment of the mortgage to refinance `the principal balance remaining due' at an interest rate not in excess of 6¼%, provided that the maturity date of the refinancing was not later than April 7, 1973. In the event of a refinancing of the principal balance remaining upon such terms, TraveLodge agreed in the lease to pay the refinanced balance. The lease expressly provided that `[u]pon written request from TraveLodge, Lessor shall execute any documents not to include the execution of any mortgage NOR THE ASSIGNMENT OF THIS LEASE which may be required to accomplish said refinancing.'
"TraveLodge entered into the lease in accordance with its obligation under a joint venture agreement with Defendant Loyd and Janice Baker dated December 15, 1962.
*1080 After its construction, the motel on the property leased from the Whighams was operated as a joint venture of TraveLodge and the Bakers pursuant to the joint venture agreement.
"In the early part of 1972, after the motel had been in operation for a number of years, Defendant Loyd Baker proposed to Bessie and James Whigham that a new mortgage on terms not contemplated by the refinancing provision of the lease be placed on the motel and property. Under Baker's proposal, the proceeds of the new mortgage loan would be used to pay off the existing mortgage to Life and Casualty Insurance Company and to upgrade the motel facility. The remainder of the proceeds would be divided evenly between TraveLodge and the Bakers, the intent of the Bakers being to use their share to establish a second TraveLodge motel in Tuscaloosa which they felt would generate more business for the existing motel. On May 5, 1972, James and Bessie Whigham signed an agreement stating that they consented to the execution of a new mortgage loan in the principal amount of `$180,000.00, payable over 15 years at an interest rate of 9%,' that they would subordinate their interest in the motel property to the new mortgage, and that they would directly receive none of the proceeds of the new mortgage loan.
"In August of 1973, some 15 months after the May 5, 1972, agreement was signed, the new mortgage loan was obtained. A promissory note payable to City Federal Savings and Loan Association of Birmingham in the amount of $180,000 payable over 15 years at an interest rate of 9% was signed by the joint venture and endorsed by TraveLodge as guarantor. Simultaneously, a new mortgage in favor of City Federal was executed by Plaintiffs Bessie and James Whigham, TraveLodge, and the joint venture. The property pledged as security under the mortgage was the motel property itself
together with the interest of all the undersigned in that certain lease recorded in Deed Book 488, Page 740, and any amendments and/or modification thereto; (said lease being dated March 20, 1963, and filed for record on April 4, 1963) by and between the above referred to corporation as Lessee and the above referred to individuals as Lessors and the above referred to copartnership as Assignee of the above described real estate situated in Tuscaloosa County, Alabama.
"The proceeds of the new mortgage loan were used to pay off the $58,722.70 balance on the Life and Casualty Insurance Company mortgage and the $18,892.62 balance on a $20,000 loan that had been taken out for purposes of upgrading the motel furnishings in November of 1972. The excess was divided between the Bakers and TraveLodge as specified in the Agreement of May 5, 1972. TraveLodge's share amounted to $47,847.62; the Bakers' share also amounted to $47,847.62, out of which they purchased a TraveLodge franchise for $10,000 and used the remainder to invest in land on which the new TraveLodge was to be located.
"Payments on the new mortgage debt were made from August, 1973, until November 1974, when the income from the operation of the motel became insufficient to meet the mortgage payments as they became due. Defendant Loyd Baker testified that the joint venture began exploring various methods of remedying the past due status of the debt. He personally contacted the mortgagee with a request that the joint venture be allowed to pay only the interest on the loan until such time as business improved, but the mortgagee rejected this proposal. Travelodge offered to put up one half of the money to cure the arrearage and to lend the Bakers an equal amount to be used by them as their contribution, but Baker was reluctant to increase his personal indebtedness in view of his existing obligations.
"On March 4, 1975, Bessie A. Whigham died, naming her husband James H. Whigham as her sole testamentary heir and as the executor of her estate. On March 21, 1975, Plaintiff James Whigham purchased the note and mortgage from City Federal for the sum of $186,374.98. By letter to TraveLodge dated March 28, 1975, Plaintiff *1081 James Whigham's attorney gave notice that the note had been purchased from City Federal and requested TraveLodge to contact him if it `care[d] to discuss settlement of this matter with [him] before foreclosure proceedings [were] started. . .' By a letter to Plaintiff James Whigham's attorney dated April 16, 1975, in response to his letter of March 28th, TraveLodge advised him of the negotiations between TraveLodge and the Bakers concerning the remedy of the mortgage arrearage and indicated that `[i]n any event, it should not be necessary for your office to initiate foreclosure proceedings.' On the next day, April 17, 1975, Plaintiff James Whigham's attorneys published the first foreclosure notice.
"On April 30, 1975, the original complaint in this action was filed requesting (1) an accounting of the proceeds of the August, 1973, loan transaction and a determination of the portion of such proceeds due the plaintiff as executor of the estate of Bessie A. Whigham, (2) immediate possession of motel premises, and (3) the sum of $185,374.98.
"On May 9, 1975, a foreclosure sale was conducted by Plaintiff James Whigham's attorney. James Whigham attended the sale, as did George Maynard, an attorney representing TraveLodge who testified at trial that he was authorized by TraveLodge to bid up to the amount of $190,000 and that he had made bank wire arrangements for that sum of money to be available in Tuscaloosa on the date of sale. Upon the opening of the bidding, Plaintiff James Whigham instantaneously bid $190,000, the amount of the indebtedness plus legal charges, thereby preempting a bid by Maynard on behalf of TraveLodge. There were no other bidders, and Plaintiff James Whigham purchased the property for himself at the sale. TraveLodge and the Bakers surrendered possession of the motel premises to Plaintiff James Whigham after the sale on May 9, 1975.
"An amended complaint was filed on June 10, 1976, in which certain of Plaintiff's original factual allegations were amended and plaintiff's demand for relief was reduced to a prayer that the Court `issue a judgment in favor of Plaintiffs against said Defendants in said sum of One Hundred Eighty Thousand Dollars, interest and other legal charges paid by the Estate of Bessie A. Whigham for the benefit of the aforesaid Defendants, and the costs of this proceeding.' Plaintiff has advanced three legal theories upon which he claims entitlement to the demanded sum: fraud or overreaching in connection with the August, 1973, mortgage financing; breach of contract obligation with regard to the 1973 mortgage; liability on a suretyship basis for money paid on behalf of the defendants by James Whigham or the estate of Bessie A. Whigham. Based upon the testimony and evidence adduced at trial and on the applicable statutory and case law of Alabama, the Court is constrained to find that the plaintiff is not entitled to recover under any of these theories. The trial court then made the following conclusions:
"I. Plaintiff's Theory of Fraudulent Conduct
"In his original complaint, the plaintiff alleged `that the Estate of Bessie A. Whigham, Deceased, has been fraudulently deprived of $180,000.00.' At the pre-trial conference plaintiff's counsel informed the Court that the plaintiff no longer alleged fraud on the part of the defendants. Therefore, in his amended complaint, the plaintiff struck the word `fraudulently' from the above allegation. However, the same amended complaint contains the allegation that `while both of [the Whighams] were aged and infirm they were approached by Mr. Loyd Baker, one of the Defendants in this cause, and he persuaded them to agree that the mortgage indebtedness on said real property . . . be refinanced.. . .` Moreover, counsel for plaintiff in the brief submitted in lieu of closing argument has contended that `[i]t is even probable that Defendants may be liable for a criminal prosecution for the acts that they have done in this matter as a conspiracy to defraud Plaintiffs, . . . and, certainly, in a Court of Equity they should not be relieved of their liability created by their *1082 own acts and conduct which amount to fraud.' For these reasons, the Court understands the plaintiff as urging fraudulent deprivation of property in connection with the August, 1973, mortgage financing or some other species of fraud as a theory of recovery and therefore addresses this theory.
"Under the evidence presented at trial, this Court is compelled to find that the consent of the Whighams to the August 1973, mortgage financing was not obtained by means of fraud, misrepresentation, duress, coercion, overreaching or any other improper means and that no other act or omission on the part of the defendants during the entire course of their dealings with the Whighams relative to the August 1973, mortgage furnishes the basis for a claim of fraud, misrepresentation, duress, coercion, overreaching or other improper conduct on the part of the defendants. Accordingly, plaintiff's theory of fraudulent conduct as a basis of recovery cannot be sustained.
"II. Plaintiff's Theory of Breach of Contract
"Plaintiff also advances the theory that the defendants breached a covenant contained in the lease by not maintaining the August, 1973 mortgage and are therefore liable to the plaintiff. In the Amendment to the Complaint, it is alleged that defendants had a duty to pay the installments of the August 15, 1973, mortgage pursuant to the terms of the March 20, 1963, lease, and that any refinancing of the mortgage was to be in accordance with the terms of the lease. While it is true that TraveLodge agreed in the lease to maintain the Life & Casualty mortgage and any refinancing of that mortgage, it appears from the evidence that the August, 1973 mortgage was not a refinancing of the Life and Casualty mortgage as defined in the lease. Under Article III of the lease, a refinancing to which Travelodge's lease covenant to maintain the Life & Casualty mortgage applied was one (a) limited to the principal balance remaining due on the Life and Casualty mortgage, (b) payable on equal or lessor terms of interest than 6¼% and (c) maturing not later than April 7, 1973. Article III specified that in the event of such a refinancing, the lessor could not be required to execute a new mortgage or to assign the lease as security. The August, 1973 mortgage loan (a) was in the amount of $180,000 rather than in the amount of the principal balance remaining due on the Life and Casualty mortgage ($58,722.70), (b) was at an interest rate of 9% rather than a rate equal to or less than a 6¼% and (c) had a maturity date in 1983 rather than April 7, 1973. Moreover, the lessor agreed to and did in fact execute the new mortgage, in which the lessor's interest in the lease was assigned as security. Under the facts, the August, 1973 mortgage financing was not a refinancing within the terms of the lease, and the lease therefore did not oblige TraveLodge to make payments on the August, 1973 mortgage debt. This Court concludes that none of the defendants breached any contractual obligation owed to the Whighams relative to the payment or financing of the August, 1973 mortgage, and therefore the plaintiff has no contractual basis for the relief he demands.
"III. Plaintiff's Theory of Suretyship
"Plaintiff has urged as an alternate theory of recovery that either the estate of Bessie Whigham, by suffering the foreclosure and sale of its property, or Plaintiff James Whigham, by paying the mortgage indebtedness to City Federal, paid a debt owed by the defendants, and therefore the defendants are liable to the estate of Bessie Whigham or to James Whigham on a suretyship basis. This theory is not supported by either the facts or the law.
"Throughout this case the plaintiff has sought to treat the estate of Bessie Whigham as a legal entity wholly separate and apart from James Whigham and to persuade this Court that the actions of James Whigham after the death of Bessie Whigham should not be attributed to the estate. This Court finds that such a separation of interests and actions cannot be made as a matter of fact and of law. On March 4, *1083 1975, Bessie Whigham died, naming in her will her husband James Whigham as her sole devisee and legatee and as the executor of her estate. Under well-established principles of Alabama law, the title Bessie Whigham held to interests in the mortgaged property vested in her sole devisee, James Whigham, on March 4, 1975. `On the death of a testatrix the title to and right to possession of land devised vests as of that date subject to certain statutory rights and duties of the executor, though the will is, of course, not probated until a later date.' Whorton v. Snell, 226 Ala. 525, 526, 147 So. 602, 603 (1933); accord, Glasgow v. Blackwell, 285 Ala. 204, 207, 231 So.2d 80, 82 (1970); Whorton v. Moragne, 62 Ala. 201, 207-08 (1878);Hall's Heirs v. Hall, 47 Ala. 290, 297 (1872). James Whigham therefore acquired the mortgagor's interest of Bessie Whigham in the August, 1973 mortgage. When James Whigham purchased the mortgage from City Federal Savings and Loan Association, he acquired the mortgagee's interest in the August, 1973 mortgage as an assignee of the original mortgagee. By the doctrine of merger, when a mortgagor acquires the note and mortgage from the mortgagee, the debt, and mortgage are extinguished. Barnett & Jackson v. McMillan, 176 Ala. 430, 58 So. 440 (1912). James Whigham's interest as a mortgagor merged with his interest as a mortgagee and with respect to the mortgagor's interest acquired from Bessie Whigham the mortgage was extinguished.
"No legal or actual distinction ever existed between the interests of James Whigham individually and the interests of James Whigham as the executor and sole beneficiary of the estate of Bessie Whigham. Accordingly, all of the acts and interests of James Whigham after March 4, 1975the purchase of the debt from City Federal, the institution of foreclosure proceedings, the purchase of the foreclosed interest at the saleare to be considered the acts and interests of the estate of Bessie Whigham as well. Thus narrowed, the considerations ostensibly before the Court are whether James Whigham became a surety by his purchase of the indebtedness from City Federal and, if so, what rights he thereby obtained with respect to the defendants. Rather than belabor the former question, the Court will assume that James Whigham enjoyed the status of a surety, since it is clear that his rights were the same whether or not he is accorded surety status. Title 9, section 78 of the Code of Alabama provides:
"`A surety who has paid his principal's debt is entitled to a transfer of the original and collateral security which the creditor holds; he has all the rights to realize thereon and to reimburse himself to the same extent as the creditor might have done before the surety paid him, whether paid before or after judgment or decree. He shall be substituted for the creditor and subrogated to all his rights and remedies; in effect, he shall be a purchaser of the debt and all its incidents.' (emphasis supplied.)
As a surety, then James Whigham would enjoy the identical rights he possessed as assignee of the mortgage and mortgage debt.
"As assignee of the mortgage and mortgage debt, James Whigham had available two mutually exclusive remedies against the defendants. He could sue the joint venture as maker and TraveLodge as guarantor on the note and recover the sums owing or he could foreclose on the property secured by the mortgage and satisfy the debt in the foreclosure sale. Although his original complaint included what appeared to be a demand for relief under the former remedy, James Whigham subsequently elected the latter remedy and purchased for himself at the sale; in so doing he foreclosed any further claim against the defendants on the indebtedness:
"`[W]here a mortgagee or assignee of mortgage on land purchases the premises on foreclosure for a sum equal to the mortgage note or debt and lawful expenses and charges secured thereby, this action operates as an extinguishment of the notes secured by the mortgage, and the mortgagee or assignee of the mortgage cannot thereafter maintain an action on the note or debt.'
*1084 Oden v. King, 216 Ala. 504, 508-9, 113 So. 609, 612, (1927); see Osborne, Handbook on the Law of Mortgages § 333, at 698-99 (2d ed. 1970). Whether considered as surety or assignee of the debt and mortgage, James Whigham elected a remedy for the defendants' indebtedness which preempts his present demand. The plaintiff is entitled to only one satisfaction of the debt, and he has already received it.
"The final observation that the Court must make with regard to the plaintiff's demands for relief is that, holding aside the invalidity of his legal theories, the plaintiff has failed to establish that he suffered any injury by the acts or omissions of the defendants. Rather, the evidence shows that the circumstances plaintiff complains of are circumstances he intentionally and advisedly brought about himself and from which he has substantially benefitted. The plaintiff now holds title to the motel premises in fee, unencumbered by lessor mortgages. It is clear from the evidence that the securing of such title was the plaintiff's objective from the time he acquired the note and mortgage from City Federal. As suggested above, the plaintiff could have recovered against the defendants by suing on the note. Such a recovery would have reimbursed the plaintiff for the money he expended to purchase the note and mortgage and would have entirely freed the motel property from mortgages; however, the property would have remained subject to TraveLodge's leasehold interest for an additional thirtysix years at a fixed rental. The undisputed testimony at trial demonstrated the substantial value that the right to possess and operate the motel for the remaining leasehold period had. The testimony of Gene Dilmore, the expert appraiser that City Federal hired in 1973 to value the motel, was to the effect that, based on projected earnings, he had placed a value of approximately $345,000 on TraveLodge's leasehold interest in August, 1973, and that its value as of May, 1975, the time of foreclosure, would have been in excess of $344,000. Moreover, defendant Loyd Baker testified that the joint venturers had invested at least $317,000 in the motel facility itself since 1963. While the plaintiff has at various points contended that the foreclosure was necessary to protect the plaintiff's interests in the property, there was in fact no danger to the plaintiff's interests after he had purchased the note and mortgage. His interests in the property could not have been lost by foreclosure since he was then the mortgagee; his investment in the purchase of the note and mortgage could be recouped in a suit on the note. The record clearly shows that self-interest rather than the compulsion of circumstance prompted the foreclosure. As plaintiff James Whigham himself testified at trial, he foreclosed the mortgage `to get rid of the Bakers and Travelodge,' and the foreclosure had precisely that effect. Because the lessor's and lessee's interests were pledged as security for the August, 1973, mortgage, the lease was an interest subject to the mortgage and the very act of foreclosure operated to destroy it. See, e. g., First National Bank v. Welch, 222 Ala. 144, 132 So. 44 (1930). Moreover, even if the lease had survived the foreclosure, both the lessor's and lessee's interests would have vested in the plaintiff as purchaser at the foreclosure sale, and accordingly the lease would have been destroyed under the doctrine of merger. See, McMahan v. Jacoway, 105 Ala. 585, 17 So. 39 (1894); Otis v. McMillan & Sons, 70 Ala. 36 (1881); Martin, Bradley & Co. v. Searcy, 3 Stew. 50, 52 (1830). Following his foreclosure and purchase on May 9, 1975, plaintiff James Whigham assumed exclusive possession of the motel facility and has operated the motel himself since that date.
"The net result is that for an investment of $190,000 plaintiff James Whigham has obtained title to physical improvements totaling in excess of $300,000 and has obtained exclusive possession of that property, in which the present right to possession alone has been valued in excess of $344,000. The plaintiff has failed to show any injury at all, much less an injury occasioned by the defendants.
"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE *1085 COURT that judgment be and the same is hereby rendered in favor of the defendants and against the plaintiff. Costs taxed to the plaintiff."
Whigham, by his statement of the issues presented for review, says the trial court committed reversible error in its findings of fact and misapplied the law to the facts. He says this is true in four particulars:
1. The evidence was undisputed that the Whighams were ill and aged, and by improper conduct upon the part of the defendants were induced to join in the August 1973 mortgage pledging the Whigham motel property together with their lease from TraveLodge, therefore, defendants are indebted to Whigham, or Mrs. Whigham's estate.
2. The evidence was undisputed that the Whigham's pledged their real property as security for the $180,000 loan to defendants; defendants did not pay the loan; defendants breached a contractual obligation to pay that loan, therefore, defendants are liable in damages for the breach.
3. That he, Whigham, as mortgagee, or assignee of same; or surety with rights of a mortgage, or assignee of same, when he purchased the motel premises on foreclosure for a sum equal to the mortgage indebtedness, plus lawful charges, secured by the mortgage it did not operate to extinguish the indebtedness and bar an action to recover it.
4. That he, Whigham, in this case is not limited to two mutually exclusive remedies, foreclosure or an action for recovery of the mortgage indebtedness, because his interest in the mortgaged property was insufficient to pay the indebtedness; in other words, there was a deficiency.
As to Whigham's first assertion of error, we must state that not only was the evidence in dispute but the substantial weight of it was against the conclusion he would draw from it. Under this state of the record we cannot disagree with the trial court's findings of fact in this regard nor can we say he misapplied the law to the facts. Rule 52(a), ARCP. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975)
Regarding Whigham's contention that defendants breached a contractual obligation owed him, we observe there was a finding by the trial court that the August 1973 mortgage loan was not a refinancing within the purview of the terms of the lease. It follows, then, there was no contractual obligation breached when the mortgage indebtedness, secured by the August 1973 mortgage, was not paid by defendants. The evidence supports the trial court's finding and we cannot disturb it. Eubanks, supra.
Although Whigham raises on appeal, for the first time, the point made in his fourth contention it is inherent in his third contention and adequately dealt with by the trial court under the judgment heading: "Plaintiff's Theory of Suretyship." The trial court's reasoning and conclusions under that section of the judgment are sound and amply supported by the evidence and the authorities cited by the trial court. Whigham had mutually exclusive remedies under the facts in this case; and under those same facts it is clear there was no deficiency according to the evidence of the value of the real property and improvements together with the benefits accruing from termination of the lease and regaining possession of the property unencumbered either by the mortgage or lease.
AFFIRMED.
TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441361/ | 511 F. Supp. 2d 671 (2007)
LaSonji M. SPENCER, Individually and Next Friend of LaQuinta Spencer, A Minor, Elizabeth Spencer, A Minor, Plaintiff
v.
The CITY OF JACKSON, MISSISSIPPI; Bobby Nichols, Individually, and in his Official Capacity as a Duly Commissioned Police Officer in the City of Jackson, Mississippi; Frank Melton, Individually and in his Official Capacity as Mayor of the City of Jackson; Shirlene Anderson, Individually and in her Capacity as Duly Commissioned and Appointed Police Chief of the City of Jackson, Mississippi; and John and Jane Does 1-5, Defendants.
Civil Action No. 3:06CV257TSL-JCS.
United States District Court, S.D. Mississippi, Jackson Division.
July 31, 2007.
*672 Michael E. Robinson, Smith, Rushing, Cotton & Robinson, PLLC, Jackson, MS, for Plaintiff.
Mark E. McLeod, Pieter Teeuwissen, Jackson, MS, for Defendants.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendants City of Jackson, Mayor Frank Melton, Chief of Police Shirlene Anderson and City of Jackson Police Officer Bobby Nichols, to dismiss for immunity pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff LaSonji M. Spencer, individually and as next friend of LaQuinta Spencer and Elizabeth Spencer, minors, has responded in opposition to the motion and the court, having considered the memoranda of authorities submitted by the parties, concludes that the motion should be granted in part and denied in part, as set forth below.
Following dismissal of charges brought against her by the City of Jackson for disturbing the peace, plaintiff brought this action for damages against the City, Mayor Melton, Police Chief Anderson and Officer Nichols in their individual and official capacities, pursuant to § 1983 and state law, asserting claims of excessive force, false arrest and false imprisonment, and various other state tort claims. Defendants seek dismissal of plaintiff's state law claims on the basis of the immunity provided under the Mississippi Tort Claims Act, and dismissal of her § 1983 claims against the City (including the claims against the mayor, chief of police and Nichols in their official capacities) on the basis that plaintiff has failed to allege a custom, policy or practice of the City which led to the alleged constitutional deprivations.
*673 In her complaint, plaintiff alleges that on March 30, 2006, she received a phone call regarding a fight that was taking place between Brittany and Brand Atkinson and Nelia Jackson in front of the Atkinson home. Plaintiff went to the house to retrieve her two daughters, fourteen-year old Elizabeth and fifteen-year old LaQuinta. She alleges that as she was retrieving her two daughters from the Atkinson home, she noticed her three-year old son, George, in the street, surrounded by police officers. She charges that as she was attempting to retrieve her son, an officer grabbed her, threw her to the ground and hand-cuffed her and, while she was on the ground, she was kicked several times by a white female officer. The complaint further alleges that when her daughters attempted to come to her aid, LaQuinta was tackled, choked, handcuffed and forced to spend the night at the Youth Detention Center, and Elizabeth was grabbed by the neck and thrown, face first, to the pavement, handcuffed and put in a police vehicle. Plaintiff was charged with disturbing the peace, to which she pled not guilty. Ultimately, the charges were dismissed.
The defendants in this cause of action are "employees" of the City of Jackson and the City of Jackson itself. The Mississippi Tort Claims Act (MTCA) "provides the exclusive civil remedy against a governmental entity or its employees for acts or omissions which give rise to a suit." Simpson v. City of Pickens, 761 So. 2d 855, 858 (Miss.2000). The City of Jackson is considered a governmental entity for the purposes of the MTCA. See Miss.Code Ann. § 11-46-1(g) & (i). See also Gale v. Thomas, 759 So. 2d 1150, 1154 (Miss.1999) (finding that the City of Jackson was a municipality for the purposes of MTCA). Any suit alleging state law tort claims against the defendants in their individual capacity is subject to the MTCA and no recovery may be had against employees individually if they were acting within the course and scope of their employment when the alleged events giving rise to the cause of action occurred.[1]Duncan v. Chamblee, 757 So. 2d 946, 949 (Miss.1999). Defendants argue that while the MTCA represents a waiver of immunity for certain tort claims, Mississippi Code Annotated § 11-46-9(1)(c) and (d) provide exceptions to the MTCA waiver of immunity for the claims brought by plaintiff herein. These provisions state:"
(1) a governmental entity and its employees acting in the course and scope of *674 employment or duties shall not be liable for any claim:
. . .
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well being of any person not engaged in criminal activity at the time of injury;
(d) Based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.
In their motion, defendants offer a very different version of events than that described in, plaintiff's complaint. Defendants state that on May 31, 2005, Officer Bobby Nichols was dispatched to 3606 Hollywood Avenue in response to a call reporting that several individuals, at that location were fighting, using profane language and causing a disturbance. Defendants assert that he arrived to find a large crowd of citizens surrounding several individuals he observed as being loud and boisterous, one of whom was LaSonji Spencer. Officer Nichols called for backup units, given the size and aggressive nature of the crowd, and directed that all non-involved persons disperse. He then began to question two of the persons involved in the altercation, including Spencer, in an attempt to resolve the matter. Spencer, according to defendants' version, refused to comply with Officer Nichols' commands to stop being loud and boisterous and attempted to flee when he advised her she was under arrest. He called for assistance from the backup officers across the street to detain the fleeing Spencer. At that time, Spencer's daughters became loud and boisterous and attempted to interfere with the officers who were attempting to arrest their mother. Both daughters were arrested and transported to the Hinds County Youth Detention Center, though neither was charged. Spencer was charged, arraigned and pled not guilty to disturbing the peace, and the case proceeded to trial on June 8, 2005. However, because Officer Nichols was unavailable at that time, having been ordered to attend National Guard duty, the charges against Spencer were dismissed.
Defendants argue that there is no factual or legal basis for any reasonable person to conclude that the officers acted without probable cause for the arrest of plaintiff and her daughters, and that plaintiff therefore has stated no cognizable claim for relief. However, defendants' argument appears to be based on their own version of the facts, and since the case is before the court on what defendants themselves purport to recognize as a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court is bound to accept the facts as they are alleged in plaintiff's complaint.[2]See Lowrey v. Texas A & M *675 Univ. Sys., 117 F.3d 242, 246-247 (5th Cir.1997) (on Rule 12(b)(6) motion, "complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true"). "The district court may not dismiss a complaint under rule 12(b)(6) `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957)). See also id. ("This strict standard of review under rule 12(b)(6) has been summarized as follows: `The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.'") (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969)). The question here, therefore, is not whether defendants would have immunity under the MTCA if the facts were as claimed by defendants, but rather whether defendants have immunity based on the facts as alleged by plaintiff in her complaint. In the court's opinion, they do not.
According to plaintiff's complaint, neither she nor her daughters were even arguably engaged in any criminal activity at the time they were arrested and they certainly did nothing that would have warranted any use of force against them, much less the excessive force that was used by the officers. To accept the facts alleged by plaintiff means to accept that the officers, although engaged in activities relating to police protection, acted in reckless disregard of plaintiff and her daughters' safety and well being. Likewise, assuming that the officers had no arguable reason to believe plaintiff or her daughters were properly subject to arrest or detention and had no arguable basis for using force against them, then there would be no immunity under the discretionary function exception to the MTCA's waiver of immunity. The court simply cannot conclude in the context of the present motion to dismiss, i.e., on the basis of the facts alleged by plaintiff, that defendants are immune under the MTCA.
The City of Jackson argues that plaintiff's § 1983 claim against it must be dismissed because plaintiff has not alleged that the charged constitutional deprivations resulted from an official policy, custom or practice of the City, and no such policy, practice or custom is alleged expressly or by implication. A review of her complaint confirms the City's position. Plaintiff does not allege that any policymaker for the City participated in the alleged incident, or that the alleged wrongful conduct was the result of the policies and/or customs of the City of Jackson. On the contrary, it appears from plaintiff's allegations that she is seeking to hold the City liable based on respondeat superior, as she alleges that the Chief of Police, as the City's chief law enforcement officer, "was granted and possessed the powers of supervision and management over all other police officers of the Police Department of the City of Jackson," and as such, "was responsible for ensuring that her agents, servants, and employees, including Officer Nichols and Defendants John and Jane Does 1-5, obeyed the laws of the State of Mississippi and the United States." "A municipality like the City cannot be held liable for violating [a person's] due process rights under the theory of respondeat superior. [Rather], a municipality like the City can only be held liable under 42. U.S.C. § 1983 if a municipal policy or custom caused a constitutional tort." Anderson v. City of Dallas, 116 Fed.Appx. 19, 31 (5th Cir.2004) (citing Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). The City, and each of the defendants in *676 their official capacities, are therefore due to be dismissed.
Based on the foregoing, it is ordered that defendants' motion to dismiss is well taken as to the 1983 claims against the City and defendants in their official capacities. The motion is otherwise denied.
NOTES
[1] The MTCA defines an "employee" as "any officer, employee, or servant of the State of Mississippi or a political subdivision of the state, including elected and appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation." Miss.Code Ann. § 11-46-1(f). The MTCA also provides:
[T]he remedy provided by this chapter against a governmental entity or its employees is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee; any claim made or suit filed against a governmental entity or its employees to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.
Miss.Code Ann. § 11-46-7(1) (emphasis added). Finally, in regards to personal liability of employees, the statute provides that "an employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Miss.Code Ann. § 11-46-7(2) (2001) (emphasis added).
[2] Not only have defendants offered no evidence in support of their version of events, but they have not purported, to move for summary judgment and instead explicitly declare that "[a] Rule 12(b)(6) motion is the proper vehicle to test the legal sufficiency of the claims stated in the Compliant [sic]." They then go on to argue that "accepting Plaintiffs [sic] pleaded allegations as true," "Where is no factual or legal basis for any reasonable person to conclude that the Defendants acted without probable cause for the arrest of the Plaintiffs." Yet the version of the facts they offer as supporting their conclusion that no reasonable person could find a lack of probable cause is their own version of events, not the facts alleged by plaintiff. In fact, defendants do not even acknowledge the facts alleged in the complaint but rather present their motion as though theirs is the only version of the facts. The flaws in their presentation are manifest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/406018/ | 682 F.2d 147
5 Ed. Law Rep. 383
In re UNITED STATES ex rel. MISSOURI STATE HIGH SCHOOLACTIVITIES ASSOCIATION, a voluntary,not-for-profit, unincorporatedassociation, Petitioner.William A. ZANDER III, by his next friend Judith R. Champ, Appellee,v.MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, (MSHSAA),Appellant.Julie Ann BARNHORST, by her Parent and Legal Guardian,Marcella Barnhorst, Appellee,v.MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, Appellant,Sunset Hill School; H. John Stander.Julie Ann BARNHORST, by her Parent and Legal Guardian,Marcella Barnhorst, Appellee,v.MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION; SunsetHill School; H. John Stander.Appeal of the ABC LEAGUE.In re UNITED STATES ex rel. MISSOURI STATE HIGH SCHOOLACTIVITIES ASSOCIATION, a voluntary,not-for-profit, unincorporatedassociation, Petitioner.The ABC LEAGUE, a voluntary unincorporated association, andAndrew T. Nelson, a minor, by his next friend, hisfather, Richard T. Nelson, Appellees,v.MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, avoluntary unincorporated association, Appellant.
Nos. 81-1433, 81-1439, 81-1526, 81-1527, 81-1976 and 82-1132.
United States Court of Appeals,Eighth Circuit.
Submitted March 8, 1982.Decided April 22, 1982.Rehearing and Rehearing En Banc in Nos. 81-1527 and 81-1132Denied May 18,1982.
Guilfoil, Symington, Petzall & Shoemake, St. Louis, Mo., for plaintiff-appellee and intervenor-appellant, the ABC League, and plaintiffs-appellees, Andrew T. Nelson and Richard T. Nelson.
J. Robert Tull, Mallory V. Mayse, Tull & Mayse, Columbia, Mo., for appellant.
Before LAY, Chief Judge, and ROSS and McMILLIAN, Circuit Judges.
LAY, Chief Judge.
1
The basic question presented is whether a rule of the Missouri State High School Activities Association (MSHSAA) barring a student's participation in interscholastic athletics for a period of one year after the student transfers from one high school to another violates the federal Constitution. We hold that it does not.
2
Facts.
3
The Missouri State High School Activities Association is a voluntary, nonprofit, unincorporated association of high schools whose purpose is the regulation of interscholastic activities including sports, speech, debate, and music. MSHSAA is comprised primarily of public schools although many parochial and nonsectarian private schools are also members of the association.
4
The transfer rule applies only to athletics. Article VIII, section 8 of the MSHSAA constitution provides, "Students who transfer for reasons other than promotion are ineligible for 365 days." Section 8 creates a number of exceptions to this rule, most importantly, transfers accompanied by a corresponding change of residence of the student's parents and transfers ordered by the board of education or made necessary by school reorganization or closing.1
5
Prior to July 1, 1981, an exception was also provided for students attending schools in the ABC League.2 The ABC League is an association of private schools in the St. Louis area containing four denominational and two nondenominational schools. The six schools schedule sports competition among themselves on three levels determined by grade, age, height, and weight of the athletes. Because several of the ABC League schools have no physical education program and require all their students to participate in interscholastic athletics and because the League had traditionally been self-regulating, the League was granted a partial exemption from the transfer rule. However, during the course of this litigation, MSHSAA repealed this exemption effective July 1, 1981.
6
Three actions are consolidated in this appeal. In Zander v. Missouri State High School Activities Association, No. 81-0369-C(1) (E.D.Mo. April 7, 1981), Chief Judge H. Kenneth Wangelin enjoined MSHSAA from preventing William A. Zander, III, from participating in interscholastic tennis competition during the spring of 1981 after Zander transferred to a Missouri high school from a school in Florida. The Association's appeal from this order (No. 81-1439) is consolidated with review of this court's grant of a stay pending appeal (No. 81-1433). Zander did not take any role in the appeal. The parties concede that his individual claim is moot.
7
In Barnhorst v. Missouri State High School Activities Association, 504 F.Supp. 449 (W.D.Mo.1980), Judge Russell G. Clark refused to issue a preliminary injunction barring application of the transfer rule to prevent Julie Ann Barnhorst from participating in athletics during the 1980-81 school year. The court held the rule did not violate the due process or equal protection clauses of the fourteenth amendment.
8
Barnhorst subsequently conducted additional discovery and amended her complaint to claim that the transfer rule as modified by the ABC League exemption deprived her of equal protection of the law (Barnhorst did not transfer to or from an ABC League school). The court held that the exemption created discrimination between students which had no rational basis and thus violated the equal protection clause. However, the court found that the proper remedy was not the invalidation of the transfer rule, but rather the striking of the exemption. The court held the exemption unconstitutional and enjoined its application. Barnhorst v. Missouri State High School Activities Association, No. 80-1036-CV-W-4-3 (W.D.Mo. April 8, 1981). MSHSAA appealed (No. 81-1526).
9
On May 4, 1981, the ABC League moved to intervene in the Barnhorst case. The court allowed intervention for purposes of appeal, but refused to reconsider its order. Barnhorst v. Missouri State High School Activities Association, No. 80-1036-CV-W-4-3 (W.D.Mo. May 7, 1981). The League appealed (No. 81-1527). Because of the subsequent repeal of the ABC exemption,3 the court's ruling as to the constitutionality of the exemption is moot. Barnhorst did not participate in the appeal. The parties concede that her individual claim is moot.
10
The final case consolidated in this appeal is ABC League v. Missouri State High School Activities Association, 530 F.Supp. 1033 (E.D.Mo.1981). In this case, the ABC League and Andrew T. Nelson, a transferee to an ABC League school interested in participating in interscholastic sports throughout the 1981-82 school year, filed suit against MSHSAA alleging that repeal of the ABC exemption and the transfer rule itself were unconstitutional. Judge Wangelin enjoined enforcement of the repeal and declared the transfer rule unconstitutional. In order to maintain a uniform policy in relation to the stay earlier granted in Zander, this court stayed execution of the ABC League order pending appeal. MSHSAA's appeal of Judge Wangelin's order (No. 82-1132) is consolidated with review of this court's stay of the order pending appeal (No. 81-1976).4
11
Issues.
12
The issues presented on appeal concern the constitutionality of the transfer rule, the constitutionality of the application of the transfer rule to those schools formerly exempt under the ABC exemption, and the legality of the district court's decision to enjoin repeal of the ABC exemption.5
13
Transfer Rule.
14
The ABC League and the individual students challenge the transfer rule on both equal protection and due process grounds. Because MSHSAA is an association comprised primarily of public schools, its rules are state action governed by the fourteenth amendment. However, federal courts have uniformly upheld comparable rules governing transfers against challenges based on both the due process and equal protection clauses. See Walsh v. Louisiana High School Athletic Association, 616 F.2d 152, 159-61 (5th Cir. 1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Moreland v. Western Pennsylvania Interscholastic Athletic League, 572 F.2d 121 (3d Cir. 1978); Hamilton v. Tennessee Secondary School Athletic Association, 552 F.2d 681 (6th Cir. 1976); Albach v. Odle, 531 F.2d 983 (10th Cir. 1976) (New Mexico); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963) (residency requirement); Kulovitz v. Illinois High School Association, 462 F.Supp. 875 (N.D.Ill.1978); Dallam v. Cumberland Valley School District, 391 F.Supp. 358 (M.D.Pa.1975); Paschal v. Perdue, 320 F.Supp. 1274 (S.D.Fla.1970).
15
Equal Protection.
16
Participation in interscholastic athletics is an important part of the educational process. Nonetheless, education has not been deemed a fundamental right under the fourteenth amendment requiring application of strict judicial scrutiny. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 29-39, 93 S.Ct. 1278, 1294-1300, 36 L.Ed.2d 16 (1973).
17
Plaintiffs argue that the transfer rule burdens their exercise of the fundamental right to travel interstate and restricts their freedom to associate. When a student alters his or her place of residence from one state to another without an accompanying change by his or her parents (as did Zander), the rule prohibits the student from participating in interscholastic athletics for one year. Classifications which penalize the exercise of the right to travel are subject to strict scrutiny. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). But most cases which implicate the rule's sanction do not involve interstate travel and, those which do, implicate the sanction because they involve school transfers and not because they involve interstate travel. The rule's minimal impact on interstate travel does not require strict scrutiny.
18
Plaintiffs also argue the rule burdens the exercise of the right to freely associate by penalizing students' choice to change schools and thus to alter the body of people with which they associate. Students have no indefeasible right to associate through choice of school. Mandatory assignment to public schools based on place of residence or other factors is clearly permissible. The transfer rule does not prevent association through private schooling nor discriminate against such association. Thus no right is burdened and the rule is not thereby subject to strict scrutiny.
19
Finally, plaintiff ABC League argues the rule burdens students' and parents' exercise of their right to choose and devise a nonpublic education. As discussed below, the rule does not impinge on this limited right.
20
Plaintiffs challenge the transfer rule as being both under-inclusive and over-inclusive. The rule is claimed to be under-inclusive because it does not apply to nonathletic activities. Since athletes are not a suspect class and no fundamental right is impinged by applying the rule to athletics and not to other school activities, the standard of judicial scrutiny which should be applied is the rational relationship test. Dandridge v. Williams, 397 U.S. 471, 485-87, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). A rational basis clearly exists for believing that the danger of incurring the harms involved in transfers motivated by athletics and attempts to induce such transfers is greater than the danger of parallel harms in other areas.
21
The transfer rule is claimed to be over-inclusive because it reaches many transfers which do not involve the harms it is designed to prevent. The rule does not, however, create an inherently suspect classification. Thus, as indicated, the rule need only be rationally related to a legitimate state purpose. The clear purpose of the rule is to prevent the evils associated with recruiting of high school athletes and transfers motivated by athletics. School officials urge the administrative difficulties and political pressures encountered in determining on an individual basis which transfers involve the feared evils justify the rule's prophylactic nature. Weinberger v. Salfi, 422 U.S. 749, 784-85, 95 S.Ct. 2457, 2476, 45 L.Ed.2d 522 (1975). We must agree. As observed in Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161, "If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' " Once a rational relationship exists, and it exists here, judicial scrutiny must cease. Whether the rule is wise or creates undue individual hardship are policy decisions better left to legislative and administrative bodies. Schools themselves are by far the better agencies to devise rules and restrictions governing extracurricular activities.6 Judicial intervention in school policy should always be reduced to a minimum.
22
Due Process.
23
Plaintiffs also argue the rule violates the due process clause. Our equal protection analysis reveals that the rule is not arbitrary.7 The Association's bylaws, section 10.1, provide for notice and hearings before both the executive secretary and the Board of Control concerning eligibility determinations. The specified procedures combined with the availability of application under the hardship exception satisfy any procedural due process requirements.8
24
ABC League Exemption.
25
As noted above, the constitutionality of the ABC League exemption is no longer before this court. After repeal of the exemption, the League may only argue that the transfer rule cannot constitutionally be applied to students transferring to or between its schools. The League argues that individuals have a constitutional right-derived from the first and fourteenth amendments-to choose to educate their children in private schools and to devise the curriculum of those schools without state interference. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (establishment clause); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (due process); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (same). The fourteenth amendment prevents states from prohibiting attendance of nonpublic schools, but it does not preclude reasonable, nondiscriminatory regulation designed to advance legitimate, secular interests. Board of Education v. Allen, 392 U.S. 236, 245-47, 88 S.Ct. 1923, 1927-1928, 20 L.Ed.2d 1060 (1968); Pierce, 268 U.S. at 534, 45 S.Ct. at 573; Windsor Park Baptist Church v. Arkansas Activities Association, 658 F.2d 618, 621 (8th Cir. 1981).
26
The transfer rule is a reasonable and neutral regulation. It does not burden the choice of private education, but merely attaches a restriction to all transfers whether to private or public schools except those falling into a specified exception. The ABC League argues that participation in interscholastic sports is an integral element of its vision of private education. The League makes no claim that this philosophy is rooted in religious practices and thus its claim is not cognizable under Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, nor can the League demonstrate that the rule represents a fundamental restriction of liberty as was the compulsion of public education in Pierce, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and the ban of instruction in a foreign language involved in Meyer, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. The League may constitutionally be required to choose between conforming to the transfer rule or foregoing athletic competition with the members of MSHSAA.9 We find the rule may constitutionally be applied to students transferring to schools in the ABC League.10
27
Since we find no violation of the federal Constitution, all stay orders are dissolved (Nos. 81-1433 and 81-1976). We reverse the district court's decision in ABC League (No. 82-1132) with directions to enter judgment in favor of MSHSAA, and to vacate the orders in Nos. 81-1439, 81-1526, and 81-1527 with directions to the district courts to dismiss each of these cases for lack of jurisdiction since they are now moot.
28
It is so ordered.
1
A hardship exception is defined in article VII, section 10 providing:
The Board of Control is authorized to grant eligibility to a student in a case that is beyond the control of a student or his (her) parents, which in the opinion of the Board involves undue hardship or an emergency and does not violate the intent of any of the standards of eligibility. Cases involving any choice on the part of the student or parents shall not be heard under this section.
2
The exception provided:
The ABC League, consisting of St. Louis County Day School, John Burroughs School, The Principia, Lutheran High School North, Lutheran High School South, and the Priory School, shall not be governed by the eligibility rules of Articles VII and VIII in competition with private schools, except that which has an effect on ratings for state football playoffs. It shall be governed by the standards under Article VII and VIII in all competition with other MSHSAA schools.
3
During the pendency of Barnhorst, MSHSAA began to consider repeal of the ABC exemption. Prior to the decision in Barnhorst, the Association's Board of Control decided to submit the issue of repeal to the member schools. The schools voted to remove the exemption effective July 1, 1981
4
This court also requested that the district court stay the implementation of any further orders concerning these issues in other cases, pending resolution of this appeal
5
Various parties raise procedural issues relevant to review of the decisions in Zander and Barnhorst. Because we consider the individual claims raised in these two cases to be moot and because repeal of the ABC exemption likewise made the ABC League's appeal of the Barnhorst decision moot, we need not discuss these issues
6
The Missouri Court of Appeals' eloquent statement in a 1973 dispute over MSHSAA's summer camp rule is strong evidence that the Missouri state courts adhere to the same view. The court in Art Gaines Baseball Camp, Inc. v. Houston, 500 S.W.2d 735, 740-41 (Mo.App.1973) (footnotes omitted) stated:
Along with entrusting the education of our children to teachers and administrators, we also entrust the control and supervision of the extracurricular activities incident to that education. Implicit in the responsibility for these activities is the power to make reasonable rules and regulations. We are dealing here with numerous schools who have voluntarily joined an association. As members of this association, they may, by majority vote, enact rules to govern their interaction. It is obvious that chaos would result without such rules. It is also obvious that the members are in the most advantageous position to appreciate the regulations under which they must act to achieve desired goals. A court should not interfere with the enactment of those regulations as long as they are reasonable and do not infringe on public policy or law.
7
Plaintiffs also urge the promotion and hardship exceptions are arbitrary. Article VIII, section 7 of the MSHSAA constitution provides:
a. A student promoted from the sixth grade to the seventh grade may be eligible immediately at the school of his or her choice.
b. A student promoted from the eighth grade, or the highest grade of a junior high school administered as a unit within the school system, may be eligible immediately at the school of his or her choice.
c. Students completing the highest grade in an elementary school that is not a part of a system supporting a high school may be eligible immediately in the school of their choice. Any succeeding transfer of enrollment shall be governed by the transfer of enrollment standards.
The promotion exception recognizes that schools divide grades into different groups and evinces a reasoned judgment that transfers after completion of one of these units (e.g., junior high, whether a particular school defines it to include ninth grade or not) are more often unrelated to athletics than mid-unit transfers and that all transfers are less harmful between units. See Barnhorst, 504 F.Supp. at 462-63.
Plaintiffs also attack the hardship exception, see note 1 supra, as arbitrary. However, the exception does contain one clear standard which greatly narrows its scope. The exception can only be invoked in cases involving no choice by the student or his or her parents (thus it could not have been invoked in any of the individual cases involved in this appeal). The Board of Control has a very narrow ambit of discretion which is constitutionally acceptable.
8
In Walsh, the Fifth Circuit held:
The due process clause of the fourteenth amendment extends constitutional protection to those fundamental aspects of life, liberty, and property that rise to the level of a "legitimate claim of entitlement" but does not protect lesser interests or "mere expectations." ... A student's interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement. As decided in Mitchell, (v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970).), it falls "outside the protection of due process."
616 F.2d at 159-60.
9
The ABC schools are voluntary members of MSHSAA and agreed in their individual membership applications to uphold the standards of the Association. See MSHSAA constitution at III, § 1
10
MSHSAA argues that Judge Wangelin's order in ABC League enjoining implementation of the repeal of the exemption constituted an abuse of the court's equitable powers and a usurpation of legislative authority. Because we find the transfer rule may be applied to all schools, including those in the ABC League, we need not review this claim | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3021661/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 97-3927
_____________
Kimberly C. Sutton, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Kenneth S. Apfel, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Appellee. *
_____________
Submitted: March 10, 1998
Filed: October 13, 1998
_____________
Before BOWMAN,1 FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
_____________
PER CURIAM.
1
The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.
Kimberly C. Sutton appeals the district court's2 order, granting summary judgment
to the Commissioner and affirming the Commissioner's decision to deny Sutton
disability insurance benefits and supplemental security income. We affirm.
Sutton applied for social security disability and supplemental security income
benefits, alleging a disability onset date of February 21, 1994,3 based upon recurring
blood clots in her leg, impaired eyesight, and high blood pressure.4 Following a hearing,
the Commissioner's administrative law judge (ALJ) denied Sutton's application, finding
that, although Sutton suffers from obesity and a history of recurrent venous thrombosis
that is accompanied by leg pain and edema, she fails to meet or equal any of the
disabling impairments on the Commissioner's Listing of Impairments, in particular 20
C.F.R. Pt. 404, Subpt. P., App. 1, Listing 9.09(D) (1998).5 The ALJ further found that
Sutton's subjective complaints of pain were not credible. Although the ALJ concluded
that Sutton could not perform her past relevant work as a nurse's aide or certified
medical aide, the ALJ decided that she still possessed the residual functional capacity
to perform light exertion and sedentary jobs in the national economy. The
Commissioner's Appeals Council denied Sutton's request for review,
2
The HONORABLE DAVID D. NOCE, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
3
At the hearing before the administrative law judge, Sutton modified her alleged
onset date to August 19, 1993.
4
In addition, Sutton more specifically alleged that she suffered from phlebitis and
thrombophlebitis (primarily in her left leg); edema (in her left leg and left ankle);
obesity (Sutton is 5'4'' tall and weighs 260 pounds); hyperlipidemia; and menstrual
problems.
5
To meet or equal a disabling impairment under section 9.09(D), the claimant
must have "[w]eight equal to or greater than [258 pounds, for Sutton's height of 5'4'',]
. . . and . . . [c]hronic venous insufficiency with superficial varicosities in a lower
extremity with pain on weight bearing and persistent edema." 20 C.F.R. Pt. 404, Subpt.
P., App. 1 § 9.09(D).
-2-
and Sutton sought judicial review. The district court granted summary judgment in
favor of the Commissioner, concluding that substantial evidence on the record as a
whole supported the ALJ's decision. Sutton appeals.
We review the Commissioner's denial of benefits to determine whether substantial
evidence on the record as a whole supports the Commissioner's decision. See Kisling
v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997). "Substantial evidence is less than a
preponderance, but enough that a reasonable mind would accept it as adequate to
support the Commissioner's decision." See Briggs v. Callahan, 139 F.3d 606, 608 (8th
Cir. 1998). However, we must consider evidence that detracts from the Commissioner's
decision as well as evidence that supports it. See id. "We may not reverse the
Commissioner merely because substantial evidence would have supported the opposite
conclusion." Id.
For reversal, Sutton argues that (1) neither the ALJ nor the district court properly
applied disability listing 9.09(D) to her medical evidence which supports a finding of
disability based on her obesity and the listed impairment of chronic venous
insufficiency; and (2) the ALJ's decision that Sutton can work was not substantially
supported by the record.
We have carefully reviewed the record and the parties' arguments on appeal.
Upon review of the record, we find no merit to Sutton's argument that the ALJ and the
district court failed to properly apply § 9.09(D) to her medical evidence. The ALJ
found that Sutton met the listing's weight requirement but concluded that, despite her
history of recurrent venous thrombosis, she did not suffer from chronic venous
insufficiency. As such, both the ALJ and the district court performed the proper
analysis under § 9.09(D), and we find that substantial evidence supports the conclusion
that Sutton does not meet the listing's requirement of chronic venous insufficiency.
Moreover, substantial evidence on the record as a whole supports the ALJ's
determination that Sutton's subjective complaints of pain are not credible and that she
-3-
has the residual functional capacity to perform light exertion and sedentary jobs.
Accordingly, we affirm the judgment of the district court for the reasons set forth in its
thorough and well-reasoned memorandum opinion dated October 3, 1997.
The order of the district court is affirmed. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1606269/ | 7 So. 3d 535 (2009)
QUINTEC, S.A.
v.
AON TRADE CREDIT, INC.
No. SC08-1344.
Supreme Court of Florida.
March 16, 2009.
Decision without published opinion. Rev.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606255/ | 349 So. 2d 676 (1977)
George DAVID and Lili David, Appellants,
v.
B & J HOLDING CORPORATION, a Florida Corporation, Appellee.
No. 75-1118.
District Court of Appeal of Florida, Third District.
August 9, 1977.
Rehearing Denied September 14, 1977.
*677 Zinn & Reinhard, Miami, for appellants.
L.J. Cushman, Miami, for appellee.
Before PEARSON, BARKDULL and HAVERFIELD, JJ.
REVISED OPINION
HAVERFIELD, Judge.
Plaintiffs seek review of that portion of a final judgment finding they failed to prove the material allegations seeking damages for breach of implied warranty for the defendant's failure to construct their condominium unit in accordance with the building plans.
Plaintiff-appellants, George and Lili David, purchased from the defendant developer-builder, B & J Holding Corporation, appellee herein, unit # 7-B in the Stuart House Condominium located in the Town of Bay Harbor Islands. After taking occupancy of their unit, plaintiffs discovered several defects, including the failure of the defendant to include proper sound proofing and insulation in the party walls according to the building plans recorded and approved with the Town of Bay Harbor Islands. Plaintiffs pursuant to the receipt, acceptance and warranty agreement made timely written complaints to the defendant concerning the defects and after the adjoining units became occupied informed the defendant of the fact that either so little or no wall insulation was used that they could literally hear every word spoken and sound made by their neighbors in the adjacent units. Defendant failed to remedy these defects and plaintiffs filed the instant suit for damages alleging, inter alia, a breach of implied warranty for the failure to construct the party walls as specified in the building plans recorded with and approved by the municipal building and zoning department. After a non-jury trial, the judge found that the purchase agreement not being a contract for the construction of the Stuart House Condominium, but rather a contract for purchase of a condominium unit, and defendant not having entered into an agreement to build plaintiffs a unit in the Stuart House in accordance with the plans approved by the building department no implied warranty of fitness or merchantability obligated defendant to construct the building in accordance with these plans or any specific plans. Thereupon, the court held plaintiffs were not entitled to any relief sought with respect to this issue.
Plaintiffs contend that the trial court erred in failing to grant them damages for breach of implied warranty when the evidence clearly established that their condominium unit was not built in accordance with the plans and specifications as filed with and approved by the Town of Bay Harbor Islands. We agree.
The modern rule which has developed over the past decade is that implied warranties of fitness and merchantability *678 do extend to the purchasers of new homes and new condominium units and likewise liability has been predicated upon the breach of the building contract in the form of deviation from specifications, such deviation resulting in a defective condition. See Annot., 50 A.L.R. 3d 1071 (1973). Being a progressive state particularly in the area of condominium law with respect to protection of purchasers of such units, Florida as with the sale of other commodities has adopted the rule of law that implied warranties of fitness and merchantability extend to the purchase of new condominium units from builder-developers. Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972), cert. discharged, 264 So. 2d 418 (Fla. 1972); Burger v. Hector, 278 So. 2d 636 (Fla. 1st DCA 1973); Forte Towers South, Inc. v. Hill York Sales Corp., 312 So. 2d 512 (Fla. 3d DCA 1975). As the court explained in Gable, supra, at 17 in support of adoption of this rule:
"Although the theory of implied warranty should not drastically affect the position of the legitimate builder-vendor, the doctrine could be very effective in reducing the number of those undesirables within the industry who have no intention of standing behind the quality of their work... . It should also be noted that the legitimate builder-vendor is much more capable of distributing the cost of his mistakes than is the innocent home buyer.
"Undoubtedly, the law regarding the liability of a builder-vendor of new houses is changing. The above cases indicate a growing trend away from caveat emptor and toward the theory of implied warranty. The movement brings the law much closer to the realities of the market for new homes than does the anachronistic maxim of caveat emptor. `The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today's society and tend to discredit the law should be readily rejected.'"
An implied warranty aries by operation of law and exists regardless of any intention of the vendor to create it; such warranty springs from the vendor's breach of some duty which amounts to taking advantage of the purchaser by reason of some superior knowledge in the vendor or the reliance by the purchaser on the vendor's representation or judgment. See 28 Fla. Jur. Sales § 134 (1968).
Reviewing the case at bar in light of the above principles of law and reasoning, we conclude that defendant developer-builder impliedly warranted to the plaintiff condominium purchasers that their unit would be constructed in accordance with the specifications contained in the building plans filed with and approved by the appropriate governmental authority, the Town of Bay Harbor Islands. The evidence is undisputed that defendant builder failed to construct the party walls of plaintiff's unit in accordance with those specifications filed with the Town of Bay Harbor Islands as a matter of public record and, therefore, having departed from those specifications, is liable to plaintiffs for breach of implied warranties of fitness and merchantability. See Franzen v. Dunbar Builders Corp., 132 Ill. App. 2d 701, 270 N.E.2d 118 (1971) and Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975).[1]
Defendant developer argues that under the terms of the sales contract, it reserved the right to make changes in the specifications. Nevertheless, those specifications being filed as of public record and approved by the Town of Bay Harbor Islands, defendant was under a duty to file the modified specifications with the Town for its approval and to make the new specifications a matter of public record.
*679 Accordingly, we hereby reverse that part of the final judgment denying plaintiff's relief on those counts of their complaint alleging implied breach of warranty and remand the cause for further proceedings not inconsistent herewith.
Reversed and remanded.
NOTES
[1] Wherein the court held that a complaint for breach of implied warranty of fitness and merchantability alleging construction of the condominium contrary to the plans, specifications and representations made by the developer stated a cause of action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/523158/ | 874 F.2d 983
UNITED STATES of America, Plaintiff-Appellee,v.Hoyt FORESTER, Defendant-Appellant.
No. 88-5561.
United States Court of Appeals,Fifth Circuit.
May 24, 1989.
R. Clark Adams, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Michael R. Hardy, LeRoy Morgan Jahn, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty. and Mitchell Weindenbach, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, WILLIAMS and JOLLY, Circuit Judges.
PER CURIAM:
1
Forester appeals from the sentence imposed on resentencing of his conviction for possession of phenyl-2-proponone (P2 P) with intent to manufacture methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). Originally, Forester was convicted of both attempt to manufacture methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count 1) and possession of P2 P (Count 2), and sentenced to 2 consecutive 6-year terms of imprisonment. On appeal this Court affirmed the convictions stating that possession of P2 P and attempt to manufacture methamphetamine are separate offenses, but vacated the sentences on the ground that Congress did not intend "multiple punishments for the criminal who completes more than one interim step of a multi-step crime." 836 F.2d 856, 861 (5th Cir.1988). The Court remanded for "resentencing on one of the two counts." Id.
2
Forester was resentenced on Count 2 (possession) to 10 years of imprisonment and 4 years of special parole. At resentencing, Forester objected to this new sentence as a violation of double jeopardy. The trial court overrruled his objection stating that the new sentence was less than the total original 12-year term. Now Forester, presumably recognizing that we have repeatedly rejected double jeopardy claims in this situation, challenges the new sentence advancing for the first time a due process argument under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Forester asserts that the sentencing judge did not articulate why, after a successful appeal, the sentence was greater than initially imposed.
3
We find the District Court committed no relevant error in the resentencing of Forester. The action was consistent with principles articulated by this Circuit. See United States v. Cataldo, 832 F.2d 869 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct 1577, 99 L. Ed. 2d 892 (1988); United States v. Colunga, 786 F.2d 655 (5th Cir.1986) (Colunga I); United States v. Colunga, 812 F.2d 196 (5th Cir.1987) (Colunga II), cert. denied, --- U.S. ----, 108 S.Ct 165, 98 L. Ed. 2d 120 (1987). When, as in the instant case, the effect of an appellant's challenge implicates the sentencing scheme with respect to interrelated or intertwining counts, the presumption of vindictiveness does not arise if the overall sentence is not increased. See Cataldo, 832 F.2d at 874-75. See also United States v. Norton, 657 F.2d 1003, 1004 (8th Cir.1981) (per curiam). Moreover, if Pearce vindictiveness is claimed, it should be adequately brought to the sentencing judge's attention so that the judge is given a fair opportunity to state on the record the pertinent reasons for the resentence. Here the sentence for Count 2 has increased from 6 to 10 years. But the sentence for this episode of criminal conduct--which the trial judge originally treated as 2 separate crimes for sentencing--has decreased from 12 to 10 years of imprisonment, still within the statutory maximum of 15 years.
4
Having shifted so lately to the Pearce contention, Forester does not meet the demands of the plain error rule by demonstrating a miscarriage of justice by resentencing pursuant to our remand.
5
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1607026/ | 459 N.W.2d 552 (1990)
STATE of North Dakota, Plaintiff and Appellee,
v.
Troy BOUSHEE, Defendant and Appellant.
Cr. Nos. 900108, 900109.
Supreme Court of North Dakota.
August 9, 1990.
*553 Albert Frederick Arnason (argued), Asst. States Atty., Grand Forks, for plaintiff and appellee.
Robert J. Woods (argued), Forest River, for defendant and appellant.
MESCHKE, Justice.
Troy Boushee appealed from orders denying post-conviction relief. We reverse and remand.
Troy Boushee was charged with the crimes of driving under suspension and of driving under the influence (third offense within five years). See NDCC 39-06-42 and 39-08-01. Boushee pleaded not guilty, but later changed his pleas to guilty. The trial court accepted his guilty pleas, sentenced him to 60 days confinement, including 30 days in an addiction treatment facility, and fined him over $1,000. The trial court authorized Boushee to begin serving his sentence on December 1, 1988. However, Boushee failed to surrender on that date and a bench warrant was issued.
Boushee obtained a new attorney and on December 18 applied for post-conviction relief. Boushee surrendered and began serving his sentence on February 13, 1990. Shortly thereafter, the trial court summarily *554 entered final orders denying all relief to Boushee. Boushee appealed.
Boushee contends on appeal that the trial court failed to follow the requirements of NDRCrimP 11 in accepting his guilty pleas and sentencing him. Boushee argues that the Rule 11 procedures for accepting guilty pleas are mandatory, that the trial court failed to comply with them, and that the sparse transcript amply evidences the trial court's non-compliance.
NDRCrimP 11 directs the trial court to address a pleading defendant personally, to inform him of the consequences of a guilty plea, to insure that the plea is voluntary, and to establish the factual basis for the plea. Pertinent parts of the rule say:
(b) Advice to Defendant. The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, informing the defendant of and determining that the defendant understands the following:
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;
(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;
(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial by jury or otherwise and the right to be confronted with adverse witnesses; and
* * * * * *
(c) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant's attorney.
* * * * * *
(e) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment or dispositional order upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
In State v. Schumacher, 452 N.W.2d 345, 347 (N.D.1990), we recently explained that NDRCrimP 11 requires the trial court to carry out these procedures personally in order "to ensure a record that will affirmatively establish a knowing and voluntary decision by the defendant. State v. Mortrud, [312 N.W.2d 354 (N.D.1981) ]. Anything less requires a determination based on implication rather than certainty...."
In this case, there was little or no communication between the trial court and the defendant.
[COUNSEL]: And at this time we would move the Court to change our plea. I believe we haven't done that, yet, and I believe there is awe have an agreement with the State.
THE COURT: You're moving to change plea?
[COUNSEL]: To change plea at this time.
THE COURT: That motion is in all things granted. To these three charges, what are your pleas, Mr. Boushee?
[BOUSHEE]: Guilty.
THE COURT: Plea of guilty is accepted. The State's recommendation will be entertained in just a moment. All right, [Prosecutor].
[PROSECUTOR]: Yes, Your Honor, thank you. Regarding the third Driving Under the Influence charge, we would recommend the statutory minimum which would be
THE COURT: Was this a first offense?
[PROSECUTOR]: Third, Your Honor.
*555 THE COURT: All right. 2198, then, that would be a $1,000 fine.
[PROSECUTOR]: Yes.
THE COURT: 60 days imprisonment.
This record falls short of substantial compliance with NDRCrimP 11.
The State correctly points out that the Rule does not require "any predetermined, ritualistic form" for the trial court's examination of the defendant, and that the extent of the examination depends on "the complexity of the charge as well as all of the surrounding circumstances." See State v. Storbakken, 246 N.W.2d 78 (N.D. 1976). From these precepts, the State argues that on this entire record the trial court complied substantially with Rule 11. The State seeks to transfuse this anemic record with three arguments.
First, the State points to that place in the transcript where the prosecutor recommends the statutory minimum sentence to the trial court as showing substantial compliance with Rule 11. In Schumacher we explained that "[t]he purpose of the procedure outlined in Rule 11(b) is to ensure that the defendant is fully aware of the consequences of a guilty plea before he enters his plea. That purpose is not satisfied by evidence showing that counsel raised the issue during sentencing proceedings, after the plea had been made and accepted." 452 N.W.2d at 346-47. As this transcript discloses, the trial court did not mention the statutory minimum until after accepting Boushee's plea of guilty. In fact, the trial court was not even cognizant of a significant circumstance affecting the minimum sentence, that this was Boushee's third offense, when it accepted his guilty pleas. An attorney's mention of a statutory minimum after a plea has already been accepted "does not cure the failure to comply with the requirements of Rule 11." Schumacher, 452 N.W.2d at 346. "This provision is included so that the judicial warning effectively serves to overcome subsequent objections by the defendant that the defendant's counsel gave the defendant erroneous information." NDRCrimP 11, Explanatory Note, at 253. Therefore, the State's first argument does not resuscitate this record.
The State argues that circumstances negated the need for complete compliance with Rule 11 because Boushee knew the ramifications of his pleas since he had been convicted and sentenced twice before. Boushee's experiences in other appearances before the trial court cannot cure the lack of compliance in this case. Rule 11 prescribes uniform procedures. This argument by the State also fails to persuade us of Rule 11 compliance.
Finally, because Boushee was advised of his constitutional rights during his initial appearance and was represented by counsel for his guilty plea, the State contends that there was substantial compliance with Rule 11 on the entire record. In State v. Hoffarth, 456 N.W.2d 111, 115 (N.D.1990), we said "[t]here is substantial compliance with NDRCrimP 11 if the record of the arraignment, in conjunction with the record of the change-of-plea hearing, clearly reveals that the defendant had knowledge of the rights he was waiving by pleading guilty."
This record shows that Boushee was informed about some constitutional rights at his initial appearance when he pleaded not guilty. However, we find no advice by the trial court to Boushee then, or later, on the mandatory minimum or the maximum possible punishments for the offenses to which he plead guilty. And, of course, there was no effort at either plea stage to establish that his guilty pleas were voluntarily made, or what the factual bases were for them. At the first plea stage, Boushee was questioned by the magistrate about a third charge having nothing to do with this appeal, and these two charges were barely mentioned. The combined records of both plea stages do not show substantial compliance with Rule 11. Again, the State's argument fails to persuade us of Rule 11 compliance by the trial court.
When the relief sought under the Post-Conviction Procedure Act is the withdrawal of a guilty plea, the action is treated as a motion to withdraw the guilty *556 plea. Kaiser v. State, 417 N.W.2d 175, 179 (N.D.1987). Withdrawal of a guilty plea is permitted when it is necessary to correct a manifest injustice. NDRCrimP 32(d). The determination of manifest injustice is ordinarily within the trial court's discretion, and will be reversed on appeal only for an abuse of discretion. State v. Werre, 453 N.W.2d 826 (N.D.1990). Generally, "when the trial court does not advise the defendant of the mandatory minimum sentence in accordance with Rule 11(b)(2), the interests of justice require that the defendant be allowed to withdraw his plea of guilty." Schumacher, 452 N.W.2d at 348. Justice requires that Boushee be allowed to withdraw his pleas of guilty.
The trial court personally addressed Boushee only to ask him for his pleas. The trial court did not address Boushee personally, "informing the defendant of and determining that the defendant" understood "[t]he nature of the charge," and informing him of the "mandatory minimum" and "maximum possible" punishments. The trial court thus substantially failed to comply with Rule 11(b) information. Further, the trial court did nothing to personally question Boushee on the voluntariness of his change in pleas and thus substantially failed to comply with Rule 11(c). Finally, the trial court made no effort to determine the accuracy of Boushee's pleas, and thus substantially failed to comply with Rule 11(e). These were multiple mistakes and substantial failures, not an occasional lapse. We conclude that the trial court's refusal of post-conviction relief for non-compliance with Rule 11 was an abuse of discretion.
We reverse and remand with directions that Boushee be permitted to withdraw his guilty pleas and be given an opportunity to plead anew.
ERICKSTAD, C.J., and LEVINE, VAN DE WALLE and GIERKE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607323/ | 366 So.2d 1167 (1979)
AUBURN MACHINE WORKS CO., INC., etc., Petitioner,
v.
Clyde Pete JONES and Irma Jean Jones, His Wife, Respondents.
No. 53526.
Supreme Court of Florida.
January 18, 1979.
Jacqueline R. Griffin, of Wells, Gattis & Hallowes, Orlando, for petitioner.
Robert Orseck, Walter H. Beckham, Jr., Robert L. Parks and Joel D. Eaton, of Podhurst, Orseck & Parks, Miami, for respondents.
ALDERMAN, Justice.
We have for review the decision in Jones v. Auburn Machine Works Co., 353 So.2d 917 (Fla. 2d DCA 1977), in which the Second District refused to apply the "patent danger" or "open and obvious hazard" doctrine so as to preclude liability on the part of a manufacturer. This decision conflicts with Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976), in which the First District applied the doctrine and held that it created an exception to a manufacturer's liability. To resolve this conflict, we must either accept or reject the patent danger doctrine. We reject the doctrine and hold that the obviousness of the hazard is not an exception to liability on the part of the manufacturer but rather is a defense by which the manufacturer may show that the plaintiff did not exercise a reasonable degree of care as required by the circumstances. We also conclude that the principles of comparative negligence apply where this defense is raised.
The facts can be stated briefly. Clyde Jones, sixteen years of age, worked with a crew laying underground telephone cable. He had been instructed by his supervisor on the day of the accident to climb into the trench behind the trench digging machine in order to place the cable flat at the bottom of the trench. While guiding the cable into the trench directly behind the trencher, he lost his balance when the side of the trench caved in, and his foot became entangled in the exposed chain of the machine. He sustained injuries which required the amputation of his left leg below the knee. The trencher possessed no shield or guard and was obviously dangerous.
Jones and his wife sued C.C. Construction, his employer, and Auburn Machine Works Company, the manufacturer of the trench digging device. The employer was granted summary judgment based on its workmen's compensation immunity. In *1168 their amended complaint against Auburn, the Joneses alleged negligence, breach of warranty, and strict liability arising out of the alleged defective manufacture and design of the trencher. They alleged that Auburn failed to provide reasonable safety features, shields, and guards on moving, exposed, and dangerous portions of the machine; that Auburn failed to design and manufacture the trencher so that the driver or operator could adequately view the operation of the machine's dangerous moving parts; and that Auburn failed to furnish adequate operation instructions. The amended complaint further alleged that Auburn impliedly warranted to ultimate users of the trencher that it was fit for its intended purpose and was safely designed; that the trencher, however, was not of merchantable quality because of its lack of safety devices; and that Auburn was strictly liable in tort. Proximate cause was alleged on all counts.
Auburn filed a motion for summary judgment. In opposition to this motion, the Joneses filed an affidavit of an expert witness testifying that the trencher's design constituted a departure from the reasonably safe and sound engineering practice at the time of its manufacture. The witness stated that the placement of the trencher upon the tractor by Auburn constituted a departure from reasonably safe and sound engineering practice at the time of its manufacture in that Auburn failed to equip the tractor with a rearview mirror which would allow the operator to see the trencher in operation; that Auburn failed to have a library containing safety and design standards at the time this machine was manufactured; that the machine was manufactured without any thought to prevailing safety requirements for the trencher; that the trenching boom was not guarded or shielded, leaving an exposed chain; that a guard or shield probably would have prevented the accident; and that such guard or shield was available at the time this trencher was manufactured or prior to the time of the accident. The trial court entered summary judgment for Auburn, and the Joneses appealed.
Holding that Auburn as movant failed to meet its burden of showing conclusively that no genuine issues of material fact existed, the Second District reversed the trial court's order granting summary judgment; and, referring to its earlier decision in Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla. 2d DCA 1977), it refused to adopt the obvious and patent danger rule espoused by the First District in Farmhand, Inc. v. Brandies, supra.
Auburn, relying primarily upon Farmhand and Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), argues that we should apply the patent danger doctrine and contends that this doctrine is based upon sound principles. In response, the Joneses argue that we should reject this doctrine and hold that the obviousness of the hazard is merely an element to be considered in the determination of contributory fault.
The most cogent statement of the patent danger doctrine is found in Campo v. Scofield, supra. In that case, the New York Court of Appeals stated:
[T]he manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers... .
If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands.
301 N.Y. at 471-2, 95 N.E.2d at 803-04.
The First District in Farmhand applied the patent danger doctrine as enunciated in Campo v. Scofield to the facts of the case before it because it believed the doctrine to be the controlling law in Florida at the time it rendered its decision, holding that the doctrine barred the plaintiff's negligence and breach of warranty claims. The First District recognized, however, that its decision in Farmhand passed upon a question of *1169 great public interest. Because of this concern, the First District in Farmhand certified for our consideration the question of whether the manufacturer of a machine in a defective condition unreasonably dangerous to the user should be held liable to the user notwithstanding that the condition was obviously dangerous. No petition for writ of certiorari was filed, however, and the certified question was therefore never answered by this Court.
Farmhand was decided shortly before the New York Court of Appeals, in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976), overruled Campo v. Scofield, supra. The New York court, concluding that the patent danger doctrine produced harsh results and suffered from rigidity, held that rather than preventing a plaintiff from establishing his case, the obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care required under the circumstances. The New York court said:
Apace with advanced technology, a relaxation of the Campo stringency is advisable. A casting of increased responsibility upon the manufacturer, who stands in a superior position to recognize and cure defects, for improper conduct in the placement of finished products into the channels of commerce furthers the public interest. To this end, we hold that a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended....
What constitutes "reasonable care" will, of course, vary with the surrounding circumstances and will involve "a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm" (2 Harper & James, Torts, § 28.4; see Pike v. Hough Co., 2 Cal.3d 465, 85 Cal. Rptr. 629, 467 P.2d 229, supra). Under this approach, "the plaintiff endeavors to show the jury such facts as that competitors used the safety device which was missing here, or that a `cotter pin costing a penny' could have prevented the accident. The defendant points to such matters as cost, function, and competition as narrowing the design choices. He stresses `trade-offs'. If the product would be unworkable when the alleged missing feature was added, or would be so expensive as to be priced out of the market, that would be relevant defensive matter"... .
.....
We next examine the duty owing from a plaintiff or, in other words, the conduct on a plaintiff's part which will bar recovery from a manufacturer. As now enunciated, the patent-danger doctrine should not, in and of itself, prevent a plaintiff from establishing his case. That does not mean, however, that the obviousness of the danger as a factor in the ultimate injury is thereby eliminated, for it must be remembered that in actions for negligent design, the ordinary rules of negligence apply... . Rather, the openness and obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care as was required under the circumstances.
39 N.Y.2d at 385-7, 384 N.Y.S.2d at 121-22, 348 N.E.2d at 577-8.
The modern trend in the nation is to abandon the strict patent danger doctrine as an exception to liability and to find that the obviousness of the defect is only a factor to be considered as a mitigating defense in determining whether a defect is unreasonably dangerous and whether plaintiff used that degree of reasonable care required by the circumstances.
For example, in Dorsey v. Yoder Co., 331 F. Supp. 753 (E.D.Pa. 1971), aff'd, 474 F.2d 1339 (3d Cir.1973), a products liability suit brought by a plaintiff whose right arm and hand were almost severed by the blades of a metal slicer machine, the court held that even though the danger of the unguarded rotary blades was obvious to plaintiff, recovery *1170 was not precluded for that reason alone. The court explained:
It does not follow from this holding that the manufacturer of every obviously defective or dangerous product owes an automatic duty to an injured party. Although a knife qualifies as an obviously dangerous instrumentality, a manufacturer need not guard against the danger that it presents. "[Nor is it] necessary to tell a zookeeper to keep his head out of the hippopotamus' mouth." Bartkewich v. Billinger, supra [432 Pa. 351] at 356, 247 A.2d 603 at 606. See also, 2 Harper and James, The Law of Torts, § 28.6 (1956 ed). The point is that to preclude absurd results the obviousness of the danger must constitute but one of the factors that determines whether the danger is unreasonable.
The proper test of "unreasonable danger" is whether a reasonable manufacturer would continue to market his product in the same condition as he sold it to the plaintiff with knowledge of the potential dangerous consequences the trial just revealed. See P. Keeton, Manufacturer's Liability: The Meaning of "Defect" in the Manufacture and Design of Products, supra note 2 at 568. See also Pike v. F.G. Hough Co., supra.
To answer this question one must:
"[balance the] likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of precaution which would be effective to avoid harm." 2 Harper and James, The Law of Torts § 28.4 (1956 ed), cited with approval in Pike v. F.G. Hough Co., supra.
And in measuring the likelihood of harm one may consider the obviousness of the defect since it is reasonable to assume that the user of an obviously defective product will exercise special care in its operation, and consequently the likelihood of harm diminishes.
In a persuasive article, Dean Wade has enumerated the specific factors that enter into the final balance as follows:
"(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive."
Taking the Harper and James formulation as expanded by Dean Wade, it becomes understandable why the plaintiff accidentally injured by a knife does not recover from the manufacturer. The product is not unreasonably dangerous and no duty arises because (1) everyone realizes the dangers; (2) by definition a guard over the blade (the part that causes danger) would eliminate its utility; (3) the cost of a "safe" knife might be prohibitive. Balancing the likelihood and gravity of harm against the burden of protection, a manufacturer should not be liable for a slip of the knife.
But consider the Yoder machine. Certainly Dorsey knew the danger of unguarded cutters. On the other hand, a guard would not eliminate the machine's usefulness, nor would the cost of $200 to $500 on an $8,000 machine be unreasonable... .
331 F. Supp. at 759-60.
The patent danger doctrine encourages manufacturers to be outrageous in their design, to eliminate safety devices, and to make hazards obvious. For example, if the cage which is placed on an electric fan as a safety device were left off and someone put his hand in the fan, under this doctrine there would be no duty on the manufacturer as a matter of law. So long as the hazards are obvious, a product could be manufactured without any consideration of *1171 safeguards. This example of the fan differs from the example of the knife in Dorsey v. Yoder Co., supra, wherein the court explained that the utility of the knife would be eliminated by placing a guard over the blade. As the New York court in Micallef pointed out in discussing reasonable care, the defendant may show as relevant defensive matter the cost, function, and competition as narrowing design choices, the unworkability of the product when the alleged missing feature is added, or that the product would be so expensive as to price it out of the market.
The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable dangers to their users. It puts the entire accidental loss on the injured plaintiff, notwithstanding the fact that the manufacturer was partly at fault. This is inconsistent with the general philosophy espoused by this Court in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976); and Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977).
In adopting the doctrine of comparative negligence, in Hoffman v. Jones, supra, we said:
Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on a fault premise.
280 So.2d at 436.
Subsequently, we decided West v. Caterpillar Tractor Co., supra, in which we adopted strict liability in tort, as expressed in section 402A, Restatement (Second) of Torts (1965). The issue in West was whether a road grader's design defects, the absence of rearview mirrors and an audible warning system for use in backing the grader, were actionable. We stated that the user of the product seeking to hold the manufacturer strictly liable in tort must establish the manufacturer's relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of proximate causal connection between such condition and the user's injuries. Having established the applicability of the strict liability doctrine, we went on to explain what conduct by the injured party would create a defense of contributory negligence, and in this discussion, we viewed the obviousness of the hazard as part of the defense of contributory negligence rather than as an exception to liability. We relied on the definition of contributory negligence in comment n to section 402A, Restatement (Second) of Torts,[1] and held:
We recognize that contributory negligence of the user or consumer or bystander in the sense of a failure to discover a defect, or to guard against the possibility of its existence, is not a defense. Contributory negligence of the consumer or user by unreasonable use of a product after discovery of the defect and the danger is a valid defense... . The defendant manufacturer may assert that the plaintiff was negligent in some specified manner other than failing to discover *1172 or guard against a defect, such as assuming the risk, or misusing the product, and that such negligence was a substantial proximate cause of the plaintiff's injuries or damages... . The fact that plaintiff acts or fails to act as a reasonable prudent person, and such conduct proximately contributes to his injury, constitutes a valid defense. In other words, lack of ordinary due care could constitute a defense to strict tort liability.
336 So.2d at 90.
In West we concluded that contributory negligence is available in determining the apportionment of the negligence of the manufacturer of the alleged defective product and the negligence of the consumer, and we emphasized that the ordinary rules of causation and the defenses applicable to negligence are available. We additionally held that contributory negligence may properly be asserted in an action for breach of implied warranty and specifically said in this regard:
If the injured person's conduct is a proximate cause of the injuries, the defendant would have the right to a charge on comparative negligence in an action for breach of implied warranty. If the injured person failed to use that degree of care which a reasonably careful person would use under like circumstances then he is guilty of some negligence. If this negligence was a proximate contributing cause of the injuries, the defendant would be entitled to raise the defense of contributory or comparative negligence. In other words, lack of ordinary due care could constitute such a defense.
336 So.2d at 92.
Further support of our holding in the present case is found in our recent decision of Blackburn v. Dorta, supra, which held that the affirmative defense of implied assumption of the risk is merged into the defense of contributory negligence and that the principles of comparative negligence apply in all cases where such defense is raised. In Blackburn, we declared that there is no reason supported by justice or law to give credence to the defense of assumption of the risk which bars a plaintiff from recovery merely because he voluntarily exposed himself to a known risk notwithstanding the fact that his conduct may be reasonable, and we held that assumption of the risk as a complete bar to recovery is inconsistent with the holding of this Court that liability should be equated with fault.
Accordingly, we reject the patent danger doctrine and conclude that it does not create an absolute exception to liability on the part of the manufacturer,[2] and we hold that the district court correctly refused to apply this doctrine as an absolute bar to recovery. We approve the decision of the Second District reversing the summary judgment and holding that material issues of fact are presented, including the proximate cause of Jones' injuries.[3]
ENGLAND, C.J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.
NOTES
[1] Section 402A, Restatement (Second) of Torts, comment n provides:
Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.
[2] The recent decision of the District Court of Appeal, Fourth District, in Blaw-Knox Food & Chem. Equip. Corp. v. Holmes, 348 So.2d 604 (Fla. 4th DCA 1977), is consistent with our holding in the present case. In Blaw-Knox the Fourth District held that the patent danger doctrine amounts to an assumption of the risk defense that is merged into the defense of contributory negligence subject to the principle of comparative negligence.
[3] Cf. Watson v. Lucerne Mach. & Equip., Inc., supra, wherein the District Court of Appeal, Second District, held:
It appears to us that Watson's death was not a result of any defect in the Kinsey Sampler, but was solely caused instead by his own disregard of his supervisors' warnings to stay away from a machine which presented obvious dangers during operation. His job did not require him to be in the area where he was killed; in fact, he had to kneel down and crawl under a conveyer belt to get to where he was killed. As the Supreme Court said in West, `Strict liability does not make the manufacturer or seller an insurer.' 336 So.2d at 90. See also Isaacs v. Powell, 267 So.2d 864, 866 (Fla. 2d DCA 1972). We conclude that Watson's demise was caused solely by his own actions and was not contributed to by any defect in the Kinsey Sampler. We think, therefore, the trial court properly awarded summary judgment to the defendants. [Footnote omitted.]
347 So.2d at 461. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3345504/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
The plaintiffs in this case seek a reduction in me sewer assessment levied against them as owners of a single family dwelling in the White Hollow section of North Branford, Connecticut. The plaintiffs own their home known as 7 Skylark Drive since 1969 (having moved there in 1970). The plaintiffs (hereinafter "Manzi") contest the sewer assessment m me amount of $12,300 as filed on November 22, 1994 by the North Branford Water Pollution Control Authority (hereinafter the "WPCA"). The complaint alleges aggrievement and that the amount of the assessment levied by the WPCA against the Manzi property is grossly in excess of the special benefit accruing to the property. Manzi testified they hooked up with the town sewers when available because if they were required to do it at a later date it would be more costly for the hookup. The plaintiffs now argue that the method the WPCA calculated the assessment was not based upon the special benefit. The complaint did not allege an improper method to make such calculations only that the plaintiffs did not receive the benefit for which they were assessed. At trial Frank Connolly, the Town Manager, provided the court with the method of making the assessments for sewers throughout the town and the beneficial assessment made in this case. The WPCA assessment took the total costs after credits; from state and federal grants and divided that amount by the residential units that would be benefited. Notice was given to the Manzis on November 22, 1994 (see Exh. P), together with their request of appeal under § 7-250 of the Connecticut General Statutes.
The defendants in this case provided the court with the history leading up to the installation of a sewer system to serve this area. The "White Hollow" neighborhood of North Branford lies just south of the Durham town line. Houses in the area were constructed in the 1960's and 1970's on lots of approximately one acre serviced by septic tank/leaching field systems. In 1971 the town had system failures requiring a sewer feasibility study to be done that concluded that "The worse source of pollution in the town is the developed area between White Hollow Road and the Durham town line." In 1979 the White Hollow area continued to have waste disposal problems. Ultimately the Department of Environmental Protection of Connecticut ("DEP") ordered a new sewer feasibility study. On November 22, 1989, having determined there is a community pollution problem in the White Hollow area, the DEP ordered the town to evaluate the waste water disposal problems and recommend a solution. The study recommended a sewer CT Page 6914 system to be connected to the Northford pump station as being a cost effective, long term solution to eliminate the sources of pollution. After the Town Council approved the construction, the Manzis connected to the sewers on November 11, 1994.
From all the history and notoriety concerning the problems of the White Hollow area with the water disposal systems, it is no doubt that the home-sites in the White Hollow area were stigmatized. It becomes apparent that even though some properties might not have been subject to frequent septic failures or breakouts, any buyer would be leery to purchase a home in the area that was serviced by a septic system, as in this case, 25 years old. The Manzis testified that their septic system had but one failure. However, other information noted breakouts that are suspicious. A septic failure of the Manzis was noted in the East Shore Health District records that occurred in 1978 was solved by the Manzis putting in an unapproved dry well. All the testimony of other witnesses than the Manzis leads the court to conclude that there may have been other problems with the Manzis' septic system though not recorded. The experts presented by the defendants opined that Manzi would suffer another septic failure in a year from the time they connected to the sewers and that in all likelihood if the sewers were not available, a new system would be necessary at costs from $11,000, estimate of plaintiffs' expert, to a $24,000 estimate by the defendant's expert.
"The burden of proving that a special benefit assessment is invalid because it exceeds the particular dollar benefit accruing to the land is on the property owner. As is true in all cases, the plaintiff must prove the allegations of his complaint. The standard of proof is that of a fair preponderance of the evidence. Faith Center, Inc. v. Hartford, 39 Conn. Sup. 142, 154, 473 A.2d 342 (1982), aff'd, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 88 L.Ed.2d 359 (1984)." Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985).
In reviewing assessments of the type imposed under General Statutes § 7-249, our courts have held that a special benefit assessment imposed by a municipality is presumed to be valid and correct. Katz v. West Hartford, 191 Conn. 594, 602, 469 A.2d 410 (1983).1 That presumption may be rebutted, however, by the production of sufficient and persuasive contradictory evidence. Id., 603. "Evidence of the fact that the special benefit assessment exceeds the special CT Page 6915 benefit must have actual persuasive effect, in that it convinces the trier that the nonvalidity of the presumption is as probable as its validity."
The monetary value of the special benefit conferred upon a piece of property by the presence of a sewerage system must be calculated by the difference between the market value of the realty with and without the sewerage system, even though such a measurement may mean that the cost of the sewerage system cannot be fully recouped by the town. Id., 29; Carlson-Long Realty Co. v. Windom, 307 Minn. 368, 240 N.W.2d 517 (1976). Whether an assessment exceeds the special benefit to the property, as measured in this fashion, is a question of fact for the trial court, and its finding as to that fact will not be disturbed unless it is clearly erroneous. Anderson v. Litchfield, supra. See Bridge Street Associates v. Water Pollution Authority, 15 Conn. App. 140, 143.
The plaintiffs in this case offered no evidence to overcome the validity of the assessment. The only evidence offered is that the amount of the assessment did not increase the marketability of the property by the amount of the assessment. The plaintiffs testified the increase was worth $7,000 to them. The expert of the plaintiffs (hereinafter "Estrada") as does that of the defendant (hereinafter "Glendining") argue that the test is how the sewer service affects the market value of the subject property.
Two civil engineer experts were offered for the costs attached to a new sewer system to replace the old system, Robert Criscuolo for the defendant and Russell Waldo for the plaintiffs. Dennis Johnson, director of the East Shore Health District, testified that the proposed system designed by Waldo's plan at a cost in excess of $11,000, and in accordance with percolation tests he supervised would have been rejected. Dennis Johnson testified the proposed replacement over the existing system would affect the ground water already polluted by the old system. Johnson further testified the proposed plan of Waldo violated the public health code. Waldo admitted that the expert of the; defendant, Criscuolo's, design came closer to meeting the health code. Waldo insisted his proposal could be further negotiated with health code officials and changes made for approval.
The present septic system of Manzi is a leaching bed system no longer permitted under the health code which would further CT Page 6916 affect the market value of the subject property. The proposed plan by Criscuolo, from all the evidence, was the appropriate plan and only if price came first would the Waldo plan have been attempted.
As in Pelky v. Coventry Water Pollution Control, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV-92-50313 (April 12, 1993) cited by the defendants, "Private septic systems eventually malfunction and repair or replacement of tanks and leeching fields can be costly propositions and may repulse or deter prospective tenants during the disruption repair." This court further finds that the convenience of public sewers servicing property has a substantial intrinsic value only determinable after a property owner has lived through failures and replacement. The methodology of the Glendining appraisal made a determinable amount for the "stigma" factor of 4%. The court disagrees with the Estrada appraisal conclusion that there is no consistent positive difference in his match pair analysis that can be attributable to the presence of sewers and that the adjustment would be minimal. Estrada did agree that a buyer would be more secure in purchasing property that was hooked up to sewers Estrada opined that a buyer would determine the availability of sewers and the cost to put in a septic system, which he estimated to be $15,000.
Estrada's estimate of the value is based upon an estimate that being there was no definite probability that Manzis' system would fail, the cost of installing a replacement septic system should be reduced by 50%, concluding thereby the special benefit to the home owner is $7,000.
The Glendining analysis utilized a before and after comparison. On page 32 of Exhibit 23, Glendining used three comparable sales and made adjustments as described therein to the Manzi residence. On November 17, 1994 (Exh. W), Glendining provided a preliminary report in which he made a defendable determination of the special benefit for the WPCA counsel of $12,500.
Glendining in his methodology considered the issue of the stigma of the area, because of the multitude of septic failures in the White Hollow area. Glendining relied on the Criscuolo engineering report and in making the adjustments to the market value of the Manzi property used dollar for dollar costs of repair of $24,000 reached by Criscuolo. The methodology of CT Page 6917 Glendining arrived at an increase in the market value the residence in question of $29,000. Glendining could have reasonably used a probable septic failure of one year.
The stigma effect on the market value of the properties was further supported by the testimony of an attorney who represented a large segment of the community clamoring for public sewers. Estrada's testimony on rebuttal to the expert real estate report of the defendant that there was no reduction for the stigma effect is doubtful. Waldo, when asked if it would surprise him if the Manzi septic system had a failure in a year, answered in the negative. Waldo further agreed that the septic system of Manzi was undersized.
Counsel for the defendants suggest that the court increase the assessment is without authority. The argument of counsel for the defendants that the court has the power to "confirm or alter" the value of the assessment under § 7-250 notwithstanding, this court finds no such action is warranted. The question asked by the plaintiffs of the real estate expert of the defendants whether he would pay $29,000 more for the Manzi property with the benefit of a sewer hookup is too speculative.
In conclusion, the plaintiffs have not produced sufficient evidence to rebut the presumption of the validity of the assessment. The plaintiffs have not persuaded this court that the special benefit of $12,300 to the Manzi property should be reduced.
Accordingly, the appeal of the assessment is denied.
Frank S. Meadow Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3345500/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE: MOTION TO DISMISS
Motion to dismiss is denied. General Statutes 52-557 (n), effective October 1, 1986, grants to the injured party a direct cause of action against the municipality. General Statutes 7-308, effective 1955, in essence grants to the injured party the same effective remedy, although in a much more cumbersome fashion.
Both statutes effectively limit the defense of governmental immunity as pertains to the municipality. The causes of action are different at law. General Statutes 7-308 causes the municipality to be liable as an indemnitor of the employee. General Statutes 52-557 (n) provides for a direct cause of action against the municipality as the principal of the negligent agent, akin to the common law doctrine of respondent superior.
The causes of action are independent, and are not mutually exclusive. If the legislature had intended 52-557n to be dependent upon the procedures of General Statutes 7-308, then General Statute 52-557n would have referred to General Statutes7-308, by reference to specific provisions of that statute, or by retaining General Statutes 7-308 as an exclusive remedy, as is done in the body of the statute, 52-557n, in dealing with defective roads and bridges by its making specific reference to General Statutes 13a-149.
This the legislature chose not to do. The existence of, and the assertion of a companion claim under General Statutes 7-308
does not affect the viability of the cause of action asserted under General Statutes 52-557n.
The motion to dismiss is denied.
/s/ L. Paul Sullivan L. PAUL SULLIVAN, J. | 01-03-2023 | 07-05-2016 |
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