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https://www.courtlistener.com/api/rest/v3/opinions/2441382/ | 966 N.E.2d 617 (2008)
381 Ill. App. 3d 1168
359 Ill. Dec. 296
MARSHALL
v.
H & R BLOCK, INC.
No. 5-06-0653.
Appellate Court of Illinois, Fifth District.
May 21, 2008.
Rev'd & rem. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606270/ | 349 So. 2d 124 (1977)
Thadeus WRIGHT
v.
STATE.
1 Div. 840.
Court of Criminal Appeals of Alabama.
August 16, 1977.
No brief for appellant.
William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
LEIGH M. CLARK, Supernumerary Circuit Judge.
On June 3, 1974, appellant was adjudicated a youthful offender by the Circuit Court of Baldwin County under an indictment charging forgery. He received a sentence of two years, which was suspended, and he was placed on probation for three years. On August 6, 1976, a proceeding to revoke his probation was instituted. On February 2, 1977, a probation revocation hearing was conducted wherein it was shown that appellant had been convicted on June 30,1976, in the Circuit Court of Mobile County on six charges of forgery. At the probation revocation hearing appellant was present and represented by counsel. His probation was revoked, and he was ordered to serve the sentence imposed on him on June 3, 1974. This appeal is from the order of revocation and reinstatement of his sentence.
*125 The evidence on the probation revocation hearing consisted of duly certified official documents showing appellant's conviction in the Circuit Court of Mobile County, documents of probation officers, the testimony of the Baldwin County probation officer, and the testimony of appellant. It was established on the hearing that appellant had a criminal record in Mobile County and had been placed on probation by the Circuit Court of Mobile County prior to his conviction on the six charges of forgery on June 30, 1976, and that sometime prior to that date such probation had been revoked by the Circuit Court of Mobile County. The evidence also shows that it was understood between the probation office in Mobile County and the probation office in Baldwin County that the probation office in Mobile County was to supervise appellant's probation cases.
On the hearing in the case under review, counsel for the probationer-appellant took the position that he was denied "a swift and speedy probation hearing" and that the delay of approximately seven months between the occurrence or occurrences that prompted the proceeding to revoke and the hearing that culminated in the revocation vitiated the order of revocation. In an opinion by Judge DeCarlo, we have recently held to the contrary:
"The application of the speedy trial principle to probation revocation hearings has not been determined in Alabama. This is the first occasion when such an insistence has been made. It is our judgment that a probation violator's warrant could be issued and probation revoked anytime before the expiration of the term for which probation was granted. The right to a speedy trial is not involved. Cox v. Feldkamp, 438 F.2d 1 (5th Cir. 1971); Moultrie v. State of Georgia, 464 F.2d 551 (5th Cir. 1972)." Brantley v. State, Ala.Cr.App., 340 So. 2d 901 (1976).
During the hearing there was an objection by probationer's counsel to a question asked the Baldwin County probation officer relative to the report of the Mobile County probation officer, on the ground that the report was not made by the witness. The objection was overruled. Promptly after the overruling of the objection, State's counsel interrogated the witness as to the receipt by him of the report in the regular course of business. Thereafter, counsel for probationer questioned the witness as to the report. It seems that the only question to which the objection was made was never answered by the witness, other than as it may have been answered by his testimony in response to other questions asked him by counsel for the State, or in his testimony in reply to questions asked by counsel for the probationer. No injury resulted to appellant from the overruling of the objection. Furthermore, a proceeding to revoke probation is not a criminal prosecution, and on a hearing thereof, the court is not bound by strict rules of evidence. Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975); Martin v. State, 46 Ala.App. 310, 241 So. 2d 339 (1970); Nicholson v. State, 56 Ala.App. 3, 318 So. 2d 744 (1975).
The trial court was well within its rightful exercise of discretion in revoking appellant's probation. There is no definite criterion or measure of proof necessary to justify the revocation of one's probation. Only a gross abuse of discretion will justify the reviewing court in disturbing the trial court's conclusions. Williams v. State, 40 Ala.App. 139, 109 So. 2d 145 (1959); Nicholson v. State, supra,
The judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment is hereby
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606278/ | 349 So. 2d 1117 (1977)
Ranny Lee COCKRELL
v.
WORLD'S FINEST CHOCOLATE COMPANY, INC., a corporation.
SC 2144.
Supreme Court of Alabama.
September 9, 1977.
Rehearing Denied September 30, 1977.
*1118 James H. Lackey, Mobile, for appellant.
Mayer W. Perloff, Mobile, for appellee.
BLOODWORTH, Justice.
Default judgment was entered against defendant, Ranny Cockrell, in favor of plaintiff, World's Finest Chocolate Company, Inc., for $30,647.32 and costs. Defendant filed, and the court denied, a motion to set aside the default judgment. Later, defendant filed, and the court denied, a motion to reconsider the denial of his motion to set aside the default judgment. Defendant appeals, and plaintiff moves to dismiss the appeal with prejudice. The motion to dismiss the appeal is denied. The trial court's denial of defendant's motion to reconsider the denial of his motion to set aside the default judgment is reversed and remanded.
MOTION
Plaintiff contends that defendant's notice of appeal, which was filed on October 25, 1976, was not filed within 42 days after the court's entry of final judgment for plaintiff or the court's denial of defendant's motion to set aside the default judgment. Rule 4, Alabama Rules of Appellate Procedure. Judgment by default was entered on June 17, 1975, and the motion to set aside the judgment was filed on August 14, 1975, and was denied on October 29, 1975. Rule 60(b), Alabama Rules of Civil Procedure. Defendant's motion to reconsider the denial of his motion was filed on October 31, 1975, and was denied on September 29, 1976, after several hearings before the court ore tenus. Plaintiff contends that this order is not an order from which an appeal may be taken. We disagree.
*1119 The order in question, like the order denying the motion to set aside the judgment, is a denial of a Rule 60(b) motion. Although a motion under Rule 60(b), ARCP, "does not affect the finality of a judgment or suspend its operation" and thus does not extend the time for taking an appeal, an order denying such a motion is appealable. An appeal of an order denying a motion under Rule 60(b) presents for review the correctness of the order, not the correctness of the final judgment which the movant seeks to have set aside. Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 411, 318 So. 2d 271 (1975); Wright & Miller, Federal Practice and Procedure: Civil § 2871.
Plaintiff contends also that this appeal should be dismissed because defendant's notice of appeal, by failing to state which order or judgment is being appealed, fails to comply with Rule 3(c), ARAP. The notice states:
"Notice is hereby given that RANNY LEE COCKRELL appeals to the abovenamed court from the order entered in this cause."
Rule 3(c), ARAP, provides, inter alia, that the notice of appeal ". . . shall designate the judgment, order or part thereof appealed from . . .." It is true that defendant's notice of appeal does not state whether the appeal is being taken from the default judgment, the order denying the motion to set aside the judgment, or the order denying the motion to reconsider denial of the motion to set aside the judgment. This, however, is not fatal to defendant's appeal, nor is it reason to dismiss it.
The time for taking an appeal from the default judgment and from the denial of the motion to set aside expired long before the notice of appeal was filed. Consequently, there is only one order from which this appeal could have been takenthe denial of the motion to reconsider the denial of the motion to set aside the judgment.
Under Rule 2(a), ARAP, dismissal of an appeal from an appealable order is mandatory only where notice of appeal was not timely filed. In other cases of failure to comply with the rules, dismissal is discretionary. Because Rule 1, ARAP, mandates that these rules ". . . shall be construed so as to assure the just, speedy and inexpensive determination of every appellate proceeding on its merits," and because the deficiency in defendant's notice of appeal has not left this Court or plaintiff uncertain as to which order is being appealed, we decline to dismiss the present appeal.
MERITS
On April 3, 1975, plaintiff filed suit against defendant, a former employee on open account, for money had and received, and for misrepresentation. On April 10, 1975, defendant was served with a copy of the summons and complaint.
On May 8, 1975, defendant filed with the circuit court a document containing the name of the court, the style of the case, the case number, and defendant's signature. The document was entered upon the docket as "Answer of Defendant," and a copy was forwarded to plaintiff's attorney. The document stated that defendant's attorney would be replying in a few days, that defendant had been out of town since having been served, and that his attorney would be in contact very soon.
On June 17, 1975, on motion of plaintiff and without any notice to defendant, the court entered a default judgment.
On this appeal, defendant contends that the document which he filed on May 8, 1975, constituted an appearance in the action and entitled him to three days' written notice of the application for a default judgment. Rule 55(b)(2), ARCP. He contends further that plaintiff's failure to serve such notice rendered the default judgment void. Alternatively, defendant contends that the judgment is voidable for mistake, inadvertence, surprise, or excusable neglect and that the trial court erred in refusing to set it aside. Rule 60(b)(1), ARCP.
Plaintiff contends that in order to be entitled to relief under Rule 60(b) the movant must allege and prove facts which *1120 would constitute a good and meritorious defense and that defendant did not do so.
We hold that the document filed by defendant on May 8, 1975, constituted an appearance and that defendant was entitled to the "3 days" notice required by Rule 55(b)(2), ARCP.
An appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court. Port-wide Container Co., Inc. v. Interstate Maintenance Corp., 440 F.2d 1195 (3rd Cir. 1971); H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 139 U.S.App.D.C. 256, 432 F.2d 689 (1970); Anderson v. Taylorcraft, Inc., 197 F. Supp. 872 (W.D.Pa.1961). See also Wright & Miller, supra at § 2686; Anno., 27 A.L.R.Fed. 620; Anno., 73 A.L.R. 3d 1250.
The document which defendant filed with the court on May 8, 1975, clearly indicated an intention to submit to the jurisdiction of the court and to defend the action. Plaintiff does not dispute defendant's contention that he had appeared in the action and was entitled to "3 days" notice of application for entry of default.
We hold further that failure to give the required notice in this case requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not. Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963); Press v. Forest Laboratories, Inc., 45 F.R.D. 354 (S.D.N.Y.1968). In so holding, we do not decide whether a default judgment entered without the required notice is void or merely voidable.
It is the view of Wright & Miller that lack of notice should not automatically entitle the defaulting party to relief but should be one of the factors which the court considers when it exercises its discretion in ruling on a motion to set aside the judgment. Wright & Miller, supra at § 2695. See 6 Moore's Federal Practice ¶ 55.05[3]. We do not think this is the better view. Wright & Miller offer no reason for regarding this as the preferable view, and the courts are not in agreement as to the effect of failure to give notice. See Anno., 51 A.L.R. 2d 837.
We think that our approach is more consistent with our policy which favors the determination of cases on the merits and disfavors default judgments. Moreover, our rule makes for certainty in the law namely that the notice required by Rule 55(b)(2), ARCP, must be given when the defaulting party has filed an appearance, as here, and has indicated a clear purpose to defend the action.
The dissent makes two assertions, to which we direct a short response.
First, is the notion that ". . . the `Motion to Reconsider' should be considered as a post-judgment motion . . . deemed denied, under Rule 59.1, ARCP, 90 days after it was filed . . .." The answer is that both parties and the trial judge, below and here, treated the motion as a Rule 60(b) motion. Also, Rule 59.1 states that only post-trial motions filed pursuant to Rule 50, 52 or 59 shall remain pending longer than 90 days. Rule 50 refers to motions for directed verdict and N. O. V., Rule 52 to findings by the Court, and Rule 59 to motions for new trial. No mention is made in Rule 59.1 of a Rule 60(b) motion. The judge held hearings on this motion from the time it was filed until it was acted on September 29, 1976.
Second, it is suggested that our decision will "further delay the disposition of this action, [and] be more expensive." We think not. If a defendant has entered an appearance he is entitled to the three days' notice, because the Rule says so, and if the trial courts ensure, as we know they will, that the three days' notice is given, the merits will be reached, delay will be minimized, and justice will be served.
REVERSED AND REMANDED.
FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C. J., and MADDOX, J., dissent.
*1121 TORBERT, Chief Justice (dissenting):
The motion to set aside the default judgment, entered June 17, 1975, was filed August 18, 1975, and was denied October 20, 1975. A motion to reconsider the denial of the motion to set aside the default judgment (the second motion) was filed October 31, 1975, and was denied September 29, 1976, some 11 months later. The majority holds that this appeal was taken from the denial of the second motion rather than the first motion to set aside the default judgment; otherwise, this appeal would not have been timely filed.
I am troubled with the opinion of the majority in its decision to treat the second post-judgment motion (a motion to reconsider the denial of the motion to set aside the default judgment) as a 60(b) motion. Can there be successive 60(b) motions ad infinitum? I do not think so, at least not in this case where no additional or different grounds were assigned in the second motion from which the majority holds the appeal was taken. The reasoning of the majority would lead to results certainly not intended, that is, successive 60(b) motions over whatever period of time the movant decided to extend the judicial proceeding where a final judgment was rendered. Would the majority hold that another "60(b) motion" to reconsider the motion to reconsider the denial of the motion to set aside a default judgment is an appealable 60(b) motion, with the result that, if a defect [failure to give the three days notice required by Rule 55(d)(2) ARCP] were found in the original default judgment, it would, therefore, be set aside?
In any event, this "first" 60(b) motion did not affect the finality of the default judgment or suspend its operation, or toll the time for appeal from the judgment. Rule 60(b) ARCP; Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So. 2d 271 (1975). The trial court denied the "first" 60(b) motion on October 29, 1975. This order of denial was a final order and appealable as such. 7 Moore's Federal Practice, § 60.30[3].
Since the order of denial was entered prior to December 1, 1975, the defendant had six months within which to appeal from that order, that is, April 29, 1976. He did not do so. He followed a route followed by defendants in two recent federal cases. In Pulliam v. Pulliam, 156 U.S.App.D.C. 25, 478 F.2d 935 (1973), defendant had suffered a default against him. He filed what he styled a "Motion to Reinstate Cause," which the district court treated as a 60(b) motion, and which the court denied. Defendant changed counsel and new counsel filed what he styled a "Motion to Reconsider Motion to Reinstate Cause Herein, Interpreted as a Motion to Set Aside Default." This motion was also denied by the court. At page 27, 478 F.2d at page 937, the court said:
"On August 6, 1970, defendant, represented by new counsel, filed a document entitled a Motion to Reconsider Motion to Reinstate Cause Herein, Interpreted as Motion to Set Aside Default. Defendant resolved any doubts as to his intentions when, four days later, he filed a statement of points and authorities indicating that his document should be taken as a motion to set aside the default judgment. Again, however, no supporting affidavits were filed. The motion was denied on Aug. 14, 1970. We need not now become involved in the issue whether the defendant's default was premised on the excusable neglect of his counsel or whether the trial court abused its discretion in denying the defendant's rule 60 motion to set aside the default judgment. Defendant had 30 days in which to appeal to this court from that decision.6 He did not do
"6 Fed.R.App.P. 4(a). The time for filing an appeal is not tolled by filing a set aside motion pursuant to rule 60."
so. The issue of the default judgment must therefore be taken as settled in this case.
. . . . . .
In Burnside v. Eastern Airlines, Inc., 519 F.2d 1127 (5th Cir., 1975), that court reached a similar result:
"Plaintiffs Burnside, Wooten and Hunter filed their initial complaint in this title VII employment discrimination suit *1122 on August 3, 1973. On January 18, 1974, the district court dismissed remaining plaintiff Burnside's amended complaint1
"1 Plaintiff Burnside's amended complaint of November 30, 1973, deleted Wooten and Hunter as plaintiffs and sought additional class relief for all past and present Black employees of Eastern Airlines.
for failure to respond to defendant's motion to dismiss. At the same time, the district judge ordered that the cause be dismissed as a class action by reason of plaintiff's failure to appear at a special hearing called to consider the appropriateness of proceeding with the class action. Almost seven months later, on August 8, 1974, plaintiff Burnside filed a Rule 60(b) motion for relief from the district court's granting of the motion to dismiss. The district court denied plaintiff's motion, and plaintiff failed to prosecute an appeal from that denial. After substitution of counsel, plaintiff filed a second Rule 60(b) motion for relief on January 23, 1975. Six days later the district court denied plaintiff's second motion and plaintiff filed timely notice of appeal.
"The clear purpose of plaintiff Burnside's second Rule 60(b) motion for relief from judgment was circumvention of the time limit for notice of appeal provided in Fed.R.App.Proc. 3(a) and 4(a).2 The
"2 Filing of notice of appeal within the 30 day time period specified in Rules 4(a) and 3(a) is mandatory and jurisdictional, and absent compliance, the appeal must be dismissed. Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 5 Cir. 1970, 435 F.2d 150; Knowles v. United States, 5 Cir. 1958, 260 F.2d 852, 854."
proper course of action for plaintiff Burnside, at best, would have been to file a notice of appeal within thirty days of the district court's granting of the motion to dismiss. At a minimum, the filing of notice of appeal in the district court after denial of the initial Rule 60(b) motion might well have afforded plaintiff some relief. Had plaintiff pursued the latter, appellate review would be limited to the district court's exercise of discretion in denying the Rule 60(b) motion, and would not have extended to consideration of the motion to dismiss granted on January 18, 1974. Saenz v. Kenedy, 5 Cir. 1950, 178 F.2d 417, 419; Wagner v. United States, 2 Cir. 1963, 316 F.2d 871. The well-recognized rule, however, and that which comports with the time limit imposed by Rules 4(a) and 3(a), precludes the use of a Rule 60(b) motion as a substitute for a proper and timely appeal. Horace v. St. Louis Southwestern R. Co., 8 Cir. 1974, 489 F.2d 632; Hodgson v. United Mine Workers of America, 1972, 153 U.S.App. D.C. 407, 473 F.2d 118; Wojton v. Marks, 7 Cir. 1965, 344 F.2d 222; Demers v. Brown, 1 Cir., 343 F.2d 427, cert. denied, 1965, 382 U.S. 818, 86 S. Ct. 40, 15 L. Ed. 2d 64.
It is apparent that, as defendant failed to appeal from the entry of the default judgment or from the denial of his 60(b) motion, the issue of the default judgment must be taken as settled. Pulliam, supra.
At most, the "Motion to Reconsider" should be considered as a post-judgment motion, attacking the judgment of denial of the 60(b) motion, which was a final appealable order. So considered, it was deemed denied, under Rule 59.1, ARCP, 90 days after it was filed, in absence of consent of all the parties, in the record, or unless extended by the appropriate appellate court, this court in this case. Under Rule 59.1, the motion was pending for more than 90 days on January 29, 1976; hence, any appeal from the denial of that motion should have been filed within 42 days after January 29, 1976.
Because the default judgment was entered prior to December 1, 1975, the effective date of the Alabama Rules of Appellate Procedure, the defendant had six months within which to appeal rather than the 42 days now provided. However, he did not appeal, but filed a 60(b) motion on August 18, 1975, apparently because more than thirty days had passed since the entry of the judgment by default. See Committee Comments to Rule 55, which reads:
"Rule 55(c) differs from the Federal Rule. It has no express reference to Rule 60, Relief From Judgment or Order, as does the Federal counterpart. This was *1123 eliminated in order to insure the court's power to set aside a default judgment in thirty days in an instance where Rule 60 might not afford justification. No time limit is expressed with respect to an entry of default. Of course, Rule 60 becomes available when more than thirty days has passed since the entry of the judgment by default."
The majority would also vacate a default judgment irrespective of the fact that the defendant failed to offer evidence of a meritorious defense to the action. The better view, I submit, would be to require some showing of a meritorious defense in cases of this sort. For example, in Vestavia Country Club v. Armstrong, 271 Ala. 294, 123 So. 2d 130 (1960), this court cited with approval the law with respect to the setting aside of a judgment rendered without proper service:
"While a court of equity, or a law court acting under the four months statute Section 9521will set aside a judgment rendered without proper service against a party to the suit, yet to secure such relief the aggrieved party must both allege and prove that he has a meritorious defense, and that he was prevented by surprise, accident, mistake or fraud, without fault on his part, from interposing such meritorious defense to the action. He is required to allege and prove a meritorious defense for the reason that it would be idle and useless to set aside a judgment, when, so far as it is made to appear, the judgment rendered was correct, and on another trial a like judgment would be rendered."
Id. at 297, 123 So.2d at 133 (citations omitted).
In Trueblood v. Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D.Va.1963), District Judge Hoffman set forth the meritorious defense requirement as follows:
"Not only must there exist a good reason to set aside the default on the ground of `mistake, inadvertence, surprise, or excusable neglect,' but the moving party must show that he has a meritorious defense to the action. The bare wording of Rule 60(b) does not require the showing of the existence of a meritorious defense but this is judicially established and apparently is left within the sound discretion of the trial court. Just as there are few guideposts as to what constitutes excusable neglect or inadvertence in any given case, there is no universally accepted standard among courts as to what satisfies the requirement that a party show a meritorious defense."
32 F.R.D. at 196.
Where in this case the defect complained of was the failure to give the three days notice it should follow that the aggrieved party (the defendant) be required to show that he had a meritorious defense to the action. The cases cited by the majority to the contrary did not involve a second motion as here, to-wit: a motion to reconsider the denial of the motion to set aside the default judgment because of the failure to give three days notice.
Undoubtedly, the defendant's first postjudgment motion to set aside the default judgment was a 60(b) motion, the denial of which would support an appeal. However, defendant's second motion was not an attack on the default judgment itself, but was merely a motion requesting the trial court to reconsider its prior ruling on a 60(b) motion. Moreover, the second motion, even if considered as a 60(b) motion, presents for review the correctness of the order, not the correctness of the final default judgment. Coosa Marble Co., Inc. v. Whetstone, supra. Therefore, in cases of this sort, the appellate court should pay deference to the discretion of the trial court. On appeal, the appellate court should not set aside the trial court's exercise of discretion unless it finds under the circumstances of the particular case the trial court abused its discretion. Hand v. United States, 441 F.2d 529 (5th Cir. 1971). Rule 55(c) ARCP clearly recognizes the discretion of the trial court as to the setting aside of a default judgment.
The majority reasons that Rule 1 ARAP which mandates that the rules be construed to assure the "just, speedy and inexpensive *1124 determination of every appellate proceeding on its merits" supports its result. But it can just as easily be reasoned that the decision of the majority will further delay the disposition of this action, be more expensive, and, since the appellant failed to show a meritorious defense, will not determine the matter on its merits. Justice Story's apothegm states it succinctly:
"It is for the public interest and policy to make an end to litigation . . ." so that ". . . suits may not be immortal, while men are mortal."
Ocean Ins. Co. v. Fields, 18 F.Cas. pp. 532, 539 (No. 10,406) (C.C.D.Mass.1841).
I would hold that the appeal was not timely filed and therefore should be dismissed. In the alternative, there being no showing that the trial court abused its discretion, I would affirm its decision.
MADDOX, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3021689/ | Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-16-2006
Stolt Nielsen v. USA
Precedential or Non-Precedential: Precedential
Docket No. 05-1480
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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/998
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-1480
STOLT-NIELSEN, S.A., et al.
v.
UNITED STATES OF AMERICA, Appellant
(U.S. District Court for the Eastern District of PA: No. 04-cv-00537)
Present: AMBRO, Circuit Judge and RESTANI, Judge of International Trade
Letter dated 03/24/06 construed as Motion by Appellant, USA, to Amend
Opinion filed 03/23/06.
/s/ Aina R. Laws
Opinion filed 03/23/06 Case Manager 267-299-4957
ORDER
The foregoing motion is granted.
By the Court,
/s/ Thomas L. Ambro, Circuit Judge
Dated: May 16, 2006
ARL/cc: JPF; JJP; JAB; ADB; IAC; CMC; GAD; JMG; RDL | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1606427/ | 359 Mich. 494 (1960)
102 N.W.2d 575
ROBERT McDANIEL TRUCKING CO., INC.,
v.
OAK CONSTRUCTION COMPANY.
Docket No. 73, Calendar No. 48,369.
Supreme Court of Michigan.
Decided April 12, 1960.
Wilber M. Brucker, Jr., for plaintiff.
Burke & Osgood (John B. Osgood, of counsel), for defendant.
Amicus curiae:
William B. Elmer (Sullivan, Elmer, Eames & Moody, of counsel), for Aggregates Carriers of Michigan, Inc.
CARR, J.
The facts and issues in this case were stipulated in circuit court and the cause submitted to the trial judge for determination. During the summer of 1958 and for some time prior thereto plaintiff was engaged in the business of hauling sand and gravel as a common carrier under a certificate of authority issued to it by the Michigan public service commission. Under date of May 10, 1957, the commission by order specified minimum rates to be *497 charged by sand and gravel motor carriers. On June 14th following plaintiff caused to be published its tariff consistent with the minimum rates as prescribed. Such rates remained in force and effect during the period involved in this controversy.
At the time in question defendant was engaged in the construction of concrete pavement and work of similar character requiring the use of sand and gravel. In the conduct of its business it purchased materials from a supplier and procured the same to be hauled by truck to its yards. Prior to July 7, 1958, defendant had engaged plaintiff for the rendition of the hauling service, paying therefor at the rate set forth in the published tariff. On the date mentioned defendant advised plaintiff that it was in position to obtain a delivered price for sand and gravel which was lower than the combined prices being paid by it to its supplier and the tariff rate that had been paid to plaintiff. The result was an agreement between the parties whereby plaintiff contracted to haul sand and gravel, as a common carrier, for defendant at the rate of 46 cents per 1,000 pounds for delivery in Royal Oak township, Oakland county. Such rate was below the published rate for such service and in violation of the order of the public service commission.
During the period from July 7, 1958, to October 20th following plaintiff hauled substantial quantities of sand and gravel for defendant at the contracted rate. Such charges were paid in full. On complaints made to it the public service commission held a hearing with reference to the rates specified in its order of May 10, 1957, and issued warnings against violations of said order. Thereafter by agreement between plaintiff and defendant further hauling was done at the minimum rate as fixed by the commission's order and plaintiff's published tariff. Plaintiff then demanded payment for the difference between *498 the rate fixed by the agreement of the parties and the prescribed minimum tariff rate. Defendant refused payment, claiming that it was not further obligated in view of the agreement of July 7, 1958. It is conceded that the difference between the tariff rate and the contract rate for the period when the latter was observed amounted to $15,986.70. It was stipulated in circuit court that if plaintiff prevailed in the action judgment should be entered for that amount.
In the submission to the trial court of the issue involved defendant contended that the contract between the parties for the transportation service at a rate lower than that fixed by the order of the public service commission and by plaintiff's tariff was illegal, that the contract was incapable of enforcement by either party, and that for such reason plaintiff was not entitled to recover. Reliance was placed on the general rule that where parties have entered into an illegal agreement, and are in pari delicto, the law will not aid either but will leave the parties in the position in which they have placed themselves. The trial judge concluded that the legal principle invoked was applicable and rendered judgment in favor of the defendant, without costs.
Plaintiff has appealed, contending in substance that the trial judge was in error in basing his decision on the principle referred to with reference to the granting of relief in any instance where parties have deliberately made an agreement in violation of the declared public policy of the State. The principle of law underlying the rule of nonintervention by the courts is not questioned, it being the position of plaintiff that under a situation of the character involved in the instant case such rule yields to the overriding proposition that the carrying out of the mandate imposed by statute requires that, irrespective of contractual undertakings, rates *499 of carriers shall be uniform, that discriminations in the form of rebates or otherwise are forbidden, and that the carrier not only has the right but also the duty to collect charges in accordance with the lawful rates prescribed.
In the motor carrier act of the State[*] the legislature has provided for the regulation of motor carriers operating on the public highways, and has vested the public service commission with specific authority with reference to rates and charges for services by such carriers. Sections 6, 7, and 8 of article 2 of said act (CL 1948, §§ 476.6-476 8 [Stat Ann §§ 22.539, 22.540, Stat Ann 1957 Cum Supp § 22.541]) are pertinent to this case and read as follows:
"Sec. 6. Publication and filing of rates. All common motor carriers subject to the provisions of this act, shall before engaging in business, print and file with the commission and keep open to public inspection in each of its depots and offices, schedules showing all rates, fares and charges for transportation of passengers and property between different points on its route, and also between points on its own route and on the route of any other common motor carrier when a through route and joint rate have been established. If no joint rate over the through route has been established the several carriers shall file, print and keep open for public inspection as aforesaid the separately established rates, fares and charges applied to the through transportation, and shall likewise print, file and keep open to the public inspection all other charges, or privileges or facilities, rules or regulations which in anywise change, affect or determine any part of the rates, fares, charges or the value of the service, and such other information as may be required by the commission in its rules and regulations. No common motor carrier shall receive or accept any person or property for transportation *500 upon the highways until the requirements of this section have been complied with: Provided, Nothing in this section or any other section of this act contained shall be construed or held to require the printing, publication or filing by any common motor carrier of passengers, of any tariffs, rates, fares or charges covering, controlling or affecting the charter or special coach business of such carrier.
"Sec. 7. Reasonable rates without unjust discrimination. All rates, fares and charges made by any common motor carrier shall be just and reasonable, and shall not be unjustly discriminatory, prejudicial nor preferential. No such common motor carrier shall charge, demand, collect or receive a greater or less or different remuneration for the transportation of passengers or property, or for any service in connection therewith, than the rates, fares and charges which have been legally established and filed with the commission; nor shall any such common motor carrier refund or remit in any manner or by any device any portion of the rates, fares and charges required to be collected by the tariffs on file with the Michigan public utilities commission or ordered by the commission.
"Sec. 8. Rebates unlawful. Any person, whether carrier, shipper or consignee, or any officer, employee, agent or representative thereof, who shall knowingly offer, grant or give, or solicit, accept or receive any rebate, concession or discrimination in violation of any provision of this act, or who, by means of any false statement or representation, or by the use of any false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, deposition, lease, or bill of sale, or by any other means or device, shall knowingly and wilfully assist, suffer or permit any person or persons, natural or artificial to obtain transportation of passengers or property subject to this article 2 for less than the applicable rate, fare or charge, or who shall knowingly and wilfully, by any such means or otherwise, *501 fraudulently seek to evade or defeat regulations as in this act provided for common motor carriers, shall be deemed guilty of a misdemeanor, and, upon conviction shall be punished by a fine of not more than $100.00, or imprisonment for not more than 90 days, or both."
It is apparent from the sections quoted that the legislature had in mind the protection of the public interest by requiring the publication of rates to be charged by each common motor carrier, to prohibit discriminatory charges, to forbid the observance of rates other than as fixed pursuant to the statute, and to provide a penalty for the granting of rebates in any form and for discrimination forbidden by the act. In the instant case it is obvious, and is in fact conceded, that the agreement between the parties whereby defendant was to receive transportation service at a lower rate than as prescribed by order of the commission, and plaintiff's tariff filed pursuant thereto, was made in violation of the motor carrier act. The parties had the right to contract for the rendition of the hauling service desired by defendant but in doing so they were precluded from fixing rates at variance with those prescribed pursuant to the statute. It is this part of the undertaking as made that is tainted with illegality.
The observance of the mandate of the statute requires that the plaintiff motor carrier charge and collect rates in accordance with the order of the public service commission and the published tariff. To leave the parties where they have placed themselves by denying the right to so recover means as a practical proposition that defendant is relieved of the liability to pay the transportation charges in accordance with the law of the State. It would result in discrimination that for the protection of the public generally is forbidden by law. It would be tantamount to denying recovery of a rebate illegally paid.
*502 It does not appear that this Court has heretofore passed on the precise question here involved. Counsel for plaintiff has, however, cited prior decisions, including Grand Rapids & Indiana R. Co. v. Cobbs & Mitchell, 203 Mich 133, and Federal Gravel Co. v. Detroit & Mackinac R. Co., 248 Mich 49, as bearing on the underlying principle at issue. In other States and also in the Federal courts the question has arisen under statutory provisions analogous to those in the Michigan motor carrier act and under the interstate commerce act. Such decisions recognize the practical necessity of permitting a recovery of the rates fixed by law in order to obviate forbidden practices. In Papetti v. Alicandro, 317 Mass 382 (58 NE2d 155), the State statute involved forbade charging or collecting by motor carriers a different compensation for transportation service than as specified in the tariffs in effect at the time. Rebates were also expressly forbidden. There the plaintiff sought to recover the difference between the minimum rates fixed pursuant to the statute and the sum that he had been paid for the transportation of gasoline and fuel oil for the defendant. The trial court directed a verdict in favor of the defendant on the theory that the plaintiff was not entitled to recover under the averments of his declaration. In reversing the holding, the supreme court of the State said in part:
"Unless the plaintiff is prevented by some rule of law, he is entitled to maintain this action. We think that the plaintiff not only is not so barred, but that it is both his right and duty to recover the rebates. The provisions of G.L. (Ter. Ed.) c. 159B, as inserted by St. 1934, c. 264, and as revised by St. 1938, c. 483, bear resemblance respectively to the provisions of the interstate commerce act, USC (1940 ed), title 49, as to railroads, §§ 6, 2, 10, and as to common carriers by motor vehicle, §§ 316-327, the latter being *503 first enacted in 1935 (49 Stats 558-567). With respect to the former Federal enactment numerous decisions of the supreme court of the United States and of this court are authorities for the plaintiff. `Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay.' Kansas City Southern R. Co. v. Carl, 227 US 639, 653 (33 S Ct 391, 57 L ed 683). The `effect of filing schedules of rates with the interstate commerce commission was to make the published rates binding upon shipper and carrier alike, thus making effectual the purpose of the act to have but one rate, open to all alike and from which there could be no departure.' Boston & Maine Railroad v. Hooker, 233 US 97, 112 (34 S Ct 526, 58 L ed 868, LRA 1915B, 450). `The transaction between the parties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier.'" (Citing cases.)
Of like import is Heuer Truck Lines v. Brownlee, 239 Iowa 267 (31 NW2d 375). There the plaintiff, a common carrier by motor trucks, transported certain merchandise, pursuant to agreement, at a lesser rate than as fixed by its schedule of rates filed with the Iowa commerce commission. The trial court sustained the right of recovery on the basis that the plaintiff was required by law to make charges in accordance with the schedule filed, that any agreement to transport for a lesser charge was unlawful and void, that defendants had knowledge of the schedule of rates, and that any agreement between the parties for the rendition of service at a lower rate would constitute a preference to the defendants and an unlawful discrimination against others. The supreme court of the State affirmed *504 the conclusions of the trial court, holding specifically that the doctrine of estoppel could not be invoked to bar recovery. In this connection it was said (p 274):
"If there was an agreement between defendants and plaintiff, in order that the plaintiff be estopped, such agreement must necessarily be valid and enforceable. There was no such enforceable contract here, since it was contrary to the rates adopted and contrary to the rule that there should be no discrimination in favor of one, or preferential treatment. We agree with the court that there was no estoppel." (Citing cases.)
In view of the claim of the defendant in the case now before us the decision of the supreme court of Minnesota in Johnston v. L.B. Hartz Stores, Inc., 202 Minn 132 (277 NW 414), is of interest. There the plaintiff brought action to recover the difference between what it had been paid as a carrier for transporting goods for the defendant and the minimum rate for such transportation as fixed by the railroad and warehouse commission of the State. There, as in the case at bar, the parties had undertaken to enter into a contract for the transportation of goods at a rate less than as prescribed. It was conceded that the contract was illegal, and the defendant contended that because of such illegality the parties were in pari delicto and that the courts should "leave the parties where they find themselves." After discussing the provisions of the State statute with reference to transportation rates, it was said (pp 134-136):
"Will it effectuate the purposes of the act to treat the contract as an ordinary illegal contract, where the courts normally leave the parties where they find themselves, or is the public policy behind the enforcement of the act paramount to the public policy usually applied to ordinary illegal contracts? Is it necessary that in order to effectuate the purposes *505 of the act we must permit a recovery of the undercharge? What was the legislative intent?
"The subject matter of the agreement insofar as it relates to the transportation of property is a perfectly legitimate subject of contract. It is only the agreement to carry at a lesser rate than the minimum prescribed by the commission that constitutes the illegal feature. There is no specific provision in c 170 that a carrier may recover such an undercharge, but we are asked to imply that right from the language of section 8 and the general purpose of the act as announced by the legislature.
"Under the interstate commerce act, common carriers are permitted to recover undercharges, although the language of that act is not quite so strong as is section 8 of c 170, and although there is no specific provision for the recovery of undercharges. See 49 USCA, § 6, par (7). It is quite true that the purposes underlying the regulation of common carriers are primarily the establishment of reasonable rates and the prevention of discrimination, but in order to effectuate such purposes it becomes necessary to render contracts for any other rate nugatory and to treat the contract for carriage as one for the established rate and permit a recovery for an undercharge. Obviously the permitting of such a recovery is a much more effective way of enforcing the law than any other could possibly be. The same is true of the contract carrier act. Fines and penalties might be imposed, but the pressure of the shippers upon the carriers for reduced rates in violation of the statute will almost entirely be relieved if the shippers know that notwithstanding any illegal bargain that is made recovery may still be had on the basis of the minimum rate fixed by the commission. Collusion between the carrier and the shipper to circumvent the law, which would otherwise be easy of accomplishment, will be practically eliminated. All these considerations apply with equal force to the maintenance of the contract carrier rates fixed by the commission. The conservation of the highway *506 and the safety of the public are just as dependent upon the maintenance of the contract carrier rates as the objects sought by the common carrier acts are dependent upon the maintenance of the rates fixed by the commission. In our opinion, the public welfare calls more imperatively for the enforcement of the former than the latter. It is paramount to any public policy which may be invoked to leave the parties where they find themselves. In our opinion, the minimum rates fixed by statute should be read into the contract as binding upon defendant, and there can be no estoppel by virtue of the agreement to take the illegal rate. City of St. Paul v. Minnesota Transfer R. Co., 155 Minn 237, 240 (193 NW 175). The right of private contract at a lower rate has been taken from both the shipper and the carrier and the minimum rate substituted therefor. Such, in our opinion, was the legislative intent."
The above decision of the Minnesota court was cited and followed in Hawley v. Little Falls Mill & Mercantile Co., 220 Minn 165, 168 (19 NW2d 161), where it was said:
"The law is well established that a contract carrier may bring action against a shipper to recover full freight charges as fixed by the State railroad and warehouse commission, notwithstanding an agreement between them to transport merchandise at a lower rate. While the carrier is equally guilty with the shipper in attempting to evade the law, nevertheless the carrier may recover any balance due, in accordance with the established rates. This is to deter and discourage agreements to carry freight at less than the lawful rates. Under such circumstances, as this court held in Johnston v. L.B. Hartz Stores, Inc., 202 Minn 132 (277 NW 414), the contract between the carrier and the shipper becomes one for the minimum rate authorized by the commission, notwithstanding the agreement to the contrary. While ordinarily parties to an illegal agreement are left where the court finds them and *507 neither may recover from the other for violation of rights under such agreement, where freight rates are involved, since the public and other shippers are also concerned with enforcement of the law, the courts have permitted the carrier to recover the full rate, even though he be equally guilty with the shipper."
The Federal courts have repeatedly held in cases involving the application of the interstate commerce act that under the provisions thereof requiring the charging of rates by carriers in accordance with tariffs filed and in effect at the time, and forbidding rebates and discrimination in any form, parties to a transportation agreement are bound by the published rates and the carrier is entitled to collect accordingly. In Pittsburgh, C., C. & St. L.R. Co. v. Fink, 250 US 577 (40 S Ct 27, 63 L ed 1151), the consignee of a certain shipment by freight paid the freight charges in accordance with the bill presented to him. There was a variance, however, between the amount so paid and the filed rate. Quoting the provisions of the statute, the court in holding that plaintiff was entitled to recover the difference between the amount accepted by the carrier and the legal charge said, in part (pp 581, 582):
"It was, therefore, unlawful for the carrier upon delivering the merchandise consigned to Fink to depart from the tariff rates filed. The statute made it unlawful for the carrier to receive compensation less than the sum fixed by the tariff rates duly filed. Fink, as well as the carrier, must be presumed to know the law, and to have understood that the rate charged could lawfully be only the one fixed by the tariff. When the carrier turned over the goods to Fink upon a mistaken understanding of the rate legally chargeable, both it and the consignee undoubtedly acted upon the belief that the charges collected were those authorized by law. Under such circumstances consistently with the provisions of the *508 interstate commerce act the consignee was only entitled to the merchandise when he paid for the transportation thereof the amount specified as required by the statute. For the legal charges the carrier had a lien upon the goods, and this lien could be discharged and the consignee become entitled to the goods only upon tender or payment of this rate. Texas & Pacific R. Co. v. Mugg, 202 US 242 (26 S Ct 628, 50 L ed 1011). The transaction, in the light of the act, amounted to an assumption on the part of Fink to pay the only legal rate the carrier had the right to charge or the consignee the right to pay. This may be in the present as well as some other cases a hardship upon the consignee due to the fact that he paid all that was demanded when the freight was delivered; but instances of individual hardship cannot change the policy which Congress has embodied in the statute in order to secure uniformity in charges for transportation."
The above decision was followed in New York Central & Hudson River R. Co. v. York & Whitney Company, 256 US 406 (41 S Ct 509, 65 L ed 1016), where it was said:
"We think the doctrine announced in Pittsburgh, C., C. & St. L.R. Co. v. Fink, 250 US 577 (40 S Ct 27, 63 L ed 1151), is controlling, and that the liability of York & Whitney Company was a question of law. The transaction between the parties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier."
In Louisville & Nashville R. Co. v. Central Iron & Coal Company, 265 US 59 (44 S Ct 441, 68 L ed 900), the plaintiff carrier sought to recover the difference between the amount that it had accepted in payment of freight charges and the amount fixed by the tariff on file with the interstate commerce *509 commission. Citing the prior decisions above discussed, it was said (p 65):
"The shipment being an interstate one, the freight rate was that stated in the tariff filed with the interstate commerce commission. The amount of the freight charges legally payable was determined by applying this tariff rate to the actual weight. Thus, they were fixed by law. No contract of the carrier could reduce the amount legally payable; or release from liability a shipper who had assumed an obligation to pay the charges. Nor could any act or omission of the carrier (except the running of the statute of limitations) estop or preclude it from enforcing payment of the full amount by a person liable therefor."
Of like import are Louisville & Nashville R. Co. v. Williamson (CCA 5), 87 F2d 34; New York Central R. Co. v. Transamerican Petroleum Corporation (CCA 7), 108 F2d 994 (129 ALR 206); Pennsylvania R. Co. v. Cameron, 280 Pa 458 (124 A 638, 33 ALR 1281); Garrison Coal Co. v. Hinds, Director Gen. of R.R., 118 Okla 251 (247 P 62, 46 ALR 1151). In the Oklahoma Case the action was brought against the defendant Coal Company to recover additional charges in accordance with its liability under the tariff filed with the interstate commerce commission. The defendant claimed that it had accepted and paid a voucher covering charges on the shipments in question on which voucher there was a notation to the effect that it was "in full settlement." In rejecting the defense, it was said (p 254):
"The effect of the acceptance of the voucher was to operate as a satisfaction of that portion of the indebtedness, as created by the tariff, equal to the sum of money received from the voucher. The carrier's acceptance of a payment for freight and demurrage charges, less than the amount due according to the rates and charges prescribed by the tariff, *510 does not operate as a satisfaction for a greater charge than the amount of the payment. A payment of a less sum of money than the amount of charges as fixed by the tariff would not operate to satisfy fully the indebtedness, even though the consignee and carrier intended the less payment to be full payment of the charges. The rate laws were enacted and the tariff rates created and established for the purpose of preventing discrimination in favor of or against consignees and shippers. A discrimination in favor of or against a shipper or consignee cannot be justified, either by mistake or agreement. The carrier is obligated to charge for services and receive compensation for such services according to the published tariff rates, and the consignees and shippers must pay for such services according to the prescribed rates. Mistake or agreement will not relieve the parties from such obligations." (Citing cases.)
The intent of the legislature in the enactment of the provisions of the motor carrier act here involved is clear. It was sought to protect the public against discrimination by carriers and to insure uniform rates for transportation services. To that end agreements between shippers and motor carriers for the payment of rates varying from those prescribed by the public service commission and set forth in the tariff of each carrier as filed with the commission were barred. The accomplishment of the purpose sought requires that a carrier operating under a State certificate must charge and must collect the rates fixed in accordance with the law.
We are not dealing here with an ordinary type of contract between individuals but with a matter affecting the public generally. The claim of the defendant that the parties must be left where they have placed themselves pursuant to the principle commonly recognized in cases involving ordinary illegal contracts may not be accepted. Such principle *511 must yield to the rule of public policy that the courts in the decisions above cited, and in other decisions of like nature, have recognized as paramount. The public welfare will be best served by accepting the doctrine that shippers and motor carriers entering into agreements for transportation services shall be deemed to have made the kind and character of contract permitted by the statute regulating such transaction.
The judgment of the circuit court is reversed, and the case remanded with directions to enter judgment pursuant to the stipulation of the parties and in the amount therein set forth. Plaintiff may have costs of this appeal.
DETHMERS, C.J., and KELLY, SMITH, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.
NOTES
[*] PA 1933, No 254, as amended (CL 1948, § 475.1 et seq., as amended [Stat Ann § 22.531 et seq., as amended.]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606431/ | 258 Minn. 88 (1960)
102 N.W. (2d) 822
LESTER B. JOHANTGEN
v.
LOUIS A. BANK AND OTHERS.
No. 37,858.
Supreme Court of Minnesota.
May 6, 1960.
Gerald T. Carroll, Silver, Goff, Ryan, Wallace & Newcome, and Allen H. Aaron, for appellant.
Bowen, Bowen, Preus & Farrell, for respondent.
KNUTSON, JUSTICE.
This is an appeal from an order denying defendant Louis A. Bank's motion for a new trial.
The action was brought by plaintiff as the owner of certain premises in Hennepin County to remove adverse claims of defendants as holders of an alleged state assignment certificate issued by the county auditor of Hennepin County pursuant to a sale of the premises for delinquent taxes. The facts essential to a determination of the issue involved may be briefly stated. Plaintiff alleges that he is the owner of the real estate involved upon which a state assignment certificate has been issued to defendants, which certificate plaintiff claims is void. For many years prior to the times here involved, plaintiff has been the owner in fee of the tract of land involved. Either through his own fault, or through the fault of the county treasurer of Hennepin County, the taxes on the property for the second half of 1950 were not paid in 1951. On March 17, *89 1952, a real estate tax judgment was entered against the property, and a sale of the property was held on May 12, 1952, pursuant thereto. There being no qualified bidder, the land was bid in for the state. On January 18, 1957, a state assignment certificate was issued to defendant Louis A. Bank upon payment of the sum of $297.74, the amount of delinquent taxes, penalties, costs, and interest. The land has an estimated value of $30,000. A notice of expiration of time of redemption, dated March 15, 1957, was served upon plaintiff on March 18, 1957, and the sheriff's return of service filed in the office of the county auditor on March 19, 1957. No redemption of the property was made during the 60 days following March 19, 1957.
Plaintiff asserts several grounds for the invalidity of defendants' tax title, and the trial court found for plaintiff on all grounds. We need consider only the finding that the state assignment certificate was void for failure to name all purchasers.
Defendant Bank testified that, although the certificate was issued in his name alone, defendant Charles Hillman was also a purchaser, contributing one-half of the funds necessary to purchase the assignment certificate. Defendant Hillman did not appear at the trial. The trial court held that the certificate was void for failure to name the true purchasers and for other reasons.
Proceedings for the enforcement of delinquent real estate taxes under which title may be divested are to be strictly construed in favor of the landowner.[1]
M.S.A. 280.11 provides the form of certificate to be used upon an assignment where lands are bid in for the state. In the form so provided, provision is made for the name of the purchaser.
Section 280.05 provides:
"No county auditor, county treasurer, clerk of the district court, or deputy or clerk of such officer, may become a purchaser at such sale, or procure an assignment of the right acquired by the state in lands *90 bid in for it at such sale, as in this chapter provided in sections 280.06 to 280.12, either in his own behalf, or as agent or attorney for any other person, except that such officer, deputy, or clerk may purchase lands owned by him, or on which he has a lien, or procure such assignment of the state's right in such lands."
Section 280.33 provides in part as follows:
"* * * No sale shall be set aside or held invalid by reason of * * *; nor unless the party objecting to the same prove either that the taxes were paid before the judgment was rendered, or that such parcel was exempt from taxation, or that the court rendering the judgment pursuant to which the sale was made had not jurisdiction to render the same, or that after the judgment and before the sale such judgment had been satisfied, or that notice of sale as required by this chapter was not given, or that such parcel was not offered at such sale to the bidder who would pay the amount for which the parcel was to be sold at the lowest rate of interest, as provided in this chapter; * * *."
It is to be noted that this statutory provision does not specifically permit invalidation of an assignment certificate purchased by one prohibited under § 280.05 from becoming a purchaser. It is clear, however, that public policy proscribes the purchase of lands at tax judgment sales or the issuance of state assignment certificates to the officials mentioned in § 280.05, who are directly or indirectly connected with the administration of tax enforcement proceedings. If such sale or assignment is made to one of the officials whom the statute prohibits from becoming a purchaser, the only way in which this public policy can be enforced is by declaring the certificate void. That is true whether the certificate is taken in the name of the designated official or in the name of some other person in his or her behalf.[2] Otherwise the purpose of the statute could easily be thwarted by the simple expedient of issuing an assignment certificate in the name of another person and then acquiring title later. The only way this statute can be enforced is by requiring the name of the purchaser to be shown on the certificate itself.
*91 Although it does not appear affirmatively from the evidence in this case that any official prohibited by the statute from purchasing an assignment certificate did have an interest in it, the enforcement of the statutory prohibition would become virtually impossible if the party attacking the certificate would be required to show that such officer was in fact one of the named purchasers. The trial court was of the opinion that persons other than Hillman were interested in the certificate[3] and that the mere fact that an undisclosed person was interested in the certificate should be sufficient to invalidate it. We are *92 inclined to agree. We therefore hold that any assignment certificate which does not name all purchasers interested therein is null and void, whether such purchasers are officials prohibited by § 280.05 or not. It has been suggested that the named purchaser who is not disqualified should be permitted to take the title. Such a rule would do nothing to discourage that which the statute intends to prohibit but might actually encourage conspiracy with disqualified officers, since a subsequent disclosure that they were interested in the purchase would only result in the acquisition of title by a conspirator. We believe that the only way to discourage the purchase of such certificates by undisclosed individuals, and particularly those disqualified by the statute from becoming purchasers, is to hold such certificates void. Accordingly there must be an affirmance.
Affirmed.
MR. JUSTICE MURPHY took no part in the consideration or decision of this case.
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] Warroad Co-op. Creamery Co. v. Hoyez, 182 Minn. 73, 233 N.W. 824; Bratrud v. Security State Bank, 203 Minn. 463, 281 N.W. 809; 18 Dunnell, Dig. (3 ed.) § 9180.
[2] See, 85 C.J.S., Taxation, § 809j.
[3] Part of the court's findings reads:
"* * * In addition to Hillman, there are other persons having an interest in the certificate. They are unknown to plaintiff. Defendant denies there are such other persons, but defendant's testimony, particularly with respect to what transpired in the auditor's office is incredible.
"Defendant owns no land whatsoever, and has never paid any real estate taxes and has never purchased a tax certificate before. Defendant's story is that he is not related to, nor does he know anybody in the Treasurer's or Auditor's office. Defendant claims he overheard a conversation regarding tax certificates and tax delinquencies; that he went to the auditor's office in March, 1957 and inquired of someone there how many years should expire before property became delinquent; that he received an answer to his inquiry and went to the book for the year showing the plaintiff's judgment, picked out the description, went to the plat and then to view the premises. To repeated questions as to who in the Auditor's office tipped him off to the sale or showed him the particular page, defendant would not answer directly.
"Defendant's memory repeatedly failed him, he impeached himself repeatedly as to his dealings with Hillman and other matters, and although defendant claimed to have received offers for assignment of his claim, he testified that he did not know who made those offers. Defendant's demeanor and attitude as a witness on the stand, his equivocal, evasive and uncertain testimony, and his failure to answer simple questions directly do not permit or justify the giving of any credence to his testimony. Defendant's self-impeachment and self-contradiction, together with his great interest in the outcome of this action, lend no credence to his story. Defendant admits Hillman is a true purchaser. Hillman's name does not appear on the tax certificate. In view of defendant's testimony, this Court cannot believe that there are not others with a purchaser's interest in the certificate, and that they may be those prohibited by law from participating." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606435/ | 258 Minn. 53 (1960)
102 N.W. (2d) 717
MODEL HOME BUILDING, INC.
v.
ARTHUR E. TURNQUIST AND OTHERS.
ST. PAUL FEDERAL SAVINGS & LOAN ASSOCIATION, APPELLANT.
No. 37,882.
Supreme Court of Minnesota.
April 29, 1960.
Gustav C. Axelrod, for appellant.
Johnson & Sands and James D. Rogers, for plaintiff respondent.
Beaudoin, Thuet, Todd & Pavlak, for respondent R & L Lumber Company, d.b.a. Johnson Cashway Lumber Company.
KNUTSON, JUSTICE.
This is an appeal from an order of the district court denying a motion for a new trial.
The facts are not in dispute. On and prior to September 16, 1955, defendants Arthur E. Turnquist and Jane A. Turnquist were the owners of a tract of land situated in Chisago County, Minnesota, used as their homestead. The description of the land is immaterial. On September 16, 1955, defendants Turnquist executed and delivered a mortgage *54 upon these premises to St. Paul Federal Savings and Loan Association securing the sum of $3,000. The mortgage was recorded on September 21, 1955. On July 27, 1956, the Turnquists executed and delivered another mortgage to the same mortgagee securing the sum of $1,700. This mortgage was recorded on August 13, 1956.
On September 29, 1957, a fire occurred which substantially damaged the buildings on the mortgaged premises. On that date the amount due St. Paul Federal Savings and Loan Association on the two mortgages was $4,548.52.
Defendant J.B. Weisser Lumber Company, Inc., had done some work on the premises, which was completed before the fire occurred. Plaintiff and defendant R & L Lumber Company, doing business as Johnson Cashway Lumber Company, supplied material and labor at the request of defendants Turnquist to repair the dwelling damaged by the fire.
On or about December 31, 1957, St. Paul Federal Savings and Loan Association received the sum of $3,210.17 from the proceeds of a settlement of fire insurance carried on the premises as a result of the fire loss, and this sum was credited to the amount due on the mortgages, then leaving a balance of $1,423.11. At that time defendants Turnquist were indebted to St. Paul Federal Savings and Loan Association in an amount that was unsecured in addition to the amount secured by the mortgages.
This action was commenced on March 5, 1958, for a foreclosure of the mechanics lien filed by plaintiff. On August 13, 1958, defendants Turnquist requested St. Paul Federal Savings and Loan Association to return to them $2,112.51 of the money paid from the proceeds of the fire insurance in order that it might be credited to the unsecured indebtedness owed by the Turnquists to St. Paul Federal Savings and Loan Association under the terms of a written agreement which reads:
"On this 12th day of August, 1958, Arthur E. Turnquist and Jane A. Turnquist acknowledge receipt of the sum of Two Thousand One Hundred Twelve and 51/100 Dollars ($2,112.51) paid by the St. Paul Federal Savings and Loan Association concurrently herewith and *55 that said amount is a refund of a prepayment which had been credited to their loan with said Association, being Loan No. 4574, and agree that the mortgage dated Sept. 16, 1955, July 27, 1956, and recorded in Book 49/52, at Page 279/15 of the Records of the Register's Office of Chisago County, Minnesota, secures the balance of said loan, after debiting the amount of this refund, in the same amount and to the same extent had said prepayment never been made and refunded, and agree to pay the balance due on the note secured by said mortgage including the amount of this refund. Above refund to be applied as follows:
"1. B-522-833.47
"2. B-531-330.47
"3. B579-948.57
"Less rebate to be applied on B570."
The only question involved here is whether St. Paul Federal Savings and Loan Association, by virtue of its mortgages, has priority over the mechanics lienholders in the amount of $3,708.51 or in the amount of $1,522.87.[1]
The trial court held in favor of the lienholders on three different theories. We need consider only one. When the proceeds from the fire insurance were applied on the mortgages held by St. Paul Federal Savings and Loan Association, reducing the unpaid balance thereon to $1,423.11, the rights of the parties became fixed as of that time. The mortgagee could not thereafter voluntarily enlarge the mortgage indebtedness to the detriment of subsequent lienholders without their consent.[2]
St. Paul Federal Savings and Loan Association contends that under a clause in the notes secured by the mortgages reading:
*56 "The holder may rearrange, adjust, and extend the times and amounts of payments of interest and/or principal of this note by agreement with the present or subsequent owner of the real estate securing the same, without notice to or consent of and without releasing any party liable hereon,"
it could enlarge the mortgage indebtedness at any time up to the full amount of the mortgage notes and claim priority for the advances so made as against subsequent lienholders. The quoted clause is not open to that construction. We recognize the rule that where a mortgage is given to secure future advances, which in fact are later made, the mortgage has priority over mechanics liens attaching after the mortgage is given but before such advances are made if the advances are obligatory upon the mortgagee under the terms of the mortgage.[3] The same rule would apply to payments made pursuant to the terms of the mortgage to preserve the security, such as taxes and insurance premiums. However, it is only where the payments are obligatory under the mortgage that advances made subsequent to the attachment of mechanics liens carry with them priority over such liens. The advance made here was entirely voluntary, and the trial court correctly held that the mechanics liens take priority over such advance.
We need not consider the other points raised by the briefs.
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] This amount includes the item of $1,423.11 to which the mortgage had been reduced, plus certain obligatory payments made by the mortgagee.
[2] Finlayson v. Crooks, 47 Minn. 74, 49 N.W. 398, 645; Erickson v. Ireland, 134 Minn. 156, 158 N.W. 918; 57 C.J.S., Mechanics' Liens, § 205b; 59 C.J.S., Mortgages, §§ 230a(2), 276b.
[3] Erickson v. Ireland, 134 Minn. 156, 158 N.W. 918. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606355/ | 349 So. 2d 469 (1977)
Larry YOUNG, Plaintiff and Appellee,
v.
ALLEN PARISH SCHOOL BOARD, Defendant and Appellant.
No. 5919.
Court of Appeal of Louisiana, Third Circuit.
August 16, 1977.
*470 Ryder & Deshotels, by Errol D. Deshotels, Oberlin, for defendant and appellant.
D. Michael Mooney, Lake Charles, for plaintiff and appellee.
Before HOOD, CULPEPPER, WATSON, FORET and STOKER, JJ.
STOKER, Judge.
This is one of several companion cases consolidated for trial in the trial court and for appeal here. We are rendering judgment in the companion cases on this date.[1]
Plaintiff-appellee, Larry Young, and the plaintiffs in the companion suits were teachers in the public schools as employees of the Allen Parish School Board. They were employed for years prior to the school year 1975-76 and also for the year 1975-76. The issues in each suit are the same. Plaintiffs contend that their suits are actions in contract for the recovery of salary in amounts greater than they were paid in the school year 1975-76.
The issue in each case is whether the teachers should be given credit in the computation of their salaries for military service. The trial court gave judgment for the plaintiff-teachers and the school board has appealed.
R.S. 17:423 provides in part as follows:
§ 423: Persons entering military service; right to prior service credit
. . . any person who shall have served on active duty in the armed forces of the United States during World War II or the Korean or Viet Nam conflicts shall receive credit under the minimum salary schedule provided for in R.S. 17:419-422 for the period that he served in the armed forces of the United States.
The term "person", as used in this Section, shall mean and include only a person who was a regularly employed teacher, as that term is defined in R.S. 17:441, by a school system of this state prior to the time of induction for service in World War II or the Korean or Viet Nam conflicts. (Emphasis ours)
This statute was construed in Washington v. St. Charles Parish School Board, 288 So. 2d 321 (La.Sup.Ct.1974). The case held that the credit was to be applied only in situations where a person's teaching career was interrupted and no credit would be given where the service preceded the teaching career. Prior to the school year 1975-76 the Allen Parish School Board paid Larry Young a salary based on the schedule but giving him credit for his military time. Inasmuch as he began his teaching career after his military service, his pay was incorrectly computed for the years prior to 1975-76. The amount improperly paid is not in dispute. The dispute arises out of the fact *471 that, after signing an agreement with the defendant school board to teach during the school year 1975-76, the Superintendent of Schools for the parish notified Larry Young that his pay for the oncoming 1975-76 session would not reflect his military service as it was not in accordance with the statute quoted above. Each of the other plaintiffs was given the same notification. Larry Young taught nevertheless, as did the plaintiffs in the companion suits, and was paid at a lesser salary. His suit is for the difference he would have been paid had he been paid at a rate which reflected his military time.
The position taken by Larry Young in this suit is that the statutory provision is immaterial in this dispute with the school board because the school board was, nevertheless, bound by contract to pay him according to a schedule that reflected the military time because that was the intention of the parties at the time the contract was entered into.
The fact of the matter is that the contract did not make any reference to salary at all. Salary was the one element of the contract which was not spelled out. The contention of Larry Young is that his contract was a contract of rehiring and that it was not necessary to make reference to salary because it was understood and intended that it would be on the basis of the existent salary schedule but with credit for military service included because it had been included in previous years.
The defendant-appellant school board takes the position that it is prohibited from paying Larry Young a salary which gives him credit for his military time. The questions to be determined are (1) was there a contract for payment of the salary at the higher pay sought and (2) does the state statute control in such a manner, that if the school board did contract to pay at the higher scale, the statute would render the contract nugatory.
WAS THERE A SALARY AGREED UPON IN THE CONTRACT?
The evidence in the consolidated cases was largely stipulated and the only testimony was given by the Superintendent of Schools, Dr. Albert Kennard. The employment contracts in three cases consisted of a form letter from Dr. Kennard to the teacher and a signed acceptance. In the case of Larry Young the letter read as follows:
ALLEN PARISH SCHOOL BOARD
P.O. DRAWER C
OBERLIN, LOUISIANA 70655
STATE OF LOUISIANA
PARISH OF ALLEN
Based on the evidence submitted by Larry Young he holds Certificate No. 25.343 type (he or she)
B issued by the Louisiana State Department of Education, he is hereby appointed to teach Social Studies
P.E., Asst. Prin. in the Reeves High School for the 1975-76 session of nine (9) months.
Indicate below whether you accept or reject his appointment.
S/ Albert L. Kennard
Superintendent
I hereby accept the appointment above.
May 16,1975 S/ Larry K. Young
Teacher's Signature
As indicated above the letter was a form letter with appropriate blanks provided in which the information pertinent to Larry Young was typed. Mr. Young wrote in the word "accept" in a blank space left for the indication of acceptance or rejection of the appointment and signed it. It will be noted that the form as completed in the case of Larry Young made no mention of a specific salary to be paid. Plaintiffs Carlos Land and Robert Cronan, were also sent a form letter of this type and each accepted employment. The contract with Charles Nevils was in a different form.
Why Larry Young and the other plaintiffs were improperly paid is not explained and was no doubt inadvertent. Dr. Kennard became Superintendent in Allen Parish on July 1, 1973. In July, 1975, Dr. Kennard employed a teacher who was the first teacher he had hired who claimed military service. Dr. Kennard checked the law and determined that the newly hired teacher was not eligible for military credit because the service time antedated the teaching service. Dr. Kennard's bookkeeper then *472 informed him that there were several other teachers who had been teaching and receiving the credit although their military service did not interrupt their teaching service. Larry Young and his companion plaintiffs were teachers in this category. It was then that Dr. Kennard wrote the plaintiffs to explain the situation and advise that no military credit would be given them in computing their 1975-76 salary.
In the case of Larry Young the latter portion of the letter, dated August 8, 1975, reads as follows:
The State Department of Education has agreed that there will be no possibility of our having to return the money which has previously been collected in violation of the statute in question; however, we may no longer report this military experience for credit.
According to our records, your salary last year, including credit for military service, was $9,821.00. This coming year your salary will be based upon the following:
Bachelor's degree
4 years' experience
Your yearly salary for 1975-76, according to the salary schedule, will be $9,374.00. I am truly sorry to be the bearer of this news, and it is extremely unfortunate that the error was made in the past. If it is of any consolation, the fact is that for the previous years you have been paid more than your experience scheduled. Also there are nine other men in the parish who are in the same situation, and the total overpayment for the coming year would have exceeded $10,000.00. Please contact me if I can supply you any additional or clearer information about this matter.
As the quoted portion of the letter clearly shows, the Allen Parish School Board (1) had in the past given the credit for military service, although the service was prior to teaching service and (2) the Board intended to do so at the time Larry Young was offered and accepted his teaching position for 1975-76. Except for the fact that Dr. Kennard was prompted to determine the law, Larry Young and his companion plaintiffs would have been paid with credit for military service. Therefore, there was a meeting of minds on the salary element of the contract and the salary intended was that provided in the salary schedule with credit for military credit included.
COULD THE DEFENDANT SCHOOL BOARD CONTRACT TO PAY SALARIES HIGHER THAN AS PROVIDED IN THE SCHEDULE
We do not regard the provisions of RS 17:423 as a statutory provision prohibiting a school from paying teachers at a schedule which would allow credit for military service prior to embarking on a teaching career. Likewise, we do not regard the minimum salary schedule set forth in RS 17:419-422 as a prohibition against paying more than the minimum. We think it is common knowledge that the various school boards of the state do, in fact, pay according to different schedules. All the statutory minimum salary schedule does is to set a minimum which each individual school board is required to pay under law. In like manner, RS 17:423 merely requires each school board to give credit for military service which interrupted a teacher's tenure. In Washington v. St. Charles Parish School Board, supra, Chief Justice Sanders writing for the Louisiana Supreme Court said, "the legislation was designed to avoid a salary penalty for teachers whose tenure was interrupted by military service." Chief Justice Sanders noted that in 1972 the Legislature added the second paragraph of RS 17:423 to specifically provide that the term "person" as used in the statute meant a "regularly employed teacher . . . by a school system of this state prior to the time of his induction for service . . ."
Despite the wording of the 1972 amendment of R.S. 17:423 referred to above,[2] and the general interpretation of the statute given in the Washington case, we do not find anything in either which would prohibit *473 a particular school board from adopting a more liberal policy and extending credit for military service performed prior to entering a teaching career. This would be true so long as the school system bore the cost itself and did not call upon the state to contribute in any way to such an emolument.
The issues in Washington v. St. Charles Parish School Board, supra, are distinguishable from the issues here. In Washington the plaintiff was contending that the statute, RS 17:423, should be interpreted to extend military credit to all teachers regardless of when the military service was performed. The Louisiana Supreme Court rejected this interpretation as noted above. Here, however, Larry Young and his companion plaintiffs are not contesting the interpretation of the statute. Their position is that Allen Parish School Board contracted with them in the Spring of 1975 to teach in the academic year 1975-1976 to pay them salaries which would reflect credit for military service performed at anytime and irrespective of whether it interrupted a teaching career. Such a contract would not be violative of RS 17:423 and would not be contrary to Washington v. St. Charles Parish School Board. We agree that the Allen Parish School Board was free to contract as it did with Larry Young and the teachers in the companion actions. The suits are contract actions and not actions for a reinterpretation of RS 17:423.[3]
The defendant-appellant school board vigorously argues that to pay the plaintiff-appellees on the basis their contracts "would constitute a fraudulent claim by the Allen Parish School Board and possibly subject its superintendent to charges of criminal malfeasance." We are not suggesting that any claims, presumably from the State, be made. In fact, the letter sent by Superintendent Kennard to Larry Young on August 8, 1975, carries the implication that the matter of prior claims had been candidly reported to the State authorities as he states: "The State Department of Education has agreed that there will be no possibility of our having to return the money which has previously been collected in violation of the statute in question; however, we may no longer report this military experience for credit." (Emphasis added.) The emphasized portion of the language is a clear statement of policy that defendant-appellant school board will not claim credit from the state. We see no possibility of illegal or criminal action by the board or superintendent if the board itself shoulders the entire cost of the extra pay. We would assume that from and after the circulation of the letters to several teachers, including Larry Young, that the policy of the Allen Parish School Board was thenceforth publicly changed and no contracts made for years following the 1975-76 school year would be made except on terms clearly evincing the change in policy. The suits in question here are for specific performance of contracts of employment for the year 1975-76, not as noted, for a reinterpretation of R.S. 17:423, and only salaries for the four plaintiffs for the one year are in question.
In brief on behalf of the defendant-appellant school board it is urged that "we do contend and feel that the portion of the contract requiring the State of Louisiana to pay military tenure time is null." We fail to see how the contracts require the State to pay the extra salaries due. This will be the obligation of the school board alone.
Defendant-appellant school board further urges that the intent of the parties in their contract was that the plaintiff-teachers be paid whatever was provided by state statutory law. We are of the view that the parties intended by their contracts to pay in accordance with previous policy. Having been given the military credit in the past, Larry Young, as well as his companion plaintiffs, could expect that his reemployment offer was extended to him on the *474 same basis and we have no doubt that it was. Superintendent Kennard's letter of August 8, 1975, makes that quite clear.
It is also urged on behalf of defendant-appellant that it and the teachers were laboring under an error of fact when they contracted. The error, it is said, was as to the salary to be paid. Therefore, it is contended that under Article 1823 of the Louisiana Civil Code, the error was as to the subject matter of the contract and the error vitiated the contract.[4] The parties may have contracted in error as to what the statutory authority required, but as has been shown, payment over and beyond what is required is not prohibited. We presume that the parties dealt at arms length and the policy of paying beyond what was required appears to have been in force for some time. Moreover there is no proof that the parties contracted in error of fact or law. Conceivably, at some time in the past, prior to the time Dr. Kennard became Superintendent in 1973, the defendant board may well have adopted a considered policy of paying for military time whenever served. In any event, we are not convinced that an error of fact such as would vitiate the contract is involved.
JUDGMENT
We conclude that the trial court correctly decided these companion cases in favor of the plaintiff school teachers. The single judgment was signed on July 30, 1976, in favor of the plaintiffs. In part it read:
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff, Larry Young, and against defendant the Allen Parish School Board ordering the Allen Parish School Board to pay unto Larry Young the salary of Ten Thousand Eight Hundred Eighty-Four ($10,884.00) and No/100 Dollars for the 1975-76 school term together with legal interest from the date of judicial demand;
* * * * * *
IT IS STILL FURTHER ORDERED, ADJUDGED AND DECREED that all costs of these proceedings be assessed against defendant, the Allen Parish School Board.
It was stipulated (Tr. 40) that Mr. Young's total salary with military credit, parish supplement and pay as assistant principal would total $10,884.00 for the period in question. No stipulation or evidence established what salary he actually received. According to answers to a request for admission of facts dated December 30, 1975, the Allen Parish School Board stated (which is its contention) "that under the terms of his employment agreement and state law his salary would be $10,552.00 a year, which has been paid to him since his employment began in September, 1975." If $10,552.00 was actually paid to him, then the difference owed is $292.00. The judgment should be recast to award $10,884.00 subject to a credit for such amounts as has been paid together with interest from date of judicial demand on the net amount due and costs. As the judgment stands, it orders the defendant to pay Larry Young $10,884.00 for the 1975-76 school term together with legal interest from the date of judicial demand. In this form it may lead to some uncertainty inasmuch as the amount actually paid is not established in evidence and the interest should be paid on the specific difference due rather than $10,884.00.
For the reasons assigned we affirm the judgment of the trial court insofar as it renders judgment in favor of plaintiff-appellee, Larry Young, against defendant-appellant, *475 Allen Parish School Board. We amend the trial court judgment with respect to the award. Accordingly, it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Larry Young, and against the Allen Parish School Board in the full sum of Ten Thousand Eight Hundred Eighty-four ($10,884.00) and No/100 Dollars subject to a credit for all sums paid Larry Young, as a salary by defendant during the 1975-76 school term for Allen Parish, together with legal interest from date of judicial demand on the net amount due under this judgment, all costs of these proceedings in the trial court to be assessed against defendant Allen Parish School Board, insofar as defendant may be legally cast for such costs.
All costs of this appeal are assessed to defendant-appellant insofar as it may be legally cast for such costs.
AMENDED AND AFFIRMED AS AMENDED.
CULPEPPER, J., dissents and assigns written reasons.
HOOD, J., dissents for the reasons assigned by CULPEPPER, J.
CULPEPPER, Judge, dissenting.
I respectfully dissent from this and the companion cases listed in the majority opinion. Since the amount of the salary was not expressly stated in the written contract for 1975-1976, the salary must be determined according to the intent of the parties. It is my view that both the Allen Parish School Board, represented by Superintendent Kennard, and these four teachers in question intended that the salary be the minimum amount fixed by the state schedule, plus the supplement paid by Allen Parish to all teachers under its schedule. It was clearly not intended by Dr. Kennard nor by any of the four teachers that they would receive extra compensation over and above the minimum provided by the regular state and parish schedules.
It may be that at the time they entered into the 1975-1976 contract, both Dr. Kennard and these four teachers thought that credit should be given for military service, as it had been for several years. However, they were in error as to this fact, as is clear from the case of Washington v. St. Charles Parish School Board, 288 So. 2d 321 (La.S.Ct. 1974). This was a mutual error of fact on the part of both the School Board and the teachers. Nevertheless, despite this mutual error of fact, it was the intention of both parties that the teachers receive only the minimum pay provided by the state and parish schedules. There is no evidence to support the contention that it was the intention of either the School Board or the teachers that they would receive any extra amount in excess of that paid to all other teachers under the schedules.
For the reasons assigned, I respectfully dissent.
NOTES
[1] See Charles Nevils v. Allen Parish School Board, 349 So. 2d 475; Carlos Land v. Allen Parish School Board, 349 So. 2d 476, and R. Cronan v. Allen Parish School Board, 349 So. 2d 477.
[2] Act No. 585 of 1972 of the Louisiana Legislature.
[3] We note that Act No. 148 of 1976 of the Louisiana Legislature made certain adjustments in the application of R.S. 17:423 with respect to persons who were being granted military credit by a parish or city school system prior to the effective date of Act No. 585 of 1972.
[4] Articles 1821 and 1823 of the Louisiana Civil Code provide as follows:
Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.
Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606379/ | 349 So. 2d 193 (1977)
Juan SKELTON, Appellant,
v.
The STATE of Florida, Appellee.
No. 76-642.
District Court of Appeal of Florida, Third District.
July 12, 1977.
Rehearing Denied September 14, 1977.
*194 Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before HENDRY, C.J., and PEARSON and HAVERFIELD, JJ.
PER CURIAM.
Defendant, Juan Skelton, appeals his conviction of unlawful possession of cannabis and sentence to six months in the county jail.
Defendant for his sole point on appeal contends the trial judge erred in denying his motion to suppress, alleging that the warrantless search incident to his arrest was based upon mere suspicion and not the required probable cause. We cannot agree.
Probable cause to arrest exists where a reasonable man, having the specialized training of a police officer, in reviewing facts known to the arresting officer prior to the actual time of arrest, would come to the conclusion that a felony is being or has been committed by the person to be arrested. State v. Profera, 239 So. 2d 867 (Fla.4th DCA 1970); see also Russell v. State, 266 So. 2d 92 (Fla.3d DCA 1972); State v. Knapp, 294 So. 2d 338 (Fla.2d DCA 1974).
In the instant case Officer Cantillo, the arresting officer, was highly experienced and often involved in drug related arrests. He was well acquainted with the neighborhood in which the arrest took place. He testified that on the date in question he observed a young man walk up to the defendant, who was standing on the corner of West Flagler Street and Seventh Avenue, and hand him (the defendant) a stack of small brown packets, each packet being 2" by 3" in size. The defendant placed the packets, secured by rubber bands, into his jacket pocket. Officer Cantillo exited from his patrol car, retrieved the packets from the defendant's pocket and placed him under arrest. Cantillo further testified that cannabis is often distributed in packets similar to those he had taken from the defendant and he believed a drug sale was in progress.
Under the totality of the circumstances, Officer Cantillo had probable cause to believe that the packets contained cannabis (marijuana) and a narcotics sale was in progress. Thus, the trial judge was correct in denying the motion to suppress. Cf. U.S. v. Allen, 472 F.2d 145 (5th Cir.1973); *195 Trivette v. State, 244 So. 2d 173 (Fla.4th DCA 1971); Russell v. State, supra; State v. Knapp, supra.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606351/ | 349 So. 2d 141 (1977)
John Henry WADE
v.
STATE.
8 Div. 949.
Court of Criminal Appeals of Alabama.
August 16, 1977.
*143 Joe B. Powell, Decatur, for appellant.
John Henry Wade, pro se.
William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
LEIGH M. CLARK, Supernumerary Circuit Judge.
A jury found appellant-defendant guilty of robbery and fixed his punishment at imprisonment in the penitentiary for twenty-six years. He was duly sentenced accordingly.
There is no disagreement on appeal as to the facts, which are summarized in appellant's brief.
Beulah Boggus, the victim of the alleged robbery, testified that on April 2, 1974, about 3:00 P.M. three white men came to her store in the Red Bank community of rural Lawrence County, left for a while and returned about 5:00 P.M., when they displayed pistols and proceeded to rob her of her money, rings and pistols. She identified the three as the defendant John Henry Wade, his son Johnny Wayne Wade, and one Allen Moye. She was living at the time with her adopted daughter in a dwelling contiguous to the store. She said the younger Wade told her: "We are robbers. We came after your diamonds and money, and you have plenty of it." According to Mrs. Boggus, when she refused to cooperate with the robbers in revealing the whereabouts of her money, she was hit in the head with a pistol, tied, gagged, choked and tortured with a hot smoothing iron.
*144 Wanda Boggus, the adopted daughter of Mrs. Boggus, corroborated her mother's testimony relative to the facts of the robbery other than in two respects. She could not identify defendant John Henry Wade as being one of the three robbers and she saw only one pistol.
Allen Moye testified for the State and admitted his active participation in the robbery. However, he said that defendant did not enter the victim's house during the robbery; that defendant dropped Johnny Wayne Wade, Moye and one Thomas O'Such off at the victim's house and that the trio proceeded to rob Mrs. Boggus substantially in the manner testified to by her and her daughter. His testimony contained repeated statements to the effect that defendant was the "pick-up-man."
Defendant did not testify, but two witnesses testified in his behalf to the effect that they were employed by defendant at his service station in Oakman; that defendant worked regularly at the station from about 7:30 A.M. to 6:30 P.M. each day and that he did not take off from his work at the service station during the month of April 1974. Two deputy sheriffs of Walker also testified on call of the defendant that they were acquainted with defendant during and before April 1974 and that they regularly saw him working at the service station. No contention to the contrary is made on appeal.
The jailor and radio dispatcher for the Lawrence County Sheriff's Department testified as a witness for the State that he was present during the preliminary trial of defendant; that he listened to the testimony of Mrs. Boggus on the preliminary trial; that defendant was present during the preliminary trial. He said that he escorted defendant from the courtroom to the county jail and while doing so, without being questioned by anyone, defendant said, "Everything the lady said over there was true except one thing.," that defendant then said, "I was not in the house." Appellant now urges that such testimony was inadmissible, that it is "hearsay in default of any applicable exception thereto." Appellant also argues that by calling for such testimony, the State was endeavoring to bolster the testimony of Mrs. Boggus. Defendant did object to questions calling for the testimony, but the grounds thereof on the trial did not include any of the grounds asserted on appeal. The grounds asserted on the trial were that the statement was "not voluntary, and that he was coerced and it violated the Constitution of Alabama and the Constitution of the United States." and that "No warnings were given and no attempts were made by this Officer to advise this man of his rights, and they were not voluntarily made." After a requested cross-examination of the witness out of the presence of the jury by defendant's counsel, the court ruled:
"All right. The Court rules that this was a volunteered statement, or a spontaneous utterance and, therefore, I am going to let the State offer it into evidence."
We find no error in the court's action in the respect noted. Upon being asked on voir dire on cross-examination whether defendant was advised of his rights, the witness said that he didn't have time. He further said defendant was not upset at the time. Upon being asked whether he stopped defendant before he completed his statement, he again said he didn't have time. The record convinces us that the statement of defendant is to be classed as a volunteered statement, in no way influenced by the witness or anyone else. Miranda holds:
"In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess *145 to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726.
The grounds of objection now made to the questions calling for the particular evidence under consideration are at variance with the objections made on the trial of the case. Such grounds of objection are not available on appeal. Fuller v. State, Ala.Cr.App., 338 So. 2d 492 (1976); Crowe v. State, Ala.Cr.App., 333 So. 2d 902, cert. denied, 333 So. 2d 906; Burrow v. State, 55 Ala.App. 24, 312 So. 2d 596; Reese v. State, 49 Ala.App. 167, 269 So. 2d 622, cert. denied, 289 Ala. 750, 269 So. 2d 625.
Counsel for defendant was allowed to ask State's witness Sergeant Robert E. Hancock as to what Beulah Boggus, the alleged victim of the robbery, told him relative to the robbery, particularly defendant's connection therewith. Counsel was also allowed to ask him as to Mrs. Boggus' testimony on the trial. The following occurred:
"And there is a conflict there as to what she told you then and what she told the jury, is there not?
"MR. PETTUS: We object to that.
"THE COURT: Well, sustained." Both before and after, the witness made it clear that Mrs. Boggus had told Sergeant Hancock that defendant came in the house on the first trip to the store that afternoon, but that he did not enter the house at the time the robbery was committed, on the second trip. Unquestionably, the conflict between what the witness told Sergeant Hancock and what she testified on the trial is important, and certainly tends to some extent to weaken her testimony, but defendant had the full benefit thereof, by the clear and definite testimony of the witness which factually showed the conflict. No harm was caused defendant by the ruling.
During redirect examination of Allen Moye, after he had been intensively interrogated and cross-examined as to the arrangement or agreement that was made among the conspirators themselves, Johnny Wayne Wade, John Henry Wade, a person by the name of Neil Nicholson, and Tom O'Such, as to how the robbery of Mrs. Boggus was to be consummated, including the arrangement they had among themselves that defendant would drive his car, the following occurred:
"Q Is there any particular significance to the fact that Mr. Wade drove his car down to Beulah Boggus' house the night that she was robbed?
"A Did he drive his car?
"Q Is there any particular significance to that?
"MR. POWELL, Well, we object to that. I don't know what he's asking him. I don't understand that question myself.
"A Why?
"Q Why did he drive his car?
"MR. POWELL: Now, we object to any why, because it's a mental operation.
"THE COURT: Overruled.
"Q Why did he drive his car?
"A Mr. Wade drove his car because he was going to be the pick-up-man. Therefore, that is the reason he drove his car, because if he was to get stopped running up and down the road waiting to pick us up, he would be in his car."
If, as contended by appellant, the question objected to calls for the intent, motive or other uncommunicated mental operation of one other than the witness and if the objection had been based on that ground, we would agree with appellant that defendant's objection to the question should have been sustained. To hold otherwise would not be within the logic or the beneficence of Starr v. Starr, 293 Ala. 204, 301 So. 2d 78 (1974), wherein the Supreme Court wisely opened the door to testimony of a witness as to his own uncommunicated intent or the like.
It is to be noted that in defendant's objection to the question he grounded it on the assertion that "It's a mental operation." *146 He did not say whose mental operation it was. According to Starr, if it was that of the witness, the objection was not well taken. If it was that of defendant, and the ground had been so stated, it would have been a valid objection. It is clear that appellant takes that position now, but it is far from clear that he took that position on the trial. He did not so state, although such may have been his intention. We have to admit that we are at a loss to determine what counsel for defendant intended by the objection and what counsel for the State intended by the question. We are unable to reverse the trial judge for any failure to correctly assay the "uncommunicated intention" of either counsel.
We further state that in the light of the context of the question, particularly the preceding part, when considered with the answer to the question, the question called for neither the intention of the witness nor the intention of defendant, and the only appropriate objection, if any, should have been on the ground that it called for an opinion or unauthorized conclusion of the witness, as distinguished from testimony as to a fact. Even so, we are convinced that the question, when considered in the light of the context and the answer thereto, called for a "collective fact" or a "shorthand rendition of fact," to which a witness may testify. South and North Ala. Railroad Co. v. McLendon, 63 Ala. 266; Marshall v. State, 219 Ala. 83, 121 So. 72; Mobile J. & K. C. R. Co. v. Hawkins, 163 Ala. 565, 585, 51 So. 37; Johnson v. State, 15 Ala.App. 194, 72 So. 766. See also Gamble, McElroy's Alabama Evidence, § 127.01(3), particularly Variety No. 7.
The witness Allen Gerald Moye, according to his own admissions, had been convicted of six felonies. He was at the time of the trial of this case under a thirty-year sentence for robbery in Cullman County, Alabama; he had received two thirty-year sentences for robberies in Dallas County, Alabama. He had not been indicted for the robbery of Mrs. Boggus. He denied any "deals" with the State in exchange for his testimony against defendant, but he freely acknowledged, on cross-examination, that he expected some leniency by reason of his testimony. He said that in February 1974, he and defendant, accompanied by Wayne Wade, went to Town Creek[1] and discussed the planned robbery with Neil Nicholson. The defendant drove the automobile; he had called Moye to go with him and his son to discuss the matter with Nicholson, who "was setting this robbery up of this lady's house." They understood she may have had approximately $100,000, and they planned to rob on a percentage basis. Neil wanted defendant, Moye, and Johnny Wayne Wade to rob her. Defendant asked him to show them where she lived, and they drove over to Mrs. Boggus' house. He said defendant went to the door and knocked, as Mr. Nicholson "had already explained to us that she didn't know you real well that she wouldn't come to the door or let you in her little store after dark." Defendant knocked at the door and returned to the automobile, and they returned to Nicholson's house. Another visit was made thereafter, in an automobile driven by defendant, and defendant and Moye went to Mrs. Boggus' house again; defendant inquired of Mrs. Boggus as to the whereabouts of Mr. Nicholson. Thereafter, Moye and defendant went to the Nicholsons' house, at which time defendant and Moye discussed with Nicholson their plan for the robbery. Moye and defendant returned to defendant's house in Walker County, and then Moye returned to his then home in Jefferson County. They continued meeting and laying their plans; defendant and Moye went again to Mrs. Boggus' house, at which time they purchased some beer, some pickled eggs and pickled pig feet, for which defendant paid, and they then left and returned to defendant's home; they repeated this "routine" about two weeks later; they told Mrs. Boggus they were construction workers. They continued to discuss the plans and brought "Tom," otherwise identified as Thomas O'Such, in on the plans for the robbery. The witness first met "Tom" at *147 the home of defendant. In about two or three weeks another trip was made by defendant and Moye to the store, at which time defendant and Moye went in the store and went through the same "routine," and then returned to defendant's home. At a subsequent time, defendant, Moye, "this fellow, Tom," and John Henry Wade made the trip in the witness' car "just to get more acquainted with Mrs. Beulah." At that time Mrs. Boggus was having some plumbing trouble, about which Moye talked with her and told her he thought he could bring someone that could fix it. He then returned to defendant's home and told defendant that he thought "the time was right," with which defendant agreed, but said that he couldn't leave his station the next day. However, Moye and Larry Wade went to Mrs. Boggus' the next day and were informed by Mrs. Boggus that a plumber had come and fixed the plumbing.
On the day of the robbery, according to Moye, he met with defendant, "Tom," and Johnny Wayne Wade, and went in defendant's car, with defendant driving, and "headed out to Mrs. Beulah's home to rob her." On their first trip to the store that day, defendant, Moye and Wayne Wade entered the store, bought some beer and said they wanted to come back later and pick up a large amount of beer for a party. They were "more or less laying down our reason for coming back after dark." Thereafter, the four rode around "killing time."
Whether a specific statement of a witness is inadmissible, over an appropriate objection, as constituting an unauthorized conclusion or opinion as distinguished from an admissible shorthand rendition of fact is not necessarily determinable by the content of the statement alone. Often, the surrounding circumstances as shown by the evidence dictate a determination different from what it would be under different circumstances. Even if the objection to questions eliciting the evidence under consideration had been based on an objection that it called for an unauthorized conclusion or opinion of the witness, the matter would have been resolvable by a determination whether the witness was basing his answer on his own opinion, or, on the other hand, was stating as a collective fact a particular feature of the express plans of the conspirators. We are firm to the conclusion that, in the light of the witness' lengthy testimony as to plans of all or some of the conspirators, including appellant, made among them on several different occasions over a period of several months, as to which the witness was intensively and extensively cross-examined, he was testifying as to a collective fact when he explained why defendant was driving his automobile. His answer constituted a shorthand rendition of one of the agreed upon plans of the parties as they meticulously wove their evil webb.
In addition, we note some testimony of the same witness, given on direct examination, to which no objection was made:
"Q Had that been prearranged among youselves?
"A Yes, sir.
"Q And then after you all got in that the defendant was to leave?
"A That waswe reached that decision on the way down there that afternoon, because we were in Mr. John Henry Wade's car, and we decided that he would drive, since it was his car. He was going to be a pick-up-man.
"Q So you got in the house and he drove off?
"A Yes, sir." (Emphasis supplied)
We also conclude that the particular evidence called for by, and given in answer to, the question to which the objection was made as to why defendant was driving his automobile, was not prejudicial to defendant, as substantially the same testimony had been admitted in evidence without objection. Even the erroneous admission in evidence of a conclusion of a witness is not prejudical where the witness had already given substantially the same testimony without objection. Higginbotham v. State, 24 Ala.App. 40, 129 So. 713; Guff v. State, 24 Ala.App. 41, 129 So. 714. Admission of testimony, if error, is harmless where the same witness has previously testified to the *148 same facts without objection. Espey v. State, 270 Ala. 669, 120 So. 2d 904; Whitehead v. State, 41 Ala.App. 387, 133 So. 2d 513; Evans v. State, 40 Ala.App. 282, 112 So. 2d 355.
Appellant relies upon three separate and unrelated statements made by prosecution counsel during the trial as a basis for an argument that conduct of such counsel "had the accumulative effect of depriving him of Due Process of Law." To two of them no objection was made by defendant. The third occurred during cross-examination of a witness for defendant who had testified that he had worked for defendant during the period of time that evidence for the prosecution had shown that defendant and others had been traveling to the store of Mrs. Boggus and plotting the robbery. The conduct alleged to have been improper, the objection of defendant's counsel and the action of the court were as follows:
"Q Did you know of his being accused of being in Cullman, Alabama, during that time?
"MR. POWELL: Now, we object to that, Your Honor. That is not an issue here.
"THE COURT: Sustained."
We do not question the correctness of the trial court's ruling, but the question was not so highly improper as to justify appellant's denunciation of it. The witness was stating in effect that during all of the time involved defendant had never left his place of business at Oakman, and prosecution counsel is not to be condemned for testing the witness' credibility as to that point. As pointed out by appellant and as referred to hereinbefore, there was some testimony by Moye that he had been convicted of a robbery in Cullman County. Furthermore, there was testimony by Moye that defendant had been looked upon as "boss or leader of your association" in connection with other planned robberies. Although the trial court probably acted wisely in closing the door to the possibility of prejudice to defendant by questions as to any robbery other than in the case being tried, we cannot say that the question was not asked in good faith. Certainly, it did not measure up to conduct that justifies a reversal of the judgment. The other two incidents involved no prejudice to defendant, and, as is indicated by the silence of defendant's counsel at the time, were not worthy of any remonstrance or objection by him.
Appellant finally urges that there is reversible error in the action of the trial court in denying defendant's motion or request that he be present at the hearing of the motion for a new trial. It seems that at the time of such hearing, the federal authorities had taken charge of defendant, that he was then being held in jail in Birmingham, Alabama, to be arraigned in the United States District Court. It also appears that no effort had been made through the federal authorities, under whose control defendant was at the time, to have defendant at the hearing. The court stated: ". . . Well, after consideration of the motion for new trial on the grounds raised, the court rules that there is no question of evidentiary facts that need to be raised, that all of the questions are questions of law, and that the Court can make an intelligent ruling on that motion for a new trial without having the defendant present, and that he will in no way be jeopardized in his right to a new trial on any appeal that might follow that."
The court then announced that the motion for a new trial was overruled. Defendant's counsel gave oral notice of appeal. The next day the written order of the court overruling the motion for new trial was entered. Appellant contends that he had a right to be present at the hearing on the motion for a new trial and that the denial thereof was in violation of his Constitutional right to due process of law. No authority has been cited to that effect, and we find none, although the right of a defendant to be present throughout the trial of a case in which his life or liberty is at stake is now beyond question.
In United States v. Lynch, 132 F.2d 111, 113 (3d Cir. 1942), cert. denied, 318 U.S. 777, 63 S. Ct. 831, 87 L. Ed. 1146, it was held that *149 the defendant's right to be present at his trial did not "embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict." Accord, Cuckovich v. United States, 170 F.2d 89 (6th Cir. 1948); United States v. Makris, 398 F. Supp. 507 (S.D.Tex.1975).
Rule 43(a) of the Federal Rules of Criminal Procedure provides:
"A defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule."
This is in harmony with principles that have prevailed in Alabama for many years. Rule 43(c) provides that "A defendant need not be present in the following situations: . . . (3) at a conference or argument upon a question of law . . . ."
Defendant based his motion for a new trial on nineteen separate grounds. All of them related exclusively to what had previously transpired in the case, and there was no indication in any of them that there would be any occasion for presentation of any evidence on the hearing or that any factual issue would be involved.
We do not hold for naught any contention that there could not conceivably be situation §arising in which a defendant would be entitled to be present at a hearing on a motion for a new trial, but no such situation is presented in this case. Our attention is not called to, and we cannot find, any possibility of injury to the defendant by his absence from the hearing on the motion for a new trial. The trial court correctly responded to defendant's request or motion that arrangements be made for his attendance at the hearing.
We can find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment is hereby
AFFIRMED.
All the Judges concur.
NOTES
[1] In north Lawrence County and about ten miles from Red Bank. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606754/ | 333 F. Supp. 267 (1971)
In re Coordinated Pretrial Proceedings in ANTIBIOTIC ANTITRUST ACTIONS.
No. M 19-93A and 68 Civ. 4343, 69 Civ. 776, 68 Civ. 4264, 69 Civ. 839, 68 Civ. 2370, 69 Civ. 798 and 69 Civ. 3194.
United States District Court, S. D. New York.
February 9, 1971.
No. M 19-93A and the following actions: 68 Civ. 4343, 69 Civ. 776, 68 Civ. 4264, 69 Civ. 839, 68 Civ. 2370, 69 Civ. 798 and 69 Civ. 3194.
*268 OPINION
(Government Entity Class Actions)
MILES W. LORD, District Judge (By Assignment).
Alleged antitrust violations by five corporate defendants[1] in the marketing of broad spectrum antibiotics are the subject of approximately 114 actions filed in this district or transferred here pursuant to 28 U.S.C. § 1407.[2] All of *269 these actions were originally assigned to the Honorable Inzer B. Wyatt. Settlement has been reached in a number of these actions. Forty-three states, their governmental subdivisions and individual consumers have accepted a settlement offer from the defendants, as have a national class of wholesaler-retailers. State of West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710 (S.D.N.Y.1970). In addition a settlement was recently reached by the defendants and a national class of private hospitals and Blue Cross plans. Recognizing the demanding nature of the task before Judge Wyatt in supervising the settlement proceedings, the Judicial Panel on Multidistrict Litigation reassigned the remaining nonsettling cases to this judge for the completion of pretrial proceedings, In re Antiobiotic Drug Litigation, 320 F. Supp. 586 (Jud.Pan.Mult.Lit.1970). Among these nonsettling cases[3] are the seven above-captioned actions brought by the states of California, Hawaii, Kansas, North Carolina, Oregon, Utah and Washington.
These states, like the states which accepted the defendants' settlement offer, make purchases of broad spectrum antibiotics for their own use and similar institutional purchases were made by the counties, cities, public hospitals and other government entities within each state. Each of the states now seeks to represent a class composed of themselves and all other government entities within their jurisdiction similarly situated.[4] The court is convinced that the proposed government entity classes, led by the states, satisfy the prerequisites of Rule 23 and the motions for establishment of these classes are granted.
I. Requirements of Rule 23(a).
The proposed classes of government entities within each state are sufficiently numerous that joinder is impracticable, and the claims of each of the states are typical of the class. The states, through their attorneys general, are also the natural representatives of the class and will undoubtedly provide fair and adequate representation to the class. State of Illinois v. Harper & Row Publishers, Inc., 301 F. Supp. 484, 487 (N.D.Ill.1969); State of Minnesota v. United States Steel Corp., 44 F.R.D. 559, 565-566 (D.Minn.1968); Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452, 456 (E.D.Pa.1968); State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F. Supp. 391, 401-402 (S.D.Iowa 1968). We do not understand defendants to dispute these conclusions.
II. Requirements of Rule 23(b) (3)[5]
This leaves for discussion the requirements that there be questions of law or fact common to the class which predominate over any individual questions and that the class action be superior to other methods of adjudicating the controversy.
A. Existence and Predominance of Common Questions
The elements which the plaintiffs must prove to recover from the defendants are: (1) that the defendants did *270 violate the antitrust laws by fixing prices at a higher level than would otherwise have occurred, (2) that plaintiffs were injured by the defendants' price fixing and (3) the amount of damage sustained as a result of the defendants' violations. See Philadelphia Elec. Co. v. Anaconda Am. Brass Co., supra, 43 F.R.D. at 457.
The defendants admit, as they must, that the questions of their violation of the antitrust laws is common to these actions. As we read their arguments, however, they do contend that the question of the fact of damage to the plaintiffs in a treble damage action, as well as the amount of damages suffered by each plaintiff, is an individual question which cannot be tried on a class-wide basis and that common questions of fact cannot be said to predominate.[6]
The case law contradicts the arguments of the defendants. The cases conclude that all aspects of the liability question, including the fact of damage to the plaintiff class, are common questions appropriate for resolution on a class-wide basis. City of Philadelphia v. Emhart Corp., 50 F.R.D. 232, 235 (E.D. Pa.1970); State of Illinois v. Harper & Row Publishers, Inc., supra, 301 F.Supp. at 488-489; State of Minnesota v. United States Steel Corp., supra, 44 F.R.D. at 568-571; State of Iowa v. Union Asphalt & Roadoils, Inc., supra, 281 F.Supp. at 401-402; Philadelphia Elec. Co. v. Anaconda Am. Brass Co., supra, 43 F.R.D. at 457-458. See Gold Strike Stamp Co. v. Christensen, 436 F.2d 791 (10th Cir. 1970) (denying mandamus to stay a class action order after concluding that the question of the effect of an illegal price discrimination on competition under the Robinson-Patman Act was common to the class and litigable through the representative parties). But cf. Chicken Delight, Inc. v. Harris, 412 F.2d 830 (9th Cir. 1969) (granting a writ of mandamus directing the deletion from a Rule 23(c) (2) notice of reference to a resale price maintenance question as one common to the class.)[7] These cases also hold that these common liability questions predominate over any remaining individual questions.
B. Superiority of the Class Action
Before allowing a class action to proceed, the court must determine *271 that it is "superior to other available methods for the fair and efficient adjudication of the controversy," taking into consideration four criteria listed in the rule as pertinent to this finding. The individual members of the proposed classes have little interest in pressing their relatively small claims in the absence of a class action and it is unlikely these claims could be vindicated in any other manner. And, as was noted in State of Illinois v. Harper & Row Publishers, Inc., supra, 301 F.Supp. at 489-490, the class action will further promote the "desirable economies of time, effort and expense" begun by the transfer of these cases here under 28 U.S.C. § 1407. The other advantages of class determination of antitrust price fixing questions to both plaintiffs and defendants have been explored elsewhere and are not questioned by the parties, and need not be restated here. State of Illinois v. Harper & Row Publishers, Inc., supra, at 489-492; State of Minnesota v. United States Steel Corp., supra, 44 F.R. D. at 572; State of Iowa v. Union Asphalt & Roadoils, Inc., supra, 281 F. Supp. at 402-403; see Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968); Hohmann v. Packard Instrument Co., 399 F.2d 711, 714-715 (7th Cir. 1968).
Although the administration of these actions on behalf of government entities will not be simple, they certainly cannot be characterized as unmanageable. Whatever difficulties are encountered, and with the aid of counsel those should be few, "[t]o process the pending litigation and most of the remaining active, inactive and the potential litigation by a large number of separate trials would `raise administrative difficulties far exceeding those present in this class action.'" Technograph Printed Circuits, Ltd. v. Methodee Electronics, 285 F. Supp. 714, 724-725 (N.D.Ill.1968); State of Minnesota v. United States Steel Corp., supra, 44 F.R.D. at 572; State of Iowa v. Union Asphalt & Roadoils, Inc., supra, 281 F.Supp. at 403.
III. Rule 23(c) (2) Notice
Since these classes are small and the members easily identifiable, it is practicable for the notice requirement by Rule 23(c) (2) to be served by mail on each class member, within each state. The parties are directed to draft such a notice for the court's approval and each of the plaintiff states is directed to secure the names and addresses of the members of the class it represents in preparation for the mailing. Penalty free envelopes may be used by the plaintiffs who will be responsible for all other costs involved in preparing, mailing, receiving and processing these notices.
The parties have apparently agreed that it is necessary for each class member to "make an appearance for the purpose of defining their claims." The court believes that this can be accomplished, at least for the present, by attaching a proof of claim form to the (c) (2) notice which could be detached, completed and returned by each class member. This procedure would provide the court and parties with basic information concerning the claim. Troublesome claims could be isolated on the basis of the information received. At that time it would be appropriate to decide whether a personal appearance by the class member was necessary. The notice form itself should inform the class members that their claims will be barred unless they complete and return the proof of claim form within the prescribed time or unless they "opt-out" of the class.
While not required by Rule 23, and clearly inappropriate where the class is large and the individual claim small, it appears that, in this instance, the proof of claim form is a useful device. This requirement was apparently first imposed in Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 459 (E.D.Pa.1968), where the court felt the requirement "would reveal the true scope of the litigation, *272 and would either greatly reduce the trouble and expense of any subsequent notices which may be required, or provide a basis for informed re-appraisal of the class-action question under 23(c) (1)." The same requirement was imposed in several later cases involving similar classes of government entities. State of Minnesota v. United States Steel Corp., 44 F.R.D. 559; State of Iowa v. Union Asphalt Roadoils, Inc., supra, 281 F.Supp. at 403-404.
These government entity cases all involved classes with readily identifiable members whose purchases can be ascertained and where claims are sufficiently large to make the expense of this procedure justifiable. Cf. Korn v. Franchard Corp., 50 F.R.D. 57 (S.D.N.Y.1970).
CLASS ACTION ORDER NO. 71-4
ORDER DETERMINING THAT CERTAIN ACTIONS ARE TO BE MAINTAINED AS CLASS ACTIONS ON BEHALF OF CLASSES OF GOVERNMENT ENTITIES
This matter comes on before the court upon the motions of the various plaintiff states in the actions listed on the caption hereof, for orders determining that their respective actions be maintained as class actions on behalf of classes of government entities within their confines under Rule 23, F.R.Civ.P.
The court has considered the records and files herein, including the said motions for class action determination, the memoranda and affidavits filed by the parties in support and opposition thereto, the proposals filed by various plaintiffs at the request of the court and of their own volition, the transcripts of earlier proceedings relating to these motions, and related motions filed therein, and the court is fully advised in the premises. Now, therefore, after due consideration the court finds:
A. The members of the class defined below are so numerous that joinder of all members of any such class in the same action is impracticable.
B. There are questions of law and fact common to such class.
C. The claim of each of the representative parties designated below is typical of the claims of the class represented.
D. Each state party plaintiff to the actions listed in the captions hereof is determined to be the proper representative of its class here established and will fairly and adequately represent its class.
E. With respect to the class designated below, the questions of law and fact common to the members of the class predominate over any questions of law or fact affecting only individual members.
F. These class actions are superior to other available methods for the fair and efficient resolution of the controversies.
G. The notices required to be given under the Rule can be given in such a manner as to satisfy the requirements of constitutional due process.
It is therefore, ordered that each of the actions listed in the caption hereof is, from the date of this Order, to be maintained as a class action under F.R. Civ.P. 23(b) (3) by the state plaintiff commencing each action for itself and as representative party for the following class:
The state, its departments, agencies, hospitals, institutions and political subdivisions and all counties, cities and other governmental entities within the state (other than those of the federal government), including without limitation hospital districts, hospitals and other institutions supported in whole or in part by state, county, city or local governmental funds, which purchased or paid for broad *273 spectrum antibiotic products during the period 1954 through 1966.
It is further ordered that
(1) Within ten days of the filing of this Order, the plaintiff states shall present a plan for giving notice to the class and proposed form of notice to the class and attached proof of claim designed to meet the requirements of Rule 23(c) (2) and which shall indicate to the class members that unless they "opt-out" or file a proof of claim form within a fixed time, their claims will be barred.
(2) Within ten days thereafter the defendants shall file with the court and serve upon the plaintiffs their suggestions and objections, if any, to the forms of notice and proof of claim submitted.
(3) Within fifteen days of the approval by the court of a proposed form of notice and proof of claim, the notice and attached proof of claim form shall be transmitted to the plaintiffs' classes by their respective Attorneys General.
(4) Within 15 days after the expiration of the time for filing of the proof of claim forms the Attorneys General shall file with the court and make available to the defendant the responses and proof of claim forms received from the members of the class.
It is further ordered that any orders entered by any of the transferor courts prior to transfer under 28 U.S.C. § 1407 which are inconsistent with the provisions of this Order are hereby vacated.
It is further ordered that this court does hereby retain jurisdiction under Rule 23(c) (1) to correct, modify, annul, vacate and supplement this Order from time to time before the decision on the merits of the common questions as it may deem proper.
CLASS ACTION ORDER NO. 71-6
ORDER AMENDING DEFINITION OF CLASS REPRESENTED BY STATE OF HAWAII
On February 9, 1971, Class Action Order No. 71-4, supra was entered in the above captioned action determining that it was to be maintained as a class action on behalf of a class of government entities within the state. Upon consideration of the record in this action and of the prior opinion approving the proposed compromises of certain related antitrust cases, West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710 (S.D.N.Y.1970), it appears that the City and County of Honolulu has accepted an offer of settlement from the defendants on its own behalf of all individual purchasers within its confines.
It is therefore ordered that, pursuant to Rule 23(c) (1), Fed.R.Civ.P., the definition of the class of government entities in the order of February 9, 1971, as
it pertains to the above-captioned action by the State of Hawaii, is amended to read:
The state, its departments, agencies, hospitals, institutions and political subdivisions and all counties, cities and other governmental entities within the state (other than those of the federal government and the City and County of Honolulu), including without limitation hospital districts, hospitals and other institutions supporting in whole or in part by state, county, city or local governmental funds, which purchased or paid for broad
spectrum antibiotic products during the period 1954 through 1966.
NOTES
[1] The defendants are American Cyanamid Co., Bristol-Myers Co., Chas. Pfizer & Co., Squibb-Beechnut, Inc., and The Upjohn Co.
[2] See In re Antibiotic Drug Litigation, 295 F. Supp. 1402 (Jud.Pan.Mult.Lit.1968); 297 F. Supp. 1126; 299 F. Supp. 1403; 301 F. Supp. 1158; 303 F. Supp. 1056; 309 F. Supp. 155.
[3] The non-settling cases may be divided, somewhat arbitrarily, into the following categories:
1. Actions by states and other governmental entities
2. Actions by those dealing in or using broad spectrum antibiotics in agricultural applications
3. Actions by competitors of the defendants in the production of broad spectrum antibiotics
4. Actions by a miscellaneous group of plaintiffs, including foreign governments, insurers, and individuals and wholesaler-retailers who opted out of the national classes.
[4] The states' motions seeking retail consumer classes and authorization of parens patriae causes of action will be dealt with in a separate opinion.
[5] Neither plaintiffs nor defendants have urged that these actions be evaluated under Rule 23(b) (1) or (2) and no decision is necessary on those questions.
[6] These contentions are contained in papers filed in opposition to the proposed retail consumer class, but are phrased in terms equally applicable to the government entity class. For example the defendants state:
"It necessarily follows that [since fact of damage is a predicate to liability] a judgment of liability could run in favor only of those class members who have come forward before trial to prove in some fashion that they have suffered the requisite injury. Even if we assume for the moment that the issue of `violation' could be separately tried with only the class `representatives' present on the plaintiffs' side, and even if plaintiffs should somehow prevail, such a proceeding could achieve nothing more than a finding or conclusion that a violation had occurred. Proof of the statutory cause of action created by Section 4 of the Clayton Act would still require one or more further trials to determine whether the individual class members had sustained injury as a consequence of that violation, and any judgment would run only in favor of those who carried the burden of proving that injury to themselves."
In another section they maintain that "Rule 23 requires that each class member come forward with his claim prior to trial." The real thrust of these arguments is in opposition to treatment of the amount of damage issue on a class-wide basis, a question it is not necessary to reach here.
[7] Since we hold that the issues of price-fixing liability including the fact of damage to the class are common to the class and predominate over the remaining questions, and since there are no management problems in classes herein established, it is unnecessary to consider the further possibility that the quantum of damages to the class might be proven through class representatives. Cf. Eisen v. Carlisle & Jacquelin, 50 F.R.D. 471, 472 (S.D.N.Y.1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606750/ | 333 F. Supp. 990 (1971)
UNITED STATES of America, Plaintiff,
v.
LIT DRUG COMPANY, a corporation, et al., Defendants.
Civ. A. No. 1120-71.
United States District Court, D. New Jersey, Civil Division.
September 24, 1971.
*991 Herbert J. Stern, U. S. Atty., by William J. Hunt, Asst. U. S. Atty., Newark, N. J., for plaintiff.
Bass & Ullman, by Robert Ullman, New York City, Herbert Alterman, Passaic, N. J., for defendants.
OPINION
COOLAHAN, District Judge:
This action proceeds from certain admitted violations of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. The government seeks to enjoin numerous irregularities practiced by defendants in violation of the Act, 21 U.S.C.A. § 331(a), (k). This Court has jurisdiction under 21 U.S.C.A. § 332(a).
The government filed its complaint for an injunction restraining defendants from their alleged illegal activities on July 27, 1971. This lengthy prayer for relief, supported by several detailed affidavits, charged defendants with manufacturing and holding for sale adulterated and misbranded drugs, within the meaning of 21 U.S.C.A. § 351(b), (c), (d) (2) and § 352(a), (f) (2), and with the unlawful introduction of these drugs into interstate commerce, in violation of 21 U.S.C.A. § 331(a). The government also alleged a violation of 21 U.S.C.A. § 331(k) in that defendants had adulterated or misbranded component drugs which it had received through interstate commerce. This Court granted the government's request for a Temporary Restraining Order which enjoined further interstate shipment of drugs by *992 defendant until certain conditions had been fulfilled. First, the methods, facilities and controls for manufacturing, processing, packaging, and labeling of defendants' drugs were to be brought in conformity with the current good manufacturing practices, as defined in 21 C.F.R. § 133.1-14. Specifically, but not exclusively, defendants were directed to correct ten deficient practices in their quality control and record keeping. As a second condition upon future interstate commerce, defendants were required to grant duly authorized Food and Drug Administration inspectors access to defendants' plant for the purpose of inspecting defendants' records, materials, equipment and labeling in order to insure, to the satisfaction of the government, that defendants had in fact realigned the operation of the plant in conformity with current good manufacturing practices. Third and finally, all the drugs on hand at defendants' plant site were to be subject to examination by officials of the Food and Drug Administration, assays were to be made in order to assure the safety, identity, purity, strength and quality of these drugs, and recalls were to be made of any line of drug determined to be adulterated or misbranded. These drugs would then likewise be examined and, if similarly defective, destroyed or brought into compliance with the law under the supervision of the Food and Drug Administration. The expenses for the inspecting, assaying and recall operations were to be borne by the defendants.
In view of the immediate threat to the public health and safety presented by defendants' alleged activities, and also considering the admittedly broad injunctive relief temporarily granted the government, a trial date within the next few days following filing of the complaint was fixed. Shortly before trial, however, the defendants and the government entered a Stipulation, vitiating the need for a fact finding, by which the defendants confessed virtually every wrongdoing attributed to them in the complaint. Paragraph Six of the Stipulation recites the illegalities detected by Food and Drug Administration inspectors during nine visits to defendants' plant beginning in June 1970 and ending in May 1971. The evidence collected during that time is also set out in the numerous affidavits which formed the basis of the government's request for a Temporary Restraining Order on July 27, 1971. The length of Paragraph Six prevents a full, verbatim recitation of defendants' concededly unlawful activities, but some mention should be made to demonstrate that these illegalities ran the full gamut of the assembly line.
The defendants concede that they failed to provide written specifications for raw materials, failed to examine raw materials sufficiently prior to their release for manufacturing, and failed to assay raw materials and/or maintain assay records. Numerous quality control tests designed to insure uniformity, potency, purity and drug stability within each batch were either omitted or haphazardly performed, and in many instances, test results were incompletely or incorrectly recorded or not recorded at all. Where batch records failed to match specifications, the discrepancy was sometimes unexplained. Innumerable adulterations were discovered by the inspectors, many of which were found in such widely used drugs as reserpine and digitalis. It also appears that final inspections observed throughout the industry were not performed by defendants. Moreover, packaging and labeling controls were grossly deficient according to all inspectors. Incredibly, even those goods which failed laboratory tests were occasionally shipped out. The Stipulation stating these facts was filed on August 3, 1971. At that time the Court ordered, with the consent of the parties, that the Temporary Restraining Order continue in effect until an order of preliminary injunction was entered by the Court.
The government would have the Court continue the Temporary Restraining Order in the form of a preliminary injunction, but defendants oppose this action upon three grounds. First, defendants *993 maintain that while some form of injunctive relief is appropriate, that part of the injunction which directs defendants to operate their plant in conformity with "current good manufacturing practices" is too broad a command to be tolerable within the specificity requirement of Rule 65(d), Fed.R.Civ.Proc. Second, defendants argue that a restraint of interstate drug shipment until the government is satisfied that plant operation is within the confines of current good manufacturing practices is a procedure not authorized by the Federal Food, Drug and Cosmetic Act. Last, defendants claim that the injunction also exceeds the bounds of the Act in restraining the interstate shipment of drugs until all drugs presently in defendants' plant are assayed and defective lots are recalled to be destroyed or brought into compliance with legal standards. For reasons assigned herein, defendants' motion to limit the form and scope of the injunction is denied.
THE BREADTH OF THE INJUNCTION
Defendants vigorously oppose what they regard as a loosely worded order. The complaint is that "current good manufacturing practices" presents no ascertainable standard of performance assuming defendants make a good faith effort to cooperate with FDA officials in complying with the sanctions with which it has no quarrel. Because they are reputedly without guidelines, the defendants fear they are left "at the peril of a summons of contempt."
The form and scope of injunctions or restraining orders issued by federal courts is governed by Rule 65(d) of the Fed.R.Civ.Proc., which states in pertinent part:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. * * *
Historically, the specificity rule may be traced to a concern for fair play; a party is more likely to disobey an order of the court when it cannot easily determine exactly what is expected of it. Correspondingly, court enforcement of its decree under such circumstances is bound to be either awkward or severe. As Professor Moore has observed, "[l]oose injunctive orders are neither easily obeyed nor strictly enforceable, and are apt to be oppressive." 7 Moore's Federal Practice ¶ 65.11 at p. 1666 (1970). But specificity, as demanded by Rule 65(d) and as envisioned by scholars like Professor Moore, is a matter relative to each case. Where, as here, the defendants have been engaged in an overt, long standing, schematic and unpenitent thwarting of the law, particularly a law enacted for the protection of an otherwise helpless consumer public, the specificity which defendants can respectfully demand under Rule 65(d) can hardly compare to that which might be afforded were there only a single, isolated infraction. None of the cases cited by defendants offers situations in which the public interest in barring adulterated or misbranded drugs from interstate commerce has been sacrificed or attenuated by an overbearing concern for tightly drawn orders bearing only enumerated violations.
Defendants rely on United States v. Article of Drug, etc., 362 F.2d 923 (3d Cir. 1966), also an action for misbranding. The court below had ordered the defendant to state, aside from the directions for proper uses claimed by the producer, directions for use in such "other conditions if any there be, for which such drug or device is commonly and effectively used." On appeal, the Third Circuit struck that part of the order as incomplete and insufficiently specific in itself. That result was clearly justified because insofar as defendant was required to anticipate the uses to which its drug would be putuses which it by no means recommended the order as prepared below required perceptiveness and intuition approaching *994 clairvoyance. In any event, the manufacturer certainly has the right to limit its product to specified uses and to disclaim others. Therefore, I find nothing in this case helpful to defendant.
Defendants also cite United States v. Vitasafe Corp., 345 F.2d 864 (3d Cir. 1965). This was initially an in rem action brought against certain misbranded vitamin-mineral capsules. The government then proceeded against the producer on the ground that accompanying labeling and advertisements were misleading. The court below enjoined not only the misleading statements specified but also all statements "otherwise false and misleading." The Third Circuit determined that this part of the order was insufficiently particular and thus offered no guidelines for compliance. While the wording of the injunction in Vitasafe which was struck appears on its face to raise objections similar to those presented by defendants in the instant case, the abuse(s) sought to be remedied and the evil of overbreadth to be guarded against in each case are strikingly different. While misbranding is an obvious threat to public health, the prohibition against misbranding is certainly not as susceptible to repeated violations as in the case of adulteration. In misbranding cases, it is a relatively simple matter for the court to fashion an order which shall proscribe the false or misleading material. United States v. Lanpar Co., 293 F. Supp. 147, 155 (N.D. Tex.1968). Supervising compliance is also relatively easy. The facts in this case alone are excellent proof that a narrowly worded order enjoining adulteration, on the other hand, can hardly curb the reckless infractions of a highly culpable drug manufacturer, whether his adulterating tactics are ingenious or ingenuous. Similarly, considering the multifaceted imperfections of the Lit Drug plant operation, and considering also the innumerable possible defects which may be located in the future, it would be extremely impractical to ask the FDA, which must supervise compliance, to bring a new action for each added infraction detected, no matter how small or no matter how closely incident to past violations. This proposition was neatly summarized by the court in United States v. Hill, 298 F. Supp. 1221 (D. Conn.1969), in which the Securities and Exchange Commission had asked for and received an injunction closely worded to Sections 5(a), (c) and 17(a) of the 1933 Act, with the enumeration of a few additional unlawful practices. The question before the court in the case was whether the injunction had been violated. This depended, naturally, on whether a liberal or strict construction would be given to the statutorily worded order:
In today's complex society it would be unreasonable to require injunctions to be more specific than that utilized here. There are an unlimited number of techniques which can be used to distribute unregistered securities or to make fraudulent representations when selling securities. * * * No injunction could be written anticipating all such techniques, and any injunction which attempted to would be far broader and more harsh on the defendant.
Id. at 1236. In United States v. Bel-Mar Laboratories, Inc., 284 F. Supp. 875, 883, (E.D.N.Y.1968), the court noted the observation of a prominent drug industry commentator that highly specified injunctive relief is impossible because of the great strides made by the industry in recent years and the great variety of circumstances under which those changes have been adopted. Likewise, I feel compelled to admit that defendants' imaginative capacity for contravening our federal drug laws has outrun this court's capacity for more explicit cautioning than provided in the injunction. Far from being ignorant of what is expected of them under the law, the defendants are in fact no "strangers to the Federal Food, Drug and Cosmetic Act." A brief account of defendants' recent involvement with the enforcement of the Act will testify to their familiarity.
*995 In his affidavit, Weems L. Clevenger, Director of Food and Drugs, Region II, who is responsible for the day-to-day enforcement of the Food, Drug and Cosmetic Act in an area encompassing New York and New Jersey, describes the FDA's surveillance of defendants' plant operation. Mr. Clevenger states that since the operation of the plant at its Union, New Jersey location for the past five years the firm has continually violated current good manufacturing practices. Only during a brief span of months in 1968 involving rigorous supervision did the FDA consider Lit Drug Company to be in compliance with the law. A total of nine inspections were deemed necessary from June 15, 1970 through May 19, 1971. Each inspection revealed serious operational deficiencies, as earlier recounted. Since August 1969, Lit Drug, under pressure from the FDA, has made fifteen voluntary recalls of adulterated prescription and non-prescription drugs. The FDA conducted three hearings to deliberate over the violations of current good manufacturing practices incurred by Lit Drug, and on each occasion, the management replied that the deficiency would be corrected. As a result of a visit by inspection officials on January 22, 1971, the government filed a complaint for the forfeiture and condemnation of numerous drug batches and manufacturing equipment pursuant to 21 U.S.C.A. §§ 334(a) (2) (A), 372(e) (5). United States v. Articles of Drug, etc., Civ. Action No. 123-71 (D.N.J. Jan. 27, 1971). A consent decree was entered. In early April the government then filed a criminal complaint against Lit Drug setting forth three counts of improper and inadequate record keeping in violation of 21 U.S.C.A. §§ 360a(d) (1), 331(q) (4), 333(a). United States v. Lit Drug Co., Crim.No. 239-71 (D.N.J. Apr. 8, 1971). Lit Drug pleaded guilty on all three counts and was fined $3000 by this Court. And, of course, there is this present action, by which defendants stipulate their failure or refusal to abide by the repeated warnings of the FDA regarding innumerable, serious violations. Clearly, the grave, apparent, and immediate threat to public health and safety in this case is incomparable to that faced by courts in such cases as Vitasafe, supra, and the scope of the injunction must necessarily be broadened to accommodate this wider interest.
The danger of overbreadth, which confronted the Third Circuit in Vitasafe, is missing in this case. Unlike misbranding, "current good manufacturing practices" is a term of art within the industry. The drug industry is well aware of what is meant by current good manufacturing practices, and there is every reason to believe that reputable manufacturers have welcomed the efforts of the FDA in defining that phrase by regulations promulgated by the Secretary of Health, Education and Welfare under the Act. 21 C.F.R. § 133 (rev. 1971). Misbranding, on the other hand, is nowhere defined so elaborately in regulations, but is only incidentally defined by scattered references or examples. By and large, the metes and bounds of misbranding are delineated by case law.
An examination of the Regulations in depth reveals a history of governmental and industrial cooperation; these regulations were not adopted in the abstract, but in the context of an ongoing mutual educational program, by which the industry's more progressive practices were gradually developed into a uniform code. United States v. Bel-Mar Laboratories, Inc., supra, at 883. A few courts have considered this question, whether an injunction may refer incidentally to regulatory law, and the weight of authority favors this growing technique.
The court in United States v. Lanpar Co., supra, found that numerous drugs produced by defendants were adulterated within the meaning of 21 U.S.C.A. § 351 (a) (2) (B). The court granted the government's request for an injunction prohibiting interstate drug commerce
* * * until the method used in, and the facilities and controls used for, their manufacture, processing, packaging *996 and holding conform to and are operated and administered in conformity with current good manufacturing practices to assure that such products meet the requirements of the Act as to safety and have the identity and strength and meet the quality and purity characteristics which they purport or are represented to possess.
Id. at 154. The court suspended the operation of this order for ninety days so that defendants could align plant procedures with current good manufacturing practices by correcting the deficiencies specifically enumerated in the court's finding of facts. However, it cannot be inferred from a fair reading of the injunction that the court intended this reference to specific findings in any way to limit its overall mandate that defendants observe current good manufacturing practices in the future.
Other courts, in enforcing regulatory legislation, have used little more than a recitation of statutory language in wording injunctions and have not regarded this practice as offensive to Rule 65(d). United States v. Hill, supra; United States v. Schlicksup Drug Co., 206 F. Supp. 801 (S.D.Ill.1962); United States v. Sherwood, 175 F. Supp. 480 (S.D.N.Y.1959). And if there is reason for defendants to fear that borderline activities may violate the injunction, an advisory opinion may be sought from the regulatory agency. United States v. Hill, supra.
While recitation of the statute wholly and without modification would run contrary to Rule 65(d), regulations may provide a legally sufficient guideline. This distinction is apparent in Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508 (5th Cir. 1968), which was an action brought to enforce the Fair Labor Standards Act. Defendant had failed to keep proper records and had employed underaged workers. The court held that the reference to the Act by the lower court in forming its decree enjoining further prohibitions was not fatal to the decree's validity because
* * * the injunction does not engraft the statute in gross, * * * or rely on the statute for clarification of what is otherwise unclear in the decree itself. It merely supplements specific instructions in the decree with statutory authority from which the right to issue such instructions derives. The statutory material is thus given as a parenthetical reference, not as a substantive command.
Id. at 517. (Citation omitted). However, if the statutory references are deleted from the court's injunction (id. at 517 n. 10), the only instructions remaining for the keeping of records are the regulations issued by the Administrator of the Wage and Hour Division of the Department of Labor. That result is therefore entirely consistent with Fleming v. Salem Box Co., 38 F. Supp. 997 (D.Or.1940), in which the government properly consented to strike from a similar injunction language which enjoined any and all violations of the Fair Labor Standards Act.
A word should also be mentioned about defendants' "peril of a summons of contempt," particularly since specific intent is not an element of proof. This Court has already itemized defendants' past Food, Drug and Cosmetic Act transgressions. They are sufficiently severe and close in time together that the Court can only suspect that defendants are either unwilling or unable to comply with the law. If the threat of contempt citations seems harsh, it is because apparently no less a threat will serve to protect the public health and safety. If defendants assume a difficult burden, it is only because of the jeopardy to which defendants have subjected the general public by their repeated utterly careless disregard for the law. That the Act is to be construed with a special regard for preventive action in the public interest is a message frequently heard from both the legislative and judicial branches, as well as from those responsible for enforcement. *997 See, e. g., 1962 U.S.Code Cong. & Adm.News, p. 2884; United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48 (1943). The argument that enforcement of regulatory standards by contempt proceedings, where specific intent was not an element of proof, is an unjustified hardship was emphatically rejected in United States v. Custer Channel Wing Corp., 247 F. Supp. 481 (D. Md.1965), aff'd 376 F.2d 675, (4th Cir.), cert. denied, 389 U.S. 850, 88 S. Ct. 38, 19 L. Ed. 2d 119 (1967). Defendants there were enjoined from making use of interstate transportation or communication in aid of its sale of stock until they had filed a registration statement deemed satisfactory by the Securities and Exchange Commission. The government then sought to institute contempt proceedings for an alleged violation of the injunction, which apparently did little more than to incorporate statutory and regulatory law references. The court did not think such prosecution was unfair:
The power to punish for violations of an injunction enjoining transgression of § 5 of the Act should not be less than the power to enforce § 5 of the Act by criminal sanctions. Both have the same ultimate objective protection of the investing publicso that a greater quantum of proof or additional elements of proof should not be required in the former proceeding as contrasted to the latter. * * * An injunction like the original injunction here is granted only because there is a showing, inter alia, of more than a remote possibility of future harm. The person enjoined is put on notice that his past acts have violated the law, and that there is a substantial likelihood of future violation. No concept of basic fairness is violated by requiring a person in this position to be more than normally careful in his future conduct. Moreover, the Court's power to do justice by granting injunctive relief would be seriously embarrassed, if not destroyed, by a requirement of greater proof to show a violation of the injunction than to show a violation of the statute incorporated into its order.
Id. at 496. Most important, 21 U.S.C.A. § 332(b) carves an important exception out of 18 U.S.C.A. § 3691, which provides that violators of orders obtained on behalf of the United States are subject to summary contempt proceedings. However, 21 U.S.C.A. § 332(b) allows such a violator a jury trial if demanded where violation of the order also constitutes an infraction of the Food, Drug and Cosmetic Act. Since the duty written into the order to which defendants object, the observance of current good manufacturing practices, forms a distinct obligation under the Act, defendants are assured of a jury duty on that score. 21 U.S. C.A. § 351(a) (2) (B).
RESTRAINT OF INTERSTATE COMMERCE UNTIL FULL PLANT INSPECTION BY FDA OFFICIALS AND COMPLIANCE WITH CURRENT GOOD MANUFACTURING PRACTICES
Defendants contest that part of the proposed order which restrains Lit Drug from engaging in interstate commerce until FDA officials have made a thorough plant inspection of all equipment, materials, labels, containers and procedures and are satisfied that such are in compliance with current good manufacturing practices. Defendants attack this as pre-screening not authorized by the Food, Drug and Cosmetic Act, and take the view that this Court under 21 U.S.C.A. § 332 may only enjoin illegal activities and leave defendants to risk a contempt citation in the event of noncompliance. This narrow construction of § 332 is not only unjustified but plainly hostile to the intent of Congress in enacting the Food, Drug and Cosmetic Act. Effective deterrence as a weightier and more beneficial weapon against drug adulteration than criminal sanctions is a message that pervades the legislative history of this Act. See generally 1962 U.S.Code Cong. & Adm.News, p. 2884. Congressional concern for the manner in which a drug is produced, aside from a *998 consideration of the composition of the drug, is apparent in the new language of 21 U.S.C.A. § 351(a) (2) by which a drug is deemed adulterated if it has been processed, packed or held under unsanitary conditions, or if any manufacturing, packing or holding method does not conform to current good manufacturing practice. Thus a drug may be pharmaceutically perfect in content but still be regarded as adulterated under the law. Congress preferred this approach rather than rely upon governmental intervention once the injurious drugs had entered the stream of commerce. The emphasis upon precautionary measures is evident. It is equally apparent that Congress concluded that, as is the case here, such legal machinery would be necessary where the drug manufacturer was either incapable or unwilling to comply with the law. See 1962 U.S.Code Cong. & Adm.News, pp. 2884, 2890. A liberal construction of the Act is justified by its preeminently consumer conscious purpose. As the Supreme Court noted in the oft-quoted case of United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134 (1943):
The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.
Id. at 280, 64 S.Ct. at 136. And in United States v. Sullivan, 332 U.S. 689, 694-695, 68 S. Ct. 331, 92 L. Ed. 297 (1948), the Supreme Court again reiterated its concern for the ultimate consumer, and added that it would give the Act a broad construction because it had confidence that the Administrator would, as Congress intended, concentrate his efforts on serious violations rather than mere technical infractions. Again, this theme was repeated in the later case of United States v. Urbuteit, 335 U.S. 355, 69 S. Ct. 112, 93 L. Ed. 61 (1948), where the Supreme Court said: "The Act is not concerned with the purification of the stream of commerce in the abstract. The problem is a practical one of consumer protection, not dialectics." Id. at 357-358, 69 S.Ct. at 114. Because there is no evidence that the restraint upon interstate commerce until adequate inspection has been made is repugnant to the language of 21 U.S. C.A. § 332(a), and because there is every reason to believe that it is entirely consistent with congressional intent in preventing drug adulteration, I cannot agree with defendants that the order exceeds the authority enacted in the statute in this respect.
There is hardly a more settled, indelibly written principle of equity than that which declares that a court must mould its decree in accordance with the specific public interest to be served. E. g., United States v. Morgan, 307 U.S. 183, 59 S. Ct. 795, 83 L. Ed. 1211 (1939). Moreover, where there is a history of repetitive, flagrant violations, where there is a real danger of recurrent violations evidenced by defendant's evasion of the law, and where the nature of such possible future violations cannot be anticipated with exactitude, many courts have greatly broadened the injunctive relief given the government in enforcing regulatory legislation. In speaking as to the propriety of issuing an injunction to enjoin Section 8 violations of the Clayton Act, which forbids interlocking corporate directorates, the Supreme Court in United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) noted that the danger of recurrent violations was to be considered, along with the sincerity of assurances of compliance, the effectiveness of withholding relief as requested by the government, and the character of past offenses. Similarly, the Court in N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 436, 61 S. Ct. 693, 85 L. Ed. 930 (1941), expressed the opinion that the breadth of an injunction must properly account for the future violations similar or related to those which the government *999 presently seeks to have enjoined. To the same effect is N.L.R.B. v. United Mine Workers, 202 F.2d 177 (3d Cir. 1953). The law is also clear that a court must effectively safeguard the public interest against the abuses inflicted by a willful, persistent violator of regulatory legislation who has not shown good faith in compliance. May Department Stores Co. v. N.L.R.B., 326 U.S. 376, 391, 66 S. Ct. 203, 90 L. Ed. 145 (1945), reh. denied, 326 U.S. 811, 66 S. Ct. 468, 90 L. Ed. 495 (1946). The Fifth Circuit in Gulf King Shrimp Co. v. Wirtz, supra, recently commented upon the propriety of an injunction against violations of the child labor and record keeping provisions of the Fair Labor Standards Act, 29 U.S.C.A. §§ 211, 212:
[I]t must be said that this is neither a case of prompt compliance, * * * nor of candid confession minimizing the likelihood of future violations. * * * Such self delusions of innocence only underscore the urgent need, both now and in the future, for injunctive process.
407 F.2d at 516. (Citation omitted).
Defendants fear that inspection rights will give the government power of decision, in effect, to interdict future violations, if detected. While this Court does urge defendants to abandon whatever evasive schemes of noncompliance and noncooperation they may have pursued in the past, I can only reiterate that under 21 U.S.C.A. § 332(b) defendants are guaranteed a jury trial if any contempt proceedings are brought by the government. The facts in Buticaps, Inc. v. United States, 102 U.S.App.D.C. 253, 252 F.2d 634 (D.D.C.1958), upon which defendants rely for this point, are obviously inapposite. The government there sought to by-pass a judicial determination of misbranding before gaining an order for condemned goods to be seized.
RESTRAINT UPON INTERSTATE COMMERCE UNTIL ASSAY OF DRUGS PRESENTLY IN THE LIT DRUG PLANT AND RECALL OF ASSAYED LOTS
Defendants complain against that part of the order which forbids interstate commerce until the FDA has had an opportunity to examine and assay all of the drugs presently being held at the Lit Drug plant and to recall those assayed lots which prove to be adulterated. Defendants do not quarrel with the government demand for a recall of drugs which the plant inspection reveals to be adulterated, but they do argue that this procedure is not related to the future production of drugs, inasmuch as the government has adequate safeguards in those parts of the injunction which direct defendants to make specific corrections. Insofar as the defendants argue that such procedure is not authorized by the Act their argument must fall for the reasons already assigned by this Court in the preceding discussion. Defendants rely chiefly upon Hygrade Food Products Corp. v. United States, 160 F.2d 816 (8th Cir. 1947), for the proposition that the order in the instant case is harsh and punitive rather than remedial. The defendant in Hygrade was charged with shipping unclean and contaminated dairy products in violation of the Food, Drug and Cosmetic Act. The court below recited numerous time-consuming, expensive ways in which the defendant had cooperated with the FDA in cleaning up its operations. It appeared to the court, however, that because of heavy competition within the industry, defendant was forced to accept contaminated milk from its suppliers. Therefore, the court entered an order restraining defendant from shipping milk in interstate commerce for two years. Defendant's good faith in that case was a matter of record, as the government was ready to concede that defendant was willing and capable to do everything necessary to put its plant in proper, sanitary order if it were not for the competitive pressure which forced defendant to violate the Act. The reviewing court simply held that in light of defendant's evident good faith, the two *1000 year restriction, from which defendant could not apply for a modification, was arbitrary and unjustified. Here, however, the time during which interstate commerce is restricted is clearly related to a valid objective. It may well be that the FDA has not yet uncovered all infractions of which defendants are guilty. At least in these extreme circumstances, where defendants have stipulated its marketing of drugs defective with innumerable adulterations, the facts give rise to this presumption. Hence, it is totally reasonable that the FDA should have an opportunity to examine and assay given lots both within the plant and from those drugs recalled, in order to assure the complete safety of defendants' future operations. Seen in this light, the examination and assay of drugs already manufactured is not so unrelated to the future production of drugs as defendants argue. Nor is there anything harsh or punitive in what the government requests. The Order will reflect this Court's continuing jurisdiction for the purposes of enforcement or modification of the Order.
Let an appropriate Order be submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607088/ | 100 So. 2d 369 (1958)
Alfred MACINA and John Follo, trading and d/b/a Court Square Auto Parts, Appellants,
v.
James F. MAGURNO and Elsie A. Magurno, his wife, Appellees.
Supreme Court of Florida.
February 14, 1958.
*370 William J. Castagna, Clearwater, for appellants.
Victor O. Wehle of Askew, Wehle, Earle & Holley, St. Petersburg, for appellees.
O'CONNELL, Justice.
Appellants, Alfred Macina and John Follo, doing business as Court Square Auto Parts, were defendants in the trial court, and James F. Magurno and Elsie A. Magurno, appellees here, were plaintiffs.
The suit was for specific performance of a provision, regarding rent payments, contained in a five year lease executed by the parties in August 1950. The lease was effective November 1, 1950. The plaintiffs were lessors, the defendants lessees. Defendants operated an automobile parts supply business and a machine shop in the leased premises.
The lease provided that lessees would make minimum monthly rent payments in amount of $160 and at the end of each year that:
"* * * Lessees, at their expense, shall furnish to Lessors a complete audit by a reputable Certified Public Accountant showing the gross amount of sales made by Lessees during the preceding rental year in the business conducted by Lessees on the above described premises, * * *" [Emphasis supplied] and if the audit revealed that 4 1/2% per cent of the said gross sales in any such year exceeded the monthly rental payments, that Lessees would pay the difference as additional rent. The construction of the italicized portion of the above lease provision is the principal bone of contention between the parties to the suit.
The plaintiffs' complaint in effect was that although defendants had paid the monthly rental payments and had also paid some additional monies, that defendants had failed to furnish annually "a complete audit by a reputable certified public accountant showing the gross amount of sales" as required by the lease, and that they believed such an audit would show they were entitled to substantial additional sums for rent under the percentage provision of the lease. The plaintiffs asked the court to require the defendants to provide such an audit and to pay any additional sums found to be due.
In their answer, among other things, the defendants denied that they had failed to provide annual audits as required by the lease, alleged that they had furnished annual audits for the years 1951, 1952, 1953 and 1954, prepared by reputable certified public accountants or by a tax consultant specifically approved by the plaintiffs, and that the audit for 1955 was not yet due. They alleged that plaintiffs had in fact established the amounts due them for rent and had accepted payment thereof without question.
The defendants also asserted, as affirmative defenses, that by accepting the annual audits presented to them by defendants without expressing any dissatisfaction prior to filing of the instant suit and by accepting from defendants the sums shown to be due by said audits:
(1) Plaintiffs had waived and abandoned strict compliance with the lease provisions and therefore in equity were estopped from asserting any further claim;
(2) Plaintiffs were guilty of laches in presenting their claims; and
(3) Defendants having made payments to plaintiffs in good faith based on said audits, and plaintiffs having accepted such payments in full and complete settlement of rent due plaintiffs by their acceptance were estopped to assert any further claim.
*371 To their answer, defendants attached what they contend is an audit made by a Certified Public Accountant, covering the entire four year period. This audit on its face was only an addition, by the Certified Public Accountant, of all defendants' sales tickets for the four years, together with a schedule of missing sales tickets which the C.P.A. presumed to have been mutilated and voided.
Defendants made a motion for summary final decree on the theory that the relief sought by plaintiffs, i.e., an audit, had been made and was attached to the answer, and that since all sums due under the audit had been paid, there was no issue to be decided by the court. The plaintiffs filed no affidavits in opposition to the defendants' motion.
Depositions of one of the plaintiffs and one of the defendants were before the court when the motion for summary final decree came on to be heard by the chancellor.
In his "opinion and order" entered after the hearing, the court denied the defendants' motion for summary final decree, found that the audit furnished by the defendants was not "* * * a complete audit * * * showing the gross amount of sales made by lessees * * *" as required by the lease, found that there was "* * * no material issue as to the insufficiency of the audit in the mind of the court * * *" and directed defendants to furnish plaintiffs a "* * * complete audit of their business for the years in question * * * which audit will show, among other things, the gross amount of sales for the years indicated * * *" In his order, the Chancellor did not dispose of the defendants' affirmative defenses.
It is the foregoing order from which this appeal is taken.
Defendants contend (1) that since plaintiffs filed no affidavits controverting or in opposition to their motion and affidavit, there was no genuine issue of material fact and therefore their motion for summary decree should have been granted; (2) the Chancellor erred in construing as he did the lease provision as to the audit; (3) the Chancellor erred in entering sua sponte a final decree for plaintiffs without taking testimony or giving defendants the opportunity to be heard on their direct and affirmative defenses; and (4) that the order of the Chancellor was so vague, ambiguous and uncertain that it was impossible of compliance. This last point need not be treated by us as will become obvious from the remainder of this opinion.
As to the defendants' first contention, we agree with the Chancellor that defendants were not entitled to a summary final decree as a matter of law on the basis of the record as then before the Chancellor. It is true that if it be conceded that the audit furnished by defendants complies with the lease, and it not being denied that plaintiffs have been paid all sums shown to be due by the audit furnished by them, not only would there have been no genuine issue of material fact, but they would have been entitled to a judgment as a matter of law.
But it is clear that the real issue in this case is the sufficiency of the audit to meet the terms of the lease above set forth, and it would have been error for the Chancellor to have entered a decree for the defendants.
This brings us to defendants' second contention which we understand to be that it was not only error for the Chancellor to construe the subject provision of the lease as he did, but that it was error for him to construe it at all since the issue of the construction of the pertinent lease provision was not raised by the pleadings. It is true that no specific or pointed issue is made of the necessity for construing the provision, but the plaintiff did raise the question as to whether the audit was complete. It is obvious, too, that the parties are at variance as to its meaning and it is equally obvious that the construction of the provision is fundamental to settling the dispute in issue, *372 unless the plaintiffs be found, on equitable principles, to have made it immaterial for the years which had already passed.
We therefore hold that it was not error for the Chancellor to have considered and construed the lease provision, nor do we disagree with his construction thereof, except in one particular as hereinafter set forth.
The Chancellor in his order, in effect, found that the audit provided for in the lease meant something more than a compilation of sales tickets written by defendants. It is true that an addition of sales tickets, if accurately and honestly made and kept as to each sale made, would accurately reveal gross sales, and we do not herein intend to indicate that the defendants did not accurately and honestly make and keep such records. But there are methods which those of the accounting profession, using accepted accounting practices and procedures, can with reasonable accuracy prove and determine the correctness or incorrectness of reported sales in a business, provided of course that there are available basic records with which to work. Among these methods is a comparison of total cash receipts as deposited in banks or otherwise disposed of with reported total sales. Another is to compare cost of goods sold, plus markup customary to the individual business or to the trade, against total reported sales. The result of requiring such an audit in determining gross sales was to give plaintiffs the assurance that a reputable member of an honorable and learned profession would, using methods and procedures used by that profession, determine and verify the amount of gross sales, rather than merely relying upon figures furnished by defendants.
We therefore agree with the Chancellor that the lease required defendants to have made annually a complete audit of their records and that based upon said audit they should furnish plaintiffs with a document, call it by any name, in which the Certified Public Accountant who made the audit should set forth that he made a complete audit in accordance with accepted accounting practices, detailing the procedure followed and the records checked, and that based upon such audit the gross sales were a figure named therein. The document should be certified by the C.P.A.
Unless the C.P.A. should find it to be necessary to do so, the document presented to the plaintiffs need not contain any other information concerning the defendants' business. It is on this point alone that we differ with the Chancellor. As we construe the lease provision, the plaintiffs are rightfully entitled to know only the amount of gross sales of defendants. They are however, entitled to know that the figure presented as representing gross sales was determined and verified by a reputable Certified Public Accountant, after a complete audit of the defendants' records.
Defendants' third question is that the Chancellor erred in entering the order requiring them to make and furnish a complete audit without giving the defendants an opportunity to be heard on and to prove their direct and affirmative defenses. We think there is merit to this contention.
Defendants, in their answer, asserted the affirmative defenses of waiver, estoppel and laches.
Plaintiffs argue that defendants have not and cannot assert and prove that the actions of the plaintiffs in receiving the purported audits and accepting rentals based thereon have in any way harmed the defendants or benefited the plaintiffs. Unquestionably one of the essential elements of estoppel is that the party asserting it must show reliance on conduct of the other and change of position in reliance thereon. L.B. Price Mercantile Co. v. Gay, Fla. 1950, 44 So. 2d 87, 90; Robertson v. Robertson, Fla. 1952, 61 So. 2d 499, 504; Gross v. City of Miami, Fla. 1953, 62 So. 2d 418, 419.
However, it is entirely possible that the defendants may be able to prove the elements of estoppel here. They have already *373 been put to the expense of making annual audits, plus the one attached to their answer. They say that to be required to prepare another one now would be an unwarranted expense to them. They point out that, prior to commencement of this litigation, plaintiffs did not object either to the nature of the audit furnished them or to the amount of the rents paid under said audits. Checks for balance of rent offered by defendants and accepted by plaintiffs for years 1952, 1953 and 1954 had thereon language indicating payment of balance of rent and payment in full for the periods covered.
Further, the depositions indicate that defendants' accounting system was not the best and it may well be that it is impossible to ascertain by audit the correctness or incorrectness of the sales tickets. If this be found to be the case, it might be shown that the continuance by defendants of an inadequate accounting system, i.e., inadequate for purposes of making a complete audit, was due to the acceptance by plaintiffs of the purported audit furnished to them annually by the defendants, instead of earlier forcing defendants to render a proper audit.
It is entirely possible that the defendants might have shown the plaintiffs to be estopped to now ask for a document showing the gross amount of sales determined and verified by a complete audit as we have held they were entitled to under the lease.
In Masser v. London Operating Co., 1932, 106 Fla. 474, 145 So. 72, 79, this court said that while waiver, being the intentional relinquishment of a known right, does not arise from forbearance for a reasonable time, it might be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived. Further, it was said that where the conduct of the party is such as to create an estoppel no consideration for the waiver is necessary. While it seems that proof of an estoppel would give the defendants the same result, nevertheless, it may be possible for them to prove a waiver by plaintiffs.
Defendants might also have proved that the plaintiffs were guilty of laches in not sooner asserting their rights under the subject lease provision.
We cannot say as a matter of law that the defenses of estoppel, waiver or laches as pleaded by the defendants, considering the record before the Chancellor, were so incredible as to be unworthy of acceptance by reasonable minds, on the one hand, or on the other, would be without legal probative force, if true, so as to justify the Chancellor in entering a summary decree against the defendants. Johnson v. Studstill, Fla. 1954, 71 So. 2d 251. Defendants should be given the opportunity to prove their defenses.
Accordingly, this cause is reversed and remanded with directions that further proceedings be had in accordance with this opinion.
THOMAS, Acting C.J., and ROBERTS, THORNAL and DREW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441401/ | 970 N.E.2d 628 (2008)
386 Ill. App. 3d 1128
PEOPLE
v.
HINTON.
No. 3-07-0279.
Appellate Court of Illinois, Third District.
November 3, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587518/ | 51 N.Y.2d 943 (1980)
Corrine Jones, as Intended Administratrix of The Estate of Robert M. Jones, Deceased, Appellant,
v.
State of New York, Respondent. (Claim No. 59466.)
Court of Appeals of the State of New York.
Argued September 9, 1980.
Decided October 23, 1980.
Emilio Nunez and Edgar T. Schleider for appellant.
Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for respondent.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI and JONES. Judge MEYER dissents and votes to reverse in an opinion in which Judges WACHTLER and FUCHSBERG concur.
Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (69 AD2d 936). We note, however, that, as conceded by the Assistant Attorney-General on argument, the claim was dismissed only as to the cause of action for wrongful death.
MEYER, J. (dissenting).
Because the State received notice of the cause of action against it in the form of a claim served upon it by the "intended Administratrix" 13 days earlier than the governing statute indicated it should be, persons whom the State intended to benefit by waiving its sovereign immunity and permitting actions to be brought against it in the Court of Claims are being deprived of all recompense. Since I agree with Lee Loevinger, former Associate Justice of the Minnesota Supreme Court, that "The law, in its most general sense, represents society's effort to be rational in controlling the relations among men" (Loevinger, Dogmatism and Skepticism in Law, 38 Minn L Rev 191, 212 [and, I would add, between men and their governments]), since I cannot conceive that the Legislature meant so readily to take away with one hand what it was giving *945 with the other, and since the formalism[1] which underlies the precedents on which the majority's ruling is based no longer guides the law, I respectfully dissent.
The claim made was for personal injury to and the wrongful death of Robert M. Jones, age 19, who was assaulted and stabbed on April 22, 1975 by a former patient at Bronx State Hospital of known vicious propensities, who, it is claimed, was released prematurely. Robert Jones died on April 23, 1975, survived by his mother, father and three brothers. The claim as served and filed on July 16, 1975 was captioned "Corrine Jones, individually and as intended Administratrix of the Estate of Robert Michael Jones, deceased." Corrine Jones, Robert's mother, was not appointed administratrix, however, until July 29, 1975.
Service and filing were acknowledged by both the clerk of the Court of Claims and the Attorney-General's office by letters noting that the claim was being filed "subject to whatever legal objections may apply thereto." The claim was not again filed and served after July 29, 1975, nor was any motion made by the Attorney-General's office until the case was called for trial on September 19, 1977, although a demand for particulars was made in July, 1976 and was answered.
Having played possum until the time for reservice of the claim by the officially appointed administratrix had passed (compare Code of Professional Responsibility, EC 7-14), the office of the Attorney-General moved at the opening of the trial to dismiss for lack of jurisdiction. The motion to dismiss was countered by a cross motion to amend the claim as filed by striking the word "intended". The Court of Claims, "satisfied that the defendant has been properly and timely advised of claimant's cause," denied the State's motion to dismiss and, acting pursuant to the power granted by subdivision 8 of section 9 of the Court of Claims Act to amend and correct any process or claim, granted the motion to amend. The Appellate Division, concluding that "Section 10 of the Court of Claims Act is a jurisdictional prerequisite to maintaining an action in the Court of Claims," reversed and dismissed. While there clearly was precedent for *946 the Appellate Division's ruling, I conclude that that precedent was egregiously wrong and should now be overruled by us.
Section 10 of the Court of Claims Act precedes its various subdivisions with the proscription that "No judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim." The direction that judgment not be entered is not jurisdictional in concept. By itself, therefore, section 10 does not establish a jurisdictional condition precedent. The jurisdiction of the Court of Claims is, however, delimited in section 9 of the act which provides that "The court shall have jurisdiction * * * 2. To hear and determine a claim of any person, corporation or municipality against the state * * * for the torts of its officers or employees * * * providing the claimant complies with the limitations of this article." Thus, only to the extent that the subdivisions of section 10 impose "limitations" on the right of action can it be said that the Legislature established as a jurisdictional condition precedent that a claim filed by the person who is thereafter in fact appointed personal representative of the decedent is, because prematurely filed, outside the court's power to consider. Examination of the pertinent subdivisions of section 10 makes clear that the Legislature had no such intent.
If we turn first to subdivision 2 and consider it by itself, we find that it provides: "A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state, by which the decedent's death was caused, shall be filed within ninety days after the appointment of such executor or administrator unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the death of the decedent. In any event such claim shall be filed within two years after the death of the decedent." The only inescapable requirements of that subdivision are, first, that a claim be made, second, that it be made by an executor or administrator, and third, that it be made within 90 days after appointment of the executor or administrator but in *947 any event within two years after the date of death of decedent. The only suggestion in the language of the section that the Legislature placed any significance on the order in which those three steps occurred is the word "after", but clearly a claim filed prior to the appointment of the personal representative has, in relation to the only event of significance to the State decedent's death been filed "within ninety days after" such appointment (cf. Matter of Johnson v State of New York, 49 AD2d 136).
Moreover, the logic of what the Legislature sought to accomplish by the 90-day provision suggests that it did not regard service before appointment as talismanic. In requiring the filing of a claim for wrongful death by "an executor or administrator" the Legislature, aware that some time would be required to obtain such an appointment, made the filing requirement run from the time of appointment rather than, as for other personal injury claims (see subds 3, 3-a), "within ninety days after the accrual of such claim." Thus, in providing that a death claim could be filed within 90 days after appointment of the personal representative the Legislature sought to extend to the beneficiaries of a death claim extra grace, not to impose upon them an additional, and jurisdictional, condition precedent to the making of a claim.
The conclusion that the Legislature did not conceive the order of filing and appointment to be jurisdictional is reinforced by what was subdivision 5 (now subd 6) of section 10. More will be said hereafter about the first sentence of the subdivision; for the moment I consider only the significance of the first sentence of the subdivision in relation to its next to last. Those two sentences, as they read when Robert M. Jones was assaulted, provided:
"A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent's death.
* * *
"No such application shall be granted if the court shall *948 find that the state has been substantially prejudiced by the failure of the claimant to file such notice of intention within the time limited therefor."
Those sentences show that the Legislature could not have considered anything so lacking in significance as the order of filing and appointment to be jurisdictional, for their language is broad enough to endow the court with discretion (for the exercise of which it had to have jurisdiction) to ignore the failure to file a notice of intention, provided only that the claim be filed within two years of the date of death, the criterion for exercise of discretion being simply whether the State had been prejudiced. Against that grant of discretion it is little short of ludicrous to suggest that the Legislature intended to defeat the claim of decedent's survivors when the State has had full (indeed, extra) notice and opportunity to investigate and makes no claim of prejudice (preferring instead to hide behind the rule that prejudice need not be shown in the absence of jurisdiction).[2]
*949It can, perhaps be argued that the grant of discretion referred to should not be taken as evidence of legislative intent in the context of the present case because it speaks only to the failure to file and not to the situation of the present case, i.e., a filing which is a "nullity", not followed by a further filing, after the incapacity was removed, within two years after death. The contention would be that because the subdivision does not include any language concerning relation back (compare CPLR 203, subd [e]) or permitting amendment in order to validate the "invalid" claim on the same discretionary factors that authorize the filing of a late claim there is no authority to act in the circumstances of the present case. The short answer, in my view, is subdivision 8 of section 9 of the act (part of the Legislature's explication of the court's jurisdiction), empowering it "to vacate, amend, correct, or modify any process, claim, order or judgment, in furtherance of justice for any error in form or substance" (emphasis supplied). Short of ritualistic incantations about "jurisdiction" and "nullity" concepts, as to which more is said below, it seems clear when sections 9 and 10 are read together that the Legislature never conceived that a claim such as plaintiff's would be barred on jurisdictional or any other grounds.
What has so far been said makes evident that based on any reasonable assessment of what the Legislature intended viewed in terms of what it did, it did not conceive of the appointment of a personal representative as jurisdictional. What has happened rather, as not infrequently happens when prior judicial concepts are overturned by legislative action, is that the scope of the change has been judicially restricted by importing into it other prior judicial concepts of which the Legislature, it is said, must be deemed to have been aware. Here two such concepts are at work, of "nullity" and of "jurisdiction". The Legislature did not intend to give the Court of Claims "jurisdiction" in a case such as this, it is said, because it called for the filing of a claim by an executor or administrator, a representative who has no authority to act until he is appointed officially, whose acts are, therefore, a "nullity", and cannot be rectified because a nunc pro tunc order cannot retroactively establish as a *950 fact that which did not exist at the earlier date (Smith v New York Cent. R. R. Co., 183 App Div 478, 480-481). The answer is that we have recognized in Nuernberger v State of New York (41 N.Y.2d 111, 117) "the elastic and versatile definition and use of the term `jurisdiction'", and in George v Mt. Sinai Hosp. (47 N.Y.2d 170, 176, 177) and Caffaro v Trayna (35 N.Y.2d 245, 249, n 1) have refused to let the "nullity" of an action and the necessity of resorting to legal fiction, respectively, stand in the way of litigation of a claim that would otherwise be lost, stating in Caffaro (at p 251) that "only unfairness to defendant or inescapable statutory mandate should foreclose assertion of" a wrongful death claim. There being neither unfairness, nor, as above demonstrated, inescapable statutory mandate in the present case, we should abandon our myopic concentration[3] on concepts not within any demonstrable legislative purpose and hold the order of the Court of Claims amending the caption and denying the motion to dismiss valid and proper.
The more so is this the case when our prior contrary holdings have resulted in substantial reluctance by courts below to follow the precedents (Lurie v State of New York, 73 AD2d 1006 [filing with Attorney-General but not with the clerk held jurisdictional]; Matter of Welch v State of New York, 71 AD2d 494 [omission to file notice of intention with the clerk, although it was filed with the Attorney-General and the claim was filed with both the clerk and the Attorney-General held jurisdictional]; Matter of Johnson v State of New York, 49 AD2d 136 [filing of notice of intention before appointment of administratrix followed by filing of claim by administratrix more than 90 days after appointment but within two years of death held not jurisdictional]; see, also, Blauvelt v State of New York, 160 Misc 319, 321 [ACKERSON, J., dissenting], affd 250 App Div 834; Gonzalez v State of New York, 69 Misc 2d 432; Shaw v Fairyland at Harvey's, 45 Misc 2d 493, affd on other grounds 26 AD2d 576). *951 To that reluctance may be added the fact that our most recent cases on the subject are distinguishable, though at least one, relatively recent one, is not. In Smith v State of New York (41 N.Y.2d 1063), relied on by the Appellate Division, we held that a claim filed by a parent within the two-year period, limited letters not, however, having been granted to her until after the two-year period expired, was jurisdictionally defective because (at p 1065) "A claim for wrongful death against the State can only be filed by a proper representative of the decedent, and the statute requires that the claim be filed within two years after the death of the decedent." Similar reasoning governed the results in Ratka v St. Francis Hosp. (44 N.Y.2d 604, 611) and Goldberg v Camp Mikan-Recro (42 N.Y.2d 1029, 1030). The present case differs from Smith in that plaintiff was appointed administratrix within the two-year period, indeed, within 13 days after the claim was served and filed.
The case which cannot be distinguished is Lewis v State of New York (25 N.Y.2d 881, affg 26 AD2d 878), decided by us in July, 1969. There decedent died on August 22, 1962, claimant filed her claim on November 17, 1962 but was not appointed administratrix until January 17, 1963. At trial in April, 1965 claimant moved at the close of her case to conform the pleadings to her proof and the State moved to dismiss for lack of jurisdiction. The Appellate Division reversed the Court of Claims judgment in favor of claimant. Before us the State argued that there was a jurisdictional defect which could not be cured after the expiration of two years from decedent's death by conforming the pleadings. Departure from such prior precedents is, as I noted dissenting in Matter of Higby v Mahoney (48 N.Y.2d 15, 25), "not only authorized but required when the court is `satisfied, in the first place that they were wrongly decided, and in the second place, that less mischief will result from their overthrow than from their perpetuation' (Black, The Law of Judicial Precedents [1912 ed], p 10)"; see Matter of Eckart (39 N.Y.2d 493, 498-499). As Judge FULD, as he *952 then was, put it in Bing v Thunig (2 N.Y.2d 656, 667), when "adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it" (accord Moragne v State Mar. Lines, 398 US 375, 405). The more so is that true when, as here, the unjustified rule is a judicial gloss on statutory language.
There exists a further reason for reversal of the Appellate Division's order. As already noted, by the time this case came on for trial in 1977 the first sentence of subdivision 6 of section 10 had been amended to authorize a Court of Claims Judge in the exercise of discretion to permit a claimant who had failed to file a claim or notice of intention within two years after decedent's death "to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." As we held in Caffaro v Trayna (35 N.Y.2d 245, 250, supra), the combination of EPTL 11-3.3 (subd [b], par [2]) and CPLR 203 is sufficient to permit a personal representative who has brought a survival action to amend his complaint in an action against a defendent other than the State to include a cause of action for wrongful death of a decedent who died while the personal injury action was pending, notwithstanding that the motion for such amendment was made more than two years after decedent's death. Moreover, in George v Mt. Sinai Hosp. (47 N.Y.2d 170, supra) we recognized that an action against a defendant other than the State for personal injury brought by one not yet appointed administratrix was not a nullity and, therefore, authorized the administratrix after appointment to bring a new action after dismissal of her improperly brought action. Thus the present action so far as it seeks damages for personal injuries could, were it not against the State, be brought within six months after dismissal even though more than two years after date of death, and could, the original pleading having given notice of the occurrence on which the wrongful death claim is predicated, be amended to include the latter *953 claim.[4] That being so, I would uphold the order of the Court of Claims Judge allowing amendment, as properly within the discretion conferred upon him by the present language of subdivision 6.
For the foregoing reasons, the order of the Appellate Division should be reversed and that of the Court of Claims should be reinstated.
Order affirmed, etc.
NOTES
[1] In lawyer's Latin "Forma non observata, infertur adnullatio actus" where the form is not observed, nullity of the act is inferred.
[2] The present provision (subd 6) even more clearly shows the order of filing and appointment not to be jurisdictional. As amended in 1976, that subdivision's first and last sentence read:
"A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state which would be barred under the provisions of article two of the civil practice law and rules.
* * *
"In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file a timely claim or notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
The present provision thus broadens the factors on which discretion is to be exercised, provided only that filing be within the period a like claim could be filed against a citizen: whether the State had notice and an opportunity to investigate, whether the claim is meritorious, whether the State has been prejudiced, whether the claimant has any other available remedy. That EPTL 5-4.1 fixed the period a like claim could be filed against a citizen as "within two years after the decedent's death" is without significance in the present context. The point is not that subdivision 6 lengthened the time for filing a death claim, but that it establishes the factors the Legislature deems significant in relation to jurisdiction.
[3] (Cardozo, Growth of the Law, at p 66: "Judges march at times to pitiless conclusion under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the alter of regularity.")
[4] I recognize that CPLR 203 (subd [e]) speaks of an amended pleading and EPTL 11-3.3 (subd [b], par [2]) contemplates death after action brought whereas here decedent died before the original claim, but would hold that claim to be an "original pleading" within the meaning of CPLR 203 (subd [e]) notwithstanding its claimed "nullity" and death to have occurred "before verdict, report or decision" within the meaning of the EPTL provision, the "limitation" in each case not being designed as such, but rather being intended by the Legislature to expand the right to bring a wrongful death action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/334065/ | 532 F.2d 142
UNITED STATES of America, Plaintiff-Appellant,v.Theodore Roosevelt PATRICK, Jr., aka Ted Patrick, Defendant-Appellee.
No. 75-1127.
United States Court of Appeals,Ninth Circuit.
March 5, 1976.
Paul Friedman, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellant.
Patrick M. Wall (argued), New York City, for defendant-appellee.
OPINION
Before BROWNING, DUNIWAY and KILKENNY, Circuit Judges.
DUNIWAY, Circuit Judge:
1
Patrick was indicted for kidnapping in violation of 18 U.S.C. § 1201. The trial court entered a judgment which recites:
2
This action came on for trial before the Court, Honorable Walter T. McGovern, United States District Judge, presiding, and the issues having been duly considered, and a decision having been duly rendered, finding defendant NOT GUILTY as charged in the Indictment,
3
It is Ordered and Adjudged, the Defendant is hereby acquitted.
4
The United States appeals. We conclude that the United States cannot appeal, and we therefore dismiss.
5
The Criminal Appeals Act, 18 U.S.C. § 3731, as amended in 1971, provides, in pertinent part:
6
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
7
In United States v. Wilson, 1975, 420 U.S. 332, at 338-39, 95 S.Ct. 1013, at 1019, 43 L.Ed.2d 232, at 239, the Court construed the Act as follows:
8
These changes are consistent with the Senate Committee's desire to authorize appeals whenever constitutionally permissible, but they suggest that Congress decided to rely upon the courts to define the constitutional boundaries rather than to create a statutory scheme that might be in some respects narrower or broader than the Fifth Amendment would allow. In light of this background it seems inescapable that Congress was determined to avoid creating nonconstitutional bars to the Government's right to appeal. The District Court's order in this case is therefore appealable unless the appeal is barred by the Constitution.
9
Accord: Serfass v. United States, 1975, 420 U.S. 377, 387, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 273.
10
We therefore turn to the question whether "the double jeopardy clause . . .prohibits further prosecution." (§ 3731, supra.)
11
Here is what happened in this case. Patrick was employed by the California parents of a young woman of 19, who had joined a religious sect and gone to live at its headquarters in the state of Washington, to forcibly remove her to California and "deprogram" her i. e., persuade or compel her to give up her belief in the tenets of the sect and return to her former beliefs and life. Patrick did what he was hired to do.
12
The case was set for trial on December 10, 1974. On December 2, the government filed its trial memorandum, in which it urged that the defense of necessity would not be available to Patrick in the case. In his reply memoranda Patrick's counsel stated that the elements of the offense defined in § 1201 were present, and that "No claim will be made that Patrick did not engage in the conduct attributed to him." Counsel then proceeded to urge that the defense of necessity was both appropriate and available. He defined the defense as that set out in the Model Penal Code § 3.02 (Tent. Draft No. 8, 1958):
13
Conduct which the actor believes to be necessary to avoid an evil to himself or to another is justifiable, provided that: (a) the evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
14
Patrick's second memorandum discusses the law and sets out in detail the evidence that counsel proposed to produce in support of the defense. The memorandum concludes:
15
(W)e submit that the defense we assert is a proper one, its merits in this particular case being a question for the jury under proper instructions, and that the type of evidence we have in part disclosed here is admissible in support of that defense.
16
The government, meanwhile, in a letter dated December 6, came up with a suggestion that "there is no reason for this case to involve an extended jury trial, and . . . the case can be disposed of almost as a matter of law by the court." The basis for the suggestion was that if the court ruled that the defense of necessity was not available there would be no case left to try because Patrick conceded the act and a finding of guilt could be entered, thus enabling Patrick to present the issue to this court on appeal. On the other hand, counsel said,
17
If the court rules that the mere belief of danger is a defense then there is no litigable issue for the United States would concede and stipulate that the victim's parents believed her to be in some sort of danger. Under those circumstances a finding of "not guilty" would be entered.
18
Some discussion between counsel and, by telephone, with the judge, ensued on December 9. Trial was reset for December 11. Obviously, it was agreed that government counsel's suggestion would be adopted in substance, although the discussions are not reported. When the case was called for trial on December 11, a written waiver of jury trial in due form, signed by Patrick and counsel and dated December 10, was presented and approved by the judge. He then called for argument.
Government counsel began as follows:
19
I believe Mr. Wall (Patrick's counsel) and I are in agreement that there are no factual disputes, that the dispute is essentially a legal dispute, the question of whether or not under the federal kidnapping law it is a crime or, rather, there is a defense of justification by necessity.
20
He then proceeded with a legal argument predicated upon the facts stated in the memoranda of Patrick's counsel.
21
Next, Patrick's counsel was heard. He began with the following statement.
22
The arrangement that has been made is that I am to give an offer of proof so that if Your Honor should rule on the question of law against me, that offer would be a sufficient basis for any further review.
23
What I would like to do, then, is to tell you in as brief a fashion as I can what we would have established, we believe, by uncontradicted and believable testimony.
24
After a brief colloquy as to whether he should first argue the law, he was permitted to and did make his offer of proof which covers some 30 pages of the reporter's transcript and incorporates his 20 pages of memoranda, together with a number of exhibits. This was followed by an extensive argument on the law. In response, government counsel outlined rebuttal evidence that the government would offer. The defendant's exhibits were offered and received in evidence at the end of the arguments.
25
Finally, the court made the following ruling:
26
THE COURT: All right, it is indicated by both sides that the questions before the Court are as follows:
27
One, may a parent legally justify kidnapping an adult child upon necessity grounds here alleged.
28
My answer to that is in the affirmative, that there is such a common law defense and I so find.
29
The next question that I consider is stated by Mr. Schwartz (government counsel) in his letter to the Court of December 6, item No. 3:
30
Does the availability of the defense turn upon the parents' mere belief that a set of circumstances exist, or, rather, must it be demonstrated that the circumstances in fact exist?
31
My answer to that question is that the availability of the defense turns upon the parents' reasonable cause to, and that they do in fact have sufficient belief to consider that the child, Kathe Crampton, was in imminent danger.
32
The conclusion of the Court is, of course, that the parents did have such a belief and, in fact, I think the government does, in fact, concede that point.
33
The next question is No. 2 in Mr. Schwartz's three-pronged questionnaire:
34
If a parent may avail himself of such a defense, is it available to an agent of the parent?
35
I might add that I do not find, I do not make a finding from the facts alleged by either side of their offers of proof as being true or not true.
36
For this purpose of my decision, it is totally unnecessary. I am speaking only in terms of the reasonable belief in the minds of Mr. and Mrs. Crampton. Where parents are, as here, of the reasonable and intelligent belief that they were alone not physically capable of recapturing their daughter from existing, imminent danger, then the defense of necessity transfers or transposes to the constituted agent, the person who acts upon their behalf under such conditions.
37
Here that agent is the Defendant.
38
So that there be no mistake, my ruling here today is based solely upon the facts presented to the Court in the offers of proof of the parties, including, but not being limited to, the government's concession that if the Court rules that the mere belief of danger is a defense which I do hold then there is no litigable issue, for the United States would concede and stipulate that the victim's parents believed her to be in some sort of danger.
39
The Clerk will make an entry of judgment of not guilty and the Defendant will stand discharged.
40
This is the basis for the judgment that was entered on the same day.
41
Prima facie, jeopardy has attached. The judgment recites that the case was tried and that the court found Patrick not guilty. Trial of the issue of guilt or innocence is the essence of "jeopardy." It attaches when "a defendant is 'put to trial before the trier of facts, whether the trier be a jury or a judge.' " Serfass v. United States, supra, 420 U.S. at 388, 95 S.Ct. at 1062, 43 L.Ed.2d at 275. A trial can be upon stipulated facts or upon documentary evidence; no witness need be sworn in order to have a trial. United States v. Hill, 9 Cir., 1972, 473 F.2d 759, 761.
42
On the other hand, many preliminary motions are heard by the judge in a criminal case, at which evidence is received and issues of fact are decided, without causing jeopardy to attach. United States v. Hill, supra, at 763. This is true even though the decision may profoundly affect the determination of guilt or innocence at the trial. Thus, for example, the granting of a motion to suppress may make acquittal virtually certain, while denial may make conviction equally certain. The principal legal question in this case could have been presented in just this way. Indeed, that is what the government set out to do. In its December 2, 1974, trial memorandum, the government asked the judge to rule, in advance, that the defense of necessity was not applicable, and to order that evidence in support of the defense would be excluded. In his first reply memorandum, defense counsel made the same request for an advance ruling, although he wanted a contrary result.
43
Then, however, in his December 6 letter, government counsel suggested an alternative procedure under which, if the court ruled that the defense was not available, "The defendant having conceded the act, . . . there would be no case left to try. A finding of guilt would be entered and . . . (this) would permit presentation of the same issue to the court of appeals in a speedy and almost academically pure manner."
44
Obviously, this did not mean that Patrick would plead guilty; he would then not have been in a position to raise the question of the availability of his defense on appeal. See Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. What was contemplated was that, in lieu of requiring the government to prove that Patrick engaged in the conduct attributed to him, Patrick would admit that he did, and the court on that basis would find him guilty. Surely that would be to put Patrick to trial before the trier of fact, the judge. Surely Patrick would have been in jeopardy.
45
As it happened, the case did not proceed to such a conviction. Instead, and based upon Patrick's offer of proof and the government's admission, both in its memorandum and at the hearing, that the young woman's parents did believe her to be in danger, the court ruled that the proffered defense was available, that the proffered facts supported it, and that Patrick was not guilty. This is just what the government suggested that the judge do. The judge, to decide that Patrick was not guilty, had to weigh the proffered and admitted facts to determine whether they made out the proffered defense. Surely Patrick was put to trial before the trier of fact, the judge. Surely he was in jeopardy.
46
The next question is whether, if the government were to succeed in this appeal, the result would be to put Patrick in jeopardy a second time. Because the Fifth Amendment provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," our conclusion that Patrick has been once in jeopardy " 'begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.' " Serfass v. United States, supra, 420 U.S. at 390, 95 S.Ct. at 1064, 43 L.Ed.2d at 275, quoting Illinois v. Somerville, 1973, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 432.
47
In the case at bar, we see no escape from the conclusion that, if we were to reverse the judgment, Patrick would have to be tried again, and thus twice put in jeopardy in violation of the Fifth Amendment. We think that the decision in United States v. Jenkins, 1975, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250, requires the conclusion that we reach. There, as here, when the case proceeded to trial, the defendant waived trial to a jury and the case was tried to the court. There, as here, the court determined that a proffered defense, first tendered in a pre-trial motion, was available and was, on the record before it, applicable. There the court ordered the indictment dismissed and the defendant discharged. Here, the court found the defendant not guilty, ordered that the defendant be discharged, and entered a judgment of acquittal. There, as here, there was no general finding of guilty that could be reinstated after reversal of a subsequent decision dismissing the indictment, as there was in United States v. Wilson, supra, nor was there the granting of a pre-trial motion to dismiss, in a case in which there had been no waiver of jury trial, as in Serfass v. United States, supra. Nor was there the granting of a pre-trial motion, made after a waiver of jury trial, but before the trial began, as in United States v. Choate, 9 Cir., 1975, 527 F.2d 748 (1975). The court did not reach the issue of guilt or innocence in Choate ; here it did.
48
In our case, the evidence of guilt was stated only in the offer of proof and the memoranda of Patrick's counsel. We do not think that the court could have found Patrick guilty, had it rejected the defense, unless it had before it an express stipulation or admission of the facts, by Patrick himself, or else evidence of guilt offered by the government. We doubt that Patrick's counsel could stipulate to all the facts needed to find him guilty without his express consent. Cf. United States v. Terrack, 9 Cir., 1975, 515 F.2d 558, 560; United States v. Garcia, 9 Cir., 1971, 450 F.2d 287. But it is clear that it was contemplated that some such stipulation or admission would have been made if the court had ruled against the defense. That was never done, but only because that stage of the trial was never reached.
49
Thus it is clear that, if we were to reverse, "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would . . . (be) required upon . . . remand. . . . The trial, which could have resulted in a judgment of conviction, has long since terminated in (Patrick's) favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause." United States v. Jenkins, supra, 420 U.S. at 370, 95 S.Ct. at 1013, 43 L.Ed.2d at 259.
50
Because we hold that the judgment is not appealable, we do not pass upon the question whether the defense of necessity was properly found to be applicable in this case. The judgment not being appealable, that question is not before us.
51
While this appeal was pending, Patrick moved to dismiss the appeal, on the grounds on which we now hold that the appeal must be dismissed. A motions panel denied that motion. That decision, however, was interlocutory, not final, just as the denial of a motion to dismiss in the trial court is interlocutory, not final, and we can and do reconsider it.
52
The appeal is dismissed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3043008/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1717/1725
___________
JoAnn Buytendorp, *
*
Appellant/Cross-Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
Extendicare Health Services, Inc., *
*
Appellee/Cross-Appellant. *
___________
Submitted: November 15, 2006
Filed: August 17, 2007
___________
Before LOKEN, Chief Judge, LAY1 and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
JoAnn Buytendorp appeals the district court’s2 grant of summary judgment in
favor of her employer, Extendicare Health Services, Inc. (“Extendicare”), in this
diversity action under the Minnesota Whistleblower’s Act, Minn. Stat. §§ 181.931 to
181.935 (“the Act”). Extendicare cross-appeals the district court’s denial of a motion
1
The Honorable Donald P. Lay assumed permanent disability retirement status
on January 3, 2007, and died on April 29, 2007. This opinion is being filed by the
remaining judges of the panel pursuant to 8th Cir. R. 47E.
2
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
requesting permission to amend a scheduling order to permit a motion for sanctions
against Buytendorp’s counsel. We affirm.
I. Background
A. The Parties and the Allegedly Illegal Practices
Extendicare is a for-profit healthcare company that operates long-term care,
skilled nursing, assisted living, and shorter-term rehabilitation facilities in Minnesota
and other states. It is a Delaware corporation with its principal place of business in
Wisconsin. Extendicare receives reimbursement payments from various payor
sources, including Medicare, Medicaid, and private sources. The reimbursement rate
Medicare pays to Extendicare is substantially higher than the rates paid to Extendicare
by the other sources.
Buytendorp began working for Extendicare upon graduation from college in
1989. Between 1989 and mid-1996, she completed additional course work, obtained
an administrator’s license, and held a series of positions of increasing authority at
Extendicare. On July 1, 1996, she became the temporary administrator of an
Extendicare facility, Trevilla of New Brighton. In December 1996, Extendicare made
Buytendorp the permanent administrator at Trevilla. She worked in this capacity until
2004, when Extendicare terminated her employment.
Buytendorp alleges that she received no adverse performance reviews and was
denied no raises nor opportunities for advancement prior to 2003. She alleges
Extendicare terminated her employment because she complained about, and refused
to participate in, practices she believed to be illegal.3 The objectionable practices
3
Although Buytendorp also alleges she was denied advancement opportunities
in 2003 and 2004, she fails to present evidence sufficient to create a triable question
of fact regarding Extendicare’s hiring practices and the filling of open positions during
-2-
related generally to discrimination in the admission and treatment of patients based
on payor source. She alleges Extendicare held rooms open for higher-paying
Medicare patients, held Medicare patients longer than necessary, moved non-Medicare
patients to less desirable rooms to make desirable rooms available for Medicare
patients, and cut staffing to levels that were adverse to the patients’ interests, all
purportedly in violation of federal law, state law, and Medicare guidelines.
Buytendorp states that there was some emphasis within Extendicare to
maximize the admission and retention of Medicare patients dating back to 1996 but
that she was neither instructed nor pressured to participate in practices she believed
to be illegal until the 2003-04 time frame. According to Buytendorp, the atmosphere
changed in late 2002 when Extendicare hired Laurie Bebo as a vice-president for the
region that included the Trevilla facility. According to Buytendorp, Bebo
aggressively pursued an increase in the number of Medicare patients and aggressively
pursued cost-cutting measures. Under Bebo, Buytendorp states that she and other
employees noticed a strong emphasis on profitability that they believed impeded the
provision of good patient care. Buytendorp describes the work atmosphere under
Bebo as one of pressure to increase the number of Medicare patients by whatever
means possible. Buytendorp also describes a number of specific policies that she
characterizes as designed to maximize the admission and retention of Medicare
patients to the detriment of patients covered by other payor sources. Buytendorp
alleges that these policies, even if not facially illegal, served as a framework that
permitted and concealed payor source discrimination.
Regarding the general atmosphere of pressure, Buytendorp states that Bebo
instituted a target Medicare patient quota for each facility, known as a payor mix or
the relevant window of time. It is not clear which decisionmakers were responsible
for filling positions Buytendorp allegedly desired, nor is it clear that Buytendorp’s
complaints had been communicated to any such decisionmakers. Accordingly, we do
not discuss these allegations further.
-3-
Medicare census. Administrators’ compensation was linked in part to meeting the
quotas for their facilities. Bebo and the area director of clinical reimbursement, Jim
Hendricks, held weekly conference calls with facility administrators and nursing
directors who failed to meet their quotas. Buytendorp states that Hendricks would
belittle and yell at staff who failed to meet a Medicare census.
Regarding specific policies, Buytendorp first identifies a policy she calls the
“two-beds” policy. The Trevilla facility had some rooms in a rehabilitation wing that
contained only two beds per room and that were more spacious than rooms in a
separate long-term care wing that contained three beds per room. The two-bed rooms
also had a greater number of amenities such as cable television. Buytendorp describes
the three-bed rooms as undesirable and hard to market, with the middle beds of the
three-bed rooms being particularly unattractive to potential patients. Buytendorp
states that, in 2003, Bebo directed her to keep beds available in the two-bed rooms for
Medicare patients, even if it meant turning away Medicaid or private source-payor
patients. This policy also required Buytendorp to move non-Medicare patients out of
the desirable rooms and into three-bed rooms if a Medicare patient called to be
admitted. Buytendorp alleges that this practice of discriminating against patients
based on payor source was in violation of Minnesota law.
A second specific policy Buytendorp identifies is the “green light” or “green
flag” admissions policy. In theory, this policy was designed to streamline the
admissions process and make it easier for facilities to deal with hospitals that released
patients to Extendicare. The green flag policy was designed to permit any staff
member to automatically admit new patients who had certain, enumerated diagnoses.
Buytendorp states that, in practice, the green flag policy favored Medicare patients
and changed over time into a policy that prohibited the rejection of Medicare
admittees. Buytendorp claims the policy first changed to require a regional nurse’s
approval before admission could be denied to a prospective Medicare patient,
regardless of the facility’s ability to handle the patient’s needs. Later, even regional
-4-
nurses and facility administrators could not approve such denials, and only Bebo
could approve the rejection of a Medicare patient.
The third policy Buytendorp identifies is the Healthtrac program. In theory, this
was a program for tracking patient progress that was intended to minimize the number
of patients who were prematurely released and subsequently forced, following injury
or relapse, to return for further or different care. Buytendorp alleges that, in practice,
Healthtrac came to be used only with Medicare patients and became one of many tools
Extendicare used to improperly and unnecessarily lengthen the stays of high-paying
Medicare patients. Buytendorp alleges that she was directed to use the Healthtrac
program and to take other measures to convince Medicare patients to extend their
stays beyond any medically necessary length. Buytendorp admitted in her deposition,
however, that she is not a physician nor is she qualified as a physician to determine
what treatment is and is not medically necessary.
B. The Alleged Whistleblowing
Buytendorp states that Bebo announced the two-beds policy during a
conference call “some time in 2003.” Buytendorp immediately believed that the
policy illegally discriminated against patients based on payor source, but she did not
voice her concerns to Bebo out of fear of retaliation. Buytendorp implemented the
policy and believed herself to be acting in violation of the law whenever she had open
beds and turned away prospective patients from non-Medicare payor sources.
Buytendorp claims that within two weeks of Bebo’s announcement of the policy,
Buytendorp “voiced [her] opinion to [Buytendorp’s] direct supervisor, Craig Eddinger
and . . . felt that was sufficient.” Buytendorp claims that she specifically told
Eddinger, “It’s illegal to discriminate against payor sources in the State of Minnesota.
And that we can’t hold beds open for Medicare patients.” Buytendorp did not
complain directly to Bebo, nor did she ask Eddinger to communicate her concerns to
-5-
Bebo. Buytendorp stated that she had hoped Eddinger would pass her complaints
along, but that she was reluctant to talk directly to Bebo out of fear of retaliation.
Buytendorp did not follow up with Eddinger on the two-beds policy because
the Trevilla facility met its Medicare census or quota and “stayed there for quite some
time,” and therefore, Buytendorp did not participate in the conference calls with Bebo
and Hendricks that were designed to address Medicare census shortfalls. In
Buytendorp’s deposition, when counsel asked her about reporting the two-bed policy,
the following exchange took place:
Counsel: Let me ask you, when you say we were at budget, do
you mean Trevilla of New Brighton?
Buytendorp: Correct.
Counsel: Those conference calls continued though with other
facilities?
Buytendorp: I assume so. I didn’t [keep] track of other people’s
census.
Counsel: And so it didn’t concern you that other facilities might
be violating the law?
Buytendorp: I was very happy with the way the facility was running
and I just kept working hard at my own facility, I didn’t
think of others.
Counsel: So since your facility was on budget and you weren’t on
conference call you dropped the issue, is that correct?
Buytendorp: Correct.
Upon further questioning, Buytendorp stated that she met her medicare census
and was not required to go back on conference calls until November 2003, when
Trevilla failed to meet its Medicare census. At that time, she continued to implement
the two-beds policy in an effort to increase the number of Medicare patients at
Trevilla. She described one conference call in particular in which various
administrators were asked what they were doing to meet the Medicare census goals
at their facilities. During the call, Buytendorp explained how she was moving non-
-6-
Medicare patients to the middle beds of the undesirable three-bed rooms and keeping
other beds open for Medicare patients. According to Buytendorp, she was praised by
supervisors when she explained this practice.
Buytendorp made no further statements to Eddinger about her concerns. She
does not know if Eddinger shared her comments with any other persons at
Extendicare, and she presented no evidence to suggest that Eddinger shared her
concerns with other employees or supervisors. Buytendorp states that Eddinger
expressed no dissatisfaction with her performance and gave her “a really good
review.” Buytendorp did not complain directly to Bebo about the objectionable
policy, call the corporate compliance phone line, nor complain to any superiors in
writing or via email. Extendicare submitted an affidavit from Eddinger in which
Eddinger denies Buytendorp’s allegation that she complained to him about the two-
beds policy being illegal. Eddinger moved to a different position at Extendicare
shortly after Buytendorp made her comments to him and left the company entirely in
late 2003.
Also in November 2003, Hendricks came to Trevilla to conduct training on the
Healthtrac system. At that time, Buytendorp spoke privately with Hendricks and told
him she believed it was illegal to treat Medicare patients differently than other patients
and hold patients longer than necessary. Buytendorp stated that Hendricks attended
meetings every month for three months, and each time, she privately expressed to him
her concern over the illegality of the discriminatory practices and patient retention
practices. Throughout this time, Buytendorp continued to implement the
objectionable programs at Trevilla. Extendicare submitted an affidavit from
Hendricks in which Hendricks denies that Buytendorp complained to him about
perceived illegal practices.
In December 2003, Bebo and human resources manager Io Shug met with
Buytendorp and Lisa Boje, the manager of nursing at Trevilla, to address issues
-7-
related to general census numbers and nursing labor costs. Buytendorp does not
allege that this meeting was related to Medicare census numbers or payor source
discrimination. Rather, Bebo and Shug discussed Buytendorp’s and Boje’s failure to
adequately control nursing costs at a budgeted level commensurate with the facility’s
overall census or occupancy. According to Buytendorp, “It was a threatening
meeting, it basically said you need to fix this or you'll be terminated.” Buytendorp
admits that the nursing costs were not adequately under control at Trevilla at the time
of this meeting, and she does not suggest that the meeting to address this issue was
inappropriate. Buytendorp alleges only that, based on her characterization of past
practices at Extendicare, this area of concern would not typically have been grounds
for termination.
In January 2004, Buytendorp attended a meeting with Wally Lavonavich, the
area comptroller in charge of finances and budgets for Extendicare in Minnesota and
Wisconsin. Buytendorp talked to Lavonovich one-on-one and said, “Wally, I believe
we are, or it is illegal that we are practicing this admissions policy.” She also told him
“it was illegal that we’re holding patients longer than is medically necessary.”
According to Buytendorp, Lavonavich responded by laughing and saying, “We’re a
big company, I’m sure this would have been brought up by now if that was true.”
Extendicare submitted an affidavit from Lavonavich in which Lavonovich denies that
Buytendorp complained to him about any perceived illegal practices.
Buytendorp states that Sue Cullen replaced Eddinger as her immediate
supervisor at the end of February 2004. Cullen was from Canada, and Buytendorp
claims to have been concerned that this new supervisor might not be familiar with
applicable U.S. and Minnesota laws and regulations. During an introductory meeting
that took place “probably in the first couple of weeks in March,” Buytendorp took the
opportunity to tell Cullen that she believed the two-beds policy comprised illegal
discrimination based on payor source. Buytendorp also told Cullen that the separate
practice of “increasing the length of stay on Medicare patients and keeping them in
-8-
the facility when it was not medically necessary was also illegal and breaking the law
on federal guidelines for Medicare.” Regarding the Healthtrac program and other
efforts to keep Medicare patients in-house for as long as possible, Buytendorp admits
that she participated in carrying out the policies. Extendicare submitted an affidavit
from Cullen in which Cullen denies that Buytendorp ever complained to her about any
perceived illegal practices.
During Buytendorp’s deposition in this matter, counsel for Extendicare
questioned her about her interactions with Cullen and Hendricks and about carrying
out the policies at Trevilla that Buytendorp found objectionable. Buytendorp
consistently characterized the policies as directives she was instructed to follow. The
following exchange took place:
Counsel: Now, at some point did you stop your facility, stop
violating these two laws that you were telling me about?
Buytendorp: No, we did, we followed the directive.
Counsel: That’s what I’m trying to get at, you followed the
directive all the way up to and including the time of your
termination?
Buytendorp: Correct.
On April 12, 2004, during a brainstorming meeting that included Buytendorp,
Hendricks, Cullen, and administrators from other facilities, those in attendance were
expected to suggest methods by which Extendicare could obtain and retain Medicare
patients. Buytendorp alleges that she sat conspicuously mute at the meeting and that
she, again, pulled Hendricks aside and voiced her concern to him that it was illegal to
extend the stays of Medicare patients. Following the meeting Hendricks expressed
dissatisfaction with Buytendorp’s performance and met with Cullen behind closed
doors. After the closed-door meeting, Cullen met with Buytendorp and “was visibly
upset and said she was very disappointed in [Buytendorp].” On April 14, 2004,
Cullen placed Buytendorp on a performance improvement plan with one month to
-9-
meet stated goals. The performance improvement plan or probation plan listed areas
of concern that Buytendorp concedes were legitimate areas of concern where she was
underperforming. For example, in relation to the control of labor costs and a failure
to meet overall facility census goals, Buytendorp stated in her deposition, “I was not
at budget for these areas, correct. . . . Our census was low and I had not adjusted the
appropriate nursing hours.” Buytendorp identifies other concerns as being unfounded,
however, and as relating to the implementation of illegal policies. For example,
Buytendorp stated, “The area where it said you had to increase your length of stay and
attend the Medicare meetings and be an active part of it, that I felt was being
fraudulent and illegal and I wasn’t going to do that.”
C. The Termination
Buytendorp did not meet the goals set out in the performance improvement
plan. Cullen stated in an affidavit that she made the decision to terminate Buytendorp
and intended to meet with Buytendorp on May 17 to terminate her employment. That
meeting was not scheduled, however, because Cullen learned that Minnesota state
investigators were conducting an audit of the Trevilla facility. This audit resulted in
the discovery of twenty-nine safety violations of varying levels of severity, and Cullen
received an oral report of these violations on Friday, May 21, 2004. Cullen set a
meeting for the morning of Saturday, May 22.
Cullen stated in an affidavit that when she arrived on Saturday morning,
Buytendorp had already packed personal belongings in a box. Cullen claims to have
told Buytendorp that she was being terminated because she failed to meet the goals
in the performance improvement plan and because of the number and severity of the
safety violations identified by the state. Buytendorp alleges that she had not packed
her personal belongings before Cullen arrived, but rather, was getting organized for
the meeting with Cullen. Buytendorp alleges that Cullen did not offer reasons for the
termination other than stating that Buytendorp was not “administrator material.”
-10-
Buytendorp does not contest the fact that the state conducted an inspection that
revealed safety violations. Instead, Buytendorp alleges that the state authorities were
overly aggressive and overly critical and that they broke with past practice by listing
certain violations individually whereas past reports had grouped violations together.
Buytendorp argues that this resulted in an inflated number of violations in the May
2004 inspection report and an amplification of the appearance of risk to patients.
After her termination, Buytendorp brought this retaliation action in state court
and Extendicare removed the case to federal court. Buytendorp alleged that
Extendicare denied her opportunities for advancement and ultimately fired her in
retaliation for whistleblowing and for refusing to participate in allegedly illegal
activity. Extendicare moved for summary judgment on Buytendorp’s claim under the
Act and on a separate state law claim for negligent supervision. The district court
granted summary judgment in favor of Extendicare on both claims. The court found
that Minnesota’s own courts had interpreted the Act to require an official or formal
report of wrongdoing before an employee could enjoy protection under the Act and
that Buytendorp’s repeated comments to her superiors at Extendicare did not qualify
as official or formal reports. The district court noted the availability of a mechanism
to make such reports (a corporate compliance hotline) and Buytendorp’s failure to
utilize that mechanism. The district court also noted that Buytendorp failed to make
any written complaints, email any complaints, or make notes regarding the alleged
illegalities or complaints. Buytendorp appeals the grant of summary judgment on her
whistleblower claim but not her claim for negligent supervision.
In the court below, a dispute arose in which counsel for Extendicare accused
counsel for Buytendorp of improperly attempting to influence a witness and making
misrepresentations to the court. Counsel for Buytendorp accused counsel for
Extendicare of improperly withholding documents that had been requested during
discovery. Extendicare eventually moved to amend a scheduling order to permit the
-11-
filing of a motion for sanctions against Buytendorp’s counsel. A magistrate judge4
denied the motion and Extendicare appealed to the district court. The district court
affirmed the magistrate judge’s denial of the motion, and Extendicare appeals to our
court.
II. Discussion
The Act prohibits adverse actions against employees who make good faith
reports to their employers about actual or suspected illegal conduct. Minn. Stat.
§ 181.932(a). The Act also prohibits adverse actions against employees who make
good faith reports regarding violations of health care standards that “potentially
place[] the public at risk of harm.” Minn. Stat. § 181.932(d). Finally, the Act
protects employees who refuse to participate in practices when there are objective
reasons to believe the practices are illegal. Minn. Stat. § 181.932(c). Buytendorp
asserted below and maintains on appeal that she was terminated for making good faith
reports and for refusing to participate in illegal practices. She admitted, however, that
she implemented the identified practices through the time of her termination. As such,
there was no refusal to participate. See Gundacker v. Unisys Corp., 151 F.3d 842,
847-48 (8th Cir. 1998) (upholding a grant of summary judgment under subsection (c)
of the Act where an employee failed to prove a refusal to participate). To the extent
Buytendorp bases her refusal-to-participate claim on her silence at the April 2004
meeting, we find her arguments to be without merit. Sitting quietly at a planning
session while actually implementing objectionable policies does not comprise a
refusal to participate. Accordingly, we focus our analysis on her claim under
subsections (a) and (d) of the Act.
4
The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota.
-12-
We analyze Minnesota whisteblower claims using the procedural framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Hitchcock
v. Fedex Ground Package Sys., Inc., 442 F.3d 1104, 1106 (8th Cir. 2006) (applying
the burden-shifting framework of McDonnell Douglas to claims under Minn. Stat.
§181.932). Under McDonnell-Douglas, the initial burden is on the plaintiff to
establish a prima facie case. Rothmeier v. Inv. Advisers, Inc., 556 N.W.2d 590, 592
(Minn. App. 1996). A prima facie case consists of (1) conduct by the employee that
is protected by the Act, (2) an adverse employment action directed at the employee,
and (3) a causal connection between the protected conduct and the adverse action. Id.
If the plaintiff establishes a prima facie case, a burden shifts to the employer to
articulate a legitimate reason for the adverse action. Id. at 592-93. The ultimate
burden of proof then rests with the plaintiff to prove that the proffered reason is
merely a pretext and that retaliatory animus motivated the adverse action. Id. at 593.
Protected conduct under subsection (a) of the Act is the making of a “good
faith” report. Minn. Stat. § 181.932(a). To be a protected report, a complaint must
be formal or presented “in an essentially official manner.” Janklow v. Minn. Bd. of
Exam’rs for Nursing Home Adm’rs, 536 N.W.2d 20, 23 (Minn. App. 1995) (defining
a good faith report as “conduct [that] amounts to relating or presenting concerns in an
essentially official manner”). In addition, “to constitute whistle-blowing . . . a report
[must be] made for the purpose of exposing an illegality and [must not be] a vehicle,
identified after the fact, to support a belated whistle-blowing claim.” Obst v.
Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000). In other words, “[i]n
determining whether a report of a violation or suspected violation of the law is made
in good faith, we look beyond the content of the report and consider the employee’s
purpose in making the report.” Gee v. Minn. State Colls. and Univs., 700 N.W.2d
548, 555 (Minn. App. 2005). “Whether a plaintiff made a report in ‘good faith’ is a
question of fact. Nevertheless, [the] court may determine as a matter of law that
certain conduct does not constitute a ‘report.’” Rothmeier v. Inv. Advisers, Inc., 556
N.W.2d 590, 593 (Minn. App. 1996) (internal citations omitted).
-13-
Extendicare argues that application of the formality or “essentially official
manner” requirement is a simple matter: because Buytendorp failed to make or
memorialize her complaints in writing or present them electronically or through the
company’s corporate compliance hotline, she cannot meet the formality requirement.
We do not agree with Extendicare’s assertion that the contours of the formality
requirement are this simple and well-defined. Although Minnesota’s courts have
interpreted the statute as containing a formality requirement, neither the statute nor the
caselaw interpreting the statute contains an express requirement that reports be in
writing. Similarly we find no Minnesota cases standing for the proposition that an
employer may dictate the sole method for communicating complaints about illegal
conduct. The rationale for a formality requirement, like the rationale for a good faith
requirement, is clear: to prevent after-the-fact claims of retaliation based on a dearth
of evidence and unsubstantiated allegations. See Obst, 614 N.W.2d at 202. The
contours of the formality requirement, however, remain cloudy.
Assuming that Buytendorp satisfied the formality requirement, it is not clear
that her repeated statements were made in a good faith effort to expose an illegality.
Arguably, “[h]er reports merely expressed her dissatisfaction with [the employer’s]
conduct and policy, and there is no evidence in the record to suggest that her purpose
in reporting was to expose an illegality.” Hitchcock, 442 F.3d at 1106; see Fjelsta v.
Zogg Dermatology, 488 F.3d 804, 808-09 (8th Cir. 2007) (affirming a grant of
summary judgment under the Act where an employee’s claimed report was not made
for the purpose of exposing an illegality). Here, Buytendorp readily admits that she
refrained from complaining to Bebo out of fear of retaliation. In general, we believe
that whistleblowers are employees who make good faith reports in spite of the risk of
retaliation, not those who avoid such risk.
Nevertheless, we need not decide this case based on the subtleties of
Minnesota’s good faith reporting requirement and the difficult question of whether
Buytendorp’s complaints and subjective motivations qualify her as a whistleblower
-14-
under the Act. Rather, we may assume for the purpose of our analysis that
Buytendorp’s repeated statements to multiple superiors satisfied both the good faith
and formality requirements discussed in Minnesota’s cases. Buytendorp’s case fails,
instead, because Extendicare proffered legitimate reasons for Buytendorp’s
termination—a failure to control labor costs, maintain facility census, and meet state
safety standards—and Buytendorp presented insufficient evidence to create a jury
question as to whether these proffered reasons were merely pretexts.
In describing the McDonnell Douglas burden-shifting framework, we have
stated:
[T[he actual evidentiary burden that a plaintiff must meet at the prima
facie stage [is] “minimal.” Where the evidence used to establish a prima
facie case meets this minimal burden but is not strong, that evidence,
standing alone, may be insufficient to sustain the plaintiff’s case at the
final stage of the burden-shifting analysis. Conversely, where the
evidence of causation for purposes of establishing a prima facie case is
quite strong, it may be sufficient, standing alone, to prove a defendant’s
liability without resort to further evidence.
Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007) (applying
the burden-shifting framework in the context of a statutory disability discrimination
claim) (internal citations omitted). Here, Buytendorp’s prima facie case is not strong,
and she does not challenge the veracity of Extendicare’s assertions regarding her
census, her prior failure to control labor costs, or her receipt of a poor review from the
state. Rather, she alleges these issues were not the true motivation for Extendicare’s
adverse action. Against this backdrop, Buytendorp may not rely solely upon her
prima facie case. Rather, she must present evidence of pretext that is sufficient to
create a triable question of fact when “viewed in light of the employer’s justification.”
Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (“An
employee’s attempt to prove pretext requires more substantial evidence than it takes
to make a prima facie case because unlike evidence establishing a prima facie case,
-15-
evidence of pretext and retaliation is viewed in light of the employer’s justification.”)
(quotations and alterations omitted).
Buytendorp primarily argues that temporal proximity between her termination
and the April 2004 meeting supports an inference of retaliatory animus. “An
inference of a causal connection between a charge of discrimination and [an adverse
employment action] can be drawn from the timing of the two events, but in general
more than a temporal connection is required to present a genuine factual issue on
retaliation.” Arraleh v. County of Ramsey, 461 F.3d 967, 977 (8th Cir. 2006) (internal
citations omitted, alteration in original). Here, two of the stated rationales for the
termination were Buytendorp’s failures to maintain facility census and control labor
costs. These were performance issues that Bebo raised in the December 2003 meeting
where Buytendorp admits Bebo threatened termination. Buytendorp has presented no
evidence suggesting Bebo was aware of her complaints, and Buytendorp admits that
she specifically avoided making complaints to Bebo. Cullen renewed this
performance concern with the performance improvement plan in April 2004. Given
these undisputed facts, it would not be reasonable to characterize this proffered
rationale as a last-minute, negative response to protected conduct. Cf. Turner v.
Gonzales, 421 F.3d 688, 697 (8th Cir. 2005) (holding that an inference of pretext was
permitted where a decisionmaker generated a negative, unscheduled performance
review two months after a favorable, regularly scheduled review and five days after
receiving notice of the employee’s protected conduct). Further, Cullen met with and
terminated Buytendorp the day after Cullen learned of the state inspection which
exposed a large number of safety violations. Given these facts, temporal proximity,
if anything, lends support to Extendicare’s position rather than Buytendorp’s.
Buytendorp also argues that because Cullen admits to having made the decision
to terminate her prior to the state inspection, and because Extendicare now points to
the safety violations as a rationale for her termination, Extendicare is waffling and
appears to be offering post hoc, pretextual rationales for her termination. See Kobrin
-16-
v. Univ. of Minn., 34 F.3d 698, 703 (8th Cir.1994) ( “Substantial changes over time
in the employer’s proffered reason for its employment decision support a finding of
pretext.”). As further support for this argument, Buytendorp points to her own
assertion that Cullen failed to offer any explanation on the morning of the termination,
other than saying Buytendorp was not “administrator material.” For summary
judgment purposes, we must ignore Cullen’s contrary assertion that Buytendorp had
packed her personal belongings in a box prior to termination and that Cullen explained
the proffered reasons to Buytendorp at termination.
We need not ignore undisputed facts, however, nor must we recognize
unreasonable inferences. We do not believe reasonable jurors could infer pretext from
these alleged inconsistencies. Buytendorp argues neither that the inspection results
were a fabrication nor that Extendicare was responsible for the state inspectors’
actions. Moreover, Cullen’s statement as described by Buytendorp is fully consistent
with Extendicare’s proffered rationales, albeit less specific. Here, an additional,
uncontested, legitimate reason for termination arose between the time that Extendicare
made the decision to terminate and the time the Extendicare actually terminated
Buytendorp. See Freeman v. Ace Tel. Ass’n, 467 F.3d 695, 698 (8th Cir. 2006). On
these facts, reference in subsequent litigation to the additional rationale does not
permit an inference of pretext.
Finally, Buytendorp argues that the state’s report was infirm and that
Extendicare’s treatment of other administrators proves that Extendicare singled her
out for retaliation. We fail to appreciate how the state’s election to conduct an
aggressive inspection relates to Extendicare’s motives. Also, as to the treatment of
other administrators, there is not sufficient evidence for a jury to conclude any such
administrator was so similarly situated that differential treatment could support an
inference of retaliatory intent.
-17-
Buytendorp may well have presented evidence sufficient to create a question
of fact as to whether Extendicare conducted its business in an objectionable manner.
That is not the question that matters for the purpose of the present retaliation claims.
See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995) (holding
the federal courts do not “sit as super-personnel departments” that provide general
oversight and re-examine business decisions). The relevant question is whether a
reasonable jury could find that Extendicare’s proffered reason for the termination was
a mere pretext to mask retaliatory animus. Summary judgment was appropriate
because Buytendorp failed to present sufficient evidence to submit this question to a
jury.
Regarding Extendicare’s cross-appeal, we have carefully reviewed the record
and find no abuse of discretion in the district court’s ruling on the motion to amend
the scheduling order. Miss. River Revival, Inc. v. City of Minneapolis, 319 F.3d
1013, 1018 (8th Cir. 2003) (standard of review).
We affirm the judgment of the district court.
______________________________
-18- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3358459/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
On May 26, 1993, the plaintiff, Ballou Contracting (Contracting Co.), filed a complaint alleging in a single count that the defendant, Dr. Ali A. Khodadoust (Khodadoust), contracted for certain construction work to be done by the Contracting Co. The Contracting Co. alleges that the contract was thereafter modified by the parties for additional consideration, that all of the work called for under the contract and its modifications was duly completed, that it thereafter demanded the agreed upon total sum of $76,987.38, but that Khodadoust only paid a portion of the amount due and refused to pay the final $3,987.38, which remains due and owing.
On September 17, 1993, Khodadoust filed an answer with CT Page 13759 special defenses and also filed a two count counterclaim, which is the subject of the present motion for partial summary judgment. In count one of the counterclaim, Khodadoust alleges that there was a contract between the parties for work to be completed on his behalf, but that the Contracting Co. breached this contract in that it charged him premiums or referral fees for obtaining subcontractors to perform work; failed to complete work in a timely manner; failed to complete work in a manner consistent with accepted industry standards; and failed to complete the work for the price agreed upon while insisting upon additional monies above and beyond that agreed. In count two of his counterclaim, Khodadoust incorporates the above allegations and alleges that by engaging in such conduct the Contracting Co. breached public policy, engaged in unethical and unlawful practices, deceit, and misrepresentation, which conduct caused him to sustain an ascertainable loss. The counterclaim further alleges that these actions of the Contracting Co. fall within the proscription of CUTPA.
On December 21, 1994, the Contracting Co. filed an amended answer with a special defense to Khodadoust's counterclaim. The special defense asserts that, because Khodadoust had failed to allege that the Contracting Co. engaged in a pattern of conduct tending to indicate a course of business practice, he has failed to state a valid claim under CUTPA. On February 24, 1995, the Contracting Co. filed a motion for partial summary judgment as to count two of the counterclaim based on Khodadoust's failure to allege such a general business practice. Specifically, the Contracting Co. moves for partial summary judgment on the ground that count two of Khodadoust's counterclaim is legally insufficient because Khodadoust "has failed to allege a pattern of conduct indicating a course of business practice as is required to state a claim under the Connecticut Unfair Trade Practices Act."
On March 10, 1995, Khodadoust filed an objection to the motion. Pursuant to Practice Book § 380, both parties submitted appropriate supporting memoranda. Khodadoust also submitted a copy of the contract and copies of case law.
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view CT Page 13760 the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) HomeInsurance Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, (1995). "In deciding a motion for summary judgment, the trial court is limited to considering the pleadings, affidavits, and other documentary proof submitted by the parties." Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023
(1985). A party's claim may be severable into several different parts, some or all of which summary judgment may be rendered upon. DeLaurentis v. New Haven, 220 Conn. 225, 255 n. 15,597 A.2d 807 (1991).
In its memorandum of law in support of its motion for partial summary judgment, the Contracting Co. initially makes the procedural argument that the failure to file a motion to strike does not waive any rights to raise the legal sufficiency of a pleading. In opposition, Khodadoust argues that the Contracting Co. cannot contest the legal sufficiency of the counterclaim by use of a motion for summary judgment.
"The office or a motion for summary judgment is not to test the legal sufficiency of the [counterclaim], but is to test for the presence of contested factual issues." Burke v. Avitable,32 Conn. App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908,634 A.2d 297 (1993). Nevertheless, the Connecticut Supreme Court has stated that "[t]he proper way to . . . test the legal sufficiency of the [counterclaim] . . . after an answer has been filed [is] by a motion for summary judgment. . . ." (Emphasis added.) Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409,279 A.2d 540 (1971). In the present case, the Contracting Co. filed an answer to Khodadoust's counterclaim on October 4, 1993, and an amended answer on December 21, 1994. The court may address the legal sufficiency of count two of Khodadoust's counterclaim on the Contracting Co.'s motion for summary judgment.
The Contracting Co.'s substantive argument in its memorandum in support of its motion is that Khodadoust has failed to allege that the wrongful acts occurred with such frequency as to indicate a general business practice and that he has based his claim on a single transaction. In opposition, Khodadoust argues that the majority of the trial courts have held that a single act may constitute a violation of CUTPA.
"The question has been raised in various cases as to whether a single act or transaction is covered by CUTPA. Although CT Page 13761 appellate decisions have not expressly addressed the issue, a significant number of decisions have involved what may be characterized as single acts, and the courts have evaluated each claim without comment on its being directed at a single act. The issue has been discussed in a number of trial court decisions, and most have found that a single act is sufficient.1
Decisions holding a single act is not sufficient to violate CUTPA frequently cite Mead v. Burns, a decision holding that proof of a general business practice is necessary to establish a violation of CUTPA based on a violation of . . . Conn. Gen. Stat. §§ 38-60 and 38-61(d), now Conn. Gen. Stat. §§ 38a-815 and 38a-816(6) of the Connecticut Unfair Insurance Practice Act ("CUIPA"). This result, however, is dependent on the specific language of § 38a-816(6) of CUIPA and is not applicable to CUTPA claims generally." (Emphasis added; footnotes omitted.) R. Langer, J. Morgan D. Belt, The Connecticut Unfair Trade Practices Act (1994) § 32 p. 45.
Moreover, "[t]he language of the act itself is inconclusive. Although § 42-110b(a) makes unlawful `unfair methods' and `unfair or deceptive acts or practices,' stated in the plural, § 42-110g(a) provides a remedy to any person who suffers an ascertainable loss as a result of a prohibited `method, act or practice,' stated in the singular." Id.
Nevertheless, "[b]ecause CUTPA is a self-avowed `remedial' measure, General Statutes § 42-110b(d), it is construed liberally in an effort to effectuate its public policy goals."Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 756,474 A.2d 780 (1984). General Statutes § 42-110b(d) provides that "[i]t is the intention of the legislature that this chapter be remedial and be so construed."
Although this court has previously found that a single act does not constitute a CUTPA violation; see, e.g., Renz v. MilanoDevelopment, Superior Court, judicial district of New Haven, Docket No. 361546 12 Conn. L. Rptr. 328 (October 20, 1994) (Zoarski, J.); upon further consideration, in light of the majority of cases, recent commentary, and the remedial nature of CUTPA, a single act may constitute a CUTPA violation. Therefore the defendant's motion for summary judgment is denied.
Howard F. Zoarski, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1607652/ | 366 So.2d 798 (1979)
Ronald RICHTER, Individually, Richter Corporation, a Florida Corporation, and All Others Similarly Situated, Appellants,
v.
FLORIDA POWER CORPORATION, Appellee.
No. 78-488.
District Court of Appeal of Florida, Second District.
January 8, 1979.
As Amended January 23, 1979.
L.C. Schowe, St. Petersburg, for appellants.
Sylvia H. Walbolt and J. Brent Walker, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee.
Prentice P. Pruitt, Donald R. Alexander and Joseph A. McGlothlin, Tallahassee, for amicus curiae Florida Public Service Commission.
SCHEB, Judge.
Appellants' sole point on appeal succinctly posits the issue for our determination: "Does the Public Service Commission or circuit court have jurisdiction in a claim brought by the consumers [appellants] in the nature of money damages against a utility [appellee] for alleged illegal rates?"
In October 1977 Ronald Richter filed a class action in circuit court on behalf of himself and other similarly situated electricity users against Florida Power Corporation (FPC). The complaint alleged that the consumers had been forced to pay unreasonably high electrical rates because of excessive fuel adjustment charges[1] in violation of § 366.03, Fla. Stat. (1977). The complaint sought refunds of $3.5 million to the consumers.
FPC moved to dismiss the complaint, arguing that the Public Service Commission (PSC) has exclusive jurisdiction to determine the reasonableness of rates charged by a public utility. The trial court found FPC's point well taken and entered an order dismissing the complaint with prejudice. This appeal by the consumers ensued.
We think the trial court correctly found that under the statutory and decisional law *799 of this state the PSC has exclusive jurisdiction to determine the matters alleged in the consumers' complaint.[2] Therefore, we affirm.
Chapter 366, Fla. Stat. (1977) embraces the statutory regulation of public utilities. In § 366.01 the legislature has mandated that the regulation of public utilities "is declared to be in the public interest and this chapter ... shall be liberally construed for the accomplishment of that purpose." Section 366.03 requires that all rates charged by regulated utilities be "fair and reasonable," while § 366.04 gives the PSC exclusive jurisdiction "to regulate and supervise each public utility with respect to its rates... ." The decisional law of Florida attests to the comprehensive character of the PSC's authority in the field of utility regulation.[3]See, e.g., Storey v. Mayo, 217 So.2d 304 (Fla. 1968).
The consumers recognize that the PSC has broad powers to set rates for regulated utilities, but contend that this power extends only to prospective rate determinations. Thus the consumers argue that PSC is not authorized by Ch. 366 to retroactively modify its final rate orders to require refunds; therefore, they contend, the PSC does not have exclusive jurisdiction to adjudicate the matters alleged in their complaint. The consumers rely upon several cases, the most compelling of which is City of Miami v. Public Service Commission, 208 So.2d 249 (Fla. 1968). There the City of Miami petitioned the supreme court for certiorari to review two PSC orders setting telephone rates for Southern Bell and electrical rates for Florida Power & Light. These rate orders, which had been entered at the conclusion of a one-year test period, reduced the rates that the two utilities could thereafter charge. The reason for the ordered reduction was that the companies had realized excessive profits during the test period. The City of Miami argued, inter alia, that the PSC had erred in not ordering the two utilities to refund the excessive profits they had collected during the test period. In rejecting this argument the supreme court said: "An examination of pertinent statutes [Chapter 366] leads us to conclude that the Commission would have no authority to make retroactive ratemaking orders." 208 So.2d at 259. We recognize this principle but do not believe it governs this case.
It is, of course, vital to both the regulated utility and the consumers that the PSC's *800 rate orders be final. Chapter 366, though it has changed to some degree since the City of Miami decision, still indicates that the PSC cannot retroactively alter previously entered final rate orders just because hindsight makes a different course of action look preferable. See, e.g., §§ 366.06(3) and 366.07. However, here the allegations of the consumers' complaint do not fall within the normal instance of hindsight as mentioned above. The complaint alleges that the consumers were forced to pay unreasonably high fuel adjustment charges because of an illegal scheme (known as "daisy-chaining") conducted by a fuel consultant employed by FPC; that through this daisy-chaining scheme FPC paid 54 cents per gallon for oil that had an actual value of only 21 cents per gallon; that FPC knew of this scheme, or should have known of it, yet allowed the excessive fuel costs to be passed on to the consumers through the fuel adjustment charges.[4] So the complaint alleges actions on the part of FPC which prevented the PSC from having the true facts before it when it sanctioned the fuel adjustment charges here in question.
In Annot., 73 A.L.R.2d 939, 951-52 (1960), dealing with the power of administrative agencies to alter final orders, the author states:
Although denying, in the absence of statutory authority, the power of an administrative agency to reopen and reconsider a final decision, some courts have recognized exceptions to the rule under extraordinary circumstances, as where a substantial change in circumstances, or fraud, surprise, mistake, or inadvertence is shown. (Footnotes omitted.)
Likewise, Florida decisions recognize that an administrative agency may alter a final decision under extraordinary circumstances. Davis v. Combination Awning & Shutter Co., 62 So.2d 742, 745 (Fla. 1953); 1 Fla. Jur.2d Administrative Law § 89 (1977); see generally Keating v. State ex rel. Ausebel, 173 So.2d 673, 679 (Fla. 1965). This rule of law seems especially appropriate in light of the purposes of Chapter 366, and the broad power granted to the PSC under § 366.05(1) "to exercise all judicial powers, issue all writs and do all things, necessary or convenient to the full and complete exercise of its jurisdiction and the enforcement of its orders and requirements." We think that to effectively and completely exercise its jurisdiction the PSC must have the power to alter previously entered final rate orders under extraordinary circumstances, and clearly the circumstances alleged here are extraordinary.
We find support for this view from a recent opinion from the Supreme Court of Ohio.[5] In Ohio Power Co. v. Public Utilities Commission, 54 Ohio St.2d 342, 376 N.E.2d 1337 (1978), the Public Utilities Commission ordered the refund of unreasonable fuel adjustment charges collected by Ohio Power Company. Ohio, like Florida, has statutes giving the Public Utilities Commission power to set reasonable rates for regulated utilities. The power company appealed to the supreme court arguing (as the consumers do here) that the Commission did not have the power to retroactively change its rates and grant refunds. The supreme court rejected this argument, saying:
*801 We perceive that the requirement of fairness which compels adjustment in rates to compensate utilities for escalating fuel costs also compels retrospective reconciliation to exclude charges identifiably resulting from unreasonable computations or inclusions.
376 N.E.2d at 1338-39. We think the rationale of this Ohio decision represents a pragmatic approach to the problem before us.
We hold that the PSC does have exclusive jurisdiction to decide the issue raised by the consumer's complaint. The PSC is best equipped to investigate the consumers' allegations, and, if necessary, to establish the mechanism whereby refunds could be made to the thousands of consumers affected.
Accordingly, we affirm the trial court's order dismissing the complaint with prejudice.
GRIMES, C.J., and RYDER, J., concur.
NOTES
[1] As all electricity users know, electricity bills presently consist of two elements: the base rate, which covers the legitimate costs of operating the utility company; and, the fuel adjustment charge, intended to compensate the utility company for fluctuations in the price of fuel. Here the consumers' allegations go only to the reasonableness of the fuel adjustment charges, and do not involve the base rate.
[2] We point out that the consumers sought only to be reimbursed for the allegedly unreasonable fuel adjustment charges they have paid. We do not pass upon the circuit court's jurisdiction where a plaintiff seeks consequential damages as a result of a utility's violation of Ch. 366. See State ex rel. McKenzie v. Willis, 310 So.2d 1 (Fla. 1975); Southern Bell Telephone & Telegraph Co. v. Mobile America Corp., 291 So.2d 199 (Fla. 1974).
[3] We pause to express our appreciation to the Public Service Commission for accepting our invitation to file an amicus curiae brief in this cause. In its brief the PSC maintains that it does have the power to grant refunds of the previously collected fuel adjustment charges. The PSC informs us that in May 1978 it engaged special counsel to investigate the matters alleged in the consumers' complaint in connection with similar litigation pending in United States District Court, Middle District of Florida. In October 1978 special counsel made his report to the PSC recommending that FPC be required to show cause why $8.5 million in fuel adjustment charges should not be refunded to FPC customers. FPC denied any wrongdoing, but expressed a willingness to enter into settlement negotiations. By motion FPC asked that the proceedings be held in abeyance and special counsel be ordered to confer with FPC to discuss a settlement. The motion was granted, and during the pendency of this appeal these negotiations have been in progress. Pursuant to an order from this court to apprise us of the status of these negotiations, FPC has informed us that on December 15 special counsel reported to the PSC that a settlement proposal had been agreed to "in principle." On December 29 a public hearing was held on the matter, and a written settlement agreement calling for a refund to the consumers of $6.5 million was executed on January 4, 1979. The PSC has approved this agreement, and a motion has been filed in the federal district court to obtain that court's approval. Assuming the district court approves the agreement, notice to the class of persons who were FPC customers between June 1, 1973, and December 31, 1975, will be given, and they will have an opportunity to obtain refunds in accordance with the settlement agreement. FPC estimates that the refunds cannot be expected for at least six months.
[4] The consumers allege in their complaint that the fuel adjustment charges were excessive from 1973 until present. The PSC points out in its amicus curiae brief that prior to December 1974 fuel adjustment charges were not subjected to a formal hearing with a concomitant final rate order; rather, the utility itself calculated the fuel adjustment charges through the use of a formula prescribed by the PSC. Since December 1974 fuel adjustment charges have been subjected to a formal hearing by the PSC. See PSC Order 6332 (October 29, 1974); 1974 Op.Att'y.Gen.Fla. 074-309 (October 9, 1974).
[5] Two unpublished writs of prohibition from the supreme court also lend support to our view. In State ex rel. Florida Power Corp. v. Pfieffer, No. 46,384 (Fla. April 28, 1975) and State ex rel. Florida Power & Light Co. v. Satin, No. 47,949 (Fla. November 25, 1975) circuit judges were enjoined from hearing class-action suits filed by consumers seeking rebates of fuel adjustment charges. Though not stated on the face of the writs themselves, it is evident that the supreme court issued them on the basis of its belief that the PSC had exclusive jurisdiction to decide the rebate issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606558/ | 7 So. 3d 30 (2009)
Donald A. NEEDOM, Stanford S. Collins, Nevell A. Choina, Jr., Frank J. Cina, Alfredo Digregorio, Robert H. Dudenhefer, Louis J. Gentry, Sr., et al.
v.
Louis L. ROBEIN, Jr. and XYZ Insurance Company.
Gerald J. Boesch, Robert M. Buisson, Sr., Terry Lonatro, Ralph W. Maronge, Garry L. Montegue, Frank O'Halloran, III, Lynn A. Wattigny
v.
Louis L. Robein, Jr. and XYZ Insurance Company.
Nos. 2008-CA-0318, 2008-CA-0319.
Court of Appeal of Louisiana, Fourth Circuit.
February 18, 2009.
Writ Denied May 1, 2009.
*31 Robert H. Matthews, Pauline M. Warriner, New Orleans, LA, for Donald Needom and Gerald J. Boesch.
Gus A. Fritchie, III, McDonald G. Provosty, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Louis L. Robein.
(Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
PAUL A. BONIN, Judge.
This case tests the limits of judicial restraint in deferring to the policy choices of the Louisiana Legislature. In the end, we do not cross the established boundary; *32 we conclude that La. R.S. 9:5605 is not unconstitutional. Accordingly, for the reasons below, we affirm the trial court judgment sustaining the defendants' exception of no cause of action and dismissing with prejudice these consolidated lawsuits.
THE STATUTE AND ITS APPLICATION
La. R.S. 9:5605 governs the peremption of legal malpractice claims and provides, in pertinent part:
A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
The Louisiana Supreme Court, in Reeder v. North, 97-0239 (La.10/21/97), 701 So. 2d 1291, examined the statute and concluded that it had both a prescriptive component and a peremptive component. Whenever a client is injured by the legal malpractice of his or her lawyer, the client has one year from the act or omission within which to file suit or one year from the date the client knew or should have known of the act or omission within which to file suit. This is the prescriptive aspect of the statute. Like any other prescriptive period, it may be suspended, interrupted, or waived.
However, the second component, which the firefighters in this case challenge as unconstitutional, is the peremptive aspect of the statute. Regardless of whether or when a client learns of the legal malpractice of his or her attorney, and regardless of the date that the attorney/client relationship terminates, no suit may be filed by a client against an attorney for the attorney's malpractice more than three years after the delictual act or omission by the attorney. Like any other peremptive period, it may not be suspended, interrupted, renounced, or waived. La. C.C. art. 3461.
In Reeder, the Supreme Court recognized that a client could lose his or her rights against the attorney even before he or she knew of the harm or injury. The Court clearly understood the reach of the *33 peremptive statute.[1] The Court did, however, remand the matter so that the plaintiff could amend his petition to plead the unconstitutionality of the statute. We have heard no more from the plaintiff in Reeder.
Now the New Orleans firefighters are before us, taking up the issue of unconstitutionality where Reeder left off. However, before we examine the constitutionality of the statute, we emphasize that if the statute is constitutional, then we are bound as an intermediate appellate court to follow Reeder and enforce the resulting dismissal with prejudice of the plaintiffs' cause of action because they did not timely bring an action against their attorney. They will have lost their right to enforce the action even before they knew about it.
THE PROCEEDINGS IN THE TRIAL COURT
The plaintiffs' petitions set out the history of class-action litigation in which they were involved as plaintiffs and were represented by Louis Robein, Jr., an attorney and the defendant herein. It is a long history, stretching from 1981, and a part of a saga in which New Orleans firefighters have been litigating against the City of New Orleans on issues of pay benefits, some of which remain unresolved. See New Orleans Firefighters Local 632 v. City of New Orleans, XXXX-XXXX (La.App. 4 Cir. 3/05/08), 980 So. 2d 760, writ denied, XXXX-XXXX (La.5/09/08), 980 So. 2d 693.
The petitions alleged that the firefighters were led to believe that their suits against the City included a claim for "longevity pay" pursuant to La. R.S. 33:1992(B), which the Legislature by Act 132 of 1962 and Act 55 of 1968 had mandated but not funded. The firefighters further alleged that attorney Robein filed the original lawsuit on their behalf on July 14, 1981; however, it was not until November 15, 2004, when the Louisiana Supreme Court denied the writ applications in New Orleans Firefighters Local 632 v. City of New Orleans, XXXX-XXXX, XXXX-XXXX, XXXX-XXXX (La.11/15/04), 887 So. 2d 475, 476, that they learned for the first time that Robein had failed to include in their original lawsuit a claim for "longevity pay." In denying the writ applications, the Supreme Court declined to review this Court's decision in New Orleans Firefighters Local 632 v. City of New Orleans, XXXX-XXXX (La.App. 4 Cir. 5/26/04), 876 So. 2d 211, which held that the firefighters' claim for longevity pay, first asserted in supplemental and amended pleadings in March 1993, had prescribed because the pleadings "did not relate back" to the date of the filing of the original petition. Id. at 16-17, 876 So.2d at 223.
The firefighters then filed this lawsuit against Robein and his legal malpractice insurer on May 25, 2005, which was within one year from the date they "first learned" of the alleged malpractice, but is obviously beyond the three years from the date on which he failed to include the claim for *34 longevity pay in the original lawsuit filed on July 14, 1981.[2]
From the time that Robein filed the original lawsuit, and its multiple amendments and supplements, undoubtedly answering the numerous challenges raised by the City to the firefighters' claims, clarifying their claims, and expanding the scope of the litigation, he continued to represent the firefighters.
Robein and his insurer filed peremptory exceptions of no cause of action to the plaintiffs' petitions, pleading the application of La. R.S. 9:5605. An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., XXXX-XXXX, XXXX-XXXX, p. 7 (La.3/17/06), 929 So. 2d 1211, 1217, citing Industrial Cos., Inc., v. Durbin, 02-0665, p. 6 (La.1/28/03), 837 So. 2d 1207, 1213. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. Thus, we accept the firefighters' allegation of the date on which they "first learned" of the omission to timely sue for longevity pay.
Because the firefighters acknowledged that the application of La. R.S. 9:5605, as interpreted by Reeder, to these facts would terminate the litigation in favor of the attorney and against them unless the statute was found to be unconstitutional, they pled the unconstitutionality of the statute. They also properly complied with the notification requirements of La. C.C.P. art. 1880 to the Attorney General when a party seeks to have a state statute declared unconstitutional. See Smith v. Willard, 97-1772, p. 5 (La.App. 4 Cir. 3/11/98), 711 So. 2d 723, 725. Because the Attorney General declined to participate in these proceedings, both here and in the trial court, we do not have the benefit of the State's position regarding the justification, if any, for the constitutionality of the statute.
DISCUSSION
We do, of course, start the inquiry with the strong legal presumption that the statute is constitutional. See Fransen v. City of New Orleans, XXXX-XXXX, XXXX-XXXX, p. 11 (La.7/1/08), 988 So. 2d 225, 234 (citations omitted). Because statutes are presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. Id. It is a fundamental duty of the judicial branch of government to determine the applicability, legality and constitutionality of a statute, and to invalidate acts of the legislative branch which expressly or impliedly violate rights protected by the constitution. See City of New Orleans v. Scramuzza, 507 So. 2d 215, 219 (La.1987).
The firefighters challenge the constitutionality of La. R.S. 5605 on three specific grounds: (1) the statute violates due process because it denies persons access to the courts in violation of La. Const. Art. I, § 22; (2) it denies persons equal protection and due process of law under La. Const. Art. I, § 2 and § 3; and (3) it denies persons equal protection and due process of law under U.S. Const., Amend. XIV, § 1.
As the party seeking a declaration that La. R.S. 9:5605 is unconstitutional, the firefighters must meet the standard of showing clearly and convincingly that it *35 was the constitutional aim to deny the legislature the power to enact the statute in question. See Fransen, XXXX-XXXX, XXXX-XXXX, at p. 11, 988 So.2d at 234 (citations omitted). The trial judge in this case allowed the firefighters to bring forward considerable evidence to support their contention that the statute violates U.S. Const., Amend. XIV, § 1 and La. Const. Art. I, § 2, § 3 and § 22.
In opposition to Robein's peremptory exception of no cause of action and in support of their claim that La. R.S. 9:5605 unconstitutionally denies persons access to the courts, the firefighters submitted a law review comment: Jennifer Thornton, Comment, Louisiana Revised Statute Section 9:5605: A Louisiana Lawyers's Best Friend, 74 Tul. L.Rev. 659 (1999), wherein Thornton states that "a statute of limitations usually withstands an open courts[sic] challenge as long as the statute affords potential plaintiffs a reasonable time within which to file actions." Id. at 680. The firefighters contend that La. R.S. 9:5605 deprives potential plaintiffs of their right because it may require a client to sue his or her attorney while the attorney continues to represent that client on the matter from which the legal malpractice arises, effectively denying the client a reasonable time within which to file a claim for legal malpractice. As noted,
If clients are reasonably lulled into inaction or do not discover an error or act because they are relying on their fiduciary relationship with their attorney, they may legitimately claim that the statute unreasonably limited their right of access to the courts and their right to a legal remedy.
Id. at 682.
At the July 26, 2007, hearing on the exception, firefighters Donald Needom and Martin Gaal testified that Robein led them to believe that the lawsuit filed in July 1981 contained their claim for a two-percent longevity-pay raise. However, they learned in 2004 that that was not the case when the Louisiana Supreme Court denied the writ applications in New Orleans Firefighters Local 632 v. City of New Orleans, XXXX-XXXX, XXXX-XXXX, XXXX-XXXX (La. 11/15/04), 887 So. 2d 475, 476.
La. Const. Art. I, § 22 provides:
All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
The access to courts clause does not prohibit legislative restriction of legal remedies. Lay v. Rachel-Major, 99-0476 (La.App. 1 Cir. 5/12/00), 761 So. 2d 723, 727. The clause operates only to ensure that the courts will be open to provide remedies "which are fashioned by the legislature." Id. (citing Sons v. Inland Marine Service, Inc., 577 So. 2d 225, 230 (La. App. 1st Cir.1991)). In Reeder, the Supreme Court, addressing the issue of access to courts, stated:
Statutes of limitation are exclusively a legislative prerogative. In setting a statute of limitation, a legislature does not eliminate the remedy for a civil wrong; it makes a legislative determination that after a certain period of time no cause of action can arise. Until the time that a cause of action vests, a legislature has the power to create new rights and abolish old ones. Dunn v. Felt, 379 A.2d 1140, 1141 (Del.Super.1977). In finding that the right to recover in tort is not a fundamental right, our court has noted that "[w]here access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery *36 on any system or classification which is not totally arbitrary." Bazley v. Tortorich, 397 So. 2d 475, 485 (La. 1981); Everett v. Goldman, 359 So. 2d 1256 (La.1978); Reeder, 97-0239, p. 9, 701 So.2d at 1296-1297. (emphasis added).
The firefighters' erroneous argument that the access-to-courts clause ensures everyone a right to have his claims heard ignores the exclusions from that universal access concept by means of the legislatively created statutes of limitations. Thus, we find La. R.S. 9:5605 does not deny the firefighters access to the courts in violation of La. Const. Art. I, § 22. The firefighters must seek relief not in the lower and appeals courts but in the Legislature.
And their second and third claims of unconstitutionality focus on the Legislature. To prove their second and third claims of unconstitutionality, the firefighters put forth evidence of the so-called "legislative history," which was the supposed basis for the rationale for the enactment of the statute. The Legislature, in apparent reliance upon the Supreme Court's reasoning in Crier v. Whitecloud, 496 So. 2d 305, 310 (La.1986) (on rehearing), made a "record" justifying the statute on the basis of an insurance crisis affecting legal malpractice premiums, echoing the justification for prescriptive periods and "caps" or limits on amounts of recovery in medical malpractice claims.[3]
The firefighters easily demonstrated the flaws in this legislative history and established clearly that it could not be the basis on which to justify the statute. They offered testimony of a leading provider of legal malpractice insurance coverage in Louisiana, who contradicted the "legislative history" that there was ever a premium crisis. Additionally they proffered the affidavit of a Louisiana lawyer engaged in lobbying the Legislature who similarly contradicted the "legislative history" as being an inaccurate recitation of the facts concerning legal malpractice premium costs or an alleged coverage crisis at the time of the passage of La. R.S. 9:5605.
But, unfortunately for the firefighters, however impressive the testimony of their witnesses as to the misrepresentations and fallacies underlying passage of the act, the evidence must have no effect. This case exemplifies why courts should never resort to considering "legislative history" when a clear and unambiguous statute is under attack. It is the act of the Legislature which we must consider, not the statements of lobbyists, special interest groups, or even the policy or the wisdom of legislators themselves. See Scramuzza, 507 So.2d at 219. For this reason, Robein and his insurer are correct that we are not authorized to consider the so-called "legislative history" evidence put forward by the firefighters in making our determination; and we do not.
The doctrine of peremption was not contained in the Code of 1870, but rather was based on Louisiana jurisprudence. See Revision Comment 1982 to La. C.C. art. 3458, Comment (a); Comment, Prescription and Peremption-The 1982 Revision of the Louisiana Civil Code, 58 Tul. L.Rev. 593, 601 (1984). It was codified as La. C.C. art. 3458 by Acts 1982, No. 187, § 1, eff. Jan. 1, 1983. Thereafter, the Louisiana Legislature has enacted specific peremptive statutes for numerous professions. See, e.g., La. R.S. 9:5604 (certified public accountants-3 years); La. R.S. 9:5606 (insurance agents 3 years); La. R.S. 9:5607 *37 (architects, engineers, interior designers, surveyors, real estate developers 5 years).
Additionally, in recent years the Legislature has subjected certain kinds of actions to peremptive limitations, despite a long history in our law. See, e.g., La. C.C. art.2041 (revocatory action-3 years); La. C.C. art. 117 (post-divorce spousal support-3 years); La. C.C. art. 2595 (lesionary rescission 1 year).
This governmental interest in prescriptive statutes is clear: it seeks to strike a balance between addressing the harm caused to an injured plaintiff and not disadvantaging the ability of a defendant to know about a claim in time to gather evidence to defeat the claim. Louisiana's traditional prescriptive periods barring actions are comparatively short, but they are subject to modification by special circumstances.[4] A defendant may be timely sued long after the facial prescriptive period has expired because the period was suspended or interrupted by some lawful cause. See, e.g., La. C.C. art. 3469 (prescription is suspended as between spouses during marriage; parents and children during minority; tutors and minors during tutorship; curators and interdicts during interdiction; and caretakers and minors during minority) and La. C.C. art. 3503 (prescription interrupted against a solidary obligor). A defendant can renounce a prescriptive period even after it has accrued. La. C.C. arts. 3449 and 3450. If an action is prescribed, the defendant must timely plead the exception; the court cannot supply it. La. C.C. art. 3452; La. C.C.P. art. 927. Thus, in matters of prescription, the courthouse door is open unless the defendant demands that it be closed to the plaintiff because too much time has passed.
As the U.S. Supreme Court explained in Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 1142, 89 L. Ed. 1628 (1945) (discussing statutes of limitations):
Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.... They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a "fundamental" right or what used to be called a "natural" right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control. (footnote and citation omitted). See also, Brumfield v. McElwee, XXXX-XXXX, p. 9 (La.App. 4 Cir. 1/16/08), 976 So. 2d 234, 241.
Although the government may have a legitimate interest in enacting prescriptive statutes, the unvarnished reality of the peremptive aspect of the legal malpractice statute, and the other particular peremption statutes mentioned above, is that they are the results of legislative bodies' enacting special interest legislation. Special interest legislation confers benefits and the *38 protections of the law on a special identifiable group and withholds the same benefits from those not in the group. And the fire fighters make a compelling argument.
Unlike the legislative branch of government, the judicial branch is prohibited from indulging in the selection of its policy preferences and disguising it under the rubric of "unconstitutionality."[5] Therefore we must apply this law which we find constitutional to these plaintiffs' claim.
The firefighters correctly argue that the regulation of the practice of law is the exclusive province of the Supreme Court of Louisiana. See La. Const. art. V, § 5(B).[6] That court is the sole authority to determine whether this statute, as written or applied, impinges on its constitutional authority.
DECREE
For the above reasons, we agree with the finding of the trial court that La. R.S. 9:5605 is constitutional. Thus, we affirm the judgment of the trial court sustaining the defendants' exception of no cause of action, and, accordingly, plaintiffs' suits against the defendants are dismissed with prejudice.
AFFIRMED.
NOTES
[1] Judge Tobias noted the harshness of La. R.S. 9:5605: "In Reeder v. North, 97-0349 (La. 10/21/97), 701 So. 2d 1291, the Louisiana Supreme Court has determined that La. R.S. 9:5606 is a three year peremptive period for malpractice claims against lawyers. The rule is, in my opinion, unduly harsh given that a lawyer's client does not generally know of the act of malpractice committed by the lawyer until the case is over. Moreover, the ruling places a client in the untenable position of having to file suit against the lawyer while the lawyer is still in active representation of the client's claim." Keaty v. Raspanti, XXXX-XXXX, p. 7 (La.App. 4 Cir. 2/7/01), 781 So. 2d 607, 612 (Tobias, J., concurring), rehearing denied (3/15/01), appeal after remand, XXXX-XXXX (La.App. 4 Cir. 2/4/04), 866 So. 2d 1045, rehearing denied (3/15/04), writ denied, XXXX-XXXX (La.6/18/04), 876 So. 2d 806, writ denied, XXXX-XXXX (La.6/18/04), 876 So. 2d 807.
[2] We make no determination that this is the last date on which Robein might have timely asserted a claim for longevity pay.
[3] The statute of limitations for the medical profession, La. R.S. 9:5628, has no peremption aspect. Its three-year limit is prescriptive in nature. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So. 2d 502.
[4] See Marc S. Firestone, Prescription What You Don't Know Can Hurt You Louisiana Adheres to a Three Year Limit on the Discovery Rule, 58 Tul. L.Rev. 1547 (1984).
[5] See, id. at 1550 n. 26.
[6] See Saucier v. Hayes Dairy Products, Inc., 373 So. 2d 102, 108-10 (La. 1978) (on rehearing) (Dennis, Tate, and Calogero, J.J., dissenting); Succ. of Smith v. Kavanaugh, Pierson & Talley, 565 So. 2d 990, 994 (La.App. 1st Cir. 1990), writ denied, 567 So. 2d 1125 (La.1990), reconsideration denied, 569 So. 2d 950 (La. 1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606677/ | 7 So. 3d 1119 (2008)
The STATE of Florida, Appellant,
v.
Kimberly BRABSON, III, Appellee.
No. 2D07-5619.
District Court of Appeal of Florida, Second District.
December 24, 2008.
*1120 Bill McCollum, Attorney General, and Elba Caridad Martin, Assistant Attorney General, Tampa, for appellant.
Kynes, Markman & Felman and James E. Felman and Katherine Earle Yanes, Tampa, for appellee.
Before GERSTEN, GREEN, and CORTIÑAS, Associate Judges.
CORTIÑAS, J.
We review the trial court's order granting the defendant's motion to dismiss nineteen counts of the information against Kimberly Brabson, III. Those counts charged the defendant, Brabson, with promotion of a sexual performance by a child, in violation of section 827.071(3), Florida Statutes (2007). We reverse because, under the facts of this case, the determination of whether a particular performance constitutes "actual lewd exhibition of the genitals" creates a factual inquiry for a jury and not a legal question for the court.
Defendant coached a girls' swim team at the school where he was employed. Over a period of several months, defendant approached numerous girls on the swim team with variations of the same story. The girls were asked to try on the swimsuits under the pretense of determining sizes for purposes of placing orders for the team swimsuits. Brabson convinced the girls to try on the swimsuits in his office. Unbeknownst to the girls, prior to their entering, Brabson had set up a video camera in his office and had positioned the swimsuits at specific locations that would place the girls within the camera's view as they changed clothing.
The video tape created by the defendant is essentially broken up into three distinct parts. In the first portion of the video, the bathing suits are placed at a certain distance away from the girls such that the camera's view ranges from below the shoulders of each of the victims to above their knees. The faces of the girls are visible depending on the individual victim's height and whether she bends down. Brabson is clearly seen setting up the camera and positioning the bathing suits in his office at various points throughout the video while the girls are out of his office.
The footage of the second segment of the video shows that Brabson modified the location of the camera within the office and also altered the proximity of the bathing suits to the camera. During the second segment of the video, the camera was placed much closer to the victims as they undressed, causing them to be videotaped at waist-level. This segment clearly focused on the genital region of the victims when they faced the camera. The third segment of the video essentially contains the same footage as the first segment, but retains the actual time lag in between girls entering and exiting Brabson's office.[1]
In response to the charges, Brabson filed a motion to dismiss the nineteen counts of promoting a sexual performance by a child. The court granted the motion and dismissed all nineteen counts. We review this matter de novo. See State v. *1121 Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002).
In criminal cases, motions to dismiss should be granted as sparingly as motions for summary judgment in civil cases. State v. Ortiz, 766 So. 2d 1137, 1141-42 (Fla. 3d DCA 2000). "Dismissals in criminal cases are to be cautiously granted." State v. Feagle, 600 So. 2d 1236, 1240 (Fla. 1st DCA 1992) (citing State v. Hargrove, 552 So. 2d 281, 283 (Fla. 4th DCA 1989)). In order to defeat a motion to dismiss, "[t]he State need only specifically dispute a material fact alleged by the defendant or add additional material facts that meet the minimal requirement of a prima facie case." State v. Kalogeropolous, 758 So. 2d 110, 112 (Fla.2000). "In meeting its burden of establishing a prima facie case, the State can use circumstantial evidence, and all the inferences made are resolved in its favor." Id. (citing Boler v. State, 678 So. 2d 319, 323 (Fla.1996)). In opposing a motion to dismiss, the State does not need to demonstrate facts sufficient for sustaining a conviction, but instead must only show the barest prima facie case. Hargrove, 552 So.2d at 282. Moreover, it is not within the province of the trial court to make factual determinations on a motion to dismiss or to consider the weight of conflicting evidence or the credibility of witnesses. Ortiz, 766 So.2d at 1142.
Section 827.071(3), Florida Statutes (2007) provides, in pertinent part, as follows:
A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
"Sexual performance" is defined as:
Any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.
Section 827.071(1)(h), Florida Statutes (2007).
"Sexual conduct" is defined within the statute as:
actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct."
Section 827.071(1)(g), Florida Statutes (2007) (emphasis added).
The Florida Supreme Court interpreted an earlier version of section 827.071 in Schmitt v. State, 590 So. 2d 404 (Fla.1991).[2]Schmitt involved a father who was accused of taking nude photographs of his daughter while she was between the ages of eight and twelve years old. Among the issues reviewed in Schmitt was whether an affidavit was sufficient to support a finding of probable cause in the issuance of a search warrant. The probable cause affidavit recited the daughter's assertions of the various nude photographs taken of her by her father as well as the various photography *1122 and video equipment and tapes and recordings kept by the father in their home. The affidavit also alleged a violation of section 827.071(5), which prohibited any depiction known to include "sexual conduct" by a child. Id. at 408. As part of its analysis, the Florida Supreme Court noted that the terms "lewd" and "lascivious" are synonymous and "require an intentional act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others." Id. at 410 (citing Rhodes v. State, 283 So. 2d 351, 356-57 (Fla.1973)) (footnote omitted). The Court further noted that "it is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents and whether or not that conduct originates from a parent." Id. at 410-11. In distinguishing mere nudity from a lewd or lascivious display, the court considered the photographer's intent and actions. Id.
While it is conceivable that one might view the allegations in the present affidavit as depicting simple nudity, we believe the magistrate had a substantial basis for concluding otherwise. The affidavit's factual allegations indicated that Schmitt did not treat the nudity of himself, his daughter, and others in the offhand, natural manner that might be expected if the conduct were purely innocent-for example, if they were nudists. Rather, the affidavit shows he made nudity a central and almost obsessive object of his attention. Thus, the magistrate reasonably could have believed that Schmitt's conduct toward his daughter included the "lewdness" element required by the statute. While nudity alone would not have sufficed, this overall focus of Schmitt's conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of section 827.071. Thus, the magistrate must be upheld. [Illinois v.] Gates [462 U.S. 213] 103 S.Ct. [2317] at 2332 [76 L. Ed. 2d 527 (1983)].
Schmitt, 590 So.2d at 411 (emphasis added).
Thus, the lewdness requirement under section 827.071(1)(g) may be satisfied by the intent of the person promoting the performance which included sexual conduct by the child. See id. In the case before us, the victims were completely unaware that they were being filmed and any right to privacy they may have expected while changing in the closed, windowless office was violated. Furthermore, the girls were not engaged in what could be considered typical day-to-day activities as they were most certainly manipulated into changing their clothes, which they would not otherwise have done in Brabson's office.
Although there are no Florida cases addressing the specific facts before us, other jurisdictions have addressed similar statutes in nearly identical factual scenarios. For example, one Ohio court applied a similar statute prohibiting the creation, production, direction or transfer of material or a performance that shows a minor in a state of nudity, in a case where the owner of a tanning salon was secretly recording his female patrons during tanning sessions, including at least one underage girl.[3]State v. Huffman, 165 Ohio App. 3d 518, 2006-Ohio-1106, 847 N.E.2d 58. In Huffman, the tanning salon's owner had placed hidden wireless cameras in different areas of his salon, with a direct feed into his DVD players. After being notified, *1123 and receiving what appeared to be photographic evidence of one of the hidden cameras, police obtained a warrant and executed it, finding camera equipment and numerous DVDs containing videos of female patrons using the tanning rooms. Id. at 522-23, 847 N.E.2d 58. Several DVDs containing pornographic images of children were also discovered. Id. at 523, 847 N.E.2d 58. In challenging his convictions for the illegal use of a minor in nudity-oriented performance, Huffman argued that the state failed to prove that graphic displays or lewd exhibitions were involved. Id. at 533, 847 N.E.2d 58. The appellate court disagreed, noting that:
In this case, the state presented evidence of two digital videos of a 16-year-old girl as she used Huffman's tanning facilities on two different dates. The images were captured by a camera hidden behind a fan near the tanning bed. The camera was positioned to focus on the girl's genitals. During the recording of one of the videos, the camera was manually adjusted to capture a clearer image of the girl's genitals.
Given the secretive nature of the videotaping and its blatant focus on the victim's genitals, we hold that the state presented sufficient evidence of lewdness to sustain Huffman's convictions for illegal use of a minor in nudity-oriented material or performance.
Id. at 534, 847 N.E.2d 58 (emphasis added.). As explained by the Ohio appellate court, the secretive nature of the recording coupled with the blatant focus on the genitalia of the victims sufficiently demonstrated lewdness. While no Florida cases have addressed this specific issue, we are persuaded by the Ohio court's acknowledgement that the very nature of the filming with a focus on the genitalia demonstrates lewdness. In Fletcher v. State, 787 So. 2d 232 (Fla. 2d DCA 2001), this court found that a warrant application which alleged, in part, the presence of hidden cameras in the bathroom of Fletcher's home and in his daughter's bedroom did not provide sufficient probable cause to issue a warrant. The warrant application also alleged that, based upon the information received from Fletcher's daughter, the police believed that the purpose of the hidden cameras was to produce child pornography. Child pornography, in turn, requires that suspect videos show children engaged in "sexual conduct" as defined in section 827.071(1)(g), Fla. Stat. (1997). Fletcher, 787 So.2d at 235. The Fletcher court, while finding that the warrant application was not sufficient to justify the issuance of a warrant, distinguished Schmitt by noting that beyond alleging mere nudity, the warrant also "showed that Schmitt `made nudity a central and almost obsessive object of his attention' and that an `overall focus of Schmitt's conduct tended to show a lewd intent....'" Fletcher, 787 So.2d at 235-36 (quoting Schmitt, 590 So.2d at 411). The very issues Fletcher used to distinguish Schmitt are the same points that render Fletcher distinguishable from the case before us. In the instant case, as demonstrated by the defendant's videotapes, nudity and female genitalia were the focus of Brabson's filming. The second portion of the videotape shows that Brabson positioned the camera at waist-level and placed the bathing suits in relation to the camera in such a way that the victims' genitalia became the focal point of the recording.
The Fletcher opinion relied on Lockwood v. State, 588 So. 2d 57 (Fla. 4th DCA 1991). In Lockwood, the Fourth District Court of Appeal found that a video tape depicting a sixteen-year-old girl, apparently unaware that she was being filmed, "undressing, showering, towling herself dry, and performing other acts of feminine hygiene and donning clothing" did not meet the definition *1124 of "sexual conduct" set forth in section 827.071(1)(g), Florida Statutes (1989) as applicable to section 827.071(5), Florida Statutes (1989). Lockwood, 588 So.2d at 57. The Lockwood court specifically held:
The issue presented for our determination is whether the tape contained a presentation that defendant knew included sexual conduct by a child. The record reflects that the tape does not show a presentation of sexual conduct as defined by the statute. The presentation shows, rather, the innocent, normal everyday occurrence of a female child undressing, showering, performing acts of female hygiene and donning her clothes, none of which meets any of the detailed sexual acts contained in the statute. It thus appears that the motion for judgment of acquittal should have been granted.
Id. at 58.
The case before us, however, does not involve mere nudity as did Fletcher and Lockwood, nor does it involve "normal everyday occurrence[s] of a female child undressing." See Lockwood, 588 So.2d at 58. The video also does not involve seemingly voluntary and willing participation in "naturism." See State v. Kerrigan, 168 Ohio App. 3d 455, 458, 2006-Ohio-4279, 860 N.E.2d 816 (Ohio Ct.App.2006) (finding that videotapes depicting nude minors, along with nude adults in certain instances, engaging in activities such as swimming, boxing, or playing ball, did not violate a similar statute because they did not include "a lewd exhibition or a graphic focus on the genitals"). In Lockwood and Fletcher, the cameras were apparently placed in static locations and videotaped the nude victims in everyday activities, such as showering or dressing, occurring in bedrooms or bathrooms where such activities normally occur. In the instant case, Brabson placed the camera in his school office. Brabson then lured the girls to his office, where they otherwise would not have been undressing and changing into bathing suits, but for Brabson's cajoling. Furthermore, the victims seem to have been enticed to change in the office with the intent that their nude bodies be visible to the camera and recorded. What we have before us is a clearly orchestrated plan by Brabson to videotape unsuspecting underage girls in a place where, but for Brabson's machinations, they would never have undressed.
In deciding cases involving the photography of nude minors, other jurisdictions have found that "the issue ... becomes whether lewdness is determined only by what is depicted, by the photographer's intent, or both." Purcell v. Commonwealth of Kentucky, 149 S.W.3d 382, (Ky. 2004). In Purcell, the defendant had taken a nude photograph of a minor male child under the pretense that the defendant had met with two women who were interested in having sex with him and the minor, but only after they exchanged nude photographs. Id. at 385. Although the defendant claimed to have destroyed the picture, the artist's rendition, consistent with the boy's testimony, depicted a full-frontal nude image of the child with his arms at his sides. Id. Identifying that "[a] few jurisdictions have held that a nude depiction of a child absent any explicit sexual conduct on the child's part is per se not lewd," the Supreme Court of Kentucky "[found] more persuasive the holdings of other jurisdictions that consider other factors, including the photographer's intent and the intended reaction of the expected viewer, in determining whether a particular performance was a `lewd exhibition.'" Id. at 391 (citing United States v. Knox, 32 F.3d 733, 747 (3rd Cir.1994)). Our Supreme Court's holding in Schmitt appears to be entirely consistent with the Kentucky Supreme Court's view that the lewdness requirement may be satisfied by the defendant's intent. See Schmitt, 590 So.2d at *1125 411. The Purcell court relied on the test set forth in United States v. Dost, 636 F. Supp. 828 (S.D.Cal.1986), where:
[T]he [Dost] court enumerated six factors that may be considered in determining whether a particular exhibition is lewd, viz:
1) whether the focal point of the visual depiction is the child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Purcell, 149 S.W.3d at 392 (citing Dost, 636 F.Supp. at 832). Dost did not require that all six factors be present before a depiction could be found to be lewd, but rather that the overall circumstances surrounding the visual depiction be examined, taking into account the age of the child. Dost, 636 F.Supp. at 832; see also Purcell, 149 S.W.3d at 392. The vast majority of jurisdictions that have addressed the issue have adopted the Dost factors for determining what constitutes a lewd or lascivious exhibition. See United States v. Arvin, 900 F.2d 1385, 1391 n. 4 (9th Cir.1990) (approving jury instruction based on Dost factors); United States v. Wolf, 890 F.2d 241, 244-45 (10th Cir.1989); United States v. Villard, 885 F.2d 117, 122 (3d Cir.1989); United States v. Rubio, 834 F.2d 442, 448 (5th Cir.1987); United States v. Mr. A., 756 F. Supp. 326, 328 (E.D.Mich.1991); Cummings v. State, 353 Ark. 618, 110 S.W.3d 272, 279 n. 1 (2003); People v. Gagnon, 997 P.2d 1278, 1282 (Colo.Ct.App. 1999); People v. Bimonte, 187 Misc. 2d 677, 726 N.Y.S.2d 830, 835-36 (N.Y.Crim.Ct. 2001) (noting that Dost factors distinguish between innocent photographs and child pornography); Alexander v. State, 906 S.W.2d 107, 110 (Tex.Crim.App.1995).
We find the Dost test helpful in determining whether a particular exhibition is lewd. In the case before us, at least two of the factors are present. While the initial part of the tape shows a wider angle and focuses mainly on the area between the victims' shoulders and above the knees, during the second segment, the defendant modified the camera's location as well as the placement of the bathing suits so that "the focal point of the visual depiction is on the child's genitalia or pubic area." See Dost, 636 F.Supp. at 832. Furthermore, many of the child victims are shown in complete nudity as they are changing into the bathing suits. Because the Dost test does not require that all factors be present, we are satisfied that enough evidence has been presented by the State to demonstrate a prima facie case against Brabson. See Hargrove, 552 So.2d at 282.
Accordingly, whether a depiction meets the Dost test is best left to the fact-finder. Purcell, 149 S.W.3d at 393 (citing Knox, 32 F.3d at 747); see also Arvin, 900 F.2d at 1390 ("[W]hether the item to be judged is lewd ... is a determination that lay persons can and should make." (citing United States v. Thoma, 726 F.2d 1191 (7th Cir. 1984))). Because issues of fact cannot and should not be resolved by a court on a motion to dismiss a criminal case, we reverse the trial court's order granting dismissal.
Reversed and remanded.
NOTES
[1] The first segment appears to edit together the same separate instances visible in the third segment, but without the natural progression of time in between different girls present in the third segment.
[2] The relevant language in section 827.071, for purposes of this opinion, is unchanged.
[3] The statute applied was Ohio Rev.Code Ann. § 2907.323(A)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606736/ | 10 Wis. 2d 256 (1960)
OLSON and wife, Appellants,
v.
HARNACK, Respondent.
Supreme Court of Wisconsin.
April 4, 1960.
May 3, 1960.
*258 For the appellants there was brief by J. Arthur Moran and R. G. Richardson, Jr., both of Delavan, and oral argument by Mr. Richardson.
For the respondent there was a brief by Albert H. Gill of Evansville, and Geffs, Geffs, Block & Geffs of Janesville, and oral argument by Mr. Gill.
FAIRCHILD, J.
Paragraph 1 of the agreement preserved "all rights, causes of action, and defenses" the parties had prior to the making of the agreement. Plaintiffs claimed they had a cause of action for misrepresentation of the acreage. By paragraph 2, plaintiffs assumed the burden of commencing whatever proceedings were appropriate to put the issues between the parties in litigation. The fund would remain in escrow until the litigation was terminated. The phrase "issues involved therein" in paragraph 2 must have *259 referred to the issues involved in the "rights, causes of action, and defenses" mentioned in paragraph 1.
Defendant claims that the agreement imposed upon plaintiffs' cause of action a period of limitations shorter than would otherwise be applicable. She relies upon a statement in Lundberg v. Interstate Business Men's Accident Asso. (1916), 162 Wis. 474, 481, 156 N.W. 482, stating:
"This court in common with many others has held that it is competent for parties to bind themselves by contract to a shorter period of limitation than that provided for by statute."
Plaintiffs do not dispute the principle just quoted, but rely upon the principle that "whenever reasonably possible, a construction against a forfeiture will be adopted." 17 C. J. S., Contracts, p. 742, sec. 320. Plaintiffs say that all they lost as a result of their failure to commence proceedings within sixty days was their right to have the fund retained in escrow pendente lite; that they are not barred from seeking a judgment against defendant in a new action.
Plaintiffs' proposed construction would give virtually no effect to paragraph 2 except to explain the reference to "said sixty-day period" in paragraph 3. Plaintiffs would construe paragraphs 2 and 3 together as granting them an option, the commencement of proceedings within sixty days being a condition precedent upon the fulfilment of which plaintiffs would be entitled to have the fund held in escrow until the litigation be terminated. Yet paragraph 2 is an unconditional promise by plaintiffs to commence proceedings within sixty days. In our opinion, plaintiffs are asking for judicial modification of the agreement rather than a choice between reasonable constructions.
There is no claim that the sixty-day period was an unreasonably short time within which to commence an action. See 34 Am. Jur., Limitation of Actions, p. 61, sec. 67.
*260 The circuit court properly overruled plaintiffs' demurrer to the answer. Since, upon defendant's motion for summary judgment, plaintiffs made no claim that there were issues of fact, the motion was properly granted.
By the Court. Order and judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3358460/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The 23 year old plaintiff wife has brought this action seeking a dissolution of the marriage to the 26 year old defendant husband which marriage took place on February 17, 1990 at Newtown, Connecticut. The plaintiff had resided in Connecticut over a year before bringing this suit. The marriage broke down irretrievably within one year. No child has been born to the plaintiff since the marriage and no assistance was advanced to either party by the State of Connecticut.
Although the plaintiff has been legally blind since birth, she has held several jobs and is employable as a certified nurse's aide. She is not presently working due to her lack of transportation. The problem is not insurmountable.
Each party blamed the other for the marriage breakdown. In fact, most of their relationship took place before the marriage.
The court will not apportion fault unequally in assessing the causes for the breakdown.
Having reviewed the evidence in light of the statutory criteria, the court enters a decree dissolving the marriage on the ground of irretrievable breakdown and, as part of the judgment, makes the following orders:
1. No periodic alimony is awarded;
2. The maiden name Granger is restored to the plaintiff;
3. The defendant shall pay to the plaintiff the sum of $4,160 as lump sum alimony, payable at the rate of $80 weekly commencing 21 days after entry of this judgment and may be enforced pursuant to 52-361a, Connecticut General Statutes. CT Page 6284
4. Each party shall be responsible for their own liabilities.
Counsel for the plaintiff is directed to prepare the judgment file.
DENNIS F. HARRIGAN, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2460592/ | 976 S.W.2d 784 (1998)
Dennis BURROWS, Appellant,
v.
THE NEIMAN-MARCUS GROUP, INC.; Eduardo Lynch; Marshall Field Stores, Inc. f/k/a Marshall Field & Co.; & Sylvia Garlowich, Appellees.
No. 01-97-00216-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 21, 1998.
*785 Gregory A. Stewart, Houston, for Appellant.
Phillip Griffis, Michael Phillips, Evelyn T. Ailts, Rick Gibson, Houston, for Appellees.
Before COHEN, O'CONNOR and ANDELL, JJ.
OPINION
OCONNOR, Justice.
This is an appeal from a summary judgment granted in favor of The Neiman-Marcus Group, Inc., Eduardo Lynch, Marshall Field Stores, Inc., f/k/a Marshall Field & Company, and Sylvia Garlowich, the appellees and defendants below.[1] We affirm.
Facts
On December 2, 1992, a Marshall Field's customer named J.W. Wood inadvertently left his American Express credit card at one *786 of the store's cash register desks. An unknown man used the credit card at various stores in the Houston Galleria, including Macy's and Neiman-Marcus. Wood told Garlowich, the Marshall Field's loss prevention manager, that he had left his card at a check-out counter and accused a Marshall Field's employee of using his card. Garlowich learned there were two employees who could have helped Wood on December 2,
1992. Dennis Burrows, the appellant and plaintiff below, was one of the two employees.
For the sole purpose of clearing the Marshall Field's employees of any accusation of wrong-doing, Garlowich arranged for the Macy's employee who made a sale to the credit card thief to walk through Marshall Field's store. The Macy's employee identified the plaintiff as the person who used Wood's card at Macy's. Garlowich then video-taped the plaintiff and another Marshall Field's employee working a cash register. She showed the video tape to Lynch, the Neiman-Marcus employee who made the sale to the thief. After looking at several video screens in the Neiman-Marcus security office, Lynch identified the plaintiff as the man who used Wood's card at Neiman-Marcus.
On December 15, 1992, Garlowich discussed the matter with the plaintiff, who claimed he knew nothing of a stolen card. Garlowich then reported the matter to the Houston Police Department. In January of 1993, HPD Sergeant Jackson was assigned to work the case. In February of 1993, Lynch identified the plaintiff from a photographic lineup (a photospread). Two other witnesses to the unauthorized use of the credit card were unable to identify the plaintiff.
Jackson reported his findings to the assistant district attorney (the ADA). He included in his report the fact that two witnesses could not identify the plaintiff. Jackson signed a probable cause affidavit leading to the filing of credit card abuse charges against the plaintiff. On February 19, 1993, the plaintiff was indicted for credit card abuse. The plaintiff was ultimately acquitted of the charges.
The plaintiff brought a suit for malicious prosecution against Neiman-Marcus, Lynch, Marshall Field's, Garlowich, American Express Travel Related Services, and American Express Co.[2] The Neiman-Marcus defendants and the Marshall Field's defendants filed motions for summary judgment. The trial court granted both motions for summary judgment.
Summary Judgment
Summary judgment is proper only when a movant establishes there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App.Houston [1st Dist.] 1993, writ denied). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action. Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. A defendant is also entitled to summary judgment if it conclusively establishes all elements of an affirmative defense as a matter of law. Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412.
Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. Marchal, 859 S.W.2d at 412. The nonmovant then must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412.
In reviewing the summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. We will assume all the evidence favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Thompson v. Vinson & Elkins, 859 S.W.2d *787 617, 619 (Tex.App.Houston [1st Dist.] 1993, writ denied).
On appeal, we cannot consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 677; Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 323 (Tex.App. Houston [1st Dist.] 1995, no writ). We will affirm the summary judgment if any of the theories advanced in the motion for summary judgment is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 412 (Tex.App.Houston [1st Dist.] 1998, no writ) (designated for publication).
Analysis
In point of error one, the plaintiff claims the trial court erred in granting summary judgment because the defendants withheld information regarding the plaintiff's identification. The plaintiff argues the information withheld by the defendants was material and influenced the ADA's decision to prosecute.
To prevail on a claim of malicious prosecution, a plaintiff must establish the following: (1) commencement of a criminal prosecution against the plaintiff; (2) initiated or procured by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the defendant's lack of probable cause to initiate the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997); Metzger v. Sebek, 892 S.W.2d 20, 41-42, 42 n. 10 (Tex. App.Houston [1st Dist.] 1994, writ denied) (noting the second element changed in 1994 from asking whether defendant caused or aided prosecution to asking whether defendant initiated or procured prosecution).
There is an initial presumption that the defendant in a malicious prosecution case acted reasonably and in good faith and had probable cause to initiate the proceedings. Richey, 952 S.W.2d at 517; Metzger, 892 S.W.2d at 42. The presumption disappears once the plaintiff produces evidence that the motives, grounds, beliefs, and evidence upon which the defendant acted did not constitute probable cause. Richey, 952 S.W.2d at 518. The burden then shifts to the defendant to offer proof of probable cause. Id. If the facts underlying the decision to prosecute are not disputed, whether probable cause existed is a question of law to be decided by the trial court. Id.
In their motions for summary judgment, the defendants argued they had probable cause and they did not act with malice. As summary judgment proof of probable cause, the Neiman-Marcus and Marshall Field's defendants relied on the following evidence:
Sergeant Jackson's deposition, in which he said that, even though Garlowich's investigation did not meet law enforcement standards, Jackson felt there was enough information to refer the file to the ADA.
Garlowich's deposition, in which she said the plaintiff was one of the two sales clerks working at the counter when the card was misplaced, and Lynch identified the plaintiff as the man who used the card at Neiman-Marcus.
The Neiman-Marcus defendants also relied on the following:
Lynch's affidavit, in which he said he made the identification in good faith and to the best of his recollection.
Lynch's deposition testimony, in which he said he identified the plaintiff as the man who used the card and he was not assisted in his identification of the plaintiff.
In his response to the motions for summary judgment, the plaintiff argued the defendants withheld material information from the prosecuting attorney, relying on Andrews v. Dewberry, 242 S.W.2d 685, 688 (Tex.Civ.App.Fort Worth 1951, writ ref'd n.r.e.). The material information the plaintiff claimed was withheld was a statement made by Maury Gutierrez, a person present while Lynch viewed the video screens in the security office. After Lynch identified the plaintiff *788 on the videotapes, Gutierrez said "Yeah, I think that's the person that we are looking for."
As summary judgment proof, the plaintiff relied on the following evidence:
The deposition of Sergeant Jackson, by which the plaintiff tried to raise a fact issue as to whether Jackson needed to have "all the information" before to submitting the case to the ADA.
The deposition of Lynch, in which Lynch said that, after he identified the plaintiff, Gutierrez stated he had identified the employee under investigation.
The plaintiff's indictment and Jackson's probable cause affidavit, neither of which mentions Gutierrez's statement.
The statement the plaintiff complains the defendants withheld was not material to ADA's filing charges against him. Gutierrez made the remark after Lynch had picked the plaintiff as having used the credit card. The statement did not influence Lynch's selection of the plaintiff and was not exculpatory information.[3]
Both groups of defendants established they had probable cause to report the matter to the police. The plaintiff did not show that the defendants withheld material information from Jackson or the ADA or that the defendants did not have probable cause to make the report. The defendants disproved as a matter of law at least one element of the plaintiff's malicious prosecution cause of action. The trial court properly granted summary judgment for the defendants. Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412.
We overrule point of error one.
In point of error two, the plaintiff claims the trial court erred in granting summary judgment because there was a fact issue about the defendants' failure to disclose information to the ADA. As noted above, any nondisclosure to the ADA was immaterial and did not show the defendants lacked probable cause.
We overrule point of error two.
NOTES
[1] The Neiman-Marcus Group, Inc. and Lynch will be referred to collectively as the Neiman-Marcus defendants. Marshall Field Stores, Inc. and Garlowich will be referred to as the Marshall Fields defendants.
[2] American Express Travel Services was dismissed with prejudice on December 30, 1996. The plaintiff and the Neiman-Marcus and Marshall Field's defendants all agree that American Express Co. is no longer involved in the suit.
[3] The probable cause inquiry asks only whether a complainant reasonably believed a crime had been committed based on the information available to him before the criminal proceedings began. Richey, 952 S.W.2d at 519. If he reasonably believes so, the reasonableness of that belief is not negated by his failure to fully disclose all relevant facts to the officer. Id. Thus, the extent of the disclosure to the prosecutor is not probative of lack of probable cause, but rather goes to the element of malice or whether the complainant caused the prosecution by knowingly providing false information. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613278/ | 821 So. 2d 569 (2002)
STATE of Louisiana, Appellee
v.
Raheem K. WYATT, Appellant.
No. 35,835-KA.
Court of Appeal of Louisiana, Second Circuit.
June 12, 2002.
*570 Ellender & Ellender, by Amy Clark Ellender, Baton Rouge, for Appellant.
Richard Ieyoub, Attorney General, Walter E. May, Jr., District Attorney, Douglas L. Stokes, Assistant District Attorney, for Appellee.
Before NORRIS, BROWN and DREW, JJ.
BROWN, J.
Defendant, Raheem K. Wyatt, a/k/a as Raheem Kanobu Bauchman and Rahimu K. Wyatt, pled guilty as charged to one count of distribution of cocaine, a violation of La.R.S. 40:967, punishable at the time of the offense (November 2000) by imprisonment for not less than five years nor more than 30 years, the first five years of which must be served without benefit of parole, probation or suspension of sentence, plus a fine. The state agreed that, in exchange for defendant's guilty plea, he would receive a sentence of five years at hard labor with a recommendation for the intensive incarceration program if he was eligible. The trial court accepted the plea and imposed the agreed upon sentence with a recommendation that defendant be placed in the impact program.
Defendant thereafter moved for reconsideration, arguing that the court should impose a two-year sentence because the sentencing provisions of La.R.S. 40:967, the statute of conviction, had been amended, reducing the mandatory minimum sentence to two years. The trial court denied the motion to reconsider and this appeal ensued. On appeal, defendant asserts that his sentence should be reduced to the statutory minimum in effect at the time of sentencing. Finding no error, we affirm.
Discussion
The facts of this case are undisputed. On November 27, 2000, defendant sold crack cocaine to a confidential police informant in Jonesboro, Louisiana. The transaction was recorded on audio and video tape. The North Louisiana Criminalistics Laboratory verified that the substance involved was cocaine.
In a case in which a specific sentence or sentence cap has been agreed to as a consequence of a plea agreement, a sentence imposed within the agreed upon range cannot be appealed as excessive and there is no need for the trial court to give reasons for the sentence as required by La.C.Cr.P. art. 894.1. State v. Bell, 412 So. 2d 1335 (La.1982); State v. Alexander, 34,328 (La.App.2d Cir.12/06/00), 774 So. 2d 1089; State v. Moore, 32,707 (La.App.2d Cir.10/27/99), 743 So. 2d 877, writ denied, 01-0650 (La.11/02/01), 800 So. 2d 872; State v. Brown, 427 So. 2d 1284 (La.App. 2d Cir. 1983); State v. Bonnett, 535 So. 2d 535 (La.App. 3d Cir.1988), writ denied, 541 So. 2d 869 (La.1989).
The record shows that the court, the state and defendant agreed to a sentence of five years at hard labor. Because defendant agreed to a sentence, he is not entitled to appeal his sentence as excessive. Due to the parties' uncertainty as to which version of the statute was applicable at sentencing, however, we will address this assignment of error.
After the commission of the instant offense, but before defendant was sentenced, the legislature amended La.R.S. 40:967(B)(4)(b) by reducing the minimum term of incarceration from five years to two years and by reducing the "without benefit" requirement to mandate that only the first two years of imprisonment had to be without benefit. Acts 2001, No. 403. Section Six of this Act specifically states that its provisions were to have prospective effect only. This Act became effective on June 15, 2001, five days before *571 sentence was imposed in this case. By its own terms, the amendment was inapplicable to an offense committed before the amendment took effect.
The jurisprudence is well-settled that the penalty set forth in a statute at the time of the offense applies. State v. Wright, 384 So. 2d 399 (La.1980); State v. Keith, 35,644 (La.App.2d Cir.02/27/02), 811 So. 2d 136; State v. Bryan, 535 So. 2d 815 (La.App. 2d Cir.1988). Accordingly, defendant's assignment of error is without merit.
We note that at the time of the offense, La.R.S. 40:967(B)(4)(b) provided a sentencing range of five to 30 years, the first five of which must be served without benefit. Defendant's five-year sentence is the mandatory minimum provided by the statute. Even though the trial court did not state that the sentence would be "without benefits," La.R.S. 15:301.1(A) provides:
(A) When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of the sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence. (Emphasis added).
No remand is necessary inasmuch as this court is neither correcting nor amending the sentence. State v. Williams, 00-1725 (La.11/28/01), 800 So. 2d 790.
Conclusion
For the reasons set forth above, defendant's conviction and sentence are AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860310/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00749-CR
Joseph Darwin Watson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. 4555, HONORABLE CHARLES HEARN, JUDGE PRESIDING
Joseph Darwin Watson appeals from a trial-court judgment convicting him of two
counts of aggravated sexual assault upon a child under age fourteen. See Tex. Penal Code Ann.
§ 22.021(a) (West 1994). (1) On Watson's plea of guilty, the trial judge fixed punishment at sixty-years imprisonment. We will reverse the punishment part of the judgment and remand the cause
to the trial court for resentencing.
THE CONTROVERSY
Watson pled guilty on September 19, 1994, to an indictment charging him with two
counts of aggravated sexual assault. Upon defense counsel's request, the trial judge ordered a
presentence investigation. See Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (West Supp. 1996)
(hereinafter the "Code"). The assessment of punishment was postponed twice because the
presentence investigation was not available. On November 14, 1994, with all parties present, the
trial judge imposed a sixty-year prison sentence after making the following statements:
I don't need to hear any arguments from either side in this case. The Court has
read the presentence investigation. It has made its decision of the findings to be
made and the punishment to be assessed.
The trial judge prohibited either party to present evidence or argument concerning the presentence
investigation or any other matter relevant to sentencing. Watson did not object at the time of
sentencing and did not file a motion for new trial.
DISCUSSION AND HOLDINGS
In his third point of error, Watson contends the trial court committed reversible
error when the court denied him an opportunity to challenge the presentence investigation by
comment, objection, or evidence. The Code provides as follows:
Article 42.12
Sec. 9. (e) The judge shall allow the defendant or his attorney to comment
on a presentence investigation or a postsentence report and, with the approval of
the judge, introduce testimony or other information alleging factual inaccuracy in
the investigation or report.
Article 37.07
Sec. 3. (a) Regardless of the plea and whether the punishment be assessed
by the judge or the jury, evidence may be offered by the state and the defendant
as to any matter the court deems relevant to sentencing . . . .
. . . .
(d) When the judge assesses the punishment, he may order an
investigative report as contemplated in Section 9 of Article 42.12 of this code and
after considering the report, and after the hearing of the evidence hereinabove
provided for, he shall forthwith announce his decision in open court as to the
punishment to be assessed.
Code arts. 42.12 § 9(e), 37.07 § 3(a), (d) (emphasis added).
In Borders v. State, 846 S.W.2d 834, 836 (Tex. Crim. App. 1992), a case with
strikingly similar facts, the Court of Criminal Appeals found the trial judge committed reversible
error when he assessed punishment without permitting either argument or evidence thereon. The
court stated that "Article 37.07 requires the trial court to afford a defendant the opportunity to
present evidence regarding punishment." Id. at 835 (emphasis added). The court held also that,
in light of a motion for new trial, the defendant's failure to object did not waive error for appellate
review because the trial judge in effect prevented the defendant from making proper objections.
Id. at 836.
Adopting the reasoning of Borders, we hold the trial court's failure to afford
Watson an opportunity to present evidence or argument, relating to the presentence investigation
or to punishment in general, resulted in an improper punishment under section 3 of article 37.07
and section 9 of article 42.12 of the Code. As in Borders, the trial judge's actions foreclosed
Watson's counsel from any opportunity to raise objections and thus preserve error for appellate
review. Under the circumstances Watson's failure to object on either of the statutory grounds,
even in absence of a motion for new trial, does not preclude our review of the error claimed. (2)
We reverse the trial court's judgment imposing punishment and remand for further
proceedings not inconsistent with this opinion. (3) Tex. Code Crim. Proc. Ann. art. 44.29(b) (West
Supp. 1996).
John Powers, Justice
Before Justices Powers, Jones and B. A. Smith
Reversed and Remanded
Filed: April 3, 1996
Publish
1. The offense occurred before September 1, 1994, and is governed by the law in effect
at the time the offense was committed. Penal Code, 73d Leg., R.S., ch. 900, § 1.01, 1993
Tex. Gen. Laws 3586, 3620. Because the Code amendments effective September 1, 1994,
have no substantive effect on the offense at issue, the current Code is cited for convenience.
2. A motion for new trial is not required in criminal cases for the proper presentation of
a point of error on appeal. Tex. R. App. P. 30(a).
3. The presentence investigation did not contain a "proposed client supervision plan" as
required by section 9(a) of article 42.12 of the Code. In his first point of error, Watson
complains the omission was error and contends that only an express waiver dispenses with the
requirement. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993); Garrett v. State,
818 S.W.2d 227, 229 (Tex. App. --San Antonio 1991, no pet.); but see Wright v. State, 873
S.W.2d 77, 82-83 (Tex. App.--Dallas 1994, pet. ref'd).
Section 9(a) of article 42.12 is phrased in mandatory terms: "the report must include a
proposed client supervision plan describing programs and sanctions [available to] the defendant
if the judge suspended the imposition of the sentence or granted deferred adjudication." Code art.
42.12 § 9(a) (emphasis added). While we do not decide whether this requirement may be waived
only by an express waiver, we note its mandatory language and the general requirement that a
presentence investigation contain all information required by article 42.12, section 9(a). Cf.
Sodipo v. State, 815 S.W.2d 551, 553-54 (Tex. Crim. App. 1990); Stancliff v. State, 852 S.W.2d
639, 641 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd).
n Section 9 of Article 42.12 of this code and
after considering the report, and after the hearing of the evidence hereinabove
provided for, he shall forthwith announce his decision in open court as to the
punishment to be assessed.
Code arts. 42.12 § 9(e), 37.07 § 3(a), (d) (emphasis added).
In Borders v. State, 846 S.W.2d 834, 836 (Tex. Crim. App. 1992), a case with
strikingly similar facts, the Court of Criminal Appeals found the trial judge committed reversible
error when he assessed punishment without permitting either argument or evidence thereon. The
court stated that "Article 37.07 requires the trial court to afford a defendant the opportunity to
present evidence regarding punishment." Id. at 835 (emphasis added). The court held also that,
in light of a motion for new trial, the defendant's failure to object did not waive error for appellate
review because the trial judge in effect prevented the defendant from making proper objections.
Id. at 836.
Adopting the reasoning of Borders, we hold the trial court's failure to afford
Watson an opportunity to present evidence or argument, relating to the presentence investigation
or to punishment in general, resulted in an improper punishment under section 3 of article 37.07
and section 9 of article 42.12 of the Code. As in Borders, the trial judge's actions foreclosed
Watson's counsel from any opportunity to raise objections and thus preserve error for appellate
review. Under the circumstances Watson's failure to object on either of the statutory grounds,
even in absence of a motion for new trial, does not preclude our review of the error claimed. (2)
We reverse the trial court's judgment imposing punishment and remand for further
proceedings not inconsistent with this opinion. (3) Tex. Code Crim. Proc. Ann. art. 44.29(b) (West
Supp. 1996).
John Powers, Justice
Before Justices Powers, Jones and B. A. Smith
Reversed and Remanded
Filed: April 3, 1996
Publish
1. The offense occurred before September 1, 1994, and is governed by the law in effect
at the time the offense was committed. Penal Code, 73d Leg., R.S., ch. 900, § 1.01, 1993
Tex. Gen. Laws 3586, 3620. Because the Code amendments effective September 1, 1994,
have no substantive effect on the offense at issue, the current Code is cited for convenience.
2. A motion for new trial is not required in criminal cases for the proper presentation of
a point of error on appeal. Tex. R. App. P. 30(a).
3. The presentence investigation did not contain a "proposed client supervision plan" as
required by section 9(a) of article 42.12 of the Code. In his first point of error, Watson
complains the omission was error and contends that only an express waiver dispenses with the
requirement. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993); Garrett v. State,
818 S.W.2d 227, 229 (Tex. App. --San Antonio 1991, no pet.); but see Wright v. State, 873
S.W.2d 77, 82-83 (Tex. App.--Dallas 1994, pet. ref'd).
Section 9(a) of article 42.12 is phrased in mandatory terms: "the report must include a
proposed client supervision plan describing programs and sanctions [available to] the defendant
if the judge suspended the imposition of the sentence or granted deferred adjudication." Code art.
42.12 § 9(a) (emphasis added). While we do not decide whether this requirement may be waived
only by an express waiver, we note its mandatory language and the general requirement that a
presentence investigation contain all information required by article 42.12, section 9(a). Cf.
Sodipo v. State, 815 S.W.2d 551, 553-54 (Tex. Crim. App. 1990); Stancliff v. State, 852 S.W.2d
639, 641 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd) | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1607317/ | 366 So.2d 1358 (1978)
STATE of Louisiana
v.
Joseph SIEGEL.
No. 62576.
Supreme Court of Louisiana.
December 15, 1978.
*1359 Alton T. Moran, Director, Allen J. Bergeron, Baton Rouge, App. Counsel, The Office of Public Defender, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Lennie Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
DIXON, Justice.
Defendant Joseph Siegel was indicted for first degree murder in violation of R.S. 14:30, in connection with the armed robbery and murder of H. Alva Brumfield on May 25, 1973. On January 27, 1978 the jury found defendant guilty as charged and on April 28, 1978 defendant was sentenced to life imprisonment. Defendant assigned eight errors as grounds for his appeal. On appeal defendant argues only one assignment of error; therefore, the other assignments of error are considered abandoned. State v. Scwartz, 354 So.2d 1332 (La.1978).
Assignment of Error No. 8
Defendant argues that the trial court erred in admitting incriminating statements obtained through interrogation in violation of defendant's right to counsel.
After defendant had been arrested and had been in jail several months, he was interviewed by an assistant attorney general, Mr. Hymel, accompanied by another prosecutor, Mr. Ruggiero, who were prosecuting, not defendant, but Willie Beard for armed robbery of H. Alva Brumfield on May 25, 1973; Brumfield was murdered during the robbery, and defendant was indicted for murder. Defendant gave a statement concerning the Beard case which was self-incriminating.
In a hearing outside the jury's presence, the prosecutors both testified that defendant was read, before the interview, his Miranda rights, including his right to an attorney and his privilege against self-incrimination. Both testified that defendant told them he had an attorney, but when asked whether defendant wished to contact his counsel and have him present during the interview, defendant declined. Mr. Ruggiero also testified that defendant was twenty feet from a telephone that he could have used.
At the same hearing defendant testified that the two prosecutors did not read his rights to him, but simply asked him if he understood his rights. On cross-examination he stated that he understood his right to remain silent and right to counsel, but that he was not fully aware that his attorney should be present at an interrogation, not about murder of Brumfield, but about a "completely different crime that was associated with the Brumfield case."[1] Further, *1360 during cross-examination, defendant stated that he had become involved with the legal aspects of his case and his friends' cases and had become a jailhouse lawyer by the time that the interview in question was conducted. The trial court ruled that a sufficient predicate had been laid and that the statement could be introduced into evidence.
Before an inculpatory statement can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary. R.S. 15:451; C.Cr.P. 703(C). The state must also establish that an accused who makes an inculpatory statement during custodial interrogation is first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. State v. Thomason, 353 So.2d 235, 239 (La.1977). The admissibility of an inculpatory statement is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of the inculpatory statement will not be overturned unless they are not supported by the evidence. State v. Thomason, supra.
In the present case defense contends that the fact that the interrogating officers were aware that defendant had retained counsel increased the magnitude of the violation of defendant's rights. In ruling on the admissibility of defendant's inculpatory statement the trial judge relied on State v. Cotton, 341 So.2d 355, 359 (La.1977),[2] where this court stated:
"This record undoubtedly supports the finding of the trial judge that Cotton's statement to Robinson was free and voluntary. We do not believe that the fact that a defendant has an attorney means that law enforcement officials cannot procure a statement of any kind from him without prior notice to, if not the consent of, the attorney. United States v. Cobbs, 481 F.2d 196 (3rd Cir. 1973), cert, denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Springer, 460 F.2d 1344, (7th Cir. 1972), cert, denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972). The court in Springer, id., held that a constitutional right such as the right to counsel may be waived, although there is a higher standard imposed to show waiver of the presence of counsel once counsel had been appointed than before.
In Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968), cert, denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968), oral statements were testified to in court by police officers who interviewed the defendant in a jail interview room. The officers knew that the defendant was represented by counsel, but counsel knew nothing of the interview. As is true here, the defendant in Coughlan was fully warned, before he made any statements, of his Miranda rights; but he waived those rights. The court held that the statements made by the defendant were admissible in evidence although it further indicated disapproval, as we do here, of the practice of interviewing prisoners in the absence of their attorneys. This holding was approved in United States v. Cobbs, supra.
In United States v. Cobbs, supra, the court stated that it is permissible for a law enforcement official to interview a defendant, even though the defendant has counsel and even though that counsel *1361 is not consulted, as long as the proper Miranda warnings are given. The same applies to the case before us. See also Moore v. Wolff, 495 F.2d 35 (8th Cir. 1973). . . ."
In the present case the record indicates that defendant often disregarded his attorney's admonitions. For example, defendant, against the advice of his attorney, granted a television taped interview with a newsman and discussed his case during the interview, giving much the same information that he gave the two prosecutors.
Defense further relies on State in the Interest of Dino, 359 So.2d 586 (La.1978), where this court found that it is well settled under Miranda and our state constitution that if a statement is taken without the presence of an attorney, under circumstances in which the warnings are required, a heavy burden rests on the state to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Defendant urges that the reasoning of Miranda does not permit a finding of knowing and intelligent waiver upon the bare allegation that the interrogating officers recited the Miranda rights to the accused.
The record in the present case, however, indicates that (1) defendant received his Miranda rights and understood them, and (2) defendant knowingly and intelligently waived his rights. First, both interrogators testified that they told defendant his Miranda rights. Defendant testified at the same hearing that he had been advised of his Miranda rights on two prior occasions since Miranda was decided. He also testified that he realized how extensive the defendant's rights are under the Miranda decision when he received some law books, including Jailhouse Lawyer's Manual, in July, 1974. (Defendant was interviewed on November 19, 1975). Defendant's testimony indicates that he understood his Miranda rights.[3]
Second, the record indicates that at the time of the interview defendant was knowledgeable in criminal law, had openly discussed his case with numerous persons other than his attorney, and was not new to the criminal justice system (defendant had spent twenty-six of his forty-nine years behind bars in various institutions for numerous offenses). Defendant acted as his own attorney on numerous occasions even though he had counsel; he estimated that since receiving his law books he had filed three hundred to four hundred writs for himself and other inmates, of which a number were filed before the interview in question. Also before the interview, defendant had filed numerous lawsuits for himself and the other defendants in the Brumfield case. Prior to the interview in question, defendant had testified about the Brumfield case in open court,[4] had written letters detailing *1362 his position to newspapers, talked to news reporters, spoken informally to the assistant district attorney,[5] and signed a twenty-six page detailed statement of his position which was almost identical to the information defendant gave the interrogators. The cumulative effect of the above indicates that the defendant knowingly and intelligently waived his right to counsel and right to remain silent.
For the reasons assigned, the conviction and sentence of defendant are affirmed.
NOTES
[1] The following exchange occurred between the assistant district attorney and defendant:
"Q Were you aware at the time that Mr. Ruggiero and Mr. Hymel came into the room, that as a person accused of a crime, you had the right to remain silent under the Fifth Amendment of the Constitution?
A Yes.
Q Were you aware that you had a right to counsel?
A Yes.
Q Were you aware that you had a right not to say anything to any person other than your attorney without your attorney present?
A Well, I wasn't fully aware of this. You
Q You were not fully aware of it?
A Not fully aware that my attorney should be present. And, in this respect that if I was being questioned for a crime that I committed I'd have to have my attorney present.
Q You felt at that time you had not committed a crime so you didn't have to have an attorney present?
A I felt at that time I did not commit the crime of murder.
Q You felt you had no reason not to talk to them without your attorney present? You felt the only reason you needed an attorney present was if you were guilty?
A No, not that. If I was being questioned for the murder of H. Alva Brumfield, I'd have to have my attorney present, but my understanding was they were talking to me about a completely different crime that was associated with the Brumfield case.
Q What did they tell you they were talking to you about?
A Aggravated burglary.
Q Did they tell youwere you aware that they were questioning you about the incident on May 25, 1973 wherein Mr. Brumfield was killed during the burglary?
A Yes.
Q You were aware of that?
A Yes.
Q You were aware at that time that you were under indictment for several charges in connection with that same incident?
A Yes, but not aggravated burglary or conspiracy to the same."
[2] In State v. Cotton, supra, the defendant, who was advised by his attorney not to make any statements, requested to speak to a police officer on three occasions before the officer who knew of the attorney's advice met with the defendant. This court found the subsequent confession was not involuntary, even though the officer mistakenly informed the defendant that two persons had identified him at the line-up when in fact no one had identified the defendant.
[3] The following exchange occurred between the assistant district attorney and defendant:
"Q Mr. Siegel, you were quite aware, were you not, during that period of time, that you had a right to remain silent and you did not have to talk to people under your constitutional rights, is that no
A Yes, I'm aware of that.
Q You wereand you were aware that you had an attorney and you had a right to have him present, were you not?
A If we were talking about the murder of H. Alva Brumfield.
Q Were you aware that you had the right to say, look, I don't want to talk to you about the time of day, I don't want to talk to you about anything? Did anybody try to make you talk?
A No.
Q You were aware that you didn't have to talk to anybody about anything, is that correct?
A That's correct.
Q You freely chose to talk to them?
A Yes."
[4] The following exchange occurred between the assistant district attorney and defendant:
"Q You had testified in court previous to that time about that same incident?
A I testified in court previous to that time about an armed robbery?
Q The armed robbery of Mr. Brumfield on that same night?
A Yes.
Q As part of the same burglary or conspiracy in the same chain of events?
A As part of the murder of H. Alva Brumfield, part of the conspiracy to murder H. Alva Brumfield, armed robbery of Brumfield and conspiracy to rob Brumfield.
Q You had previously testified in open court about that matter?
A Only about the armed robbery of Mr. Brumfield.
Q Did you testify you were in fact present when Mr. Brumfield was murdered?
A I didn't understand you.
Q Did you testify in open court that Mr. Brumfield was murderedthat you were present?
A That I was present at his murder?
Q Yes sir.
A I perjured myself.
Q I mean, did you testify about that when you were in open court?
A I perjured myself in that regard.
Q Were you made aware when you had come to court by Judge Covington that you had a right to counsel, that you had a right not to make any statements and talk to anyone?
A That's right."
[5] Assistant district attorney:
"Q How many people have you talked to about this incident sincewhether it be around courtrooms or jails or whateverhow many people have you talked to on a formal or informal basis about theseabout these proceedings?
MR. REINE (defense counsel): Objection, Your Honor, I think it's irrelevant.
THE COURT: I think it's relevant. It goes to whether or not it was a knowing and intelligent waiver in view of what he said about not understanding he was talking to them about
.....
Q You talked about it with newspaper reporters, several, haven't you?
A (defendant) I've only talked to one newspaper reporter and that was Mike Jones.
Q Have you ever talked to Gibbs Adams, informally?
A Informally, yes.
Q About facets of the case?
A Yes.
Q You realize that those statements that you made could have been used against you?
A I was very careful.
Q You realize that Michael Jonesthe statements you made to Michael Jones could be used against you?
A Oh yes, I realize that.
Q Isn't it true that you freely talked to any number of people about that, including probably talking to me at several times out at the Parish Prison on an informal basis about it?
A I talked to you once out in the Parish Prison. It was about May of 1974.
Q Okay, true, isn't it that you have had no hesitancy at all about talking about the matter to almost anybody who would lend an ear?
A Well, let's put it that way. Probably five hundred men have come into my dormitory and left and there isn't a day that none of us will rap about our case.
Q And you have written numerous letters about this incident, detailing your position, to the newspapers, is that correct?
A Yes.
Q Openly writing letters with information specifically about yourthe factual details of the Brumfield case as you know them?
A Yes." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606530/ | 349 So.2d 164 (1977)
Talbot D'ALEMBERTE, Chairman, W. George Allen, LeRoy Collins, E. Harris Drew, John A. Grant, Jr., Lois Harrison, Charlotte F. Hubbard, James L. Pleitz and John D. Rawls, Members of and Constituting the State of Florida Commission On Ethics, Appellants,
v.
William (Dale) ANDERSON, Appellee.
No. 49851.
Supreme Court of Florida.
May 26, 1977.
Rehearing Denied September 7, 1977.
*165 Robert L. Shevin, Atty. Gen., and William C. Sherrill, Jr. and Thomas A. Beenck, Asst. Attys. Gen., for appellants.
Walter M. Meginniss and William F. Crary of Crary, Buchanan & Meginniss, Stuart, for appellee.
SUNDBERG, Justice.
Appellant has prosecuted an appeal in this Court following a decision of the District Court of Appeal, First District, declaring Section 112.313(1), Florida Statutes (1973), unconstitutional. Jurisdiction is predicated on Article V, Section 3(b)(1), Florida Constitution.
In May of 1974, M & W Land, Inc., a foreign corporation, (M & W) filed a petition to annex certain lands it owned into the city of Stuart, Florida. M & W was involved in a joint venture with Rossmoor Corporation. Rossmoor was to develop the land. The annexation was controversial for several reasons. For one thing, the annexation was to result in a 20 percent increase in the size of the city of Stuart. For another, some members of the community considered the annexation an attempt by M & W to avoid planned unit development zoning regulations which had recently been enacted for Martin County, Florida, in which Stuart is situate.
In August, 1974, Rossmoor invited the City Commission and other city employees of Stuart to visit Laguna Hills, a residential community developed by Rossmoor in California. The invitation included eighteen spouses and guests of the public officials and employees. Rossmoor wanted the Commission to see an example of the planned community concept proposed for the land which was to be annexed. Commissioner Anderson (the appellee herein) and his wife agreed to make this trip on the weekend of August 23-25, 1974.
Before leaving for California, the City Commission asked the Stuart City Attorney whether, in his opinion, making the "fact finding" trip would violate the Sunshine Law. The City Attorney informed the Commission that he thought no violation was present. Appellee expressly declared that he did not intend to be swayed by Rossmoor's generosity. Nevertheless, newspaper articles printed before the trip was made demonstrated public concern over possible compromise of the Commission's neutrality by acceptance of the invitation.
Appellee and his wife made the trip to California. Rossmoor paid for their air fare to and from California, hotel accommodations, limousine service, evening meals, and one midday meal. The value of the trip accepted by appellee and his wife was $1,223.82. The total cost to Rossmoor for all who made the trip was $25,691.60.
After the Stuart City Commission passed two ordinances which annexed the land to be developed by Rossmoor, a complaint against appellee was filed with the appellant Commission on Ethics. A member of the Commission was appointed as hearing examiner, and a fact-finding hearing was held on November 21, 1974. Subsequent to the hearing, the examiner filed his report with the Commission. On December 13, 1974, the full Commission found that appellee violated Section 112.313(1), Florida Statutes (Supp. 1974), by accepting the trip. This statute provides:
ACCEPTANCE OF GIFTS PROHIBITED. No officer or employee of a state agency, or of a county, city, or other political subdivision of the state, or any legislator, or legislative employee shall *166 accept any gift, favor, or service, of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties.
By a 4 to 3 decision, the Commission voted to transmit the finding of violation to the Governor and to the State Attorney for the Twelfth Judicial Circuit with the recommendation that no further action be taken.
Appellee petitioned the First District Court of Appeal for certiorari review of the Ethics Commission's decision. Certiorari was granted. On June 30, 1976, the court issued an opinion declaring Section 112.313(1), Florida Statutes (1973) as amended by Ch. 74-177, § 3, Laws of Florida, unconstitutionally vague and quashing the decision of appellant Commission. Specifically, the District Court's opinion holding the former section unconstitutionally vague was directed at the phrase "that would cause a reasonably prudent person to be influenced in the discharge of official duties."
It should be noted that Section 112.313(1), Florida Statutes (Supp. 1974), was amended by Ch. 75-208, § 4, Laws of Florida, and now appears in relevant part as Section 112.313(2)(a), Florida Statutes (1975). The portion of the statute found unconstitutional remains unchanged by the amendment.
Governmental conflicts of interest compose "an evil which endangers the very fabric of a democratic society." United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562, 81 S.Ct. 294, 315, 5 L.Ed.2d 268 (1961). That fabric remains interwoven by citizens' confidence in the competence and integrity of their representatives. In order to assure that integrity and concomitant public confidence, situations which create potential conflicts of interest, as well as actual misconduct, must be avoided. See Section 112.311, Florida Statutes (1975). It was in pursuit of this laudable objective that the Legislature enacted the statute in controversy. Nonetheless, because we find the statute to be fatally ambiguous, we concur in the decision of the District Court of Appeal, First District.
An assault on the constitutionality of a statute vel non must necessarily succeed if the language does not convey sufficiently definite warnings of the proscribed conduct when measured by common understanding and practice. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Newman v. Carson, 280 So.2d 426 (Fla. 1973); Zachary v. State, 269 So.2d 669 (Fla. 1972); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla. 1972); Smith v. State, 237 So.2d 139 (Fla. 1970); Hunter v. Allen, 422 F.2d 1158 (5th Cir.1970). Due process of law will not tolerate a statute which "forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning." Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); State v. Llopis, 257 So.2d 17 (Fla. 1971); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (Fla. 1934).
Though easily enunciated, the vagueness test is often difficult to apply. The test is not an inflexible one. As Justice Frankfurter commented:
"There is no such thing as `indefiniteness' in the abstract, by which the sufficiency of the requirement expressed by the term may be ascertained. The requirement is fair notice that conduct may entail punishment. But whether notice is or is not `fair' depends upon the subject matter to which it relates....
That which may appear to be too vague and even meaningless as to one subject matter may be as definite as another subject matter of legislation permits... ." Winters v. New York, 333 U.S. 507, 524, 68 S.Ct. 665, 674, 92 L.Ed. 840 (1948).
What constitutes unconstitutional vagueness is itself vague. Thus, this Court has found the same or highly similar statutory language unconstitutionally vague when used in one particular statute, but sufficiently unambiguous when used in a different legislative act. In Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla. 1976), this Court upheld the constitutionality of Section 501.204, Florida Statutes (1975) (the Little FTC Act), which proscribed "unfair methods of competition and unfair or deceptive *167 acts or practices in the conduct of any trade or commerce."[1] We held that the potentially ambiguous language had acquired a sufficiently well-established meaning in trade usage, the common law, and federal trade law to meet the constitutional challenge of vagueness. To those members whose conduct was regulated by the Act, i.e., individuals who trade in the marketplace, the terms were imbued with particular meaning developed from usage in the trade. In addition, the statute itself expressly provided:
It is the intent of the legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. § 45(a)(1)), as from time to time amended.
The federal courts had amassed an abundance of law construing the words under attack. That law provided this Court with additional guidance to meet a constitutional challenge of vagueness. Conversely, in Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla. 1968), this Court held in part that Sections 573.17(3)(b) and (c), Florida Statutes (1967),[2] which statutory sections employed language similar to that challenged in Rogers, supra, were invalid as an unconstitutional delegation of legislative power. The question arose in a suit filed by the appellant, as Commissioner of Agriculture of the State of Florida, to collect an assessment made against the appellee under the authority of Section 573.21(1), Florida Statutes, to pay the cost of administering a Sweet Corn Marketing Order promulgated by the Commissioner pursuant to Section 573.17(3). Appellee defended on the basis that Section 573.17(3), Florida Statutes, was unconstitutional on various grounds, one of which was that the act constituted an unlawful delegation of legislative power. In holding that the authorization of programs "for the prevention, modification or removal of trade barriers which obstruct the free flow of celery or sweet corn to market" [§ 573.17(3)(b), Fla. Stat.] was unconstitutional, we stated:
We are not directed to any decisions upholding such a delegation of authority; nor is it suggested what standards, either by common usage or by reference to the purposes of the Act, can be implied in limiting the Commissioner's authority in this respect. (Emphasis added)
In addition, the authorization to prohibit "unfair trade practices" [§ 573.17(3)(c), Fla. Stat.] was subject to the same infirmity. Relying on Robbins v. Webb's Cut Rate Drug Co., 153 Fla. 822, 16 So.2d 121 (1944), *168 a case considering whether a similar authorization respecting "unfair or unreasonable economic practices among barbers" was an unconstitutional delegation of legislative authority, the Joe Hatton Court quoted the following language from Robbins:
[These terms or phrases] have no set meaning in law or in common usage. To vest in a Commission the unbridled discretion to define such terms without any rule or standard whatever to guide them is a clear delegation to enact the law or define what it shall be; in other words, a delegation of straight legislative power which will not be permitted. Id. at 122.
Whether a particular statute is valid and falls closer to that end of the spectrum illustrated by the rationale of Rogers or is invalid and falls closer to that end exemplified by Joe Hatton is contingent on how well-defined the controversial language has become through common law, trade usage, or perhaps federal law (if the intent of the Legislature is to bestow precision to the statute through reference to federal law).
The case sub judice falls closer to the Joe Hatton end of the spectrum. Unlike Rogers, we find no meaningful precedent exuding from federal law which interprets the ambiguous language, nor does the statute expressly request that we attempt to do so. Additionally, the indefinite language in the statute does not employ technical words which have acquired a pellucid connotation to those specific individuals governed by the statute. Here, the reasonably prudent man test is utilized. The inherent vagueness in the statutory language cannot be sanitized by resort to signification acquired through custom in the trade as in Rogers.
While the "reasonably prudent person" language is not enriched with interpretive meaning, it has acquired a well settled common law import. Appellants suggest that decades of judicial construction should sustain the language against a charge of vagueness. We disagree. While the reasonably prudent man doctrine has been applied successfully by the courts, historically it has been employed to measure conduct. In the case sub judice, we are not measuring conduct. We are gauging a person's mental processes. However, the inquiry is not whether the official would be influenced in the discharge of his official duties, but whether a reasonably prudent official under like circumstances would be influenced. Conceptually, the reasonably prudent man test is an inapposite tool to determine whether a particular official would be influenced in the discharge of his duties by a gift. The statutory language denies appellee due process because the objective standard enunciated in the act is inapplicably related to the subjective mental process which the statute seeks to measure.
Appellants remind us that the statute in issue is non-criminal. Even though a less stringent examination as to vagueness is utilized in scrutinizing non-criminal statutes, a statute of this nature must nevertheless satisfy minimal constitutional standards for definiteness. Further, there are sanctions in the current Section 112.317, Florida Statutes (1975), which provide for such inexorable penalties as impeachment, suspension, removal from office, or a $5,000 civil fine. To the non-complying official, the penalties, though non-criminal, are nonetheless significant and substantial.
Appellants further suggest that any alleged vagueness in the statute is cured by Section 112.322(2)(a), Florida Statutes (1975).[3] That provision gives the insecure *169 official an opportunity to obtain an advisory opinion from the Ethics Commission. Our response is that this provision results in an unlawful delegation of legislative authority to the Commission. See Article II, Section I, Florida Constitution. The rule for the guidance of courts in determining the question of unlawful delegation of legislative power was stated in State v. Atlantic Coast Line Railway, 56 Fla. 617, 47 So. 969 (1908):
"The Legislature may not delegate the power to enact a law or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose." Id. at 976.
More recently, the law was stated in Conner v. Joe Hatton, Inc., supra, that:
When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be. See [Sarasota County v. Barg, 302 So.2d 737 (Fla. 1974),] State ex rel. Davis v. Fowler, 1927, 94 Fla. 752, 114 So. 435, 437; and Lewis v. Florida State Board of Health, Fla.App. 1962, 143 So.2d 867, 875. As stated in 1 Fla.Jur., Administrative Law, at page 243... . Id. at 211.
Under principles enunciated in Atlantic Coast Line Railway and Joe Hatton, supra, utilization of Section 112.322(2)(a), Florida Statutes (1975), to remedy statutory vagueness is unlawful. That provision palpably states that the advisory opinions are not restricted to the particular fact situation presented, but can be requested to establish standards of permissible conduct. In essence, the determination of what is lawful or prohibited conduct is delegated to the Ethics Commission. It is not proscribed by the Legislature nor is it delegated to the Ethics Commission accompanied by meaningful standards and guidelines for the Commission to follow.
As the Legislature cannot shift its constitutional duties to someone else, neither can we. Consequently, we must exercise our duty and find Section 112.313(2)(a), Florida Statutes (1975), unconstitutional for the reasons stated herein. At the same time, we are not critical of the Legislature in its attempt to establish and implement standards to govern the ethical conduct of public officials in accepting gifts and favors which might affect performance of their official duties.[4] Indeed, the people of this state have recognized the need for such ethical standards and have mandated the Legislature to act in this area by adopting the language of Article III, Section 18 of our Constitution.[5]
The decision and judgment of the District Court of Appeal, First District, is affirmed.
OVERTON, C.J., and BOYD, ENGLAND, HATCHETT and KARL, JJ., concur.
ADKINS, J., concurs in result only.
NOTES
[1] § 501.204, Fla. Stat. (1975), states:
(1) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(2) It is the intent of the legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. § 45(a)(1)), as from time to time amended.
[2] § 573.17(3)(b), Fla. Stat. (1967), stated:
Provisions for the establishment of plans and programs for advertising and sales promotion to maintain present markets or to create new or larger markets for celery or sweet corn grown in Florida, or for the prevention, modification or removal of trade barriers which obstruct the free flow of celery or sweet corn to market. The commissioner is hereby authorized to prepare, issue, administer and enforce plans and programs for promoting the sale of celery or sweet corn. Provided that any such plan or program shall be directed toward increasing the sale of celery or sweet corn without reference to a particular private brand or trade name.
§ 573.17(3)(c), Fla. Stat. (1967), stated:
Provisions relating to the prohibition of unfair trade practices. In addition to the unfair trade practices, now prohibited by law, applicable to the distribution or handling of celery or sweet corn within this state, the commissioner is hereby authorized to include in any marketing order issued hereunder provisions designed to correct any trade practice affecting the distributing or handling of celery or sweet corn within this state which the commissioner finds, after a hearing thereupon in which all interested persons are given an opportunity to be heard, is unfair and detrimental to the effectuation of the declared purposes of this act.
[3] § 112.322(2)(a), Fla. Stat. (1975), reads as follows:
Every public officer, candidate for public office, or public employee, when in doubt about the applicability and interpretation of this part to himself in a particular context, may submit in writing the facts of the situation to the Commission on Ethics with a request for an advisory opinion to establish the standard of public duty. Any public officer or employee who has the power to hire or terminate employees may likewise seek an advisory opinion from the commission as to the application of the provisions of this part to any such employee or applicant for employment. An advisory opinion shall be rendered by the commission, and all of said opinions shall be numbered, dated, and published without naming the person making the request, unless such person consents to the use of his name.
[4] "The best security for the fidelity of mankind is to make their interest coincide with their duty." The Federalist No. 23, at 437 (Mentor ed. 1961) (Alexander Hamilton).
[5] We commend to the consideration of the Legislature the code of ethics adopted by the Pennsylvania legislature. Specifically see Pa. Stat. Ann. Title 46, § 143.5(b) (1969). By prohibiting receipt of gifts or compensation which is either intended or which would influence the member's public performance, that general assembly avoided some of the vagueness which plagues statutes containing only the "which would" language, while making the section broader in scope than those statutes which only contain the intent element. That statute also adopts a subjective test of knowledge.
The language of Canon 5c of the Code of Judicial Conduct may also provide some guidance. While the proscribed conduct is similar to that under § 112.313(2)(a), Fla. Stat. (1975), the Canon is far more specific in defining that conduct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1978411/ | 198 N.W.2d 199 (1972)
188 Neb. 550
Burton RISTINE, Appellee,
v.
GEIGY AGRICULTURAL CHEMICALS, DIVISION OF GEIGY CHEMICAL CORPORATION, et al., Appellants.
No. 38264.
Supreme Court of Nebraska.
June 2, 1972.
*200 Stewart & Stewart, Lexington, Yegge, Hall, Treece & Evans, Raymond J. Connell, Denver, Colo., for appellants.
Beatty, Morgan & Vyhnalek, North Platte, for appellee.
Heard before WHITE, C. J., BOSLAUGH, McCOWN and CLINTON, JJ., and WARREN, District Judge.
BOSLAUGH, Justice.
This is an action for damages for the loss of a corn crop. The jury returned a verdict for the plaintiff in the amount of $1,545. The defendants appeal.
The plaintiff farms near Gothenburg, Nebraska. The defendants manufacture and sell Atrazine, a chemical used for weed control. In 1965, the plaintiff applied Atrazine to part of a 60-acre field of corn. The plaintiff claimed the Atrazine destroyed the corn.
There was evidence from which the jury could find that Paul Bergman, an agent of the defendants, talked with Marvin Harms, an employee of the Gothenburg Co-op, early in 1965. Bergman told Harms he was interested in having some farmers apply Atrazine with starter fertilizer. Later Bergman left sample bags of Atrazine with Harms to be distributed to farmers who would apply it this way.
On or about May 4, 1965, the plaintiff talked with Harms about starter fertilizer. He mentioned that he had a weed problem and Harms told him that a representative of the defendants had left samples of Atrazine to be applied with starter fertilizer. The plaintiff purchased 45 pounds of Atrazine and Harms gave him two 5-pound bags of Atrazine. Harms told the plaintiff to mix the Atrazine with water and add it to liquid fertilizer in the pressure tanks on his lister.
The plaintiff followed the instructions given by Harms and applied the 55 pounds of Atrazine to 55 acres, leaving approximately 5 acres untreated. By the end of May it was apparent that the corn was damaged where Atrazine had been applied. The untreated corn appeared to be "real good." The plaintiff then notified Harms who in turn notified the defendants.
The plaintiff was allowed to testify over objection that Harms said Bergman had told Harms the Atrazine was to be applied with starter fertilizer. Defendants claim the hearsay rule is applicable. The evidence was admissible to show that the statement had been made to the plaintiff and that he relied on it. The representations *201 and reliance thereon were part of the facts to be proved. The hearsay rule was not applicable. See, VI Wigmore on Evidence, s. 1766, p. 177, and s. 1789, p. 235; McCormick on Evidence, s. 228, p. 463. There was evidence in the record of Bergman's authority and evidence that Bergman should have expected and anticipated that his statements would be transmitted to the customer for the purpose of promoting the sale of Atrazine. Harms had testified previously as to his conversation with Bergman, and the plaintiff testified as to his conversation with Harms.
The defendants claimed, and there was evidence which tended to prove, that the Atrazine had been improperly applied in that it was sprayed directly on the seed with the fertilizer solution; that it was applied in excessive amounts; and that the plaintiff was negligent in failing to read the label on the containers. However, the plaintiff's evidence was that he applied the Atrazine in accordance with the instructions of the defendants as relayed to him by Harms. This conflict in the evidence presented a question for the jury. When considered in the light most favorable to the plaintiff, and all conflicts are resolved in his favor, the evidence is sufficient to sustain the verdict and judgment.
The defendants complain that the trial court failed to instruct on their theory of the case. Instruction No. 2 advised the jury that the defendants claimed the plaintiff was negligent and had failed to comply with the instructions and warnings printed on the container labels. Instruction No. 4 required the jury to find that the plaintiff had relied upon the representations of the defendants as to the application of Atrazine with starter fertilizer before a verdict could be returned for the plaintiff. The jury was further advised that if the plaintiff had negligently failed to follow the instructions on the label, that must be considered in accordance with the comparative negligence instruction. In the absence of a request for more detailed instructions, these instructions were adequate under the circumstances to state the defendants' theory of the case.
The parties stipulated that the plaintiff's damages were $2,006.70. The defendants claim that the verdict in the amount of $1,545 amounts to a finding that the plaintiff was guilty of negligence more than slight. A similar contention was considered and rejected in Burney v. Ehlers, 185 Neb. 51, 173 N.W.2d 398.
The evidence disclosed that the corn was planted on rented land and that the landowner's share of the crop was 40 percent. The defendants contend that the verdict should have been reduced accordingly. The plaintiff testified that he had made a settlement with the landowner for the landowner's share of the loss. Under these circumstances the plaintiff was entitled to recover the entire damages. See, also, § 25-304, R.R.S.1943; Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151.
The judgment of the district court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606545/ | 349 So.2d 741 (1977)
In re: ESTATE OF Earl Tom PRIDGEON, Jr., Deceased.
No. DD-43.
District Court of Appeal of Florida, First District.
August 25, 1977.
*742 Robert C. Parker, Jr., Tallahassee, for appellant.
Robert A. Mick, Henry, Buchanan, Mick & English, P.A., Tallahassee, for appellee.
PER CURIAM.
The trial court correctly construed the term "independent action" appearing in § 733.705(3), Florida Statutes, 1975, to require the filing of a separate action upon a claim against an estate to which an objection has been filed rather than the filing of a petition for payment of the claim in the probate action. We find no abuse of discretion by the trial court in extending the claimant's time for filing such independent action.
Affirmed.
McCORD, C.J., and BOYER, J., concur.
RAWLS, J., dissents.
RAWLS, Judge (dissenting).
This court's majority opinion in In Re Kemp's Estate, 177 So.2d 757 (Fla. 1st DCA 1965), mandates a reversal of the case at bar.
Here, the trial court's basis for finding "good cause" is:
"... the Court being of the opinion that considerable confusion has been generated by transition to the new Florida Probate Code effective January 1, 1976, and that additional confusion has resulted from the adoption of Article V of the Florida Constitution effective January 1, 1973, conveying to the Circuit Court jurisdiction over administration of decedents' estates... ."
and upon these grounds granted to appellee a period of 15 days to file an action.[1]
Judge Sturgis, speaking for this court in the Kemp case, quoted at length from the landmark case of In Re Goldman's Estate, 79 So.2d 846 (Fla. 1955). The facts in Goldman are quite analogous to those in the instant case in that the attorneys for claimant alleged that confusion had resulted in their not receiving a copy of the new statute reducing the time for filing suit from one year to 60 days. The probate judge agreed with claimant and entered an order extending the time to file suit. In reversing, the Florida Supreme Court, in quoting from In Re Jeffries' Estate, 136 Fla. 410, 181 So. 833 (1938), held:
"... [A] cause sufficient to authorize an extension of time for filing suit must be a `good cause', by which it is meant that the `adjudication is to be governed by a given standard of judicial action' . .. and not mere `ignorance of law, hardship on petitioner, and reliance on [another's] advice'...."
See also Ellard v. Godwin, 77 So.2d 617 (Fla. 1955); and Exchange Nat. Bank of Winter Haven v. Field, 338 So.2d 889 (Fla. 2nd DCA 1976).
NOTES
[1] Since the enactment of the Probate Code in 1933, the rule of law has required the filing of a separate action to enforce a claim to which an objection has been filed. No opinion upon this question remotely suggests that a petition for payment of claim would suffice. Every case reviewed reflects that a separate action from the probate proceeding must be filed. The subject statute, Sec. 733.705(3), Fla. Stat., is even more explicit than in the former in that it states "an independent action". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607525/ | 366 So.2d 1202 (1979)
MIAMI NATIONAL BANK, Appellant,
v.
FORECAST CONSTRUCTION CORPORATION, David H. Siegel and Jeannette H. Siegel, and Herbert N. Siegel and Eleanor J. Siegel, Appellees.
No. 77-2602.
District Court of Appeal of Florida, Third District.
January 16, 1979.
Rehearing Denied February 23, 1979.
*1203 Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.
Howard A. Rose, Miami Beach, for appellees.
Before HAVERFIELD, C.J., and PEARSON and HENDRY, JJ.
PER CURIAM.
Miami National Bank, plaintiff, appeals a final judgment entered pursuant to a jury verdict in favor of defendants Herbert and David Siegel, personal guarantors on a promissory note.
On July 23, 1974 Miami National Bank loaned defendant Forecast Construction Corporation, a home builder, $20,000 which was evidenced by a promissory note payable on October 21, 1974. The note was individually guaranteed by Herbert Siegel, president of Forecast, and his father, David Siegel. Forecast defaulted on the note and the Bank instituted suit against Forecast and joined the Siegels as guarantors. Subsequently David Siegel entered into negotiations with the Bank, and the parties in April, 1975 agreed that David Siegel would make a $3,500 prepaid principal reduction plus all of the accrued interest on the debt and the future interest as it accrued for one year within which time he would attempt to pay the unpaid balance of the indebtedness. In addition, the Bank was given physical possession of two mortgages held by Forecast and the monthly payments received therefrom would be applied toward the indebtedness. David Siegel paid the Bank $3,500 and accrued monthly interest, and the Bank dismissed the suit. In December, 1975 David Siegel informed the Bank he was unable to continue the payments and offered an assignment of the mortgages in exchange for a release as guarantor as he contended was agreed by the parties in April. The Bank denied making any such agreement with respect to a release, refused the assignment and filed the present action against Forecast and the Siegels who primarily defended on the ground that in April, 1975 they had negotiated a novation agreement resulting in a revocation of their guarantees. The cause was tried by jury which returned a $15,209 verdict only against Forecast. The Bank moved for *1204 judgment in accordance with its motion for directed verdict on the ground that the Siegels failed to present evidence of legally sufficient consideration of a revocation agreement. The motion was denied, judgment was entered in favor of the Siegels in accordance with the verdict and this appeal ensued.
The Bank primarily contends that the evidence presented by the Siegels as personal guarantors was legally insufficient to prove up a novation agreement. We find merit in this contention.
A novation is a mutual agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation and like all contracts must be based upon adequate consideration. Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931). Two of the essential elements which must be presented in order for a novation to exist are (1) an agreement by the parties to cancel and extinguish the first debt or obligation, and (2) agreement of the parties that the second contract or agreement takes the place of the first obligation. United Bonding Ins. Co. v. Southeast Reg. Bldrs., Inc., 236 So.2d 460 (Fla. 1st DCA 1970). In addition, although the question of novation is controlled by the intention of the parties and generally is a proper question to be submitted and determined by the jury,[1] the party pleading the novation as an affirmative defense has the burden of proving it by clear and satisfactory evidence. Babe, Inc. v. Baby's Formula Service, Inc., 165 So.2d 795 (Fla. 3d DCA 1964).
With respect to the affirmative defense of novation, the evidence presented by David and Herbert Siegel consisted only of the testimony of David Siegel as to the installment payment arrangements (set out above) to pay the indebtedness of Forecast and the bare contention that if he could not pay off the outstanding indebtedness, then in lieu thereof the Bank would accept transfer of the two mortgages held by Forecast as complete satisfaction. The Siegels presented no documentary evidence in support of their defense of novation. Upon this record we conclude there is insufficient evidence upon which a jury could reasonably find an intention on the part of the parties to extinguish the original indebtedness. Cf. Lakeland Silex Brick Co. v. Jackson & Church Co., 124 Fla. 347, 168 So. 411 (1936); Amoedo v. Socarras, 311 So.2d 830 (Fla. 3d DCA 1975). Defendant David Siegel merely promised to pay in installments that which he as guarantor was already obligated to pay. Such a promise does not constitute a valid consideration; therefore, there was a failure of consideration. See Garner v. Thompson, 335 So.2d 302 (Fla. 2d DCA 1976). Second, there was no evidence of any intent on the part of the Bank to extinguish the original indebtedness. The original note was never cancelled. Thus, the evidence presented failed to establish this essential element of a novation agreement. See Taines v. Capital City First Nat. Bank, 344 So.2d 273 (Fla. 1st DCA 1977).
For the reasons stated, the final judgment entered in favor of defendants Herbert and David Siegel is reversed and the cause is remanded to the trial court to enter judgment for the Bank against these two defendants.
Reversed and remanded.
NOTES
[1] Lakeland Silex Brick Co. v. Jackson & Church Co., 124 Fla. 347, 168 So. 411 (1936). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3345501/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF LAW
One of the pro se parties in the above entitled action, Astrid A. Sundwall, filed a motion to dismiss the complaint and to dissolve a mechanic's lien. By letter to the Clerk's Office dated October 2, 1992, she requested that any hearing on the motion to dissolve be postponed until after her motion to dismiss was decided. At oral argument this defendant CT Page 10623 argued that her motion to dissolve was subordinate to her motion to dismiss. Accordingly, the court heard no argument, nor was evidence presented concerning the motion to dissolve the mechanic's lien.
The defendant attacks the August 27, 1992 Notice of Lis Pendens claiming that the Connecticut Lis Pendens statute is unconstitutional. This court agrees with the finding of New Destiny Development Corp., et al v. Samuel Piccione, Jr., et al, (USDC-CT, No. 3:91 CV-429) that 52-325 of the General Statute passes constitutional muster.
Likewise, this court agrees with the finding that Connecticut's mechanic's lien statute is constitutional. See; PDS Engineering Construction Inc. v. Double RS a/d/a Double RS Partnership, et al, 6 Conn. L. Rptr. 181 (1992).
Proper service was made upon this defendant at her usual place of abode.
Other grounds claimed in plaintiff's motion were either abandoned at argument or do not pertain to the instant motion.
The motion to dismiss is denied.
JOHN J. LANGENBACH JUDGE, SUPERIOR COURT | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3345502/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This is an appeal by the plaintiff1 from two "orders" of the Fair Rent Commission ("Commission") of the Town of Manchester. In May, 1996, ten complaints were filed with the Commission by tenants at the South Park buildings. Although each complaint was different, the predominant theme of the complaints was that the plaintiff did not repair and maintain the premises in a workmanlike or timely manner. A lengthy hearing was held on July 22, 1996; two "orders" followed the hearing. The first, dated July 29, 1996, and sent by and signed by the town's director of health, listed "agreements" reached at the July 22 hearing; the second, dated August 7, 1996, and signed by the chairman of the commission, listed a number of additional "agreements" that had been reached at the hearing and stressed that Mr. Mrosek had thirty days from receipt of the order to complete the tasks. A motion at the conclusion of the July 22 hearing had been passed to the effect that if the items were not completed within 30 days, the monthly rent for each of the complainants would be reduced by the amount of fifty dollars per month of noncompliance. The plaintiff apparently corrected all or almost all of the actual code violations within the agreed upon period, but did not fix some of the other items, and appealed to CT Page 751 this court from both orders of the commission.
The appeal claims a variety of defects in the proceedings before the commission; in its amended complaint, the plaintiff alleges that notice of the hearing and of the July decision were defective; that the plaintiff was denied the opportunity to present evidence at the hearing; that the commission exceeded its statutory authority; that the August decision was issued without a hearing and an opportunity to be heard; and, more generally, that due process was violated. The answers of the defendants2
generally deny that there were any significant irregularities.3
I have read the lengthy transcript of the proceedings before the commission and the exhibits submitted to the commission4, and I find that there are several significant obstacles to traditional judicial review. First, and perhaps most significantly, the hearing was simply not conducted as an adjudicatory proceeding. Although witnesses were sworn, the proceedings were largely conversational and there was no clear adherence to any set of pleadings or other standard for relevance. Commissioners frequently "testified" about conditions and frequently made comments about what "George" ought to do to improve the conduct of his business. The hearing appeared to be more an opportunity for tenants to express their frustrations, and for all of those concerned to reach a mutually agreed upon plan, than an adjudication. Mr. Mrosek, though represented by counsel, also from the outset appeared interested in reaching an accommodation with the tenants. At the hearing, Mr. Mrosek typically agreed to address each problem raised by the tenants, and a timetable for repairs was agreed to. The sanction of a reduction of rent in the amount of fifty dollars per month per complainant was almost an afterthought and was not disputed at the hearing. At some point after the hearing the plaintiff apparently changed his mind, and this appeal followed.5
There are also difficulties with the record itself. Significant parts of the transcript are missing because words were inaudible to the transcriber; speakers frequently are not identified; and there are significant gaps when tapes ran out. At the conclusion of the hearing, for example, when the commissioners were presumably discussing the final order, the tape machine apparently was not running at all. As noted above, it was agreed that 42 exhibits were improperly included in the record, and a number of reports and correspondence generated after the hearing were included as exhibits. A number of items CT Page 752 which clearly were considered by the commissioners were never marked as exhibits and were not included in the record; most obviously, these include photographs of conditions.
I find, however, that the nature of the proceedings and of the order precludes judicial review. The actual motion adopted by the commission, Exhibit 114, stated that the owner shall, within thirty days, develop a plan for maintenance and handling tenant complaints, complete all items of maintenance and repair as agreed during the hearing, and provide janitorial service to certain areas twice monthly, and if these conditions are not met, the rent of all complainants will be reduced by $50.00 per month. Some further action of the commission would certainly seem to be required if the rent were to be reduced; that is, the order would not appear to be self-executing. Further, it appears from documents included, perhaps erroneously, in the record that work in fact was done in at least some of the units, and the commission indeed may find that there is no remaining controversy, or that any remaining controversy is considerably narrowed.6 Because some additional discretionary action on the part of the commission would be required before an order could be effective, and because effective judicial review is not possible in the present posture, the motion of the commission was not an appealable order.
"The considerations underlying the requirement of finality of an agency decision as a prerequisite to judicial review are akin to those involved in the ripeness doctrine as applied to administrative rulings. [I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The cases dealing with judicial review of administrative actions have interpreted the finality element in a pragmatic way. Id., 149. [T]he relevant considerations in determining finality are whether the process of administrative decision making has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action. Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)." (Internal quotation marks omitted.) CT Page 753 New Haven v. New Haven Police Union Local 530, 210 Conn. 597, 604, 557 A.2d 506 (1989). Another significant consideration is whether the agency intended its decision to be final. We have stated that "[s]o long as the agency intends to render a final decision and the person taking the appeal is aggrieved by the decision rendered, the fact that other related issues are reserved for later adjudication does not necessarily detract from its finality." Id., 606. State v. State Employees' Review Board, 231 Conn. 391, 403-04 (1994).
In the instant case, it is clear that the rights of the parties have not yet been concluded by the commission, and it is not clear that the commission intended its motion to be final.
It is true, of course, that the language governing appeals from fair rent commissions, § 7-148e, is somewhat broader than the language in UAPA, § 4-183 (a), as the former does not include the word "final". Regardless of whether the word "final" appears in the statute authorizing the appeal, however, our jurisprudence requires, in a broad range of administrative appeals, that an appeal is premature where further administrative action, other than a ministerial formality, is required to conclude the rights of the parties. See, e.g., Cleveland v. U.S.Printing Ink, Inc., 218 Conn. 181, 185 (1991); Szudora v.Fairfield, 214 Conn. 552, 556 (1990); State v. Curcio,191 Conn. 27 (1983); Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282
(1997); Darcy v. CHRO, 41 Conn. App. 1 (1996); Wisniowski v.Planning Commission, 37 Conn. App. 303 (1995). As a practical matter, it makes little sense to try to come to terms with an incomplete order.
It may be useful, however, to discuss several of the issues raised in order to supply some guidance on remand. It is axiomatic that municipal agencies have only those powers conferred by statute.7 The orders of a Fair Rent Commission, in the context of the instant case, are limited to those delineated in § 7-148d of the General Statutes:
Sec. 7-148d. Order for limitation on amount of rent. Suspension of rent payments. Cease and desist orders for retaliatory actions. (a) If a commission determines, after a hearing, that the rental charge or proposed increase in the rental charge for any housing accommodation is so excessive, based on the standards and criteria set forth in section 7-148c, as to be harsh and unconscionable, it may order that the rent CT Page 754 be limited to such an amount as it determines to be fair and equitable. If a commission determines, after a hearing, that the housing accommodation in question fails to comply with any municipal ordinance or state statute or regulation relating to health and safety, it may order the suspension of further payment of rent by the tenant until such time as the landlord makes the necessary changes, repairs or installations so as to bring such housing accommodation into compliance with such ordinance, statute or regulation. The rent during said period shall be paid to the commission to be held in escrow subject to ordinances or provisions adopted by the town, city or borough.
(b) If the commission determines, after a hearing, that a landlord has retaliated in any manner against a tenant because the tenant has complained to the commission, the commission may order the landlord to cease and desist from such conduct.
There are, then, three sorts of orders which may be issued pursuant to § 7-148d: a finding that, based on the criteria of § 7-148c8, a rental charge or proposed increase is so excessive as to be harsh and unconscionable; an order that rent payments be paid to an escrow fund if premises fail to comply with state or local ordinances pertaining to health and safety; and an order that certain actions have been retaliatory.
Perhaps because of the informal way in which the hearing was conducted, there is no mention in the record of the basis for the orders issued by the commission. There is no express finding that any of the statutory criteria have been considered, and no indication as to which statutory provisions were violated. Although some latitude is to be extended to municipal agencies, and decisions are to be upheld, in general, if evidence supports the conclusions and the conclusions reflect a correct application of the law; see, e.g., Saporiti v. Zoning Board of Appeals,137 Conn. 478, 482-83 (1951); "[the court] retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion. . . ." (Citations omitted.) United Parcel Service,Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724
(1988). If the basis for decision is not apparent from a review of the record, the court cannot perform its function.
Several factors are clear, however. First, there does not seem to be any issue of retaliatory action raised at the July, 1996, hearing; thus, it seems apparent that the orders issued at CT Page 755 the conclusion of the hearings, if valid, had to be based either on code violations or on a finding of "harsh and unconscionable" rental charges. Although there was evidence of several code violations9, it was not clear which units were affected by code violations and the remedy ordered by the commission is not applicable to code violations, except perhaps to the extent that code violations could also constitute "repairs" pursuant to §7-148c(6). I find, then, that the orders could not have been made pursuant to § 7-148d(a) pertaining to code violations.
The remaining question is whether the orders may have been made pursuant to a finding under § 7-148d(a) that the rental charge was "harsh and unconscionable". It is true, as represented by the plaintiff, that the commission was apparently not interested in receiving information relevant to some of the factors listed in § 7-148c; it is also true that many of the complainants mentioned that they would be happy to pay the rent: it was only the perceived lack of responsiveness to complaints and a perceived shoddiness of workmanship that triggered the complaints in the first place. The attorney for several of the complainants suggests on appeal that the need to do several repairs, including the provision of a railing in the case of one of his clients, can itself justify a reduction in rent in the amount of fifty dollars per month pursuant to §§ 7-148d and 7-148c. If this is what the commission meant, it did not expressly say so; a uniform reduction in value in the amount of fifty dollar per month would, if that is what the commission meant, appear to be quite arbitrary.
If the commission decides to persevere with the matter, then, it should confine itself to orders specifically authorized by statute10; and, if it decides to reduce rent, it should as specifically as practicable state the reasons. Any items received in evidence should be clearly marked and preserved, and every effort should be made to preserve the proceedings in a complete record.11 The appeal is dismissed.12
BEACH, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1606819/ | 232 Miss. 661 (1958)
100 So. 2d 113
HOWIE, et al.
v.
BAKER
No. 40649.
Supreme Court of Mississippi.
February 3, 1958.
*662 Fulton Thompson, R.H. & J.H. Thompson, Jackson, for appellants.
McLendon & McLendon, Jackson, for appellee.
LEE, J.
This litigation originated in this way: On January 14, 1939, Lucille Baker, a Negro woman, a servant of E.W. Barrett, was living in one of his houses at 412 N. Gallatin Street, in the City of Jackson. On that date he *663 made, published and declared his last will and testament. The will bequeathed to her a life estate in the above described property, directed that the taxes thereon should be paid by his estate, and created a trust fund from which she was to be paid $10 per month during her lifetime. The residue of his property, except for four other devises, was bequeathed to Mrs. Willie Howard Osborne.
On January 20, 1939, by warranty deed, Barrett conveyed to Mrs. Osborne all his property, including the above described lot, but reserved unto himself a life estate therein. In early September of that year, he died. Lucille continued thereafter to occupy the house, paid neither rent nor taxes, and received $10 per month from the estate of Barrett.
On January 23, 1952, Mrs. Osborne, by warranty deed, conveyed this and other property to Homer Lee Howie and Dexter S. Freeman. At this point, trouble began. When Mrs. Osborne and Howie, following the sale, informed Lucille thereof and that she would be required to pay rent, she refused to do so and claimed that the property belonged to her.
As a result of this impasse, Howie and his associates filed an eviction suit in the County Court of Hinds County, and obtained a judgment for possession of the property. The sheriff was about to execute the process, when Lucille, by her attorney, filed a bill in the Chancery Court and obtained the issuance of a temporary injunction, enjoining the sheriff from executing the process. A motion to dissolve was overruled, but the bond was increased to $500. Lucille did not furnish the required bond, and, on the second hearing, the temporary injunction was dissolved. Damages were fixed at $100, and the sheriff was directed to execute the process.
On January 22, 1953, as a result of a conversation with Howie, who was a lawyer, Lucille, without the advice of her attorney, signed a quitclaim deed to the property and a motion for the dismissal of her suit with prejudice. On the same date an order of dismissal was entered.
*664 On February 20, 1953, Lucille Baker, appearing by her same counsel, filed a motion to set aside the order of dismissal and to reinstate the cause and the injunction. It was charged that she was overreached and was the victim of fraud in her execution of both the motion to dismiss and the quitclaim deed to the property without consultation or advice from her acting attorney.
The answer of the defendants was a denial in detail of all of the material allegations of the motion, and was made a cross bill for the award of relief therein prayed for.
At this juncture, different counsel on both sides came into the litigation and have handled it ever since.
Without detailing the evidence, the court on that hearing held that no undue influence on the part of Howie was shown, nor was any fraud practiced by him, although it might have been an impropriety for him to state to Lucille Baker that, in his opinion, she did not have a good cause of action, and that the best thing would be for her to dismiss the lawsuit, rent the property, and forget about her interest therein. But, because of the intoxicated condition of her previous counsel when the original bill of complaint was filed and the hearings were being held thereon, and at the time of the presentation of the motion to set aside the order of dismissal, the court was of the opinion that Lucille Baker did not have proper representation; and in order that there might be no doubt that she has had her day in court, the motion to set aside the decree of dismissal was sustained.
Thereupon, by leave of the court, an amended and supplemental bill was filed by her present counsel. It alleged that Mrs. Osborne, after the funeral, had informed Lucille that Mr. Barrett willed the property to her as a home for the rest of her life, without payment of rent and that the taxes would be paid by his estate; that Lucille later obtained a copy of the will and from it believed that the property had been willed to her; that she *665 had lived on the property for the past sixteen years, had made repairs and improvements, and had paid for the maintenance and upkeep thereof; that Mrs. Osborne had known that she was claiming the property, and had not sought to collect rent; that when Mrs. Osborne and Homer Lee Howie came to her home in 1952 and informed her of the sale and that she would have to pay rent, she then and there informed them that the property belonged to her and she would pay no rent; and that subsequently, when she actually paid rent, she did so only for the purpose of preventing her dispossession. She prayed that she might be declared the owner, for the recovery of rents paid, and other relief, together with a prayer for general relief.
The answer of the defendants denied in detail all of the material allegations of the amended bill.
At the conclusion of the evidence, the court made an extensive finding of fact and denied all relief prayed for, except for capital improvements of the property, which, the court held, had enhanced the value thereof in the sum of $600; and for that purpose, a lien was imposed. The decree was in accordance with the finding of fact; and the defendants appealed.
The appellants contend here that the trial court erred in setting aside its former decree, and in making an award for improvements.
(Hn 1) The reinstatement at the same term of court of a dismissed cause must be left, in large measure, to the discretion of the court. (Hn 2) Matters of which the court may be aware, because of their observation during the trial, may not be reflected in the evidence, and yet they may constitute a compelling reason for the award of a new hearing. The chancellor, in his finding of fact, mentioned such a situation. Griffith's Mississippi Chancery Practice, 1950 Ed., par. 632, deals with the question as to when and whether decrees shall be vacated, and finally at page 691 thereof, states as follows: "It is a *666 matter that, at last, must necessarily be left largely to the sound judicial discretion of the chancellor, wherein on the one hand he will seek to administer full justice in the individual case and on the other to enforce the observance by the parties of a reasonable freedom from inexcusable negligence and to uphold the requirements of the public interest in a prompt, efficient and orderly administration of justice." See also Benwood Iron-Works Co. v. Tappan, 56 Miss. 659. Under the facts here, it was not error to set aside the order of dismissal and reinstate the cause.
Appellants say that the Baker woman was a tenant at sufferance of Mrs. Osborne, and that, under the general rule, namely, that "in the absence of a special agreement, the landlord is not liable to his tenant for repairs made by the latter to the leased premises", the court was without authority to grant her a decree for improvements. Among their citations are Thomas Hinds Lodge No. 58, F. & A.M. v. Presbyterian Church, 103 Miss. 130, 60 So. 66; Williams v. Barlow, 205 Miss. 449, 38 So. 2d 914; Miller v. Miller, 217 Miss. 650, 64 So. 2d 739; 51 C.J.S., Landlord and Tenant, Sec. 399a, pages 1141-2.
In Waldauer v. Parks, 141 Miss. 617, 106 So. 881, it was pointed out that "The greatest relaxation of it (general rule) is in favor of the tenant who has erected structures on the land during his tenancy. The general rule is applied with strictness as between heir and executor, mortgagor and mortgagee, and vendor and vendee, but with much leniency as between landlord and tenant", citing cases. (Emphasis supplied).
There is no dispute about the general rule. The question is whether, under the particular facts of this case, the general rule applies.
The effect of Lucille Baker's testimony was that Mrs. Osborne, about September 6, 1939, just after Mr. Barrett's funeral, came by the house where she was sick and represented to her that Mr. Barrett had willed the house *667 to her for life, provided for payment to her out of his estate of $10 per month as long as she lived, that the taxes would be paid by the estate, and that she could repair or fix anything that she wanted to, because the property was hers for life. Lucille also obtained a copy of the will and thought that it confirmed what Mrs. Osborne had said. Thereafter she lived in the house, and did not pay, during the whole period, taxes or rent. She made certain improvements, and, in 1948 or 1949, added a bathroom to the property. She produced bills which showed the aggregate of her outlay to be in excess of $1,100. Once or twice a week, Mrs. Osborne, on her rent collecting missions, before, during, and since the construction of the bathroom, passed by the property, should have seen the bathroom, but never at any time objected or said anything about it. When Mrs. Osborne and Mr. Howie came to her house on January 23, 1952, and told her of their sale and purchase, and she, in turn, reminded Mrs. Osborne of her previous representations, the latter replied that she had a deed and that it covered the will.
Mrs. Osborne, while admitting the visit to Lucille shortly after Mr. Barrett's death, denied that she made the representations as testified to by Lucille; but instead said that she told Lucille that she owned the property and had a deed to it, but that she was going to let her live there without paying rent as long as she, Mrs. Osborne, owned the property. She denied that she mentioned the will. She also denied that Lucille made the improvements or added the bathroom. On the contrary, she said that she herself built the bathroom, although she could not tell when. She also admitted that she walked along the alley, adjacent to the bathroom, at least once a week, collecting rent from 1939 until she sold the property. She said that she is a college graduate and that she had seen and read the Barrett will, but did not understand from it that Lucille was to have a life estate in the property. She said that she went with Howie to Lucille's house that day as a mere matter of courtesy *668 and in order that Howie might meet the different tenants. She also said that she did not expect any trouble from Lucille and denied that she had told Howie that he was likely to have trouble with her.
Howie, in his evidence, admitted that he knew, before he went to Lucille's house, that she was claiming the property; that Mrs. Osborne had already told him that she had never collected any rent from Lucille and that he might have trouble with her. He conceded, both in his testimony and in his answer, that Lucille informed him at the time that the property belonged to her and that she would pay no rent thereon.
Thus it will be seen that the court, on this disputed issue of fact, was warranted in finding that Mrs. Osborne, at a time when she knew, or should have known, from the provisions of her deed that Barrett's life estate had expired, represented to Lucille that she had the right to live in the house, tax and rent free, for life, and repair or fix anything that she desired. For more than 12 years Lucille actually lived in the house and paid no rent or taxes. Moreover, the proof was almost conclusive that she made improvements and erected the bathroom. Mrs. Osborne denied this and claimed that she built the bathroom, but she could not say when, nor did she offer any corroborative evidence thereon. Besides at a time when she could, and evidently did, see the bathroom under construction, she offered no protests or objection thereto. The chancellor, in his finding of fact, expressly rejected certain phases of Mrs. Osborne's testimony as being untrue.
(Hn 3) One may not stand by and see improvements made under circumstances, which call for notice or protest, as the evidence justified in this case, and afterwards assert her title against such person. Brock v. Kelly, 208 Miss. 323, 44 So. 2d 452.
In Martin v. Hartley, 208 Miss. 112, 43 So. 2d 875, the Court refused to cancel a lease, alleged to have been deliberately altered by the lessee, on account of the fact *669 that the lessors had stood by without protest for a year and a half and permitted the lessee to use the property, and to make a large investment thereon as though he had the legal right to do so.
In Burton v. Redmond, 211 Miss. 158, 51 So. 2d 210, Dr. Redmond, as the result of what his grantor told him, enclosed more property than his deed actually called for. Besides he made an addition to his house, located on the west side of the creek, and it turned out that such addition was north of the platted line as surveyed, and was on the property of the appellants. But his proof showed that the appellants knew what he was doing and they did not object. As a matter of fact they did not claim the property until a survey was made about eight years later. It was contended that the trial court was in error in allowing a value for improvements because Dr. Redmond's claim was not under a deed, or contract of purchase, acquired or made in good faith as contemplated by Section 825, Code of 1942 Rec. But it was held that the trial judge was justified in concluding that Dr. Redmond was in good faith when he erected this addition and that the allowance for improvements was proper. It was also observed that since the appellants had stood by for eight years, estoppel could also play a part.
In Connolly v. McLeod, 212 Miss. 133, 52 So. 2d 473, Peter Joe Connolly, Jr., son of Mrs. P.J. Connolly, Sr., the owner of the lot, and James H. McLeod erected a building on Mrs. Connolly's lot without any express agreement with her. However she knew their plans and expectation to operate a restaurant therein. She could have seen the progress of the work from day to day, but she made no objection thereto. McLeod, after a time, sold his interest to Peter Joe, but was never paid therefor. In holding that McLeod still had a subsisting interest in the building the court cited 22 Am. Jur., Fixtures, page 780, to-wit: "Generally a building erected on the land of another by his consent or license does not become part of *670 the realty, but remains the property of the person annexing it."
(Hn 4) If the chancellor had found Mrs. Osborne's version to be true, it might be said that the additions by Lucille were at her peril; but that version was rejected, and there was abundant evidence to sustain the court's action. Obviously the property was enhanced in value by reason of such improvements, and the court properly allowed a recovery for such benefit.
The appellants further say that the appellee did not ask for the relief which was granted. It is true that the trial court held that the appellee was not entitled to the specific relief for which she prayed. However, it was charged in the amended bill that improvements had been made. Besides there was a prayer for general relief. A similar situation obtained in Connolly v. McLeod, supra. It may be said here just as the opinion stated in that case, namely, "the relief granted by the court in its decree was consistent with the bill of complaint and within its scope and was justified under the prayer for general relief", citing Griffith's Mississippi Chancery Practice, 2d ed. Secs. 186-7.
From which it follows that there was no reversible error in the trial of this case, and the decree must be, and is, affirmed.
Affirmed.
Roberds, P.J., and Hall, Arrington and Ethridge, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606936/ | 7 So. 3d 1174 (2009)
STATE of Louisiana
v.
John L. MCCRAY.
No. 2009-KK-0874.
Supreme Court of Louisiana.
April 17, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606952/ | 100 So. 2d 173 (1957)
Ruby SMITH, a widow, Appellant,
v.
Carl H. MOTT and Richard Earl Franks, Appellees.
Supreme Court of Florida.
December 4, 1957.
On Rehearing February 12, 1958.
*174 Nichols, Gaither, Green, Frates & Beckham and Sam Daniels, Miami, for appellant.
Wicker & Smith, Miami, for appellees.
DREW, Justice.
The sole question presented here is whether a witness may lawfully testify concerning the result of a blood alcohol analysis which the witness did not himself perform, but which was made by the State health officer pursuant to law.
The question arises out of an action by a widow to recover for the wrongful death of her husband, who, while walking across a highway, was killed by a truck driven by one defendant and owned by the other. Contributory negligence of the deceased was asserted as a defense. A jury verdict and judgment were entered in favor of both defendants.
In the course of the trial, the county medical examiner (a witness for plaintiff) testified that he examined the decedent's body after death, and as part of his examination he took a blood sample, designated it by name and number and sent it to the laboratories of the Florida State Board of Health in Miami for analysis.[1] The result of the analysis was sent by the Board of Health to the medical examiner, where it became a part of his official records and reports. After referring to his record and notes, the medical examiner testified, "the report was that in the case of Ralph Smith, Medical Examiner case, Broward County, No. 382-55, blood ethyl alcohol was 0.210 percent by weight * * *." The technician who actually made the blood alcohol analysis was not called by either side as a witness; and before the witness was allowed to give the above testimony plaintiff's attorney made the following objection, which was overruled:
"We will object to that, because that would be secondary evidence and hearsay evidence. The report that was made by someone else other than the doctor that person would be the one to state the nature of the test made and the type of report or findings that person found * * *."
*175 The medical examiner then testified that in his opinion a person whose blood had the ethyl alcohol content reported in the analysis would be drunk.
The report of the Board of Health did not state the method of the test or the type of equipment, but the medical examiner testified that "At that time, to my definite knowledge, the laboratory upstairs [the Board of Health] was using the chemical test devised by Dr. Getler." The medical examiner then testified on redirect examination extensively as to the method of performance and the accuracy of the test.
McCormick[2] summarizes the requirements which some courts have made for introduction of the results of the tests as follows:
"The party offering the results of any of these chemical tests must first lay a foundation by producing expert witnesses who will explain the way in which the test is conducted; attest its scientific reliability, and vouch for its correct administration in the particular case."
An examining doctor may need to send such elements as blood to adequately equipped laboratories to best accomplish his examination, and "When properly made the results of such examination or analysis shall be admissible at the trial as evidence in the cause." Depfer v. Walker (on rehearing), 1936, 125 Fla. 189, 194, 169 So. 660, 663. Such results, however, must be introduced in evidence through competent witnesses:
"Because of the rule against hearsay, the report of a chemist, bacteriologist, or laboratory technician as to the result of an examination made by him under the statute is not competent evidence in a case of this kind, but the chemist or bacteriologist who made the examination or the analysis, if shown to be competent to speak as an expert, may testify as to what it showed." Depfer v. Walker, supra.
Appellees (defendants below) argue that where a laboratory test has been made by a state agency under a duty to perform such tests the agency's report of the result is admissible "as competent evidence of the matter or fact therein recited" under the "public record" exception to the hearsay rule. This point was not considered in the Depfer case, supra; but this Court held in Mutual Life Ins. Co. of New York v. Knight, 1937, 130 Fla. 733, 178 So. 898, 900, rehearing denied 1938, 130 Fla. 741, 178 So. 901:
"The report on the specimen of sputum from the insured made and reported by the state board of health was not admissible unless properly taken, marked, and authenticated as the law directs, but the record discloses that these formalities were complied with, that it was properly taken, mailed, examined, by the state board of health, and certified to have been found `positive,' which was sufficient."
"As to the specimen of sputum, it is shown that it was regularly taken and mailed to the state board of health laboratory and its report received therefrom which was regular and showed the result found. This is a duty imposed on the state board of health and we hold its report in response to such request prima facie evidence of what it purports to be. If its verity is to be overthrown, the duty is on the one challenging it to do so.
"In this case, the report on the specimen amounted to no more than secondary evidence as it merely corroborated the testimony of the attending physician."
The secondary character of the evidence in the Mutual Life Insurance case only affected the weight to be accorded it and not its competency.
*176 We see no inconsistency in the Depfer case and the Mutual Insurance Company case. Nor is there any inconsistency in the views of McCormick and of this Court if we recognize the difference in a report of this kind prepared by a recognized public agency in the performance of its duties and a report prepared by a private chemist or analyst for the use of private interests. In the former case, the rule in the Mutual Insurance Company case applies while in the latter, the rule in the Depfer case and that stated by McCormick would be applicable.
In the Mutual Insurance Company case we held that such evidence was admissible as a public record. We emphasize the fact that in reaching that conclusion we gave substantial consideration to the fact that the specimen there was regularly taken, mailed to the State Board of Health laboratory in a routine manner and that all of the procedure followed was regular in every respect and done in accordance with the duty imposed on that branch of the government vested with this duty and charged with this responsibility; that when such was made to appear, the report was prima facie evidence of that which it purported to disclose. There is a solid basis for this holding. One of the basic reasons for holding it admissible as evidence and accepting it as such is the high probability of its truthfulness and verity. It is admissible for much the same reason that evidence is admissible under the res gestae rule. One of the factors for holding that evidence otherwise inadmissible, is admissible under the res gestae rule, is that it is usually given in such close proximity to the main event as to preclude the likelihood of reflection and fabrication.[3] Another reason for holding the evidence in this case admissible is that persons hired by a governmental agency to perform chemical tests will be presumed to have been properly qualified and to have skillfully performed their duties unless contradictory testimony is offered. Public records are made as a matter of routine and preserved in the interest of the general welfare. The investigation is impersonal to those charged with the duty of making it. The prime object is to determine the facts by using acceptable methods and to preserve those facts in the interest of the state for its use and the use of its citizens. There is little likelihood of or reason for fabrication and no purpose to be served by it. In those cases where, as here, it is shown that such reports are prepared in the manner prescribed by the statute and have become a part of the public records they are, as said in the Mutual Life Insurance Company case, prima facie evidence of what such document purports to show. Moreover, as stated in the Mutual Insurance Company case, "If its verity is to be overthrown, the duty is on the one challenging it to do so."
Affirmed.
TERRELL, C.J., and ROBERTS, THORNAL and O'CONNELL, JJ., concur.
On Rehearing
PER CURIAM.
A rehearing having been granted in this cause and the case having been further considered upon the record and upon briefs and argument of attorneys for the respective parties; it is thereupon ordered and adjudged by the Court that the judgment of affirmance of the Circuit Court in and for Dade County in this cause be, and it is hereby reaffirmed and adhered to on rehearing.
TERRELL, C.J., and ROBERTS, DREW, THORNAL and O'CONNELL, JJ., concur.
NOTES
[1] Sec. 381.331, Florida Statutes 1955, F.S.A.
[2] McCormick on Evidence, page 377.
[3] 32 C.J.S. Evidence § 417, p. 45; 77 C.J.S. page 274. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606956/ | 100 So. 2d 914 (1958)
Desire TRAHAN
v.
LOUISIANA STATE RICE MILLING COMPANY et al.
No. 4546.
Court of Appeal of Louisiana, First Circuit.
February 3, 1958.
Rehearing Denied March 17, 1958.
*915 Voorhies & Labbe, Lafayette, for appellant.
Dodd, Hirsch & Barker Baton Rouge, for appellees.
LOTTINGER, Judge.
This is a suit for workmen's compensation wherein petitioner, Desire Trahan, seeks benefits at the rate of $25.88 per week for a period not to exceed 400 weeks for total and permanent disability. The defendants are Louisiana State Rice Milling Company, Inc., and its compensation insurer, American Mutual Liability Insurance Company. The Lower Court awarded judgment for total and permanent disability, and the defendants have appealed.
The record shows that at the time of the injury petitioner was employed by Louisiana State Rice Milling Company, which is engaged in the milling and sale of rice. He was working at the mill in Crowley, Louisiana. On June 14, 1955, while sewing bags of rice, the hand which was holding the needle slipped and petitioner's right eye was pierced by the needle. This ultimately resulted in the loss of the right eye without effect on the left eye and without any other complications.
The defendants filed answer admitting the accident, however, they claim that there is no permanent and total disability. Defendants claim that the petitioner should recover only for the loss of one eye, for which loss the Act, LSA-R.S. 23:1221, provides for benefits for a period of only 100 weeks.
The record shows that petitioner had been working at the milling company for a period of approximately eight years prior to the accident. He worked at various jobs in the mill and had been working in the mill room where all of the moving machinery and exposed belts are located during the season of his accident. At the time of the accident, petitioner's job was "sweeper and oiler", consisting of keeping the premises clean and oiling the various machinery as needed. It was necessary to oil the machinery approximately twice daily. At the time of the accident, however, he was sewing rice bags as aforesaid. Petitioner was listed on *916 the employment records as an unskilled worker, and worked only during the milling season which lasted some four or five months per year. There is no question as to his rate of pay.
The only question presented before us is whether or not petitioner is totally and permanently disabled under Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq. Several doctors testified as to the injury and the medical condition of the petitioner. They were essentially in agreement to the fact that, as a result of the injury, a cataract formed on the right eye which was absorbed in due time. The healing process has been completed and the injured eye is without pathology other than that petitioner has lost most of the vision in his right eye. The left eye is normal, and the doctors agreed that petitioner is able to perform any type of manual labor which does not bring him into close proximity to moving machinery and belts.
The evidence shows that in oiling the machinery it was necessary for petitioner to oil bearings, which required him to come within a distance of approximately twelve inches from turning wheels and moving belts. The testimony and photographs introduced into evidence show that many of the machines to be oiled are located in close quarters, and that on some of them it is necessary that he climb ladders and walk on narrow, elevated walkways. There is also some evidence in the record to the effect that there is a great deal of dust present during the operation of the rice mill, and the doctors testified that the presence of a great amount of dust could have effect on petitioner's eye. Although petitioner's depth perception is somewhat limited at the present time, the medical testimony indicates that it will improve within the next few months. The medical testimony indicates that petitioner is now in the position of a perfectly normal man except for the lack of vision in his right eye. He has full vision in his good eye and up to 55 degrees towards the side of the lost eye.
The record shows that at the time of the accident petitioner was employed as a "sweeper and oiler". Although the job was classified as common labor, it appears that at least some degree of skill was required in the oiling of the machinery. The record clearly shows that in oiling this machinery on the average of about twice daily, petitioner came into contact with heavy machinery, and was required to come into close contact with turning wheels and belts. All of the doctors testified that such a job would be more hazardous for a one-eyed man because of his limited vision.
The defendants claim that there are many other unskilled jobs in the rice mill which the petitioner could have adequately performed in his present condition, and for which he would have received the same wages. However, the law does not require the injured or disabled party to perform a different type of job, the law provides for total and permanent disability if the injured party is unable to substantially perform work of the same reasonable character.
In Stieffel v. Valentine Sugars, Inc., 189 La. 1091, 179 So. 6, 15, the Supreme Court, in quoting from Pete v. Metropolitan Life Insurance Company, La.App., 171 So. 868, said:
"Total and permanent disability from performing any work for compensation or profit does not require that insured become absolutely helpless, but merely requires such disability as renders him unable to perform substantial and material part of his occupation in usual and customary way."
The record shows that the oiling of the machinery was the regular task of petitioner, and that such task was a material and substantial part of his employment at the time of the accident. Furthermore, the continuation of his task of oiling the machinery in his present handicapped condition renders his job substantially more hazardous than it was prior to the accident, and all of the doctors testified that they would *917 not encourage petitioner to work in such close proximity to moving machinery in his present condition.
Furthermore, in Bean v. Higgins, Inc., 230 La. 211, 88 So. 2d 30, 32, the Court said:
"`* * * The test of total and permanent disability is whether the injured employee is capable of performing the work or the occupation in which he was engaged at the time of injury or whether he is able to do the kind of work he is trained to do or customarily does in the usual and customary way and without any serious impairment of his capacity to perform such work. * * *' Reeve v. Clement-Braswell Machine & Fabricating Works, La. App., 66 So. 2d 387, 390. See, also, Fruge v. Pacific Employers Ins. Co., La.App., 71 So. 2d 625; Id., 226 La. 530, 76 So. 2d 719; Morgan v. American Bitumuls Co., 217 La. 968, 47 So. 2d 739; Wright v. National Surety Corp., 221 La. 486, 59 So. 2d 695.
"A welder's helper is not as skilled as a welder, but his work is of a dangerous character, and he receives compensable wages. There is no doubt that plaintiff will never be able to resume the work of a welder's helperthe occupation he was engaged in at the time of his injury. If a welder's helper is not a skilled worker and his work can be classified as only one phase of common or manual labor, plaintiff is unableas shown by the evidenceto perform heavy manual labor."
Now we do not believe that the petitioner is presently capable of performing his job as "sweeper and oiler" without any serious impairment of his capacity to perform such work, as the law does not require him to perform such tasks under the increased hazards which have been brought about by the loss of one eye. It is our opinion that under the law the petitioner is totally and permanently disabled from performing his job or to do any work of reasonable character. We are, therefore, in accord with the decision of the Lower Court and find no error therein.
For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal are to be paid by defendants.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606950/ | 184 Mich. App. 706 (1990)
459 N.W.2d 30
SHIPMAN
v.
FONTAINE TRUCK EQUIPMENT COMPANY
Docket Nos. 113012, 113675.
Michigan Court of Appeals.
Decided April 20, 1990.
Feikens, Foster, Vander Male & De Nardis, P.C. (by Lee A. Stevens and Mark F. Miller), for plaintiffs.
Dickinson, Wright, Moon, Van Dusen & Freeman (by Richard A. Glaser, William P. Shield, Jr., and Mark K. Riashi), for Fontaine Truck Equipment Company.
Foster, Swift, Collins & Coey, P.C. (by Scott A. Storey), for Uckele Animal Health Distributing, Inc.
Before: HOOD, P.J., and MAHER and CYNAR, JJ.
PER CURIAM.
This is a products liability action involving consolidated appeals as of right. After a jury returned a verdict awarding plaintiffs $500,000 *709 in damages, the trial court granted judgment notwithstanding the verdict in favor of defendant and third-party plaintiff Fontaine Truck Equipment Company. Plaintiffs appeal as of right from this order. In a separate appeal, Fontaine appeals as of right from an order granting judgment notwithstanding the verdict in favor of third-party defendant Uckele Animal Health Distributing, Inc. We affirm in part and reverse in part.
I
Plaintiff Roger Shipman was injured in June, 1984, while working on a feed trailer owned by his employer, third-party defendant Uckele Animal Health Distributing, Inc. The trailer was designed and manufactured by defendant Fontaine for purposes of hauling bulk and bag feed. It was equipped with several augers for moving the bulk feed, through a chute, from the trailer into a farmer's feed bin. The augers are located beneath the trailer's floor, which contains several steel grates with openings that allow the feed to flow to the augers. The plaintiffs injury occurred when he stepped through a hole that had been cut into one of the protective gratings over one of the augers. The hole had been cut more than one year earlier by defendant Gary Blatchford, who was called to repair an auger which had ceased functioning. After deciding that a bearing needed to be replaced, Blatchford searched for an access door to the auger. After looking in the manual supplied by Fontaine, he found no indication of an access door and concluded that it was necessary to cut the grating to gain access to the auger. The employees of Uckele who were present concurred in the decision to cut the hole. After the auger was fixed, the hole in the grating was not repaired.
*710 After plaintiff was injured, it was discovered that the manufacturer had built an access door into the trailer, however, this door was hidden by a metal shield which was bolted onto the trailer. Although Blatchford would have discovered the access door had he removed the shield, there was no sign on the shield indicating that removal was necessary.
On March 29, 1985, plaintiffs commenced the instant action alleging negligence and breach of both implied and express warranties against Fontaine. Plaintiffs based their claims on a theory of defective design as well as a failure to warn or instruct with respect to the safe use, maintenance and operation of the trailer. The complaint also included a negligence claim against Blatchford. Additionally, a loss of consortium claim was filed on behalf of plaintiff Annette Shipman. Uckele was later joined as a third-party defendant under the theory that it was aware of the danger posed by the missing grate and knew with substantial certainty that injury would occur, thereby subjecting it to intentional tort liability pursuant to Beauchamp v Dow Chemical Co, 427 Mich. 1; 398 NW2d 882 (1986).
Following a jury trial, plaintiffs were awarded $500,000 in damages. The jury affixed the percentage of fault as follows: (1) Fontaine ten percent; (2) Blatchford thirty percent; and (3) Uckele sixty percent. Following trial, however, the trial court granted judgment notwithstanding the verdict in favor of both Fontaine and third-party defendant Uckele. Other posttrial motions brought by Fontaine were denied. Posttrial motions brought by defendant Blatchford were also denied and Blatchford has not appealed those rulings.
II
Plaintiffs argue the trial court erred when it *711 granted Fontaine's motion for judgment notwithstanding the verdict. In reviewing a trial court's decision on a motion for judgment notwithstanding the verdict, this Court must view the facts and all legitimate inferences in a light most favorable to the nonmoving party. Troyanowski v Village of Kent City, 175 Mich. App. 217, 223; 437 NW2d 266 (1988). If reasonable persons could honestly reach different conclusions, the motion should be denied. Id.
It is clear that a manufacturer has a duty to design its products so as to eliminate any unreasonable risk of foreseeable injury. Prentis v Yale Mfg Co, 421 Mich. 670, 692-693; 365 NW2d 176 (1984). Where a manufacturer fails to exercise such duty with reasonable care, it may be liable for negligence. Id.
Evidence was presented at trial indicating that it was foreseeable that a mechanic would remove the floor grate under the circumstances that existed in the case and that it was also foreseeable that the floor grate might not be replaced, thereby rendering the trailer unreasonably dangerous. There was also evidence presented that Uckele's use of the trailer without a full grate in place violated OSHA/MIOSHA safety regulations.
In this case, the trial court's order granting judgment notwithstanding the verdict in favor of Fontaine was not based upon a lack of evidentiary support for plaintiffs' claims. In fact, the trial court specifically denied Fontaine's request for a judgment notwithstanding the verdict based upon a great weight of the evidence theory. Rather, the trial court, relying on Fredericks v General Motors Corp, 411 Mich. 712; 311 NW2d 725 (1981), concluded that Uckele's violation of its statutory duty *712 to provide a safe work place was unforeseeable as a matter of law, so as to absolve Fontaine of any liability for an injury arising from the use of its product.
In Fredericks, the plaintiff was injured in a press accident and sued the supplier of an unguarded die. The unguarded die was harmless by itself until integrated into a larger multipurpose press system of the user. The Court noted that, once integrated, there were numerous methods of safeguarding the system such that an unguarded die would not be dangerous if appropriate guarding on the press machine was provided. Noting that the employer has a statutory duty to provide a safe work place, the Court held:
In light of this statutory duty ... we cannot hold as a matter of law that it was foreseeable to defendant that the product it supplied would be used in an unsafe manner rendering it defective. [411 Mich 720-721.]
In Villar v E W Bliss Co, 134 Mich. App. 116, 121; 350 NW2d 920 (1984), lv den 422 Mich. 871 (1985), also involving a press accident, this Court followed Fredericks, stating:
[A]bsent evidence that defendant knew or had specific reason to know that the original purchaser would use the press unsafely, it had no duty to provide safety devices not ordered by that purchaser.
Contrary to the trial court's interpretation, we do not interpret these decisions as standing for the proposition that an employer's violation of its duty to provide a safe work place is unforeseeable as a matter of law, so as to always absolve the manufacturer of liability for injuries caused by its unsafe *713 product. Instead, our reading of the decisions suggests that where there is evidence presented of the manufacturer's knowledge of unsafe use, or that unsafe use is foreseeable, liability is not precluded. This interpretation is supported by this Court's recent decision in Wessels v E W Bliss Co, Inc, 180 Mich. App. 440, 443; 447 NW2d 758 (1989), wherein the Court stated:
Our reading of Villar suggests that three criteria must be satisfied before its holding may be successfully invoked: (1) the press must be inoperable until it is integrated by the user (employer of the injured plaintiff) into its manufacturing processes, (2) the user, as the plaintiff's employer, owes the plaintiff a duty to provide a safe work-place pursuant to MCL 408.1011; MSA 17.50(11), and (3) the specific unsafe application of the press causing the accident was not foreseeable from the manufacturer's standpoint.
In this case, Fontaine's product was a fully integrated product rather than a component part required to be integrated into a larger system of the user. Thus, the first criterion has not been satisfied. Additionally, as the trial court noted, there was evidence that the design of the trailer was such that both the removal of the floor grating and use of the trailer with the floor grating out of place were foreseeable from the manufacturer's standpoint. Therefore, under these circumstances, the existence of an employer's safety violation would not be considered unforeseeable as a matter of law so as to relieve a manufacturer of liability for an injury caused by its otherwise defective product. Accordingly, we find that the trial court erred when it concluded that Uckele's unsafe use of the trailer was unforeseeable as a matter of law.
Fontaine argues that judgment notwithstanding *714 the verdict was nevertheless proper because the defect was created by an alteration to its product which amounts to an intervening or superseding cause. Trotter v Hamill Mfg Co, 143 Mich. App. 593, 601; 372 NW2d 622 (1985), lv den 424 Mich. 882 (1986). However, an intervening act will not sever the connection between a defendant's negligence and a plaintiff's injury if such intervening act was reasonably foreseeable. Scott v Allen Bradley Co, 139 Mich. App. 665, 672; 362 NW2d 734 (1984). Further, where a product is unreasonably dangerous, a manufacturer's duty to warn users of the dangers associated with the use of its product includes a duty to warn of foreseeable misuses. Antcliff v State Employees Credit Union, 414 Mich. 624, 638; 327 NW2d 814 (1982), reh den 417 Mich. 1103 (1983).
Accordingly, for the reasons discussed above, we find that the trial court erred in granting judgment notwithstanding the verdict in favor of defendant Fontaine. The order is therefore reversed.
III
Fontaine argues that in the event this Court determines it was not entitled to a judgment notwithstanding the verdict, a new trial should be granted because plaintiffs failed to supplement discovery responses and also because of improper jury instructions during trial. These issues were separately raised, addressed and rejected at the trial court level. They have not been cross-appealed. Accordingly, they are not properly before this Court and will not be addressed. Michigan Ass'n of Administrative Law Judges v Personnel Director of the State of Michigan, 156 Mich. App. 388, 395; 402 NW2d 19 (1986).
*715 IV
Finally, we address Fontaine's appeal from the trial court's order granting Uckele's motion for judgment notwithstanding the verdict. Plaintiffs have not appealed this ruling.
Through 1987 PA 28, the Legislature amended the exclusive remedy provision of the Workers' Disability Compensation Act, MCL 418.131; MSA 17.237(131), so as to specifically provide for an intentional tort exception. In doing so, they rejected the "substantially certain" test previously announced in Beauchamp, supra, and adopted the more rigorous "true intentional tort" test as the proper test for determining the presence of an intentional tort. In Schefsky v Evening News Ass'n, 169 Mich. App. 223; 425 NW2d 768 (1988), this Court held that 1987 PA 28 was to be applied retroactively. Relying on Schefsky, the trial court in this case granted Uckele's motion for judgment notwithstanding the verdict, holding, as a matter of law, that Uckele was not liable for an intentional tort under 1987 PA 28.
In its brief on appeal, Fontaine states, "In this appeal, Fontaine does not contend that Uckele's action or inaction, with respect to the Shipman accident, constitutes an intentional tort [presumably under 1987 PA 28]. However, Fontaine disputes that the 1987 amendment to Section 131 of the Workers' Compensation Act may be applied retrospectively and urges this Court to hold that the amended § 131 may only apply prospectively." We decline the invitation. Instead, we agree with Schefsky, and the decisions following it, that the amendment operates retroactively. See Temple v H J Heinz Co, 180 Mich. App. 138, 139; 446 NW2d 869 (1989); Bowden v McAndrew, 173 Mich. App. 591, 595; 434 NW2d 195 (1988). Accordingly, because *716 we find that the trial court's reliance on Schefsky was proper, and because the merits of the trial court's ruling on the intentional tort issue are not being challenged, further review of this issue is unnecessary. The order granting Uckele's motion for judgment notwithstanding the verdict is therefore affirmed.
Affirmed in part and reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606991/ | 459 N.W.2d 918 (1990)
Richard WIGGIN, as Trustee for the heirs and next-of-kin of Kelly M. Wiggin, deceased, Respondent,
v.
APPLE VALLEY MEDICAL CLINIC, LTD., Petitioner, Appellant,
Stanley A. Leonard, Respondent.
Nos. C7-89-2100, C9-89-2101.
Supreme Court of Minnesota.
August 31, 1990.
Gregory P. Bulinski, Bassford, Heckt, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for appellant.
Reed K. Mackenzie, Mackenzie & Hallberg, Minneapolis, for Richard Wiggin, et al.
John R. McBride, Felhaber, Larson, Fenlon & Vogt, St. Paul, for Stanley A. Leonard.
Heard, considered and decided by the court en banc.
YETKA, Justice.
This medical malpractice action is before this court on a petition for further review of a court of appeals' decision denying appellant Apple Valley Medical Clinic's petition for a writ of prohibition seeking relief from a district court order compelling disclosure of a statement of its employee, Eric Anderson, M.D. We affirm the court of appeals.
Plaintiff Richard Wiggin's claim arises in part out of an alleged negligent medical treatment provided by Dr. Anderson in failing to diagnose accurately and treat Kelly M. Wiggin's asthma/allergy attack on the day she died, May 2, 1987.
Plaintiff commenced an action against Apple Valley Medical Clinic and Stanley A. Leonard, M.D., but did not join Dr. Anderson as a party. It is alleged that he cannot do so now because the action would be barred by the statute of limitations contained *919 in Minn.Stat. § 541.07(1) (1988) (2-year limitation period for medical malpractice).
The issue thus raised is whether the trial court abused its discretion in ruling that a statement by an employee whose alleged negligence may be imputed to the employer was a nonparty statement and thus discoverable without a showing of substantial need and undue hardship under Minn.R. Civ.P. 26.02(c).
Kelly Marie Wiggin died of acute bronchial asthma within hours after being discharged from the emergency room operated by appellant, Apple Valley Medical Clinic, Ltd. The clinic is a professional association owned by a number of physician/shareholders engaged in family practice. In addition to its regular clinic offices, the clinic owns and operates a 24-hour emergency care facility. At night and on weekends, this emergency room is staffed by resident physicians or other physicians hired by the clinic for that purpose.
On the day Kelly Wiggin died, the physician on duty was Dr. Eric Anderson. Dr. Anderson was an occasional, part-time employee. On the infrequent occasions when he worked at the clinic emergency room, he was paid an hourly wage. He was not an owner, shareholder, or managing partner of the clinic. Dr. Anderson examined Kelly Wiggin on the morning of her death, treated her and sent her home. A few hours later, she died. She was 25 years old and was survived by her husband and a 2-year-old daughter.
A wrongful death action was commenced against the clinic and Dr. Stanley Leonard, a pediatrician in St. Paul. There are allegations of negligence on occasions other than the day of Kelly Wiggin's death. However, plaintiff's claims of negligence do include a claim that Dr. Anderson was negligent in his treatment and discharge of Kelly Wiggin on the day she died.
In response to a written interrogatory, the clinic disclosed the existence of a statement taken from Dr. Anderson. The clinic objected to production of the statement "[o]n the ground that (the request) calls for the production of statements of parties, which are protected from discovery by Rule 26 * * *." Plaintiff then moved for an order requiring production. At the district court, the clinic opposed production on the grounds that it was a party statement because Dr. Anderson was an agent of defendant and a "managerial-type" employee, not merely a witness.
The clinic presented no evidence to the district court concerning the circumstances under which the statement was obtained and provided no evidence that Dr. Anderson was a "managerial-type" employee. Similarly, no attorney-client or work product privilege was asserted. The clinic relied on the language of Rule 26 that this was the statement of a party and not subject to production. The district court ordered the statement produced.
The court of appeals, by written order, denied petitions for discretionary review and prohibition.
Because the trial court has considerable discretion in granting or denying discovery requests in civil actions, we will not disturb a trial court's decision regarding discovery absent a clear abuse of discretion. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn.1987). Prohibition is appropriate where the trial court has ordered the production of information clearly not discoverable. Thermorama, Inc. v. Shiller, 271 Minn. 79, 83-84, 135 N.W.2d 43, 46 (1965).
The applicable rule governing the issues raised in this case is Minn.R.Civ.P. 26.02(c), which states:
Subject to the provisions of Rule 26.02(d) a party may obtain discovery of documents and tangible things otherwise discoverable pursuant to Rule 26.02(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain *920 the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a party or other person may obtain without the required showing a statement concerning the action or its subject matter previously made by that person who is not a party.
(Emphasis added.) This rule permits, without a showing of need and hardship, (1) a party or nonparty to obtain a copy of his or her own previous statement and (2) a party to obtain previous statements made by non-parties. 2 D. Herr & R. Haydock, Minnesota Practice § 26.15 (1985); Minn.R.Civ.P. 26.02(c) advisory committee's note (1975).
Plaintiff seeks to obtain a statement of Dr. Anderson, an employee of the clinic who is not a named party to this action. The clinic argues that Rule 26.02(c) bars plaintiff from discovering this statement absent a showing of "substantial need" because the clinic may be held vicariously liable for Dr. Anderson's conduct. Plaintiff argues that the courts below correctly applied Rule 26.02(c) and this court's decision in Leer v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 308 N.W.2d 305 (Minn.1981), to compel production of Dr. Anderson's statement.
We believe that our decision in Leer dictates our decision here. In Leer, a plaintiff sued a railroad in part for negligence in executing a railroad car switching movement. The plaintiff did not bring action against the other members of the switching crew, but sought to discover their statements pursuant to the rule allowing discovery of nonparty statements. Id. at 306. The court concluded: "[I]n the factual setting presented here corporate employees who are not named parties in the litigation are not `parties' within the meaning of Minn.R.Civ.P. 26.02(3)." Id. at 307.
The clinic distinguishes Leer on the grounds that there, unlike here, the employees were not direct participants in conduct for which the employer was vicariously liable. The railroad, however, did argue that the employees were "parties" within the meaning of Rule 26.02(3) since it was their negligence the plaintiff sought to impute to the railroad. The court rejected this argument as well as the argument that "the employees could be named as parties at any time."[1]Leer, 308 N.W.2d at 307. In support of this conclusion, the court reasoned:
The meaning of the word "party," when used in the legal sense, is clear: "party" means only the named plaintiff or defendant. See Black's Law Dictionary 1010 (5th ed.1979). It would seem self-evident that a statement by an employee who is neither a named plaintiff nor a defendant is a statement of "a person who is not a party," and is therefore discoverable.
Id. This definition corresponds with definitions of "party" in other contexts. For example, this court has described a "party" as:
An actor who participates * * * as an active contestant on the merits for the determination of issues of law or fact, and who by the outcome of the proceeding will be bound and affected either favorably or adversely.
J.L. Shiely Co. v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 252 Minn. 535, 541, 91 N.W.2d 116, 120 (1958). See also State v. Rock Island Motor Transit Co., 209 Minn. 105, 295 N.W. 519 (1940) (one appearing as an actor in and asserting an interest in litigation is a party).
Justice Simonett wrote a concurring opinion in Leer stating:
But it seems to me a different result may obtain under Rule 26 if the employee is, say, an owner of a small, closely held *921 business or professional corporation or partnership, and the employee is not just a witness but a participant in conduct for which his corporation or partnership is vicariously liable. * * * To require such employee's statement to be surrendered on request if only his corporation is sued but not if he himself is sued would seem to give undue deference to the corporate veil.
Id. at 309-10 (Simonett, J., concurring).
In this action, the trial court's order interpreted the meaning of "party" in Rule 26 consistently with our decision in Leer and other common law definitions. Further, here, as in Leer, the fact that Dr. Anderson's negligence may be imputed to the clinic does not make him a "party" under Rule 26.02(c). There is no evidence that Dr. Anderson was an owner or partner in the clinic, a fact the Leer concurrence suggests might change the result. For these reasons and in light of our direction to lower courts to construe the rules of civil procedure in favor of broad discovery, Larson v. Independent School District No. 314, 305 Minn. 358, 233 N.W.2d 744 (1975), the trial court correctly treated Dr. Anderson, not a named party to the action, as a nonparty whose statements the plaintiff may discover without a showing of need or hardship. Accordingly, the trial court did not abuse its discretion in ordering production of Dr. Anderson's statement, and the court of appeals correctly denied the petition for a writ of prohibition.
Appellant asks us to overrule or distinguish Leer, arguing that the rule protects statements made by a plaintiff, but not statements made by a corporate defendant. This, therefore, does not treat the parties equally, it is argued. The decision in Leer follows our policy of interpreting rules of civil procedure in favor of discovery. We feel that this philosophy is preferable to an interpretation which would limit discovery and require still more judicial time to hear and decide motions to compel discovery. Leer was decided only 9 years ago and, before this action, no sincere effort reached this court to alter either that decision or the rule on which it was based. If appellant desires to broaden the available discovery to include evidence in the possession of the plaintiff, that issue should be raised in a proper case or, more appropriately, appellant should take the normal steps to amend the rule. Until that time, this court feels compelled to retain a bright line rule restricting the meaning of "party" to parties named in an action as outlined in Leer.
The trial court and the court of appeals are affirmed.
COYNE, Justice (dissenting).
I respectfully dissent. Although I agree with the majority that Leer v. Chicago, Milwaukee, St. Paul & Pacific Ry., 308 N.W.2d 305 (Minn.1981), cert. denied, 455 U.S. 939, 102 S. Ct. 1430, 71 L. Ed. 2d 650 (1982), can be construed to compel production of Dr. Anderson's statement, I question the wisdom of such a construction, and I would hold the statement protected from discovery even if that decision requires either partial overruler of Leer or some clarification.
The factual setting of Leer differs more than considerably from that in the instant case. Leer sued his employer but not his co-employees. Despite the reference in Leer to the argument that the plaintiff sought to impose vicarious liability on the railroad for the action of its employees, it is not evident from the opinion, either from its statement of facts or from the language of the holding, that any part of Leer's claim was based on the negligence of any of those co-workers whose statements were sought. In other words, Leer's claim did not necessarily rest on the conduct of these co-workers, these "non-parties". Moreover, in dealing with the availability of the attorney-client privilege the court appeared to regard Leer's co-workers as mere witnesses to the accident. In the present case, on the other hand, a plaintiff unrelated to the defendant corporation asserts a cause of action against this defendant based solely on the alleged negligence of Dr. Anderson. Now it may be that the plaintiff's failure to make Dr. Anderson a party defendant was fortuitous, but the title of the case and the language of the complaint imply that Dr. Anderson's absence as a party is the result of a tactical decision *922 designed to manipulate the Rules of Civil Procedure in a manner calculated to disadvantage the corporate defendant.
In Larson v. Independent School Dist. No. 313, 305 Minn. 358, 362, 233 N.W.2d 744, 747 (1975), we said that "the rules are to be liberally construed so as to serve the interests of justice and so as to discourage reliance on technicalities and form." Although the majority in Leer relied on that rule of construction to support its determination that Leer's co-workers who were not named parties were not "parties" within the meaning of Minn.R.Civ.P. 26.02(a)(3), 308 N.W.2d at 307, it seems to me that a liberal construction of the rules to serve the interests of justice and to discourage reliance on technicalities requires Dr. Anderson's statement to be accorded the same protection as that of a party.
It is my understanding that we entertained review of the present case because it has for some time been obvious that the decision in Leer required some clarification. The accuracy of the observation is borne out by the attempt to apply Leer in the circumstances of this case. In my judgment the purpose of the Rules of Civil Procedure is better served by a limitation on the form of discovery proposed in this case. I would grant the petition and issue a writ of prohibition.
NOTES
[1] The Clinic does not claim that the attorney-client privilege protects Dr. Anderson's statement from discovery as the defendants claimed in Leer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606962/ | 100 So. 2d 477 (1958)
234 La. 480
Delson FONTENOT
v.
Ulysse FONTENOT.
No. 43605.
Supreme Court of Louisiana.
February 10, 1958.
*478 Guillory & Guillory, by Robert K. Guillory, Eunice, for plaintiff-appellant.
Paul C. Tate, Mamou, for defendant-respondent.
HAMITER, Justice.
In this suit plaintiff is seeking compensation payments as for total and permanent disability allegedly growing out of an injury received while he was working for the defendant farmer in Evangeline Parish. The district court rejected his demands, and its judgment was affirmed by the First Circuit Court of Appeal. See 95 So. 2d 212. The case is presently before us on a writ of certiorari directed to the latter tribunal.
In written reasons for judgment the district judge (Honorable J. Cleveland Fruge) set forth in detail the facts on which his decision was based, and those findings were concurred in and adopted by the Court of Appeal. They are amply substantiated by the record, and we quote them with approval as follows:
"Defendant, Ulysse Fontenot, is a small farmer who owns twenty (20) acres of land in Evangeline Parish. His father, Relis Fontenot, and grandmother, Mrs. Ozema Fontenot, also own land in the same vicinity and defendant, in addition to planting his land, rents approximately sixty (60) acres of their land. The land not rented by defendant is rented to small tenants, some of whom have been on the land for forty years, and some of whom are the children of tenants who stayed with the land after they became grown. There appears to have been from three to five such tenants over the years.
"Defendant plants about fifty (50) acres of rice, and about nine (9) acres of cotton. For his convenience in cultivating and growing the rice, defendant owns one tractor. All mechanical harvesting is done by machines owned by larger and more prosperous farmers who furnish the machines and labor and charge defendant $1 per barrel of rice harvested. Defendant also uses his tractor on a relief pump to lift water into a ditch to irrigate his rice during the growing season. It is *479 common knowledge that a farm the size of defendant's is a very small farm; it being not unusual for farmers in the area to grow several hundred or even thousands of acres.
"Delson Fontenot, the plaintiff, while allegedly in the employ of Ulysse Fontenot was injured on or about 2:00 p. m., November 21, 1956, when a steel chip flew off the sledge hammer or wedge he was using to split fence posts, and hit him in his left eye. His left eye had to be removed as a result of the accident, and his right eye is blind.
"Plaintiff entered into an agreement with defendant whereby plaintiff would do the work around the barn yard and residence premises on the farm for the wage of $35 per month plus his room, board and laundry. Defendant pointed out to plaintiff that his taking the job opened other opportunities to plaintiff: namely, plaintiff could obtain from defendant's mother some land on which to grow a crop on a one-fifth share basis, the share to be paid to the landowner. Further, plaintiff could choose a plot to plant a garden. The agreement was made in July or August and contemplated farming the following year. It was understood that defendant might need to hire men to help with the harvest of his crop and that plaintiff could work and would be paid extra for harvesting. The only such harvesting done by plaintiff was, as he testified, picking cotton.
"It is customary during the fall for the tenants to get together and split posts to repair existing fences and to make new fences setting off from defendant's rice land the acreage they will plant in cotton, corn or potatoes. On the day of the accident, plaintiff and other tenants went to the forest land for the purpose of splitting posts pursuant to this custom. None of the men were being paid by defendant for this work although he always paid the tenants extra when they worked for him or on his crops.
"It is observed that plaintiff did not testify that he used the tractor prior to the accident. He testified that he used the automobile to go get `whiskey' but apparently does not contend that he used same in connection with the duties of his employment. The only use of the tractor being after the accident and for plaintiff's convenience in cultivating approximately one acre of land and cutting cotton stalks on land which plaintiff, still on the farm, intended to plant for himself.
* * * * * *
"The plaintiff may or may not have been a sharecropper, but although not required to drive the defendant's tractor and truck, did so, and was to be permitted to farm approximately three or four acres of land for himself if he so desired. * * *
"* * * * * *
"* * * Plaintiff could use the machinery (tractor and truck) for his convenience as could the other tenants: the employment did not require its use; its use was not a necessary incident of the employment."
The Court of Appeal, after adopting these findings, was also warranted in stating [95 So. 2d 214]:
"The evidence in this case fails to convince us that the plaintiff either drove or operated a truck or tractor pursuant to his duties, but, moreover, we are convinced that his use of same was for his own enjoyment or convenience. * * *"
Accordingly, the question posed is whether, in view of the above circumstances, plaintiff's injuries are compensable under the provisions of the Workmen's Compensation Law. R.S. 23:1021 et seq.
It is well settled that farming is not a hazardous occupation per se. Robinson v. *480 Atkinson, 198 La. 238, 3 So. 2d 604; Collins v. Spielman, 200 La. 586, 8 So. 2d 608. However, it has often been held that an occupation or a business not hazardous per se becomes amenable to the provisions of the Workmen's Compensation Law, and the employer is required to pay benefits to an injured employee under certain circumstances, if it entails the operation of mechanized equipment (such as trucks, tractors, automobiles, etc.) as a necessary incident thereto. Robinson v. Atkinson and Collins v. Spielman, both supra, Reagor v. First National Life Insurance Company, 212 La. 789, 33 So. 2d 521, and Meyers v. Southwest Region Conference Association of Seventh Day Adventists, 230 La. 310, 88 So. 2d 381.
With respect to the liability of the employer in the latter type of occupation or business, as well as to the right of recovery of an injured person employed therein, the pronouncements contained in Gallien v. Judge, 28 So. 2d 101, 102 (Court of Appeal, First Circuit, decided in 1947 and a writ of certiorari denied by this court) accurately and fully summarize the jurisprudence of this state. We quote with approval from the opinion of that case, authored by the late Justice Sam A. Le Blanc who subsequently served as a member of this court, as follows:
"We have presented before us therefore that intricate question as to how far the provisions of the Employers' Liability Law should be applied to persons who are engaged by an employer whose business, although not hazardous under the provisions of the law itself, does use and operate in connection therewith, automotive vehicles or stationary machinery which may be said to convert at least part of his business into one that is hazardous and would therefore come within the provisions of the law.
"Broadly stated, the jurisprudence in Louisiana, in cases of this kind, is to the effect that where an employer's main or primary business is nonhazardous but some features of it partake of a hazardous nature and one of his employees is engaged in both parts of the work, his injury may be compensable even though it should occur when he is engaged in the performance of his duties in the nonhazardous part. But, as stated, he must be engaged in both features of the work or at least it should appear that his services are occasionally connected either directly or indirectly with the hazardous part of the business. Where the service he is performing at the time of the accident is wholly disassociated from the hazardous feature of the business his injury and resulting disability is not compensable. * * *
"In this case whilst plaintiff has alleged a fact which may bring the employer's business within the scope of the compensation law since he averred that in operating his cattle business (which is not included among the hazardous occupations listed in the statute) he used motor trucks and other motor vehicles in connection therewith (which would have the effect of rendering that part of the business hazardous) he did not allege any fact which would indicate that the services he was performing at the time of his injury had any connection, even remotely, with the storage, maintenance or operation of the trucks or other motor vehicles. Nor did he allege that ever, directly or indirectly, or even occasionally, his duties required that he come in contact with the hazardous feature of the employer's business. * * *"
In keeping with these pronouncements are observations contained in Richardson v. Crescent Forwarding & Transportation Co., Ltd., 17 La.App. 428, 135 So. 88, Gray v. Tremont Lumber Company, La.App., 185 So. 314 (writ of certiorari denied), and Reagor v. First National Life Insurance Company and Meyers v. Southwest Region Conference Association of Seventh Day *481 Adventists, both supra. Particularly in the Reagor case we observed [212 La. 789, 33 So. 2d 522]: "The insurance business is not one of the occupations designated as hazardous under Section 1 of Act 20 of 1914. However, this does not mean that defendant is not amenable to the provisions of the Act if, as plaintiff claims, the business entails the operation of automobiles as a necessary incident thereto. * * * provided, of course, that plaintiff is sometimes brought into contact with the hazardous features. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303. Obviously, the mere allegation that some of the solicitors employed by defendant use automobiles in performing their work falls far short of a showing that the operation of automobiles is a necessary incident to defendant's business and that plaintiff was required by his employment to ride in, or be otherwise brought in contact with, the machines." And in the Meyers case we said [230 La. 310, 88 So. 2d 385]: "Although the conducting of a church organization is not hazardous per se, this does not mean that such a body is not amenable to the provisions of the Compensation Act if its operations are such as to entail the use of automobiles as a necessary incident thereto. * * * Indeed, it is well established by the foregoing authorities and others too numerous to mention that, if a business normally nonhazardous has hazardous features, any employee regularly exposed to the hazardous features is entitled to workmen's compensation even though, when injured, he is engaged in the nonhazardous branch of his work. * * *"
Thus, according to our settled jurisprudence, for an injured employee to receive benefits under the statute, where the business of the employer is essentially nonhazardous, it must be shown that the duties of his employment demanded that he operate or otherwise come in contact with mechanized equipment. No case of this nature has been called to our attention, and we know of none, in which compensation was awarded in the absence of such a showing.
This plaintiff, as stated above, was not required by the duties of his employment to, and he did not in fact, come in contact with any of the hazardous features of defendant's farming operations. Consequently, according to the aforediscussed jurisprudence, his injury is not compensable.
The cases cited and relied on by plaintiff's counsel do not militate against this conclusion (Collins v. Spielman and Robinson v. Atkinson, both supra; Griffin v. Catherine Sugar Company, Inc., 219 La. 846, 54 So. 2d 121; Norris v. Hargis, La. App.,77 So.2d 60, and Roy v. Guillot, La. App., 84 So. 2d 469). The employee in each was permitted recovery under the statute because he was required to, and did as a part of his regular employment, operate or otherwise come in contact with a mechanized phase of the business involved. In none was it held that an employee, not exposed by his employment to power equipment, was entitled to compensation benefits merely because the employer used some machinery in connection with his ordinarily nonhazardous business.
For the reasons assigned the judgment of the Court of Appeal is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1606997/ | 459 N.W.2d 346 (1990)
STATE of Minnesota, Respondent,
v.
David Russell KRAUSHAAR, Appellant.
No. C4-89-1762.
Court of Appeals of Minnesota.
August 21, 1990.
Review Granted October 18, 1990.
*347 Hubert H. Humphrey, III, Atty. Gen., Thomas Foley, Ramsey County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for State of Minnesota, respondent.
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Minneapolis, for David Russell Kraushaar, appellant.
Considered and decided by HUSPENI, P.J., and PARKER and NORTON, JJ.
OPINION
NORTON, Judge.
Appellant challenges on three grounds his conviction, after a jury trial, of criminal sexual conduct in the second degree. Appellant argues that the admission of expert testimony interpreting two drawings was error. Appellant also argues that when the jury, during its deliberations, requested to review a videotape of a medical expert interviewing the child, the trial court erred in giving the videotape to the jury for its own review while refusing review of other testimony. Finally, appellant argues that the evidence was insufficient to sustain his conviction. We reverse and remand for a new trial.
FACTS
Appellant David Kraushaar ("Kraushaar") lived with Sharon Schroeder, now Sharon Armstrong ("Armstrong"), during 1983 and 1984. Their daughter, M.K., was born on January 21, 1984, but Kraushaar and Armstrong never married. In the fall *348 of 1984, Armstrong moved out leaving M.K. with Kraushaar. Custody and paternity issues were resolved through adjudication with the result that Kraushaar received a joint legal and sole physical custody of M.K.
Armstrong had previously challenged Kraushaar for custody of M.K., without success. In 1986, shortly after losing one such challenge, Armstrong alleged that Kraushaar was physically or sexually abusing M.K. These claims were investigated and found to be unsubstantiated. Kraushaar retained custody, under court supervision.
On August 30, 1988, Armstrong's last attempt to gain custody of M.K. was refused. Approximately six weeks later, Armstrong reported to child protection authorities that she suspected sexual abuse of M.K. by Kraushaar. After child protection became involved, M.K. was removed from Kraushaar's home and placed in temporary foster custody in the home of Julie and Mike Kennedy.
Mary Earl, a Ramsey County child protection worker, visited M.K. to clarify whether it was her father, Kraushaar, or Armstrong's husband who was accused. M.K. informed her that it was "Daddy Dave" (Kraushaar). Based solely upon the information provided by Earl, the Community Human Services Department filed a child in need of protective services (CHIPS) petition. The day after the petition was granted, Earl took M.K. for a physical examination by Dr. Carolyn Levitt.
Before the physical examination began, Levitt interviewed M.K. This interview was recorded on a videotape which was entered into evidence and played during trial. This videotape was requested by the jury for replay, creating one of the issues on appeal. Dr. Levitt's physical examination of M.K., which was not recorded, revealed no physical indication of any type of sexual abuse.
On December 5, 1988, Kraushaar was charged by complaint with criminal sexual conduct in the second degree. The original complaint charged that the abuse occurred between September 1986 and October 1988. Within the next two weeks M.K. was released from foster care to the temporary physical custody of Armstrong, her mother. Permanent custody was deferred dependent upon the outcome of the criminal case. On the date that trial began, March 28, 1989, the complaint was amended to charge that the abuse occurred between January 1988 and October 1988, during which time M.K. was four years old.
Before the trial began, a competency hearing was held in chambers. The trial court determined that M.K., by then aged 5, was competent to testify truthfully. In addition to M.K.'s testimony, the state introduced Julie and Mike Kennedy, the foster parents; Armstrong, the natural mother; the investigating deputy sheriff from Ramsey county who interviewed M.K., Armstrong and Kraushaar; Mary Earl, the Ramsey County protection worker; Dr. Levitt; the social worker who prepared the CHIPS petition; and a psychologist, Ann Greenwald, who gave testimony interpreting two drawings made by M.K. and entered into evidence. Her testimony is the subject of the second issue on appeal.
Kraushaar testified on his own behalf as did his parents, with whom he and M.K. had been living. Among others testifying in his defense was the former family court officer who had supervised custody after the previous allegation of abuse, but who was never contacted by the sheriff.
Kraushaar has argued that through normal daily care of his daughter he has probably touched her genital area, but that any such touching is nonsexual and therefore lacking in sexual or aggressive intent, a required element of the crime. He maintains that Armstrong `coached' M.K. because no other method of gaining custody had been successful. Kraushaar objected to admission of the psychologist's analysis of M.K.'s drawings. He also objected to allowing the jury to conduct its own review of the videotaped interview of M.K. by Dr. Levitt. Kraushaar also challenges the sufficiency of the evidence to support his conviction.
*349 ISSUES
1. Did the trial court err in admitting the psychologist's analysis of the drawings?
2. Did the trial court err in providing the videotape and equipment to the jury for their own unsupervised review while denying their inquiry about transcripts?
3. Is the evidence sufficient to sustain beyond a reasonable doubt Kraushaar's conviction?
ANALYSIS
I.
Kraushaar challenges the admission of expert testimony interpreting M.K.'s drawings on the grounds that this technique is not generally accepted in the scientific community as reliable. The test developed in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and rephrased in State v. Mack, 292 N.W.2d 764, 768 (Minn.1980) governs the admissibility of novel scientific evidence. State v. Schwartz, 447 N.W.2d 422, 424 (Minn.1989). In Minnesota, the Frye standard requires that such evidence be generally accepted as reliable in its particular scientific field, if it is to be admitted against a criminal defendant. Id.
Where a scientific method is sufficiently established to be admissible, the testing must nonetheless be performed within the appropriate and generally accepted protocol. See State v. Fenney, 448 N.W.2d 54, 60 (Minn.1989) (electrophoretic blood type comparisons performed and checked pursuant to protocol). No scientific protocol for interpreting these drawings was established.
The qualification of an expert is within the sound discretion of the trial court and will be reversed only where that discretion has been abused. State v. Davis, 422 N.W.2d 296, 298 (Minn.App. 1988). The state argues that because Kraushaar challenged the expert's qualifications and foundation, but did not challenge the scientific community's consensus on the type of analysis offered, the Frye issue was not preserved for appeal. However, where the error is one of "fundamental law" or "plain error affecting substantial rights," the reviewing court may consider an improperly preserved claim. Fenney, 448 N.W.2d at 61 (considering improperly preserved claim that photo identification was impermissibly suggestive).
The state's witness, Ann Greenwald, is a licensed psychologist working toward her doctorate in some unspecified child abuse field. She testified that in her opinion, M.K.'s drawings depicted male genitals and demonstrated that M.K. had been sexually abused. Kraushaar objected to Greenwald's qualifications and foundation because Greenwald had never met or interviewed M.K. and because Greenwald had not yet completed her doctorate. Kraushaar's objections were overruled. Greenwald testified that according to a study she had recently read in a pediatric journal, children for whom abuse has been substantiated are 6.4 times more likely to have genitals in their pictures than children who have not been abused. She also testified that in her opinion the behavior described to her and attributed to M.K. was of a `cluster' of behaviors that indicates sexual abuse.
M.K. had apparently identified one picture as a drawing of Kraushaar, and the other as depicting her stepfather. Greenwald never interviewed M.K. When asked whether the use of a different color to depict the "genitals" in Exhibit 1 was significant, Greenwald replied that she did not know and would have to ask the child. Although she is a licensed psychologist, Greenwald demonstrated no particular expertise in diagnosing accurately children she has never met by merely examining selected drawings and hearing opinion-laden characterizations of their behavior.
Greenwald also testified that because interpretation of drawings formerly was employed to estimate children's intelligence, a method she claimed was now discredited, many psychologists consider all such analysis with "a grain of salt." She testified that although the use of drawings to estimate intelligence has dubious merit, most psychologists place a great deal of value on *350 the "stories" that children's drawings tell. She said that such interpretation "is not a science, such as taking blood pressure; you don't get numbers off it." This contradicts her testimony that children who have been sexually abused are 6.4 times more likely to draw genitals.
Because such statistics are likely to produce a "potentially exaggerated impact on the trier of fact," Greenwald's testimony must have had a significant impact on the jury. State v. Joon Kyu Kim, 398 N.W.2d 544, 548 (Minn.1987) (quoting State v. Boyd, 331 N.W.2d 480, 482 (Minn.1983)). Kraushaar did not seek a Frye hearing to consider the scientific admissibility of Greenwald's testimony. We do not order one now because we reverse and remand for a new trial. However, we agree that the admissibility of this `scientific' evidence is a matter for a Frye hearing, if this evidence is to be used in a new trial.
II.
Kraushaar also challenges the trial court's responses to the jury's requests to review evidence. The trial court has broad discretion regarding jury requests to review evidence. State v. Daniels, 332 N.W.2d 172, 176-77 (Minn.1983). Although not obligated to grant all jury requests, a trial court's blanket rule against granting jury requests to review testimony is improper. State v. Rean, 421 N.W.2d 303, 306 (Minn.1988). If a jury requests review of evidence, the jurors shall be conducted to the courtroom and may have requested testimony reread and may re-examine requested materials. Minn.R.Crim. P. 26.03, subd. 19(2)1 (emphasis added). Furthermore, while the trial court need not submit evidence beyond that specifically requested, it may have the jury review other evidence so as to avoid giving undue prominence to the evidence requested. Minn.R. Crim. P. 26.03, subd. 19(2)2.
After the jury retired to deliberate, it sent out a note which stated "would like TV to review film" and "are trial transcripts available for jury to review?" (It also sought additional guidance in defining `sexual or aggressive intent,' a matter not at issue here.) The "film" was actually the videotape interview of M.K. by Dr. Carolyn Levitt, the pediatrician who also performed the medical examination of M.K. which was not recorded. This tape, received as an exhibit, was admissible under the statutory hearsay exemption for out-of-court corroborative statements. Minn.Stat. § 595.02, subd. 3 (1988). Hearsay is testimony. Over Kraushaar's objection, the trial court decided to deliver the videotape and equipment to the jury for it to conduct its own review of the videotape. The trial court stated, "As to the second question * * * I do not intend to allow the jury to have transcripts since transcripts are not available and I do not think it would be appropriate to allow them to use them in any event."
Kraushaar objected to the trial court's decision on the grounds that the videotape was also testimonial evidence, because it contained an interview between Dr. Levitt and M.K. He argued that the trial court was permitting the jury to focus on and emphasize portions of the testimony. Kraushaar's objections were overruled.
This court recently considered a similar issue in State v. Ross, 451 N.W.2d 231 (Minn.App.1990), pet. for rev. denied (Minn. Apr. 13, 1990), petition for cert. filed June 11, 1990. In that case, the jury was permitted to review videotapes of a child's interview with Dr. Levitt and of her trial testimony (which was videotaped) and also to have read to them the entire testimony of the child and of Dr. Levitt. This court held that a defendant can hardly challenge the granting of such a request "unless it unfairly highlights a portion of the evidence." Id. at 237. A court may abuse its discretion to a defendant's prejudice when ruling that no testimony may be reread. Id. (citing State v. Spaulding, 296 N.W.2d 870, 878 (Minn.1980)). In Ross, the trial court successfully balanced the review and thus did not unfairly highlight a portion of the evidence. Granting that broad request simply enabled the jury to more carefully evaluate the evidence. Ross, 451 N.W.2d at 237.
*351 The dissent minimizes the distinction between this case and Ross by characterizing the Ross review as more damaging because it involved a greater quantity of "state's" evidence. We disagree that cross-examination qualifies as state's evidence, and note that the error avoided in Ross was the unfair highlighting of a portion of the evidence. Id.
The dissent argues that entry of this videotape as an exhibit is dispositive of whether the "undue prominence" test should apply under Ross and Minn.R.Crim. P. 26.03. We disagree. Like a deposition, this videotape contained testimony. Like a deposition, the documentation of this testimony was entered into evidence as an exhibit. Depositions are specifically excepted from the exhibits which the trial court shall permit the jury to take with it to the jury room. Minn.R.Crim. P. 26.03, subd. 19(1). Like a deposition, jury review of this videotape testimony should have been conducted in the courtroom with appropriate safeguards to avoid giving undue prominence to the evidence requested. Minn.R.Crim. P. 26.03, subd. 19(2).
The trial court specifically indicated that it did not think it would be appropriate to allow the jury to review testimony. Then, instead of conducting review of the videotape in the courtroom, the trial court permitted the jury to conduct its own review. This ruling unfairly highlighted a portion of the evidence. The error recognized and avoided in Spaulding, Rean, and Ross was committed here. The unfavorable evidence was highlighted for the jury without the balance and fairness afforded by broader testimonial review. This error requires reversal because there was a reasonable likelihood that it substantially affected the verdict. State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990).
III.
Kraushaar argues that the evidence was insufficient to prove beyond a reasonable doubt that he touched his daughter intimately with sexual or aggressive intent. See Minn.Stat. § 609.343, subd. 1(g) (1988) and § 609.341, subd. 11(b) (1988). On review, this court must determine whether, given the facts in the record and the legitimate inferences which can be drawn from those facts, the jury could reasonably conclude that Kraushaar was guilty as charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). This court must view the evidence in the light most favorable to the state, assume that the jury believed the state's witnesses and assume that the jury disbelieved contradictory evidence. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).
Five-year-old M.K. testified in response to a question, "What did your daddy do to you?" that "it's hard to tell, he touched me where he's not supposed to touch me." She indicated that it was part of her tummy and then said "He touched me right on my butt." She said its where "you go potty with it." M.K. testified that her father touched her with his hands while she was in his bed or was in her bed sometime during the nighttime or in the morning. On cross-examination, M.K. also testified that her father and grandfather and grandmother may have put medicine on her butt when she had a rash.
Julie Kennedy, with whom M.K. was placed in temporary foster custody, testified that M.K. asked her, "Nobody is supposed to touch nobody here are they?" while pointing to her vaginal area. She testified that she asked M.K. whether anyone had ever touched her there and that M.K. responded that her daddy had. Julie and her husband, Mike Kennedy, both characterized M.K. as unusually affectionate toward males and flirtatious. On cross-examination, both admitted that they had not realized or considered that M.K. had been raised by her father when they interpreted her affection toward males.
M.K.'s mother, Armstrong, testified that M.K. was laying on the couch watching television with her legs spread when she asked her mother to play with her butt. She testified that when asked "who plays with your butt" M.K. answered "daddy does." She said that M.K. became silly and goofy, would not respond to further questions and left the room. Armstrong testified *352 that M.K. then drew the two pictures which were entered into evidence as Exhibits 1 and 2 and analyzed by Greenwald. Armstrong testified that she was not concerned until after her husband and mother-in-law indicated that the pictures seemed to graphically depict male genitals. She testified that she then became concerned and contacted their family court social worker. That social worker recommended that M.K. be examined by Dr. Levitt.
Ramsey County Deputy Sheriff Gilbert Schroepfer testified that he met with M.K. once at the Kennedy foster home for the purposes of establishing who she alleged had touched her. He testified that he asked M.K. whether she remembered seeing Dr. Levitt and telling Dr. Levitt that she had been touched by her daddy. He testified that M.K. responded "Yeah, he touched me right here and it hurt" while pointing to her groin. He testified that he asked her which daddy it was and that she responded, "Daddy Dave." He asked her if she knew who John Armstrong was; she replied John was married to her mother and that John never touched her or did anything that hurt her.
Mary Earl, a senior child protection worker for Ramsey County Human Services, next testified that after receiving a report of possible sexual abuse, she met with M.K. to determine to which daddy M.K. was referring. She also transported M.K. to Dr. Levitt and to visitation with Kraushaar. Mary Earl had also taken the report from Armstrong and met with her.
Dr. Carolyn Levitt testified that the medical examination of M.K. was normal, that the hymen was intact and that the tissues around the vaginal and anal openings were normal. She testified that M.K. said it hurt when she went potty after her daddy touched her and that the medical significance of this was that the area around the urethra may have been abraded or irritated.
Dr. Levitt also testified that as she examined M.K., she would touch her and ask her whether she remembered being touched there. She said that M.K. responded that her daddy had touched her clitoris, but denied that her daddy had touched her vaginal or anal areas. She said that in response to vaginal touch, M.K. volunteered that she touched herself there. Dr. Levitt also testified that no germ cultures were taken because there was no indication of penile contact or any sort of penetration.
The videotape interview was then played in court. Dr. Levitt is experienced in these examinations and has apparently developed a routine, which she maintained when interviewing M.K. The tape demonstrates suggestion and a lack of flexibility in interacting with the child. Dr. Levitt created an example designed to establish the concept of "hurt" and introduced the association of "hurt" with "touch." M.K. then agreed that it hurt when her daddy touched her, apparently the first time she had made that claim.
On cross-examination, Dr. Levitt testified that she also believes that being touched in the same place will cause a child to remember having been touched there before. She interpreted M.K.'s responses as indicating that Kraushaar had touched M.K.'s clitoris but not her vagina or anus. Dr. Levitt testified that she based her conclusion 90% on the history provided her by M.K. and only 10% on her physical examination. The physical examination revealed no evidence, but Dr. Levitt testified on redirect that such a medical examination is not inconsistent with abuse. Kraushaar's objections, that because Dr. Levitt is not an expert on the truthfulness and untruthfulness of children and that she is not competent to conclude based on history that M.K. was abused, were overruled.
Ann Greenwald, the licensed psychologist whose interpretation of M.K.'s drawings was discussed at length above, testified next. Greenwald's testimony that the drawings depict genitals and demonstrate sexual abuse was probably given great weight by the jury.
Kraushaar testified in his own defense. He explained the history of the custody and visitation battles Armstrong waged against him for M.K. Kraushaar testified that he told the investigators that Armstrong had *353 threatened to do everything in her power to get custody of M.K. He indicated that in his opinion these allegations were concocted by Armstrong in an attempt to gain custody which had otherwise been denied. Kraushaar testified that through caring for his daughter, changing her, cleaning her and carrying her, he assumed he had touched the parts in question but that he had never touched her intimately with sexual or aggressive intent.
Armstrong had once made a suicide attempt while responsible for M.K. during a scheduled visit and the social worker who counseled her afterward was the next to testify. She stated that Armstrong left M.K. believing she would be able to obtain custody later and that her bond would be intact with her daughter. The counselor testified that Armstrong later was surprised that M.K. did not remember her as well as she thought she would.
The evidence in this case is all based upon M.K.'s vague statements, testimony by others that M.K. made those statements and her father's denial. Her statements are not detailed or specific enough to clearly implicate sexual activity. We recognize that whenever allegations of child sexual abuse are made, the system is confronted with a dilemma: on the one side is a child who must be protected; on the other side stands the accused, entitled to due process, who must not be unfairly convicted. We must balance those considerations and view the evidence favorably to the verdict when we conduct our review.
When viewing the evidence most favorably to the verdict, we hold that it is insufficient to support the conclusion, beyond a reasonable doubt, that Kraushaar touched his daughter intimately with sexual or aggressive intent. The jury requested further instruction on this point but received little assistance. Instead, it was given that videotape in which the doctor introduced the concept of hurt. This undoubtedly precipitated the jury's verdict.
In another case, with substantial evidence, we could affirm this conviction on the grounds that the errors were harmless, not prejudicial. However, the standards employed by the juvenile protection system in determining whether a child should be removed from a home are irrelevant to the burden of proof in a criminal trial. The facts of this case distinguish it from those in which we have affirmed convictions despite errors during trial. Here, the evidence was weak, the errors were many and they were not harmless. Kraushaar is entitled to a new, and fair, trial.
DECISION
The trial court erred in admitting Greenwald's testimony over Kraushaar's repeated objections. Because she never met the child, the objections to foundation should have been sustained. The trial court erred when handling the jury's questions during deliberations, particularly in permitting self-directed review of the video-taped testimony and in denying other testimonial review. The evidence is insufficient to support the conviction.
Reversed and remanded.
HUSPENI, J., dissents with an opinion.
HUSPENI, Judge (dissenting)
I respectfully dissent and would affirm appellant's conviction. I share the majority's observation that the system is faced with a dilemma when sexual abuse of a child is alleged. In addition, I believe the dilemma is even greater when the alleged perpetrator in a charge of sexual abuse is a natural parent in a family torn by the strife of the breakdown of the relationship of a child's parents. However, I feel compelled to disagree with the majority's analysis of the issues and with its ultimate determination that a new trial is needed.
I.
For the sake of further analysis, I agree with the majority that Ann Greenwald's testimony, purporting to interpret the drawings of the minor child, was erroneously received into evidence. However, I do not believe that permitting such testimony was error of such magnitude as to require a new trial.
*354 Appellant's primary challenge of Ann Greenwald concerned her qualification as an expert. Although that challenge was unsuccessful, full cross-examination of this witness was demonstrated in 38 pages of the trial transcript.
II.
Appellant stipulated to entry of the videotape as an exhibit. Under the rules, exhibits generally go to the jury. Minn.R. Crim. P. 26.03, subd. 19(1). Thus, appellant's stipulation does not strongly argue in favor of finding submission of the tape to the jury to be error.[1]
I submit that the question of whether certain evidence received "undue prominence" has merit only in those cases in which the challenged evidence was not properly available to the jurors as an exhibit. The record before us in this matter does not demonstrate that the videotape was received as anything other than an exhibit.
Further, the videotape had essentially the same content (that appellant abused M.K.) as the testimony of a number of state witnesses, including Dr. Levitt and the victim herself. Therefore, I conclude that by permitting the jury to view the challenged videotape, the trial court at worst permitted the jury to consider cumulative evidence.
Also, if the majority is correct that the videotape "demonstrates suggestion and a lack of flexibility [during Dr. Levitt's] interacting with the child," the feared undue emphasis on the tape would also emphasize the questionable nature of the interview, potentially discrediting both the interview and Dr. Levitt's subsequent testimony based on that interview. Thus, the result of sending the tape to the jury would weaken rather than strengthen the state's case.
Finally, in State v. Ross, 451 N.W.2d 231 (Minn.App.1990), pet. for rev. denied (Minn. Apr. 13, 1990), a similar sexual abuse case cited by the majority, the jury requested review of the victim's testimony, the examining doctor's testimony and the videotape of the doctor's interview of the victim. All requests were granted and this court affirmed, stating:
Since the jury's broad request did not unfairly highlight a portion of the evidence, granting the request simply enabled the jury to take greater care in evaluating the evidence.
Ross, 451 N.W.2d at 237. No abuse of discretion was found in Ross despite the fact that all reviewed evidence was state's evidence. Here the jury was permitted to review only a fraction of the quantity of state's evidence reviewed in Ross. I find no abuse of discretion in this case.
III.
Finally, I believe the evidence was sufficient to sustain a jury finding of guilt. While another jury presented with the evidence in this case might have judged credibility of the witnesses differently and returned a verdict of not guilty, we in this court cannot function as that other jury. We must view the evidence in the light most favorable to the state.
Here there was testimony by several witnesses that M.K. related incidents of sexual abuse to them. Further, the most important witness to take the stand, I submit, was M.K. herself, who stated that she was abused and that appellant was the abuser. See Minn.Stat. § 609.347, subd. 1 (1988) ("In a prosecution [for criminal sexual conduct] the testimony of the victim need not be corroborated"). In many sexual child abuse cases the alleged victim is not competent to testify in court and all evidence is of necessity presented by others. Such was not the case here. The jury saw and heard M.K. and judged her credibility as well as the credibility of all other witnesses. Based on that evidence, the jury found *355 the appellant guilty of criminal sexual conduct in the second degree. We must respect that determination.
NOTES
[1] Even assuming as does the majority that the videotape interview is testimonial in nature, a prior, out-of-court statement by M.K. would be admissible under various provisions including Minn.Stat. § 595.02, subd. 3 (1988). That statute admits
an out-of-court statement made by a child under the age of ten years * * * alleging, explaining * * * or describing any act of sexual contact * * * performed with or on the child * * *. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607025/ | 333 F.Supp. 131 (1971)
William K. HEATH, Plaintiff,
v.
MATSON NAVIGATION COMPANY, Defendant.
Civ. No. 70-3134.
United States District Court, D. Hawaii.
September 24, 1971.
Paul F. Cronin, Gerald Y. Sekiya, Bortz, Case, Stack, Kay, Cronin & Clause, Honolulu, Hawaii, for plaintiff.
C. F. Damon, Jr., Damon, Shigekane, & Char, Honolulu, Hawaii, for defendant.
MEMORANDUM DECISION
PENCE, Chief Judge.
On Thanksgiving night, November 27, 1969, at approximately nine p.m. and while at sea, plaintiff William K. Heath, an able-bodied seaman aboard the S. S. Hawaiian Merchant, while walking up the port, forward side of the ship to assume *132 his duties as bow lookout, fell over a fire hose which had been left out on the main weather deck. As a result of his fall Heath sustained a back injury.
On the morning of that same day, the fire hose had been used to discharge some molasses overboard. The operation was completed around noon but the fire hose was left on deck. Then, some nine hours later, Heath tripped over the hose and fell to the deck.
Plaintiff sues in admiralty under the Jones Act, 46 U.S.C.A. § 688 (1958), alleging negligence of Matson Navigation Company, owner of the Hawaiian Merchant, in failing properly to use and stow the fire hose.[1] Plaintiff further alleges unseaworthiness under General Maritime Law.
Matson admits liability in this case, but adds the following caveat:
"In so admitting liability, defendant does not waive [its third] defense * * * that any injuries or damages suffered by Plaintiff were caused in whole or in part or were contributed to by Plaintiff."
Plaintiff now moves this court to enter a partial summary judgment holding Matson's Third Defense inapplicable to this case. Plaintiff argues that Matson's use of the fire hose over which Heath fell violated certain Coast Guard regulations as to the use and storage of fire hoses, and therefore under Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), such violations, as a matter of law, bar a defense of contributory negligence in a Jones Act case.
1. Coast Guard Regulations
Plaintiff contends that Matson's admission, together with depositions and other materials presented to the court, indicate violations of three of the United States Coast Guard Rules and Regulations for Cargo and Miscellaneous Vessels Subchapter I, 46 CFR §§ 95.10-10(g), (h) and (j), 1971, which read as follows:
"§ 95.10-10(g) Each fire hydrant shall be provided with a single length of hose with nozzle attached and a spanner. A suitable hose rack or other device shall be provided for the proper stowage of the hose. If the hose is not stowed in the open or behind glass so as to be readily seen, the enclosure shall be marked in accordance with Section 97.37-15 of this subchapter."
"§ 95.10-10(h) Firehose shall be connected to the outlets at all times. However, on open decks where no protection is afforded to the hose in heavy weather, or where the hose may be liable to damage from the handling of cargo, the hose may be temporarily removed from the hydrant and stowed in an accessible nearby location."
"§ 95.10-10(j) Firehose shall not be used for any other purpose than fire extinguishing, drills, and testing."
Since § 95.10-10(g) lists only three permissible uses for firehosenone of which is pumping molassesit would appear that Matson's molasses pumping operation through a firehose did violate a Coast Guard regulation.
2. Kernan v. American Dredging Co.
Assuming, arguendo, that plaintiff has shown violation of one or more of the Coast Guard regulations on firehose aboardship, the Supreme Court's decision in Kernan furnishes no support for plaintiff's argument that Matson is thereby barred from raising the defense of contributory negligence.
In Kernan, a seaman died on a tug operated by American Dredging Co. The tug was towing a scow at night in the Schuylkill River near Philadelphia. Flammable vapors hung just above the river's surface because of oil spilled from nearby refineries and petroleum storage and loading facilities. An open-flame kerosene lamp on the deck of the scow, hanging no more than three *133 feet above the water, ignited the flammable vapors, spreading flames to the tug and setting it on fire.
A navigation rule of the Coast Guard Commandant required lamps of the type involved to be carried no less than eight feet above the water. The District Court found that had the particular lamp been carried at the required minimum height it would not have set fire to the petroleum vapors.
A limitation action was brought by the tug owner and Kernan's widow filed her claim for damages. The District Court denied the claim, holding that violation of a statute does not give rise to liability unless the harm resulting from the violation was of a kind the statute had been designed to minimize. Thus, since the particular regulation was for navigational purposes only, and was not meant to protect against accidents of the type that had occurred, the widow could not recover. 141 F.Supp. 582 (E.D.Pa.), aff'd 235 F.2d 618 (3 Cir. 1956).
There was no issue of contributory negligence in Kernan. As the Supreme Court noted:
"The question for our decision is whether, in the absence of any showing of negligence, the Jones Act which in terms incorporates the provisions of the FELApermits recovery for the death of a seaman resulting from a violation of a statutory duty. We hold that it does." 355 U.S. at 431, 78 S.Ct. at 397.
The sole issue presented to and resolved by the Court was whether liability under the Jones Act and FELA is imposed without regard to negligence where a hazardous condition resulting from a violation of a Coast Guard Regulation causes the death of a seaman. The Court analyzed a series of cases interpreting § 1 of the FELA, 45 U.S.C. §§ 51-60 (1954), imposing such statutory liability where violations of the Boiler Inspection and Safety Appliances Acts were involved.[2] In Kernan this doctrine was extended and held applicable to a case where a seaman's death was attributable to violation of a Coast Guard regulation.
Plaintiff urges that this court extend § 3 of the FELA in a manner familiar to the Supreme Court's extension of § 1 in Kernan. Section 3 provides:
"Contributory negligence; diminution of damages
In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributes to the injury or death of such employee." 45 U.S.C.A. § 53 (1954).
The language of § 3 is clear with regard to the unavailability of a defense of contributory negligence to a defendant in an FELA suit. It is thus not surprising that plaintiff has not cited and this court has not found any case holding that the defense of contributory negligence is unavailable where violation of a non-safety statute or regulation is involved. Section 3 is not even mentioned in the majority opinion in Kernan. The Court does refer to § 4[3]which contains *134 similar language regarding unavailability of the defense of assumption of risk where violation of a safety statute is shownbut in no way suggests that its holding with respect to statutory negligence is intended to apply to §§ 3 and 4 of the FELA as well as to § 1. Rather, the reference to § 4 is made to rebut the argument made in the dissent that the limitations of §§ 3 and 4 ought to carry over to § 1.[4]
The Court itself noted that the sections of the FELA in issue were neither symmetrical nor overlapping in the extent of their coverage:[5]
"First, § 4 relates entirely to the defense of assumption of risk, abolishing this defense where the injury was caused by the employer's negligence or by `violation * * * of any statute enacted for the safety of employees * * *.' It is § 1 of the FELA which creates the cause of action and this section, on its face, is barren of any suggestion that injuries caused by violation of any statute are to be treated specially." 355 U.S. at 437, 78 S.Ct. at 400. (First emphasis added.)
Plaintiff's suggestion that Kernan is authority for striking a defense of contributory negligence under § 3 where violation of a nonsafety statute is involved is thus without merit. Neal v. Saga Shipping Co., 407 F.2d 481 (5 Cir.), cert. denied 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969), cited by plaintiff, is thus incorrect in its statement at page 486 of 407 F.2d that Kernan
"* * * preclude[s] a finding of contributory negligence `without regard to whether the injury flowing from the breach was the injury the statute sought to prevent.' 355 U.S. at 433, 78 S.Ct. at 398, 2 L.Ed.2d at 392."
The portion of the Kernan decision from which the above statement was abstracted deals with statutory liability, not with contributory negligence, as a careful reading of the entire sentence out of Kernan makes clear:
"In FELA cases based upon violations of the Safety Appliances Acts or the Boiler Inspection Act, the Court has held that a violation of either statute creates liability under FELA if the resulting defect or insufficiency in equipment contributes in fact to the death or injury in suit, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent." 355 U.S. at 432-433, 78 S.Ct. at 398.
Neal is further inapposite because it was not a Jones Act case. The court there held that the Jones Act was not applicable to longshoremen and that defendant's liability was to be measured in terms of unseaworthiness rather than in terms of the Safety Appliances and Jones Acts.
3. Causation
Even if we assume that Matson violated one or more Coast Guard regulations, and further assuming that the proviso to § 3 applies to employer violations of non-safety regulations, plaintiff still fails to show the requisite causal relation between violation of the regulations in question and the injury to Heath. The proviso to § 3 reads as follows:
"* * * That no such employee who may be injured or killed shall be held to be guilty of contributory negligence in any case where the violation by such common carrier of any statute *135 enacted for the safety of employees contributed to the injury or death of such employee." 45 U.S.C. § 53 (1954). (Emphasis added.)
In cases not involving violation of safety regulations it has been held that the standard of causation in establishing the negligence of the employer under § 1 and the contributory negligence of the employee under § 3 is the same. Page v. St. Louis Southwestern Railway Co., 349 F.2d 820 (5 Cir. 1965); Ganotis v. New York Central Railroad Co., 342 F. 2d 767 (6 Cir. 1965). The court in Page notes at page 824 of 349 F.2d:
"Indeed the language of § 51 * * * imposing liability for injuries or death `resulting in whole or in part from the negligence of' the railroad or its agents fits neatly into the structure of § 53 which bans contributory negligence as a bar * * *. Since it is clear that § 53 never contemplates a reduction in damages for negligent acts of the injured worker except to the extent such negligence brings about the injuries, it is obvious that for a system of comparative fault to work, the basis of comparison has to be the same." (Emphasis added by court.)
If there is a single standard of causation between §§ 51 and 53 in cases where no safety act violation is alleged, it logically follows that this same standard of causation should apply where an employee seeks to establish that his employer's violation of a safetyor arguably any relevantstatute "contributed to" his injury or death and hence bars a defense of contributory negligence. In barring contributory negligence as a defense in cases involving safetyor arguably any relevantstatutes or regulations Congress has already provided a dire penalty for errant employers. It would be carrying things too far to hold that, in addition, Congress intended that a less stringent causal connection need be shown between violation of the statute and the injury allegedly resulting thereby.
The "single standard" of causation which this court applies to the present case is that of physical causation. This concept substitutes a simplified, more workable formulation of causation for "the good old fashioned dialectic of proximate causation with all of its built-in metaphysical concepts of natural and unbroken sequence, but for, foreseeability of harm and the like"[6] and provides a fair interpretation of the phrase "contributed to" in § 3 of the FELA. Under this formulation an act or omission contributes to an injury or death when it appears the act or omission played any part, no matter how small, in actually causing or bringing about the injury or death.
In the present case, it is the fact that a hose was left out on deck after dark which caused or brought about Heath's injury. That the hose was a "firehose", previously used to pump molasses does not justify the conclusion that the pumping of molasses through it in the morning, in any way caused or brought about Heath's injury in the night. Heath did not trip over the hose and receive injury in any manner attributable to the use of the firehose for pumping molasses overboard. It is the fact that the hose was left out on deck, rather than any use in violation of a regulation, which brought about Heath's injury. The hose could just as readily have been left out on deck after a drill, cleaning, or replacement. Matson's negligence would, of course, be unchanged in any of these cases, and the causal relation between such negligence and Heath's injury would likewise remain unchanged. Matson's liability would, however, unquestionably then lie in negligence rather than in violation of a Coast Guard regulation.
Finally, the nine hour period between cessation of pumping and Heath's fall further negates plaintiff's contention that the pumping of molasses through a *136 firehose in violation of the Coast Guard regulation, brought about or caused Heath to trip and fall. The circumstances leading to Heath's injury must be "inseparably related to one another in time and space" in order to establish that such circumstances caused the injury. Coray v. Southern Pacific Co., 335 U.S. 520, 524, 69 S.Ct. 275, 277, 93 L.Ed. 208 (1949).
Since plaintiff has failed to establish the causal connection between the alleged violation of the Coast Guard regulations regarding unauthorized use and stowage of firehoses and the injury allegedly flowing therefrom, defendant is not precluded from raising the defense of contributory negligence.
Plaintiff's motion for partial summary judgment is denied.
NOTES
[1] See also Fed.R.Civ.P. 9(h).
[2] 45 U.S.C.A. §§ 1-16 (1958) and 45 U.S. C.A. §§ 22-34 (1958).
[3] Section 54 reads:
In any action brought against any common carrier under or by virtue of any of the provisions of the chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; and no employee shall be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. 45 U.S.C.A. § 54 (1954).
[4] This is the converse of the argument plaintiff presents in his motion.
[5] The two sections do, however, embrace a single standard of causation in evaluating the respective negligence of employer and employee. See the court's discussion of causation, infra.
[6] Page v. St. Louis Southwestern Ry. Co., 349 F.2d 820, 822 (5 Cir. 1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607037/ | 7 So.3d 1108 (2009)
S.B.
v.
STATE.
No. 2D08-4488.
District Court of Appeal of Florida, Second District.
April 29, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607557/ | 21 So.3d 428 (2009)
FARMCO, INC. and Brent A. Beauvais
v.
Robert Ray MORRIS, Frances L. Morris, Jacqueline M. Creer, Zelotes A. Thomas, Keith E. Morris, and Ronada B. Morris.
No. 2008 CA 1996.
Court of Appeal of Louisiana, First Circuit.
September 4, 2009.
Kenneth L. Blanchard, Jr., Plaquemine, LA, for Plaintiffs-Appellants Farmco, Inc. and Brent A. Beauvais.
*429 C. Jerome D'Aquila, New Roads, LA, for Defendants-Appellees Robert Ray Morris, Frances L. Morris, Keith E. Morris, and Ronada B. Morris.
A.M. "Tony" Clayton, Michael P. Fruge, Clayton and Fruge, Port Allen, LA, for Defendants-Appellees Jacqueline M. Creer and Zelotes A. Thomas.
Before PARRO, McCLENDON, and WELCH, JJ.
PARRO, J.
Farmco, Inc. (Farmco) and Brent A. Beauvais (collectively, plaintiffs) appeal from a judgment granting motions for involuntary dismissal and dismissing their claims for injunctive relief and/or damages against Robert Ray Morris, Frances L. Morris, Keith E. Morris, Ronada B. Morris, Zelotes A. Thomas, and Jacqueline M. Creer (collectively, defendants) in this matter involving a servitude of passage claimed by the defendants on property owned by the plaintiffs. We reverse the judgment and remand for further proceedings in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Farmco and Beauvais are the owners of several large tracts of land in West Baton Rouge Parish, having purchased this property at a United States Marshal's sale on March 25, 1997, after its prior owners, Ashland Plantation, Inc. (Ashland) and Kenneth H. Kahao, defaulted on a 1979 debt owed to the Farmers Home Administration (FHA). The tract at issue in this litigation is identified as Tract D-4 on a map prepared for Ashland on April 7, 1994, by Wallace J. Hargrave. That map shows that a portion of the Farmco/Beauvais property, Tract D-2, had been subdivided in 1983 into 18 lots comprising Chamberlin Subdivision. All of the Chamberlin Subdivision lots front on Louisiana Highway 620, also known as "Section Road." Between Lots 6 and 7[1] and Lots 11 and 12 are two 60'-wide passageways leading north to the back of the subdivision. Perpendicular to those passageways and running east-west along the back of all 18 lots of the subdivision is another passageway. These three passageways make up Tract D-4, and have been used by the defendants in this suit for access to their residences and to agricultural property north of the subdivision.
Farmco and Beauvais filed this suit on July 26, 2006, asserting that they were the lawful owners of Tract D-4 and that the defendants were using their land without their permission or consent. The petition alleged that the unauthorized use of the property by the defendants had rendered the property unmarketable and caused financial loss to the plaintiffs. They sought monetary damages and back rentals for this use of the property. The petition also stated that "Robert R. Morris and Frances Morris should be enjoined from any further use" of Tract D-4. No injunctive relief was sought against the other named defendants. But in the third paragraph of the prayer for relief, the plaintiffs prayed that:
After all legal delays and due proceedings had, Defendants be declared to have no right to use the subject property and be found to have unlawfully possessed Plaintiffs (sic) Tract D-4 and that they be cast for damages, including back rentals all as appropriate in the premises and for all costs of this matter. (Emphasis added).
*430 On October 27, 2006, after several continuances, the court heard and denied the preliminary injunction and set the matter for trial.[2] Again, there were several continuances, and a bench trial was finally held on April 27, 2007.
Before the trial began, a number of documents were submitted by the plaintiffs and admitted into evidence by stipulation of all counsel that they were authentic and relevant to the proceedings. These documents included maps of the property and established the current ownership of all the relevant properties.
The plaintiffs' first witness was George W.T. Ruple, the sole officer and director of Farmco, who identified the deed and proces verbal showing the property was sold to him and Beauvais at the U.S. Marshal's sale in March 1997. Ruple testified that they had never given any of the defendants permission to use any portion of Tract D-4. Despite this, Robert Morris was using the easternmost 60' passageway (between Lots 11 and 12) to get to his sugarcane fields behind the Chamberlin Subdivision. Keith and Ronada Morris and Zelotes Thomas were using that same 60' passageway to gain access to their houses, as their driveways opened onto the easternmost passageway, and Jacqueline Creer was using the westernmost passageway for access to her driveway and house. Although the plaintiffs had developed and sold other portions of the property, Ruple testified that it was not possible to sell Tract D-4, because it was obvious that the defendants were using the property. Ruple said that Ms. Creer and Ms. Thomas had been using the tract ever since the plaintiffs purchased it. Although Keith and Ronada Morris bought their property later, their predecessor-in-title had also been using it for some time. There was a similar situation concerning the property owned by Robert and Frances Morris; although they purchased it after the plaintiffs' purchase, their predecessor-in-title had also used the easternmost passageway to get to its sugarcane crop north of the Chamberlin Subdivision. Ruple testified that all of the passageways were being used for vehicular travel before he and Beauvais bought the property and that they existed in their present configuration at least since the Chamberlin Subdivision was developed in 1983.
Ruple also identified an "Act of Predial Servitude" executed and recorded in 1987, in which Ashland granted Roy and Irma Nugent a servitude of passage over the easternmost 60' passageway (between Lots 11 and 12) currently being used by Keith and Ronada Morris, Robert and Frances Morris, and Ms. Thomas; Ruple admitted he had been aware of this predial servitude for several years. The record also contains authentic acts showing that Roy and Irma Nugent bought Lot 12 from Ashland in 1986; in February 1993, the Nugents sold Lot 12 to Daniel L Miremont; Miremont sold it to Keith and Ronada Morris in March 1998; and in October 2006, they donated an undivided 1/2000th interest in Lot 12 to Robert and Frances Morris. Robert and Frances Morris purchased their agricultural property north of Chamberlin Subdivision from Ashland in December 2000.[3]
Ms. Thomas identified an act of sale showing her purchase of Lot 11 in 1987. She testified that her relatives and family members drove on the 60' passageway alongside her lot when they visited her. *431 She also said that school buses turned around on that passageway and other people whom she did not know used it as a road. Ms. Thomas said people had been using that strip as a road ever since she bought her property. There were utility poles alongside the passageway, and utility repair and maintenance workers also used the passageway to get access to those poles.
Following their testimony, plaintiffs' counsel called Fred Stephens to the stand, but he was not present. Plaintiffs' counsel assured the court that Stephens had been subpoenaed and that his testimony was needed to establish the value of the property in that area to prove damages.[4] He asked the court to continue the trial and issue a bench warrant for Stephens. The court denied the continuance, but agreed to issue a bench warrant for Stephens' failure to appear under a subpoena. At that point, plaintiffs' counsel stated, "I have no more case in chief, Your Honor," and rested the plaintiffs' case.
Counsel for the defendants then moved for involuntary dismissal of the plaintiffs' claims against their clients, arguing that upon the facts and law, the plaintiffs had shown no right to relief. Ms. Thomas and Ms. Creer argued they were entitled to be dismissed, because no injunctive relief had been sought against them in the petition, no damages had been proven, and no declaratory judgment had been sought. Keith and Ronada Morris reiterated those claims, and contended also that Ashland had granted them a predial servitude over the property at issue before the plaintiffs purchased the property; therefore they had the right to use the property. And since Robert and Frances Morris had been donated an undivided 1/2000 interest in that property, they also had the right to use the servitude.
Plaintiffs' counsel argued that the predial servitude was put on the property after the 1979 FHA mortgage was in place; therefore, by operation of LSA-C.C. art. 721, when the mortgaged property was sold to the plaintiffs after foreclosure on the superior FHA mortgage, it was free and clear of that conventional servitude by operation of law. He also argued that the petition stated a claim for declaratory judgment against all the defendants by asking in the prayer for relief that the defendants "be declared to have no right to use the subject property and be found to have unlawfully possessed" plaintiffs' Tract D-4.
The court took the motions for involuntary dismissal under advisement and asked the parties to brief the issues. On July 21, 2008, the court signed a judgment that granted the defendants' motions and dismissed the plaintiffs' claims with prejudice. This appeal followed.
ANALYSIS
Louisiana Code of Civil Procedure article 1672(B) states:
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render *432 any judgment until the close of all the evidence.
The applicable standard to be used by a trial court to determine a motion for involuntary dismissal is whether the plaintiff has presented sufficient evidence to establish his case by a preponderance of the evidence. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 04-1311 (La.App. 1st Cir.6/15/05), 925 So.2d 1, 4. When considering a motion for involuntary dismissal, the trial court is not required to review the evidence in a light most favorable to the plaintiff, nor is the plaintiff entitled to any other special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Jackson v. Capitol City Family Health Ctr., 04-2671 (La.App. 1st Cir.12/22/05), 928 So.2d 129, 131.
A trial court has much discretion in determining whether to grant a motion for involuntary dismissal, but it is required to weigh and evaluate all evidence in order to make such a determination. Taylor v. Tommie's Gaming, 04-2254 (La.5/24/05), 902 So.2d 380, 384. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Boyd v. Allied Signal, Inc., 07-1409 (La.App. 1st Cir.10/17/08), 997 So.2d 111, 118, writ denied, 08-2682 (La.1/16/09), 998 So.2d 105.
After reviewing the pleadings and evidence in this case, we conclude that the plaintiffs established by a preponderance of the evidence that they own the property at issue. Tract D-4 was part of the property transferred to them in the U.S. Marshal's sale on March 25, 1997. Nevertheless, that does not end the inquiry; the plaintiffs' ownership of the property does not preclude the possibility that the defendants have acquired a right to use the property.
With respect to the Morrises' claim that they acquired a predial servitude of passage over the easternmost passageway by a juridical act, the plaintiffs argue that any such servitude was extinguished by operation of law, pursuant to LSA-C.C. art. 721. That article states:
A predial servitude may be established on mortgaged property. If the servitude diminishes the value of the estate to the substantial detriment of the mortgagee, he may demand immediate payment of the debt.
If there is a sale for the enforcement of the mortgage the property is sold free of all servitudes established after the mortgage. In such a case, the acquirer of the servitude has an action for the restitution of its value against the owner who established it.
Foreclosure of a mortgage extinguishes a conventional servitude granted by the mortgagor after mortgaging the property. Campbell v. Louisiana Intrastate Gas Corp., 528 So.2d 626 (La.App. 2nd Cir. 1988). In the matter before us, Ashland mortgaged the property to the FHA in July 1979. The Act of Predial Servitude under which the Morrises claim to have acquired a servitude of passage was executed and filed in 1987. Therefore, under the clear terms of Article 721, even if the Act of Predial Servitude were sufficient to convey a right of passage over some of the property to some of the defendants, it was an inferior encumbrance on the property and was extinguished by the sale of the property for the enforcement of the FHA mortgage.
In the alternative, the defendants claim they acquired a servitude of passage by acquisitive prescription. See LSA-C.C. arts. 646, 650(B), 705, 707, 740, and 742. *433 The defendants introduced some evidence in connection with their cross-examinations of the plaintiffs' witnesses. Yet, possibly because this case was involuntarily dismissed before the defendants presented their case-in-chief, the record does not clearly show the nature and extent of the defendants' and their ancestors-in-titles' possession of the property at issue in this case. Therefore, there is insufficient evidence in the record to determine whether the defendants may have acquired a right to use part or all of Tract D-4, either by acquisitive prescription or by some other means. See LSA-C.C. arts. 654 and 741.
Because the plaintiffs established their ownership of the property by a preponderance of the evidence, the lower court erred in granting the defendants' motions for involuntary dismissal. Since the defendants did not waive their right to offer evidence in the event the motions for involuntary dismissal were not granted, this case will be remanded to the trial court for a continuation of the trial to allow the defendants to offer evidence in support of their claims.
We note also that it is clear from the record that the plaintiffs experienced mixed signals from the court as to whether testimony from their expert on damages, Fred Stephens, would be admitted in a later hearing. The trial transcript reflects that the court issued a bench warrant for Stephens' appearance, which could be interpreted as an attempt to require him to appear and testify, but then denied the plaintiffs' motion for a continuance of the trial to present that testimony. Because of this, the plaintiffs were forced to conclude the presentation of all the evidence they could put before the court and were unable to present the testimony of Stephens. Since we are remanding this case to the lower court for further proceedings, we also order the court to allow the plaintiffs to re-open their case for the admission of Stephens' testimony.
CONCLUSION
For the above reasons, the judgment of July 21, 2008, granting the defendants' motions for involuntary dismissal and dismissing the plaintiffs' claims, is reversed. This case is remanded to the trial court for admission of expert testimony from Fred Stephens as to the plaintiffs' alleged damages, as well as to allow the defendants to offer evidence on their case-in-chief. Costs of this appeal are assessed to the defendants.
REVERSED AND REMANDED WITH INSTRUCTIONS.
McCLENDON JR., concurs without reason.
NOTES
[1] The record does not indicate who currently owns Lot 6. Lot 7 is owned by Ms. Creer, Lot 11 is owned by Ms. Thomas, and Lot 12 is owned by Keith and Ronada Morris. Robert and Frances Morris own a tract of agricultural land north of Chamberlin Subdivision.
[2] The ruling denying the preliminary injunction was not appealed when rendered and was not assigned as error in this appeal.
[3] These documents were submitted by the defendants' counsel on cross-examination of Ruple.
[4] In briefs and oral argument to this court, further information concerning the circumstances surrounding Stephens' non-appearance was revealed. However, because this information does not form part of the record, we are unable to consider it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/968/ | 600 F.3d 1014 (2010)
UNITED STATES of America, Appellee,
v.
Kevin Joseph FENNER, Appellant. *1015
United States of America, Appellee,
v.
Eric Dion Davis, Appellant.
Nos. 08-3953, 08-3955.
United States Court of Appeals, Eighth Circuit.
Submitted: October 21, 2009.
Filed: March 30, 2010.
*1017 William M. Orth, argued, Minneapolis, MN, for appellant Fenner.
Stephen W. Walburg, argued, Shakopee, MN, for Davis.
David Gerald Wilhelm, AUSA, argued, Jeffrey S. Paulsen, AUSA, on the brief, Minneapolis, MN, for appellee.
Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
MELLOY, Circuit Judge.
A jury convicted Kevin Fenner and Eric Davis of conspiring to distribute fentanyl and more than fifty grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The jury also convicted them of various distribution and possession-with-intent-to-distribute charges stemming from the conspiracy. Fenner and Davis assert that prosecutorial misconduct occurred before the grand jury. Fenner also argues that cumulative prosecutorial misconduct before the petit jury deprived him of a fair trial and that, absent prejudice stemming from this misconduct, insufficient evidence existed to convict him of the crack cocaine-related charges. Additionally, Fenner and Davis present constitutional challenges to the mandatory minimum sentences in § 841(b)(1)(A). Finally, Davis, a convicted sex offender, maintains that the district court[1] erred in imposing sex-offender and/or mental-health treatment as a special condition of supervised release. For the following reasons, we affirm.
I. Background
"We present the facts in the light most favorable to the jury's verdict." United States v. Foxx, 544 F.3d 943, 946 (8th Cir.2008). In 2006, Fenner and Davis, along with Eric Hargrove, were involved in a drug trafficking operation in the Twin *1018 Cities. Hargrove is Fenner's cousin and pleaded guilty to charges related to his involvement in the events described below.
A. The investigation
Hargrove, Fenner, and Davis were arrested following an investigation that included four controlled buys involving two confidential informants. Prior to the first controlled buy, one of the informants discussed buying crack cocaine with Davis, whom he knew as "Smurf." Davis confirmed he would be able to sell the informant the drug. The informant provided this information to the police, who asked the informant to make a controlled purchase. The informant later met Fenner, whom he knew as "Nitty," and Fenner supplied the telephone number the informant used to set up the deal.
The first buy, for crack cocaine, occurred on May 11, 2006. The informant attempted to set up the purchase over the phone beginning the previous day, but it was delayed due to difficulties Fenner and Davis had cooking the powder cocaine into crack cocaine. Fenner and Davis both spoke with the informant at different times leading up to the buy. Their conversations were recorded. In the first conversation between Fenner and the informant, Fenner explained he could not cook the powder cocaine into crack cocaine himself because he was subject to random urinalysis. Davis answered the phone on other calls. On one, in which the informant testified he ordered crack cocaine, Davis confirmed he was with Fenner. Later, Davis said they were almost ready and would call the informant as soon as he finished and weighed the drug. In a subsequent call, Fenner said that he planned to cook the crack cocaine himself. Fenner eventually set up a meeting spot and the appellants arrived together in Fenner's car. Davis entered the informant's car while Fenner waited on the street, talking with an individual in a third vehicle while Davis completed the deal. The informant wore a wire to the meeting, and the wire picked up Davis describing problems in cooking powder cocaine into crack cocaine. The informant received more than sixty grams of crack cocaine from Davis.
The second buy, for fentanyl,[2] occurred on June 21, 2006. The same confidential informant testified that he originally tried to buy both crack and heroin, but Fenner only had heroin (actually fentanyl) available After a series of recorded calls between Fenner and the informant, they negotiated in person and eventually closed a deal for approximately eight grams of heroin (fentanyl).[3]
The third buy, also for fentanyl, occurred the next day, June 22, 2006. A second confidential informant[4] and Davis set up the deal in recorded phone calls. Davis sent Hargrove to complete the transaction. Hargrove met with the informant to sell nearly six grams of fentanyl.
The fourth buy was scheduled to occur on June 23, 2006. In recorded phone calls, Davis and the second informant set up a deal for crack cocaine and heroin (fentanyl). *1019 Davis and Hargrove arrived at the informant's residence, and the informant met with them in their car. The informant signaled to officers, who moved in to arrest Davis and Hargrove. The officers recovered nearly six grams of fentanyl and approximately 120 grams of crack cocaine from Hargrove.
Officers arrested Fenner shortly after the arrests of Hargrove and Davis. Fenner told officers that he had cocaine in his underwear, and police recovered a hard, rocky substance physically resembling crack cocaine. The substance field tested positive for cocaine.[5] Subsequent testing later revealed the substance was powder cocaine, notwithstanding its rock-like appearance.
After the arrests, officers executed a search warrant for Fenner's residence, which he shared with his father and Hargrove. In Fenner's bedroom, officers recovered a loaded gun hidden under a mattress and $7,000 in cash from a safe, which included $900 from the second controlled buy of fentanyl. Officers also discovered a digital gram scale in the kitchen. In Hargrove's bedroom, officers found approximately 28.5 grams of crack cocaine, approximately thirty-three grams of fentanyl, and approximately $3,500.
B. Grand jury indictment, trial, and sentencing
On July 13, 2006, a grand jury returned a multi-count indictment against Fenner, Davis, and Hargrove. Count 1 charged all three defendants with conspiracy to distribute fentanyl and more than fifty grams of crack between May 11 and June 23, 2006, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The other counts charged various distribution and possession-with-intent-to-distribute offenses based on the events described above. Those involving crack cocaine are the most relevant to this appeal. Count 2 charged Fenner and Davis with aiding and abetting each other in the distribution of crack during the first controlled buy on May 11, 2006. Count 5 charged Davis (and Hargrove) with aiding and abetting each other in possession with the intent to distribute crack cocaine on June 23, 2006, the day of their arrest. Count 7 originally charged Fenner with possession with intent to distribute crack cocaine on June 23. As noted above, subsequent lab tests, reported August 9, 2006, revealed this to be powder cocaine and the indictment was amended to read as such.
For Fenner, the crack cocaine-related charges were the most serious. He had five prior felony drug convictions, triggering the statutory mandatory minimum of life imprisonment for an offense involving fifty or more grams of crack cocaine. 21 U.S.C. § 841(b)(1)(A)(iii). The Government filed a motion of sentencing enhancement under 21 U.S.C. § 851 based on the prior felony drug convictions. Fenner then participated in a proffer session with a written agreement that his statements could not be used against him at trial unless he took the stand and contradicted his proffer statements. Fenner eventually declined to cooperate and the plea deal fell through.
The case proceeded to a three-day jury trial in January 2007. During direct examinations of the informants, the jury heard the recorded phone calls arranging the controlled buys, as well audio picked up by the informants' wires during the buys themselves. The jury was permitted to follow along with transcripts while listening to these recordings and during the informants' testimony about the conversations. The informants also explained slang terms used by the participants as well as *1020 their understandings of the various conversations and transactions. The jury also saw separate law enforcement surveillance video for all but the last controlled buy, which resulted in the arrest of Davis and Hargrove.
The Government sought to establish the existence and nature of the overall conspiracy through, among other things, Hargrove's testimony. According to Hargrove, he and Fenner started selling crack cocaine, powder cocaine, and heroin after Hargrove moved to Minnesota in November 2005. They eventually began selling as partners, each taking orders and splitting up the proceeds. They kept the money in a safe in Fenner's room. Fenner had between ten to twenty customers all together, with approximately an equal number of crack and powder cocaine customers. Around January 2006, Davis joined their enterprise. After Davis joined the group, they continued to sell crack cocaine and heroin and share the profits. Fenner would obtain the drugs, and they would store some of the drugs at Fenner's and Hargrove's residence prior to sale. Hargrove described his participation in the various controlled buys and confirmed that Davis set up the June 22 and June 23 deals. Hargrove also testified that Fenner provided the crack cocaine and heroin (fentanyl) found in Hargrove's bedroom during the June 23 search.
Both Fenner and Davis testified. Fenner's defense was designed to avoid a life sentence. He testified that he had pleaded guilty to prior drug offenses and admitted that he distributed fentanyl during the second controlled buy on June 21 and that he possessed powder cocaine with the intent to distribute on the day of his arrest. However, he testified that his involvement with cocaine was limited to powder, and he denied involvement with crack cocaine after his mother's death in 2004. The Government cross-examined Fenner using statements made during the proffer session. In light of these statements, Fenner eventually admitted that he obtained "cocaine" and heroin for the conspiracy and that he had cooked powder cocaine into crack cocaine in the past, but before the charged conspiracy began.
Davis also offered his own explanations for the recorded calls and taped meetings with the informants. He generally denied participating in the charged offenses, other than admitting that he and Hargrove met the second informant the day of their arrest to sell heroin (fentanyl). Much like Fenner, Davis disavowed involvement with crack.
Fenner moved for a mistrial following the Government's rebuttal summation, arguing that the Government misstated the law on co-conspirator liability. The district court denied the mistrial. The jury convicted Fenner and Davis on all counts and made a specific finding that the charged conspiracy (Count 1) involved fifty or more grams of crack cocaine. The district court also denied motions for a new trial. Sentencing was continued several times in light of, among other arguments, the Appellants' constitutional challenges to the mandatory minimums in 21 U.S.C. § 841(b)(1)(A)(iii). In December 2008, the district court imposed a life sentence on Fenner. Davis received a sentence of 151 months' imprisonment and five years' supervised release. Davis had a prior state conviction for first-degree criminal sexual conduct, and the district court also imposed sex-offender and/or mental-health treatment as a condition of his supervised release. This appeal followed.
II. Discussion
A. Prosecutorial misconduct in grand jury proceedings
Fenner and Davis assert that the Government made a deliberate misstatement *1021 of fact to the grand jury. At the end of the Government's presentation of evidence, a grand juror asked: "On all of these instances, were these substances tested and found to truly be fentanyl, heroin or crack cocaine?" The case agent who was testifying then discussed field tests of the substance obtained during the second controlled buy and efforts to identify it as fentanyl. The prosecutor followed up by asking: "But to answer your question, these things have all been tested now and it is what we say it is?" The case agent responded: "Yes, everything's been tested." The exchange concluded with the grand juror asking additional questions concerning the potency of fentanyl.
The Government has acknowledged that only field testing had been conducted on the drugs at the time of the grand jury proceedings on July 13, 2006. It is undisputed that the cocaine seized throughout the investigation field-tested positive for cocaine and resembled crack, including the hard, rocky substance seized from Fenner upon his June 23 arrest. However, lab results, reported in August after the grand jury proceeding, proved that substance seized from Fenner at the time of his arrest was powder and not crack cocaine. It is also undisputed that lab results confirmed the remaining cocaine seized was crack cocaine, which would include the more than sixty grams seized during the first controlled buy on May 11, as well as the 120 grams seized from Hargrove following the aborted fourth controlled buy on June 23, and the 28.5 grams from Hargrove's bedroom.
Defense counsel received notice of the lab results and later obtained transcripts of the grand jury proceedings. On the day of trial, Fenner and Davis moved to dismiss the indictments as to the crack-related charges (Counts 1, 2, 5, and 7 of the original indictment), asserting the Government deceived the grand jury into thinking all the substances had been "truly tested" when they had not been. The Government countered, and maintains on appeal, that the case agent made an innocent misidentification of the single drug exhibit and that, because the defendants were in custody on a complaint, the Government had only thirty days to indict and could not wait on the lab results. The district court denied the motions to dismiss, and it granted a Government motion to amend Count 7 of Fenner's indictment to read possession with intent to distribute powder cocaine on June 23, 2006, instead of crack cocaine. At trial, a DEA agent explained to the petit jury that officers initially thought the substance seized from Fenner at his arrest was crack cocaine, based on its appearance, but that the results later showed it to be powder. Following conviction on all charges, the defendants renewed their objections in motions for a new trial, which the district court denied.
"[G]rand jury proceedings are afforded a strong presumption of regularity, and a defendant seeking to overcome that presumption faces a heavy burden." United States v. Hintzman, 806 F.2d 840, 843 (8th Cir.1986). Dismissal is an "extreme remedy," United States v. Two Eagle, 318 F.3d 785, 793 (8th Cir.2003), and is inappropriate absent a showing of actual prejudice. United States v. Wilson, 565 F.3d 1059, 1070 (8th Cir.2009). We hesitate here to label the well-explained and potentially innocent misstatement as misconduct. However, even if we were to assume prosecutorial misconduct occurred, it is well-established that a petit jury's guilty verdict normally renders errors in the grand jury proceedings harmless. See, e.g., Wilson, 565 F.3d at 1064, 1069-70; United States v. Pumpkin Seed, 572 F.3d 552, 556-57 (8th Cir.2009) (in sex abuse prosecution, error was harmless even if special agent's testimony deceived grand jury into believing that defendant was source of semen and pubic hair found on *1022 victim's rape kit, when lab results, only available after the indictment, later proved him not to be); United States v. Sanders, 341 F.3d 809, 818-19 (8th Cir.2003) (absent race discrimination in choosing grand jury, guilty verdict meant defendant was guilty as charged beyond a reasonable doubt). As discussed below, the subsequent trial was not so infected by prejudicial error to persuade us to depart from this general rule.
B. Prosecutorial misconduct at trial
Fenner also argues that, along with the alleged misconduct in front of the grand jury, prosecutorial misconduct at trial cumulatively deprived him of due process and rendered the evidence insufficient to convict him as to Counts 1 and 2.
To obtain a reversal based on prosecutorial misconduct to which there was proper objection, a defendant must show that (1) the prosecutor's remarks or conduct were improper, and (2) the remarks or conduct affected the defendant's substantial rights so as to deprive him of a fair trial. If the remarks were improper, we determine whether they deprived the defendant of a fair trial by examining the cumulative effect of the misconduct, the strength of the properly admitted evidence of the defendant's guilt, and any curative actions taken by the trial judge.
United States v. New, 491 F.3d 369, 377 (8th Cir.2007) (internal citations omitted).
Fenner makes several intertwined arguments concerning misconduct during the Government's direct examinations. We find them to be without merit. First, Fenner makes several broad accusations that the Government used leading questions on direct examination of its key witnesses. We observe that although Federal Rule of Evidence 611(c) generally discourages the use of leading questions on direct, it is not automatically improper for the prosecutor to ask such questions or for the district court to permit their use. See Fed.R.Evid. 611(c). The plain language of the rule allows leading questions, for example, as necessary as to develop a witness's testimony. Id.; see also United States v. Reddix, 106 F.3d 236, 238 (8th Cir.1997). Simply put, the trial judge has wide latitude in permitting leading questions because he or she is in the best position to determine the need for them. See, e.g., United States v. Schepp, 746 F.2d 406, 410 (8th Cir.1984).
Even assuming impropriety in the phrasing of some of the Government's questions, upon review the transcripts, we cannot agree with Fenner that "eventually all . . . objections were overruled" or that the Government "was allowed to lead crucial witnesses insistently." By our count, Fenner's attorney objected eight times during the Government's case in chief as to the form of specific questions as leading: three times during the first informant's testimony and five times during Hargrove's. In all but two instances, the district court sustained the objections and the government rephrased. On these facts, we cannot say Fenner was prejudiced by the use of leading questions. See Schepp, 746 F.2d at 410 (holding court did not abuse its discretion in permitting use of leading question where defendant's counsel objected three times during the government's examination of its key witness); Reddix, 106 F.3d at 238 (same).
Fenner also claims the Government misused transcripts of the recorded conversations during its direct examinations of the confidential informants. The transcripts themselves were not admitted into evidence and they were appropriately used before the jury at trial.[6] His argument on *1023 this point comes down to additional assertions, made without citation to the record, that the Government posed leading questions and that the Government "convert[ed] the witnesses into experts on what Mr. Fenner was doing or intending" by asking them to explain slang terms and give their interpretations of what Fenner and other co-conspirators said on the tape recordings. This line of questioning was not improper. The informants had participated in the conversations and their explanations at trial were based on their perceptions. See United States v. Scott, 243 F.3d 1103, 1107 (8th Cir.2001) (stating that in a case where the jury heard audio tapes of intercepted calls, "[a] district court does not abuse its discretion in admitting testimony by a [co-conspirator] witness with firsthand knowledge as to his understanding of words used by the defendant or other conspirators.").
Fenner next alleges impropriety in the way the Government handled the difference between powder and crack cocaine. He argues that the Government generally tried to manipulate the jury into thinking that no difference existed between crack and powder cocaine and capitalized on their unawareness of the disparity in sentencing between the two forms of the drug.[7] More specifically, he cites several exchanges that allegedly show the Government prompted the first informant and Hargrove to answer "crack cocaine" when it needed that answer to support its case as to the crack cocaine conspiracy and distribution charges. Upon review of the transcripts, we disagree with this characterization.
Typically, if a witness responded in a non-specific manner as to the type of drug being discussed, the Government posed follow-up questions to specify the type of cocaine. It was not improper to ask for clarification on these facts. Fenner was charged with offenses related to both forms of cocaine. The jury also had to determine whether the conspiracy involved fifty or more grams of crack cocaine. Additionally, as Fenner observes, his defense both to the crack cocaine conspiracy and May 11 distribution charges was that he was only involved with fentanyl and powder cocaine, but not crack. Therefore, the jury had to keep track of the type of cocaine discussed at any given time in order to competently assess these issues. To the extent that the Government failed on occasion to clarify a non-specific response, we cannot detect from the record an attempt to confuse the jury or a corresponding need to supply answers to faltering witnesses. Finally, we observe that in at least one exchange Fenner cites, the clarified answer indicated Fenner's involvement with powder instead of crack cocaine, which tended to support his theory of the case.
*1024 Fenner also alleges the Government inaccurately cross-examined him with statements he made during the proffer session and misstated the law during its rebuttal closing argument by allegedly "advanc[ing] a substitute theory of conviction that Mr. Fenner was guilty of crack because powder can turn into crack." Even if we viewed this conduct as improper, we do not believe Fenner was deprived of a fair trial given the strength of the evidence against him. See United States v. Eagle, 515 F.3d 794, 806 (8th Cir.2008).
As laid out above, there was ample evidence to establish that Fenner conspired to distribute fifty or more grams of crack cocaine. We note that although Fenner was never caught with any crack cocaine on him, "jury verdicts may be based solely on the testimony of conspirators and cooperating witnesses." United States v. Jones, 559 F.3d 831, 835 (8th Cir.2009). Hargrove's testimony established that he and Fenner distributed crack cocaine together from the time Hargrove moved to Minnesota in November 2005, continuing after Davis joined them in January 2006 until their respective arrests. The second informant confirmed that prior to the controlled buys marking the beginning of the charged conspiracy, he discussed buying crack cocaine with Davis while Fenner was present. Two of the controlled buys themselves involved crack cocaine, totalling well beyond the required fifty grams. Fenner participated directly in one of these controlled buysthe first one on May 11, 2006with Davis. Some twenty-eight grams were found in Fenner's home, and even though it was found in Hargrove's bedroom, Hargrove testified that it came from Fenner.
There is similarly strong evidence against Fenner as to the May 11 controlled buy. The informant testified Fenner gave him the phone number to set up the buy. Fenner is heard on several recorded phone calls prior to the deal. Fenner discussed cooking powder cocaine into crack cocaine with the informant, and on one call, Fenner said he would cook the crack himself. In another call between the informant and Davisin which the informant testified he ordered crackDavis confirmed that he was with Fenner. Fenner was the one who eventually told the informant where to meet. Surveillance video showed Fenner and Davis arriving together in Fenner's vehicle. Fenner waited for Davis while Davis met with the informant to conclude the deal. While in the car with the informant, Davis also discussed problems cooking crack. In light of this evidence, we have little trouble concluding that Fenner was not prejudiced by any alleged incidents of prosecutorial misconduct.
C. Constitutional challenges to the mandatory minimum sentences in 21 U.S.C. § 841(b)(1)(A)
Fenner and Davis moved the district court to declare the mandatory minimums in 21 U.S.C. § 841(b)(1)(A)(iii) on Fifth Amendment grounds. Fenner also challenged his sentence on Eighth Amendment grounds. The district court, after continuing sentencing several times, ultimately rejected these arguments, and we affirm.
Fenner and Davis, who are both African American, renew their arguments that the 100:1 crack-to-powder cocaine ratio used to calculate the statutory mandatory minimums disproportionately impacts African-Americans, violating equal protection.[8] They assert that the assumptions underlying the minimums have been discredited *1025 and that a consensus exists that these mandatory minimums can no longer pass constitutional muster, as evidenced by the amendment of the Sentencing Guidelines to reduce the disparity, the introduction of Congressional bills to do the same, and the Supreme Court's decisions in Kimbrough v. United States v. 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) and subsequent cases. We review de novo constitutional challenges to a statute. United States v. Watts, 553 F.3d 603, 604 (8th Cir.) (per curiam), cert. denied, ___ U.S. ___, 130 S. Ct. 141, 175 L. Ed. 2d 92 (2009). We have recently rejected similar arguments regarding the five-year mandatory minimum in 21 U.S.C. § 841(b)(1)(B). Watts, 553 F.3d at 604-05; United States v. McClellon, 578 F.3d 846, 861-62 (8th Cir.), cert. denied, ___ U.S. ___, 130 S. Ct. 1106, ___ L.Ed.2d ___ (2010). The mandatory minimums in § 841(b)(1)(A) do not violate equal protection. See id. (discussing circuit case law); United States v. Alexander, 301 Fed.Appx. 580, 580 (8th Cir.2008) (unpublished per curiam) (holding the ten-year mandatory minimum in 21 U.S.C. § 841(b)(1)(A) constitutional).
Fenner also renews his Eighth Amendment challenge, arguing that imposing a life sentence would amount to cruel and unusual punishment. He again asserts that a growing consensus exists that disparity in sentencing between crack and powder cocaine disproportionately punishes African Americans. The district court, citing our decision in United States v. Whiting, 528 F.3d 595 (8th Cir.) (per curiam), cert. denied, ___ U.S. ___, 129 S. Ct. 443, 172 L. Ed. 2d 320 (2008), determined that the mandatory life sentence was not grossly disproportionate. Whiting, 528 F.3d at 597. We agree. In light of the quantity of drugs involved and Fenner's five felony drug convictions, we reject his Eighth Amendment challenge. Id. at 597; United States v. Williams, 534 F.3d 980, 986 (8th Cir.2008) ("Our circuit precedent upholding the constitutionality of life sentences imposed under § 841(b)(1)(A) mandates affirmance" where defendant convicted of conspiring to and possessing with intent to distribute more than fifty grams of crack cocaine and had two prior felony drug convictions); see also United States v. Whitehead, 487 F.3d 1068, 1070-71 (8th Cir.2007).
D. Special condition of supervised release
Finally, Davis argues that the district court erred by ordering, as a condition of supervised release, that he participate in and pay for "sex offender and/or mental health treatment." His pre-sentence report indicates that in 1995, Davis was found guilty of first degree criminal sexual conduct in a Minnesota court for raping a woman he met at bar. According to the pre-sentence report, Davis ordered her to perform oral sex at gun point, and then he and another individual raped her. Previously, he had pled guilty to misdemeanor domestic assault and violated his probation by failing to complete a domestic abuse program.
According to the pre-sentence report, Davis was imprisoned approximately eight years for the criminal sexual conduct conviction. The record does not clearly state whether the state court ordered him to enroll in a sex-offender treatment program as part of his sentence, but his pre-sentence report does state that he refused to undergo "treatment" while in prison. Davis was released in 2003, but supervision had not terminated at the time of the instant drug offenses. Davis is required to register as a sex offender under state and federal law for the sex offense. Records show that he was in compliance with the Minnesota registry. Finally, the pre-sentence report recites that Davis reported no history of mental health issues or prior mental health treatment.
*1026 Davis acknowledged at oral argument that he did not object to the condition at the district court, and we review for plain error. United States v. Kreitinger, 576 F.3d 500, 505 (8th Cir.2009). "Plain error occurs if the district court errs, the error is clear under current law, and the error affects the defendant's substantial rights." United States v. Conelly, 451 F.3d 942, 944-45 (8th Cir.2006). If a defendant shows prejudicial error in sentencing, we exercise discretion to correct it "only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Starfield, 563 F.3d 673, 674-75 (8th Cir.2009) (internal quotations and citation omitted). Applying this standard of review, we affirm.
A condition of supervised release must (1) be reasonably related to the statutory sentencing factors set forth in 18 U.S.C. 3553(a); (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in 3553(a); and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission. United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009). "A condition is reasonably related to the statutory factors if tailored to the `nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medicinal, or other correctional needs.'" Id. (quoting United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005)). However, we note at the outset that "it is not necessary for a special condition to be related to all the statutory factors, but rather they are to be weighed independently." United States v. Camp, 410 F.3d 1042, 1046 (8th Cir.2005). We have held that, in regard to mental health treatment specifically, the district court must have reason to believe the defendant is in need of it. Conelly, 451 F.3d at 945. Davis argues that the condition did not bear a reasonable relationship to the instant drug offenses and that there is no other evidence to suggest he was in of need the "sex-offender and/or mental health treatment."
We have previously addressed the imposition of sex-offender conditions for non-sexually related offenses. Davis urges us to rely on United States v. Scott, 270 F.3d 632 (8th Cir.2001), where we held that a district court abused its discretion in imposing special conditions of sex-offenders on a defendant who pleaded guilty for armed bank robbery. Id. at 636. The defendant had been convicted of forcibly raping and sodomizing his nine-year-old stepdaughter some fifteen years earlier, but no sex-offender-related conditions were imposed then or at his sentencing on the armed robbery charges. Id. at 633-34. It was not until the second time the defendant violated his supervised release on the armed robbery sentence that the district court considered the old sexual-offense conviction and imposed the sex-offender conditions. Id. The conditions were restrictive, preventing him, among other things, from possessing stimulating or sexually oriented material and from maintaining a post office box other private mail box. Id. at 634-35. We held that the conditions were not "reasonably related to the current offense" and that the conditions seemed unlikely to serve the goals of deterrence or public safety, since the behavior on which the special conditions were based had ceased. Id. at 636.
The Government maintains that Davis's case is closer to our decision in United States v. Smart, 472 F.3d 556 (8th Cir. 2006), where, also under an abuse-of-discretion standard of review, we affirmed the imposition of sex offender-related conditions on a defendant who had pleaded guilty of being a felon in possession of a *1027 firearm. Id. at 558-59. We distinguished the case from Scott, noting that the conditions were less restrictive and the sexual offenses were temporally closer to the imposition of sex-offender conditions of supervised release. Id. at 559. We also emphasized that Smart's "criminal history include[d] two sexual abuse offenses, that he was still on probation for the latest sexual abuse offense at the time that he committed the present [felon-in-possession] offense, and that he still has an outstanding warrant for a probation violation on the latest sexual abuse offense." Id. On these facts, we reiterated that the conditions need not directly relate to the instant offense and held they were "reasonably related to [the appellant's] history and characteristics and the need to protect the public from further crimes." Id.
In the present case, we decline to engage in precise line-drawing based on Scott and Smart. Although the sex-offender treatment does not relate to the drug offenses, it does relate to "another offense that the defendant previously committed." Smart, 472 F.3d at 559. We also observe the violence exhibited in the sexual offense itself and elsewhere in Davis's criminal history, Davis's history of refusing to participate in treatment, and the fact that supervised release had not terminated at the time of the instant drug offense. On these facts, we cannot say the district court imposed this conditions "on the basis of pure speculation or assumptions" unrelated to Davis's history and characteristics or his rehabilitative needs. See Kreitinger, 576 F.3d at 506 (internal quotation omitted). Finally, we note that this condition is not unduly restrictive of Davis's liberty. See Conelly, 451 F.3d at 944 (affirming imposition of special condition that required the defendant "attend, successfully complete, and pay for any mental health diagnostic evaluations and treatment or counseling programs"); United States v. Lee, 315 F.3d 206, 217 (3d Cir.2003) (requiring defendant who pleaded guilty to, inter alia, child pornography offenses to submit to random polygraph testing was not unduly restrictive of defendant's liberty).
In sum, under plain error review, we cannot discern any error as to the sex-offender treatment so obvious as to warrant correction, given that the facts here fall somewhat in between prior cases and the different standard of review utilized in them. Similarly, even assuming the district court obviously erred by imposing the possibility of mental health treatment without more in the record, the facts of this case do not suggest that failing to correct it would impugn the integrity of the judicial process.
Davis also contends that the special conditions were an improper delegation of authority to the probation officer, citing our decision in United States v. Kent, 209 F.3d 1073 (8th Cir.2000). We disagree. We have repeatedly held since Kent that there is no improper delegation where the district court does not disclaim ultimate authority for deciding the appropriateness of treatment. United States v. Wynn, 553 F.3d 1114, 1120 (8th Cir.2009) (collecting cases). Here, the phrase "as approved by the probation officer" does not indicate an abdication of responsibility, and nothing in the record suggests otherwise.
III. Conclusion
For the foregoing reasons, we affirm.
NOTES
[1] The Honorable Michael J. Davis, Chief Judge, United States District Court for the District of Minnesota.
[2] Fentanyl is a synthetic form of heroin, which according to trial testimony, can be twenty to fifty times more potent than the natural form of the drug. It is uncontested that the conspirators thought they were selling heroin rather than fentanyl.
[3] Hargrove was also present during the negotiations for the second buy, but did did not participate heavily in them.
[4] According to the second informant, prior to the controlled buys, Davis told him he could get either crack or powder cocaine. The informant testified Fenner was present during this discussion.
[5] The Government conceded to the district court that field testing can detect the presence of cocaine but cannot distinguish between the crack and powder forms.
[6] Fenner objected to the use of the transcripts in a motion in limine and at trial. Over these objections, the jury followed along with transcripts as they listened to the numerous taped conversations related to the controlled buys. The Government referred back to the transcripts at points to guide the informants' testimony concerning what was heard on tape. The transcripts were collected at the end of testimony. The district court also repeatedly instructed the jury that the tape recordings were the evidence and that any discrepancy between the tapes and the transcripts should be resolved in favor of what the jurors heard. We have found similar procedures permissible. Scott, 243 F.3d at 1107; see also United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir.1996).
[7] The district court gave the typical instruction that penalties are not for the jury's consideration. See, e.g., Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, § 3.12 (2009). We agree with the Government that any reference to sentencing would have been improper. See United States v. Delgado, 914 F.2d 1062, 1067 (8th Cir.1990) ("Punishment is within the province of the court.").
[8] To the extent Fenner continues to challenge the mandatory minimums on Fifth Amendment due process grounds, we reject this argument as well. United States v. Prior, 107 F.3d 654, 658-59 (8th Cir.1997). | 01-03-2023 | 03-31-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3343015/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The defendant Eddy Nelson Hernandez is charged in an information with four counts of capital felony in violation of Connecticut General Statutes 53a-54b(8) as well as three counts of murder in violation of 53a-54a of the Connecticut General Statutes. Count one alleges the murder of Sammy Calo, Jr. and David Valedon. Count two alleges the murders of Calo and Edwin Villafane. Count three alleges the murders of Valedon and Villafane. Count four alleges the murders of all three of these individuals.
The defendant has moved to dismiss counts one, two, and three of the information dated January 11, 1993 pursuant to the5th, 6th, and 14th Amendments to the United States Constitution, Article I, Sections 8 and 9 of the Connecticut Constitution, Conn. Practice Book 815 and, alternatively, Conn. Practice Book 817 and 818.
Section 53a-54b(8), Conn. General Statutes, provides that a person is guilty of a capital felony who is convicted of murder of two or more persons at the same time or in the course of a single transaction. The defendant argues that the information should be dismissed because this statute is intended to include in a single count of capital felony those situations where it is alleged that a person intended to cause the death of and did cause the death of three people at the same time or in the course of a single transaction as in this case.
Additionally, the defendant asserts that the information violates the double jeopardy clause of the Fifth andFourteenth Amendments of the United States Constitution and Article First, Section 9 of the Connecticut Constitution.
This argument is not persuasive in the context of the issue raised with respect to the charges in the instant case since ". . . the role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." State v. Chicano, 216 Conn. 699, 726
(1990), quoting Brown v. Ohio, 432 U.S. 161, 165 (1977). Thus, CT Page 6043 if the defendant were to be tried upon the information as currently drafted and convicted on more than one of the first four counts of the information, the constitutional protection against double jeopardy would preclude multiple sentences. Chicano, 216 Conn. 699, at pgs. 714, 725; see also Ball v. United States, 470 U.S. 856, 864 (1985).
It is the opinion of this court, however, that the defendant's argument with respect to the impropriety of charging four counts of capital felony (C.G.S. 53a-54b(8)) is meritorious when multiplicity is considered.
An indictment on information is multiplicitous when the same offense is charged in multiple counts of the indictment on information. A. Paul Spinella, Connecticut Criminal Procedure, 427 (1985). In the instant case the same offense (Capital Felony C.G.S. 53a-54b(8)) is charged four times naming alleged victims in various combinations. This is multiplicitous pleading of the same charge.
The statute in question, Conn. General Statutes 53a-54b(8), provides "a person is guilty of capital felony who is convicted of murder of two or more persons at the same time in the course of a single transaction." Clearly, this statute contemplates and is applicable to simultaneous or single transaction multiple murders as alleged in this case.
While the information under consideration is multiplicitous, this conclusion is not a basis for dismissal. Conn. Practice Book 817. However, the judicial authority ". . . shall order such relief as is required to remedy such defect. . .". Conn. Practice Book 818.
Accordingly, the court orders the state to charge the defendant with a single count of capital felony (C.G.S.53a-54b(8)) in addition to the three counts of murder (C.G.S.53a-54a).
THE COURT:
Ronan, J. CT Page 6044 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3345503/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
On July 9, 1991, the plaintiff, Mildred M. Andersen, filed a writ, summons and complaint against defendants, Michael Smart and Hertz Corporation, in connection with an accident between plaintiff's husband, Waldo G. Andersen (hereinafter decedent) and defendant Smart. The complaint was filed by plaintiff both individually and as executrix of her husband's estate. Pursuant to defendant's request to revise, plaintiff filed a four count amended complaint on January 2, 1992.
The first and second counts are brought by plaintiff in her capacity as executrix of decedent's estate. The first count states that on the afternoon of August 7, 1989, a vehicle owned by defendant Hertz and operated by defendant Smart collided with the rear of decedent's vehicle. Plaintiff alleges, inter alia, that the collision occurred due to the carelessness and negligence of defendant Smart. Plaintiff claims that decedent was severely injured in the collision and died as a result of such injuries on June 4, 1990. The second count is factually similar to the first CT Page 1280 count and states, inter alia, that defendant Smart acted deliberately and with reckless disregard in operating the vehicle in an unlawful manner.
The third and fourth counts are brought by plaintiff in her individual capacity. The issue presently before the court concerns the loss of consortium claims contained in counts three and four. Both of these counts sound in postmortem loss of consortium. On January 13, 1992, defendants filed motion #108 to strike these counts on the grounds that neither common law nor statutory law authorize or permit plaintiff's claim for postmortem loss of consortium. The issue asserted by this motion to strike is whether defendants' motion to strike plaintiff's claim for postmortem loss of consortium should be granted where no such cause of action existed in either common or statutory law at the time decedent spouse was injured, despite a Public Act that provided for such cause of action which became effective after the accident causing death, but before decedent spouse actually died from his injuries.
"`A motion to strike challenges the legal sufficiency of a pleading.'" Westport Bank Trust Co. v. Corcoran. Mallin
Avesco, 221 Conn. 490, 495, 605 A.2d 862 (1992). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Id.
The defendants acknowledge a plaintiff's right to recover for loss of consortium occurring between a decedent spouse's injury and his death where such claim is a derivative of a wrongful death action. However, defendants cite Ladd v. Douglas Trucking Co.,203 Conn. 187, 523 A.2d 1301 (1987), for the proposition that postmortem loss of consortium claims are not available to plaintiff.
In response, plaintiff points to the adoption of Public Act 89-148, codified as General Statutes 52-555a — 52-555d, which specifically recognizes a cause of action for loss of consortium by one spouse due to the death of the other spouse. Plaintiff states that since the act applies to all causes of action arising on or after October 1, 1989, it is applicable to the case at bar because decedent died on June 4, 1990.
The defendants contend that the act does not apply because the cause of action involved here arose on August 7, 1989, the date of the accident. Further, defendants argue that the substantive CT Page 1281 rights of the parties were fixed as of that date. Defendants claim that the statute relied on by plaintiff did not become effective until October 1, 1989, and therefore, plaintiff cannot rely on that act as giving her a legally sufficient cause of action for the recovery of damages for postmortem loss of consortium.
The legislature, in response to the Ladd v. Douglas Trucking decision, took the initiative to provide for a statutory cause of action for postmortem loss of consortium. See House Debate, p. 4862-4863, May 3, 1989; Senate Debate, p. 1919-1920, May 10, 1989. This initiative resulted in the passage of Public Act 89-148 (General Statutes 52-555a — 52-555d). Thus, while both antemortem and postmortem claims for loss of consortium seek to achieve related goals, they are founded on different principles; the former is a judicially created common law derivative cause of action while the latter is a recently adopted statutory right.
"To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further." (Citations omitted). Ralto Developers, Inc. v. Environmental Impact Comm'n.,220 Conn. 54, 60, 594 A.2d 981 (1991). The sections which apply to the case at bar are as follows:
Section 52-555a. Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse shall be separate from and independent of all claims or causes of action for the determination of damages with respect to such death.
Section 52-555b. Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse, which claim or cause of action may include, without limitation, claims for damages with respect to loss of the society of, affection of, moral support provided by, services provided by, sexual relations with or companionship of the other spouse, suffered because of the death of the other spouse, shall be brought with or joined with the claims and causes of action with respect to the death of the other spouse.
Section 52-555c. (a) No action with respect to any claim or cause of action for loss of consortium shall be commenced except within the time within which an action may be commenced with respect to the death of the other CT Page 1282 spouse in relation to which the action for loss of consortium arises.
(b) Any claim or cause of action for loss of consortium by one spouse arising out of the claim or cause of action for the wrongful death of the other spouse shall be contingent upon proof of facts sufficient to establish recovery for the claim or cause of action for wrongful death. Nothing in sections 52-555a — 52-555d, inclusive, shall limit the assertion of any defenses against the claim or cause of action for loss of consortium that would be available against the claim or cause of action for wrongful death.
General Statutes 52-555a — 52-555c. All of these sections became effective October 1, 1989, and are applicable to all causes of action arising on or after that date. Id. As of October 1, 1989, the wrongful death statute is no longer the only means to recover damages resulting from a decedent's wrongful death. In fact, sections 52-555a — 52-555d create a right to recover for postmortem loss of consortium in the spouse individually.
"In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm." (Citation omitted). Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 563 A.2d 1100
(1989). "Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the [defendants'] conduct caused such injury." (Citations omitted). Id. The substantive rights of the parties are fixed at this time. Id., 520-521.
While it is true that if the decedent were alive, his cause of action would generally arise when the injury was reasonably discovered (the time of the accident in the case at bar); it is not true that a wrongful death action also arises at that time.
One cannot claim that an action for postmortem loss of consortium could arise any earlier than the time the decedent spouse is pronounced dead. The injury to the plaintiff arose when she lost her husband. Only at this time could plaintiff have suffered actionable harm with respect to postmortem loss of consortium. Thus, her substantive rights with respect to the cause of action were fixed as of that date. On the date plaintiff lost her husband, there existed a substantive right to recover damages for postmortem loss of consortium. CT Page 1283
The legislature has created a specific statutory scheme designed to insure a surviving spouse's right to recover for postmortem loss of consortium, and this right became actionable on October 1, 1989. One who has lost a spouse due to the wrongful act of another may rely on the statutory right to bring an action for postmortem loss of consortium if the decedent spouse died on or after October 1, 1989.
Thus, defendants' motion to strike counts three and four of the amended complaint is denied.
So Ordered.
Dated at Stamford, Connecticut this 2nd day of February, 1993.
WILLIAM BURKE LEWIS, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/8304609/ | McAMIS, J.
This is a suit to collect a commission of five per cent alleged to be due for the sale of a farm belonging to the defendants Pyles and wife. The case originated before a Justice of the Peace for Cumberland County where judgment was rendered for the plaintiff and, on appeal, the Circuit Judge, sitting without a jury, rendered a judgment for $75.
*603By their appeal defendants Pyles and wife have renewed here their insistence: (1) that the listing contract had expired before negotiations with the purchaser began; (2) the plaintiff breached the listing contract by attempting to sell the property for more than the list price; (3) the sale was not the product of plaintiff’s efforts; and (4) the suit should be held barred because plaintiff was not a legally licensed real estate broker.
On May 6, 1949, defendants entered into a written contract with plaintiff to sell their farm for $3,500 for a commission of five per cent. The listing was to run for a period of 90 days “and thereafter until terminated by — days written notice.”
Within 90 days plaintiff advertised the farm for sale in a local newspaper and showed it to a number of prospective purchasers. He was unable to make a sale to any of these prospects though he was still carrying on negotiations with one of them at the time the ultimate purchaser, James V. Crockett, became interested in the property. Defendants both testified that near the end of the 90 day period plaintiff inquired of them whether they desired to renew the listing and that, upon receiving a negative reply, plaintiff promised to tear up the contract if he failed to sell it within 90 days. This is denied by plaintiff who testified, without contradiction, that after Crockett became interested, W. H. Pyles expressly promised to pay commissions'if a sale should be consummated to Crockett. In our view of the case it is unnecessary to resolve the dispute as to whether plaintiff agreed to destroy the contract at the end of 90 days.
Within a few days after the expiration of the initial 90 day period, Crockett came to Crossville from another county to buy a farm in Cumberland County. According to Crockett’s testimony, he learned that plaintiff was a *604real estate agent and visited Ms office to see what farms, if any, lie had listed for sale. Plaintiff thereupon took Crockett and his companion, Mitchell, to see two other farms which he had listed at the time and, finally, showed them over defendants’ farm. Defendants were at home at the time and knew that plaintiff was showing the farm to Crockett. Defendants did not know Crockett and he did not know them or that they had a farm for sale until Crockett was brought to the farm by plaintiff. As indicated, plaintiff’s testimony that they promised to pay him in event of a sale is undenied and it is clearly to be inferred from all the circumstances that defendants acquiesced in plaintiff’s efforts to produce a purchaser after the expiration of the 90 day period.
Crockett returned to the farm the following' Sunday and continued negotiations with defendants. About 10 days later, in the absence of plaintiff, defendants completed the sale by the execution and delivery of a deed conveying the farm to Crockett at the list price of $3,500.
Pretermitting the question of whether or not plaintiff orally agreed to terminate the contract at the end of 90 days and, if so, whether, in view of the provision for written notice of termination, such an oral understanding would be binding on plaintiff, we hold that defendants impliedly renewed the contract by accepting plaintiff’s efforts and services and agreeing to pay commissions in event of a sale to the prospect originated by him. Nunmerous cases could be cited sustaining the rule that where a provision in a brokerage contract provides for termination at a fixed time the contract will be deemed renewed and the termination provision waived where the principal has recognized that the broker is continuing negotiations looking to a sale or requests that he do so. Annotations 26 A. L. R. 800; 140 A. L. R., 1023.
*605Though not involving a real estate listing contract ohr own case of Ryan v. Reed Air Filter Co., 11 Tenn. App. 472, is in accord. In that case Ryan had a contract with the defendant Reed Air Filter Co. for the sale of defendant’s goods in a certain territory to run for a period of one year. After the expiration of the time limit fixed by the contract and after the agent had corresponded with the principal, the agent effected a sale of goods in his territory. The suit was to recover the contract commission on the theory of an implied renewal of the terms of the original contract. After citing numerous authorities, the opinion sums up the holding of the court as follows:
"It follows that, the contract having been renewed by implication for another year, according to its terms, 30 days’ written notice was required for the termination of the contract, and the second order having been given and accepted before the 30 days had expired, Ryan is entitled, as a matter of course, to commissions on both orders, and the assignments of error on these propositions must be overruled. ’ ’
We think this a sound and just rule and that it is properly applicable to cases involving real estate brokerage contracts such as here involved.
We are unable to follow the argument that plaintiff should be denied recovery because he breached the listing contract by attempting to sell the property for $3,800 instead of $3,500, the list price. Plaintiff denies that he made such an attempt but if made it was not, in our opinion, a breach of the contract. Some courts hold that where a real estate broker, after failing to sell the property at the list price, induces the ultimate purchaser to believe that the property could be bought for less, there is a breach of the fiduciary relationship which, as a matter of law, bars any recovery by the broker. See interesting *606and instructive discussion of the question in Vanderbilt Law Review of February, 1951, (Vol. 4, issue No. 2). We bave not been cited to any authority, however, holding the converse situation to deprive the broker of commissions and, in our opinion, to so hold would be unsound and out of harmony with common experience and the practices usually followed by real estate commission agents. If the broker had succeeded in securing more than the list price, the principal would have been the beneficiary of his efforts and there would have been no complaint. It is well known that this is an artifice for effecting a sale at the list price by appearing to reduce the price for the benefit of the prospective purchaser. We can see in the practice no abuse of confidence nor any breach of duty owing the principal.
Under the circumstances outlined we think it is clear that the plaintiff broker produced a purchaser able, willing and ready to buy though negotiations were concluded in his absence by defendants. The rule is that if a broker is employed to sell property and he first brings the property to the notice of the ultimate purchaser, and upon such notice the sale is effected by the owner, the broker is entitled to commission. Royster v. Mageveney, 77 Tenn. 148.
Defendants’ plea that plaintiff was not a legally licensed real estate broker presented an affirmative issue as to which the burden of proof was upon them. Morton v. Imperial Realty Co., 133 Tenn. 681, 182 S. W. 230; Rugg v. Green, 2 Tenn. App. 406, 408.
It is true that Code Section 1713 provides that the term of the bond required of real estate brokers shall not exceed five years and that plaintiff testified that he executed the required bond more than five years before the transaction in question. However, there is, no proof *607that a renewal bond had not been executed within five years and the undisputed proof is that plaintiff had been paying each three months the license fee required. The County Court Clerk of Cumberland County testified that he was a legally licensed real estate broker and there is no proof to the contrary.
We find without merit the insistence that evidence that plaintiff paid his license fee quarterly instead of annually amounts to an affirmative showing that he was not legally licensed. Code, Section 1248.2, expressly provides for quarterly payment of fees and renewal of licenses when the statute levying the tax does not expressly require payment for a full year. Code, Section 1718 applying to real estate brokers does not expressly require payment on an annual basis.
We find no error and it results that the judgment must be affirmed with costs.
Hale and Howard, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1607106/ | 100 So. 2d 181 (1958)
Mary Beeman PHILP, Appellant,
v.
Mary Elgin TRAINOR, and G. Ben Fishback, as trustee, Appellees.
No. 264.
District Court of Appeal of Florida. Second District.
February 7, 1958.
Rehearing Denied February 24, 1958.
Smith & Tipton, Walter E. Smith, Orlando, for appellant.
Maguire, Voorhis & Wells, Raymer F. Maguire, Orlando, for appellee, Mary Elgin Trainor.
Fishback, Williams, Davis & Dominick, Orlando, for appellee, G. Ben Fishback.
ALLEN, Judge.
This is an appeal from a final decree entered in an action by Mary Beeman Philp against Mary Elgin Beeman (now Mary Elgin Trainor) and G. Ben Fishback, as trustee, to have a certain assignment of trust funds by plaintiff to defendant Beeman set aside, which decree upheld the assignment and dismissed the suit.
The appellant assigns the following points of law as involved on the appeal:
1. Whether or not Mary Beeman Philp had the right to assign the income of the Harry L. Beeman trust.
2. Whether or not plaintiff's motion to strike the pleading of estoppel in defendant's answer should have been granted.
3. Whether or not defendant Mary Elgin Trainor proved by competent substantial evidence that Mary Beeman Philp was estopped from questioning the validity of the assignment dated April 1, 1952, in which Mary Beeman Philp as beneficiary of the Harry L. Beeman Trust assigned one-half of the trust income of said trust to Mary Elgin Trainor, not to exceed the sum of $9,000.00 in any one year if plaintiff's proffered exhibit "G" was admissible in evidence.
*182 4. Whether or not Mary Elgin Trainor was estopped from claiming the trust income of the Harry L. Beeman Trust assigned to her by Mary Beeman Philp as beneficiary of said trust under assignment of December 20, 1943, and the assignment of April 1, 1952.
Questions 2, 3, and 4 are important in this appeal only if the lower court was in error in holding that the trust income involved in this appeal was assignable. We are of the opinion that the lower court should be affirmed so we will not further allude to points 2, 3, and 4 hereinabove set forth.
This Court is of the opinion that the only parts of the Beeman trust that may be applicable in consideration of this case are as follows:
"Whereas, The said Trustor is the owner and holder of Five Thousand Eight Hundred and Ninety-nine (5899) shares of the Capital Stock of the Beeman Investment Company, a Florida Corporation, and is desirous to make a provision and settlement for the benefit of Mary Beeman, a minor of Orange County, Florida, now aged six years, by a conveyance in Trust of the property hereinafter described, subject, however, to the restrictions, trusts and powers herein contained:
"Whereas, No consideration was given by said Trustee for the designation of it as Trustee but that it has been so designated so that it may receive, collect and disburse all payments made to it as Such Trustee and to manage and administer the trusts, uses and benefits hereinafter specified. The real consideration of this instrument being the love and affection Trustor herein bears for Mary Beeman, minor, grand-daughter and only child of Edwin P. Beeman, deceased, his son.
* * * * * *
"* * * to collect, receive and disburse the proceeds therefrom for the term of this Trust, and to apply the same in its full and uncontrolled discretion for the use and benefit of the said Mary Beeman, minor, for and during her natural life and to the heirs of her body at her death, if such there be. Should she die without issue during the life of her Mother, Mary Elgin Beeman, shall then become the beneficiary of this Trust Estate on the same terms for her life and to the heirs of her body at her death.
"Should the said Mary Elgin Beeman die without such issue, or should she predecease Mary Beeman, minor, who should then die without issue then this estate shall descend to the lawful heirs of Trustor, herein according to Florida Laws of Descent and Distribution.
* * * * * *
"For the term that said Mary Beeman shall remain under legal age the Trustee shall pay over to her legal guardian, or to Trustor herein, the net income received as it may determine, and the receipt of either shall be sufficient acquittance and release of said Trustee for sums so paid. Authority is hereby given said Trustee to regulate the expenses of the beneficiary hereunder so as to provide for proper maintenance of the property and the corpus of this Trust; pay the expense, legal and otherwise, incident to its protection and administration, and to set up, if necessary, in its sound discretion, a reserve fund for the education and any unusual need that might arise. However, the Trustee shall at all times pay over monthly, if convenient, if not all the net income, a sum sufficient for the needs, comfort and maintenance of the beneficiary in the style she has been accustomed, or according to the means in hand."
The General Master, in his report, said in part as follows:
"The language of the Trust Indenture clearly discloses the intention of the Trustor. There is no occasion to *183 resort to parole evidence to ascertain what his intention was. It is clear from the language above quoted from the Trust Indenture that the interest of the beneficiary, Mary Beeman, in the income of the trust during her life time is not limited to her needs for support. The mere expression of the motive of the Trustor to create a trust for her support would not prevent the beneficiary from assigning her interest or her creditors from reaching it. Where the whole of the income is to be paid to the beneficiary or applied to his use, his interest is alienable even though the settlor provides that the trust is created for the support of the beneficiary, unless the settlor manifested an intention that the interest of the beneficiary should not be alienable. The Trust Indenture clearly discloses that it was trustor's intention that the entire net income of the trust should be applied or paid for the use and benefit of Mary Beeman for and during her natural life, and to the heirs of her body at her death, if such there be. The Trustee is directed to apply the whole of the net income for the use of Mary Beeman and not just so much thereof as is necessary for the support of the beneficiary. * * * It is clear from this language that for the term that Mary Beeman shall remain under legal age the Trustee is required to pay to her legal guardian, or to the Trustor, the entire net income of the Trust, and that the receipt of either shall be a sufficient acquittance and release of the Trustee for sums so paid. The discretion vested in the Trustee relates to which of the two persons he shall pay the income, the Trustor or the legal guardian. He has no discretion as to the amount but must pay the entire net income. The second sentence in the paragraph giving the Trustee authority to regulate the expenses of the beneficiary is strictly limited to the accomplishment of stated objectives. These objectives are: `to provide for proper maintenance of the property and the corpus of this Trust, pay the expenses, legal and otherwise, incident to its protection and administration, and to set up, if necessary, in its sound discretion, a reserve fund for the education and any unusual need that might arise.' Immediately following this enumeration of powers given the Trustee is the following sentence: `However, the Trustee shall at all times pay over monthly, if convenient, if not all the net income, a sum sufficient for the needs, comfort and maintenance of the beneficiary in the style she has been accustomed, or according to the means in hand.' The sentence last quoted when considered in the light of the authority given the Trustee by the sentence immediately preceding it, clearly discloses that the last sentence was intended not to curtail the interest of the beneficiary but rather to enlarge it by requiring the Trustee to so exercise the authority given by the preceding sentence that there be paid over monthly, if convenient, if not all the net income, a sum sufficient for the needs, comfort and maintenance of the beneficiary in the style she has been accustomed. The last sentence in no way cuts down or limits the absoluteness of the requirement that sooner or later the entire net income of the trust during Mary Beeman's life time be applied to her use:"
A restraint on alienation may be defined as a provision in a trust or other instrument which, either by express terms or by implication, purports to prohibit or penalize the use of the power of alienation. The trusts usually involved are spendthrift, discretionary, and support trust.
American Law Institute in its Restatement of the Law of Trusts, Sections 154 and 155, states:
*184 "§ 154. Trusts for Support.
"Except as stated in §§ 156 and 157, if by the terms of a trust it is provided that the trustee shall pay or apply only so much of the income and principal or either as is necessary for the education or support of the beneficiary, the beneficiary cannot transfer his interest and his creditors cannot reach it.
"Comment:
"a. Trust for support distinguished from spendthrift trust. A trust containing such a provision as is stated in this Section is a `trust for support' and is to be distinguished from a spendthrift trust. In a trust for support it is the nature of the beneficiary's interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary's interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trustee to pay anything to him, because the beneficiary could not compel payment or compel application in any way except for the restricted purpose set out in terms of the trust.
* * * * * *
"c. Where amount limited to education and support. The rule stated in this Section is applicable where by the terms of the trust the amount to be paid to or applied for the beneficiary is limited to so much of the income or principal as is in fact necessary for his education or support. The application of this Section is not dependent upon the use of any particular form of words in the terms of the trust.
* * * * * *
"d. Where amount not limited to education and support. The rule stated in this Section is not applicable where the amount to be paid or applied by the trustee is a specified sum or is not limited to what is necessary for the education and support of the beneficiary, although by the terms of the trust it appears that the settlor's motive in creating the trust is to provide for the education or support of the beneficiary. If by the terms of the trust the trustee is under a duty to pay to the beneficiary or to apply for his benefit the whole or a fixed part of the income or principal or a fixed amount from the income or principal, although it is expressed that the payments or applications are for the education or support of the beneficiary, and although the amount is no more than is reasonable for his education and support, the beneficiary can transfer his interest and his creditors can reach it, except so far as a valid provision for forfeitures for alienation or restraint on alienation has been imposed as stated in §§ 150, 152 and 153.
"Illustrations:
"3. A transfers Blackacre to B in trust `to pay over to C yearly the net profits or income for the better support and maintenance of said C'. C is entitled to the entire income during his life and can transfer his interest and his creditors can reach it.
"4. A bequeaths $100,000 to B in trust to pay the income to C `to be for her comfort and support.' C is entitled to the entire income during her life and can transfer her interest and her creditors can reach it.
"§ 155. Discretionary Trusts.
(1) Except as stated in § 156, if by the terms of a trust it is provided that the trustee shall pay to or apply for a beneficiary only so much of the income and principal or either as the trustee in his uncontrolled discretion shall see fit to pay or apply, a transferee or creditor of the beneficiary cannot compel the trustee to pay any part of the income or principal.
* * * * * *
*185 "Comment on Subsection (1):
"a. Discretionary trust distinguished from spendthrift trust. A trust containing such a provision as is stated in this Section is a `discretionary trust' and is to be distinguished from a spendthrift trust, and from a trust for support. In a discretionary trust it is the nature of the beneficiary's interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary's interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trustee to pay anything to him because the beneficiary could not compel payment to himself or application for his own benefit.
"b. Rule applicable only if payment discretionary. The rule stated in this Section is applicable only where the trustee may in his absolute discretion refuse to make any payment to the beneficiary and to apply any of the trust property for his benefit.
"It is not applicable where the trustee has discretion merely as to the time of payment, and where the beneficiary is ultimately entitled to the whole or to a part of the trust property.
"If by the terms of the trust the trustee must pay to or apply for the beneficiary the whole or any part of the income or principal, the interest of the beneficiary can be reached by his transferee or creditor, unless the trust is a spendthrift trust (see §§ 152, 153) or a trust for the support of the beneficiary (see § 154)."
Bogert in his work on "Trusts and Trustees", Sec. 221, page 460 states the rule as to a discretionary trust thus:
"To meet this situation solicitors employed the discretionary trust. They gave property to a trustee to pay or apply the income for the benefit of a cestui in the uncontrolled discretion of the trustee, seeking thus to make the interest of the cestui so vague as to be practically of no value to creditors of the cestui. In these trusts, where the discretion was so wide that it gave the trustee the privilege of paying or applying something or nothing, it has been held that a creditor of the cestui cannot compel the trust to pay or apply the income in any particular way; that the creditor has no right to any money which the trustee elects to apply for the cestui, although he may reach the fruits of the application in the hands of the cestui, if they are tangible; but that, if the trustee elects to pay money to the cestui, the right to such money is alienable, voluntarily or involuntarily, by the cestui que trust. If the trustee's discretion is narrower and he must pay all or a particular part of the income to the cestui, but may use his judgment about the time of payment, the creditors of the beneficiary can compel the trustee to pay the cestui's share of income to them."
Additional definitions of restraining trusts are given under the title "Trusts" in 54 Am.Jur. §§ 148, 162 and 163, as follows:
"§ 148. In a broad sense, a spendthrift, support, or other similarly protective trust is one created to provide a fund for the maintenance of the beneficiary and at the same time to secure it against his improvidence or incapacity. In a narrower and more technical sense, a spendthrift trust is one that restrains either the voluntary or involuntary alienation by a beneficiary of his interest in the trust, or which, in other words, bars such interest from seizure in satisfaction of his debts. The name `spendthrift trusts' is poorly descriptive, since no spend thriftiness or profligacy of a beneficiary is requisite to, or open to inquiry in determination of, the existence of such a trust.
"While spendthrift trusts are usually regarded as inclusive of all trusts *186 which bar creditors from reaching a beneficiary's interest, they are, in strict legal nomenclature, to be distinguished from other trusts seeking to protect a trust estate against the grantees, transferees, or assignees of a beneficiary, in that a spendthrift trust operates through the mechanism of a restraint pertaining to an existing trust, whereas other protective trusts protect against alienation and liability for debts of a beneficiary of his interest in the trust by providing for a termination or forfeiture of the trust estate, for discretion in a trustee as to the outgo of benefits from a trust estate to beneciaries, or other similar devices."
"§ 162. A trust protective against the grantees or assignees and against the creditors of a beneficiary by virtue of a provision vesting discretion in the trustee to determine the time, amount, or manner of payments to a beneficiary generally is recognized to be valid, * * * The discretion of the trustee may relate to payments for support and maintenance, but the fact that a trustee has a discretion to apply so much of the income as may be necessary for the support of the beneficiary and for other purposes does not remove the trust funds from liability for debts of the beneficiary, if the trustee has no right to exclude the beneficiary from the benefit thereof."
"§ 163. It is generally recognized that a trust may validly protect the interest of a beneficiary against his grantees or assignees and against his creditors by limiting the nature of his interest to that which is necessary for his support and education, although a limitation of benefit of a trust to support and education does not in itself necessarily evidence an intention to exclude alienation by the beneficiary or the liability of his interest for his debts. The protection of a trust for support as against grantees and creditors of the beneficiary results from the nature of the interest of the beneficiary rather than from a direct prohibition of alienation by the terms of the trust. Such a trust is sometimes called a spendthrift trust, although ordinarily it is not so regarded, and is distinguished from a true spendthrift trust.
"Immunization from grantees or creditors of the beneficiary is effected where the trust res is real estate and the beneficiary is authorized to use it and to take so much of the profits as he needs for decent and comfortable support."
In Trask v. Shaffer, 1940, 140 Pa.Super. 505, 14 A.2d 211, 212, in a case where the lower court had found that the trust was a spendthrift trust, the trust instrument contained this provision:
"This fund to be established on the basis that this heir * * * receive the annual income earned by it, and in addition $200 annually from the principal sum of the fund, or more if, in the judgment of the officers of the trust, such increase in the amount paid is needful and advisable. * * *."
The Superior Court reversed the lower court, saying:
"The difficulty with defendant's position is that there is not a word in the will itself to substantiate the court's finding that `the trust fund established * * * by the will * * * is a spendthrift trust.' * * * `While under the law of this commonwealth spendthrift trusts are not regarded with disfavor, yet they are not looked upon with such special favor as warrants the courts in construing a trust to pay the income of a fund to the testator's son for life, without more, to be a spendthrift trust.' And a trust will not be construed of the spendthrift kind, unless the language of the instrument, by which it is created, warrants that construction. While the will or deed often expressly exempts the trust fund from *187 the claims of the creditors of the beneficiary, yet any language which calls for that conclusion is sufficient. In the instant case, however, the will contains no suggestion that the trust fund shall be exempt from the beneficiary's creditors or that he had any creditors, except the testatrix, or that he was improvident.' To which pertinent language we may add that if the trust in question is to be construed as a spendthrift trust, it is difficult to conceive of one that is not. See also In re Shoup's Estate, 31 Pa.Super. 162."
In the case of In re Keeler's Estate, 1939, 334 Pa. 225, 3 A.2d 413, 415, 121 A.L.R. 1301, the Court held the following paragraph did not restrain alienation of the income.
"During the time the said money shall be on interest for the use of my said grand-daughter Lizzie Bartholomew said interest or such portion thereof shall be paid to her or used for her support or education and maintenance so as to make her comfortable in life, said amount so to be used to be determined by said Trustee."
The Court, in its opinion, said:
"Even if we resolve all ambiguities so as to interpret the intent of the testator most favorably to the contentions of appellant, the provisions of the will cannot be held to constitute, in any technical or exact sense, a spendthrift trust. Such a trust exists where there is an express provision forbidding anticipatory alienations and attachments by creditors. Here there are no such restrictions. The present trust is a so-called `trust for support' and, although sometimes loosely referred to as a spendthrift trust, differs from it in essential features which must not be overlooked if confusion as to its legal attributes and qualities is to be avoided. In a trust for support the limitation of the power of alienation arises only by implication from the nature of the beneficiary's interest and the indicated purpose of the trust."
We find no intent on the part of the settlor of the Beeman trust to prohibit alienation of the income of the trust property by the cestui que trust. If the creator of the trust had desired to restrain the disposal of the income of the trust, he had only to write therein, inhibitory words. We find no power in the trustees that will permit them to deprive the beneficiary of all the income under this trust. We are of the opinion from an analysis of the texts and of the adjudicated cases, that the trust instrument involved in this case created neither a spendthrift trust, a support trust, nor a discretionary trust.
We are of the opinion that the lower court should be and it is affirmed.
KANNER, C.J., and SHANNON, J. concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607090/ | 7 So. 3d 541 (2009)
MARCHETTI
v.
EMPIRE BUILDERS OF COLLIER COUNTY, INC.
No. 2D08-2248.
District Court of Appeal of Florida, Second District.
April 29, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607099/ | 7 So. 3d 1107 (2009)
MINOR
v.
STATE.
No. 2D08-1536.
District Court of Appeal of Florida, Second District.
April 29, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607300/ | 366 So. 2d 1308 (1978)
STATE of Louisiana
v.
Chester J. ALLIEN.
No. 61979.
Supreme Court of Louisiana.
December 15, 1978.
*1309 Jack F. Owens, Jr., Reeves & Owens, Harrisonburg, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falkenheiner, Dist. Atty., William G. Avery, 1st Asst. Dist. Atty., for plaintiff-appellee.
CALOGERO, Justice.
Defendant, Chester J. Allien, was charged by bill of information with two counts of distribution of a controlled substance (marijuana) to persons under the age of eighteen in violation of R.S. 40:966 and R.S. 40:981(C). After a jury trial, he was convicted and sentenced to serve four years at hard labor. On this appeal of the conviction and sentence, defendant relies on seven assignments of error. Because we find reversible error in assignment seven, we find it unnecessary to consider the remaining assignments, other than the assignments three and five.
In assignment seven defendant argues that the trial judge erred in denying his motion for a new trial in which he contended that the state failed to present any affirmative evidence that the defendant committed the crime charged. He argues that the only evidence adduced at trial which even arguably related to his alleged commission of the crime was the before trial, out-of-court statements of two minor girls which were recanted at trial and the testimony of two deputies that the girls had in fact made the earlier out-of-court statements.
Under Article 5, § 5(C) of the Louisiana Constitution of 1974, the scope of this Court's appellate jurisdiction in criminal matters extends only to questions of law. An assignment of error based on the denial of a motion for a new trial which contends that there is no evidence of the crime charged does present a question of law which is subject to this Court's review. State v. Thompson, 366 So. 2d 1291 (La. 1978); State v. Williams, 354 So. 2d 152 (La. 1977). Because the basis for defendant's *1310 written motion for a new trial was that "the state failed to present any affirmative evidence," this issue is properly before the Court.
The testimony at trial revealed the following facts. Two minor teen-aged girls were arrested for shoplifting and possession of marijuana on December 29, 1976. In exchange for immunity from prosecution on both charges, they agreed to make statements revealing the source of the marijuana. One minor stated that she purchased a "bag" of marijuana from the defendant. In her statement the other minor asserted that the defendant had given her the two marijuana cigarettes found on her at the time of her arrest. When called by the state to testify at defendant's trial, each girl admitted that she had made an earlier statement implicating the defendant. However, each of them denied the truth of the respective statements. The first girl testified that she made the statement only because of pressure from the deputies and her family, while the second indicated that her statement was motivated by the offer of immunity from the charges of shoplifting and possession of marijuana. The trial judge found the girls to be hostile witnesses and allowed the state to impeach the in-court testimony with the prior inconsistent statements which implicated the defendant. There was no request from the defendant that a limiting instruction be given the jury. Each witness had admitted having made the earlier statement but testified that it was false, that defendant had not sold or given either of them the marijuana.
Louisiana Revised Statute 15:487 provides: "No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements." Although prior inconsistent statements may be used by a party to impeach his own witness, the effect of the prior inconsistent statement is limited by Louisiana jurisprudence. This Court has consistently held that a prior inconsistent statement of a witness cannot be admitted as substantive evidence of the truth of its content; the effect of its admissibility is limited to impeaching the credibility of the witness and his testimony. State v. Boyd, 359 So. 2d 931 (La.1978); State v. Williams, 331 So. 2d 467 (La.1976); State v. Rocco, 222 La. 177, 62 So. 2d 265 (1952); State v. Robinson, 52 La.Ann. 616, 27 So. 124 (1900); State v. Reed, 49 La.Ann. 704, 21 So. 732 (1897).
In State v. Barbar, 250 La. 509, 197 So. 2d 69 (1967), we recognized that allowing a prior inconsistent statement to go before a jury without limiting instructions is so highly prejudicial to the defendant that even absent a request for limiting instructions, it was reversible error for the trial judge not to caution the jury as to the statement's limited purpose. At the state's urging we re-examined Barbar in State v. Ray, 259 La. 105, 249 So. 2d 540 (1971), reaffirmed the rule that prior inconsistent statements are admissible only on the issue of credibility and not as substantive evidence, but concluded, at least for prospective application, that in the absence of a defense request a trial court's failure to give the instruction concerning the limited effect of the prior inconsistent statement would not constitute reversible error.
For these reasons, and because defendant here did not request the instruction or object to the court's failure to so instruct, defendant's assignments of error three and five by which defendant complained of the trial court's failure to charge the jury on the limited effect of prior inconsistent statements are without merit. There is no reversible error in the ordinary situation ascribable to a jury's entertaining the prior inconsistent statements and, without the limited effect instruction, giving weight to the substance of the prior statements.
Defendant's assignment seven, however, presents an entirely different question. May defendant's conviction be permitted to stand where the state's entire case consists of a pair of witnesses who testify under oath that (1) defendant did *1311 not sell or give them the marijuana, (2) they did indeed previously state that defendant had done so, and (3) those earlier accusations were false? A related question is whether under these circumstances it matters that defendant's attorney, as in this case, did not object to testimony concerning, and the introduction of, the prior statements, and did not request the limiting instruction.
Our answer to each of these two questions is in the negative.
Prior inconsistent statements simply do not constitute substantive evidence. This proposition is not undermined by State v. Ray, supra. That case did not hold the contrary, but rather simply held that a defendant will have to suffer the possible prejudice of a jury's considering the content of a prior inconsistent statement where his attorney, not asking for the instruction, may create a trap for the unwary judge to the prejudice of the fair and efficient administration of justice. In the ordinary case, unlike this one where there is no evidence implicating defendant independent of the prior inconsistent statement, the law will in effect suffer the risk of the jury's possibly crediting the state's case with supplemental evidence which ought not be substantively considered, for the reason that defendant's attorney has not availed himself of a limited effect instruction which is his for the asking.
Furthermore defendant cannot be assumed to have conceded the substantive use of the statement by failure to object to its introduction because a timely objection to its introduction would properly have been overruled. The statement was admissible, although admittedly for the limited purpose of impeachment.[1]
There is another state contention which we must address. Before introduction of the prior contradictory statements of the two young female witnesses, the state presented the testimony of Officers Tolar and Powell that they had quizzed the two young ladies and had been told by them that they had received the marijuana from the defendant. At that point there was no objection to this testimony by defense counsel. In the ordinary case hearsay evidence not objected to constitutes substantive evidence. 79 A.L.R. 2d 890-957; 29 Am.Jur.2d Evidence, § 494, p. 552; 30 Am.Jur.2d § 1103, p. 268. Nonetheless in a case such as this a defendant should not be convicted on the strength alone of the unobjected to testimony of the two police officers concerning accusatory prior statements of witnesses which are recanted by those same witnesses at trial. The hearsay in this case is much too unreliable[2] to serve as the exclusive evidence prompting the defendant's conviction simply on the strength of his failure to lodge a contemporaneous objection.
In addition the outset testimony of the police officers from the standpoint of the state's intentions was in reality impeachment testimony, for the state knew or suspected prior to trial, that these young girls were going to recant the earlier statements that they had given the police officers. As the evidence on the hearing for a motion for new trial indicates, Deputy Tolar and the Assistant District Attorney spoke with these young ladies and their relatives on the day before trial.[3] Not only did the girls at that conference not affirm that their earlier statements were true, but they vehemently *1312 protested having to testify in court inasmuch as they had been assured upon giving the earlier statements that they would not be called upon to testify (rather the information would simply be used to further the state's investigation of defendant's suspected criminal activities).
While not all jurisdictions agree on this question (see the contrary rule in In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954), cert, denied 348 U.S. 973, 75 S. Ct. 535, 99 L. Ed. 757, an opinion involving a proceeding to determine delinquency of a minor), there is significant authority for the position that unobjected to hearsay without more will not support a conviction. Glenn v. United States, 271 F.2d 880 (6th Cir. 1959); Pinkard v. United States, 99 U.S.App.D.C. 394, 240 F.2d 632 (Cir. 1956); People v. McCoy, 44 Ill. 2d 458, 256 N.E.2d 449 (1970); People v. Hines, 12 Ill.App.3d 582, 299 N.E.2d 581 (1973). Akin to these cases are the following in Texas and Georgia where it has often been held that hearsay evidence is without probative value even if admitted without objection; Germany v. State, 235 Ga. 836, 221 S.E.2d 817 (1976), and cases cited therein; Lumpkin v. State, 524 S.W.2d 302 (Tex. Crim.1975).
For a result similar to our own here, see also U. S. v. Biener, 52 F. Supp. 54 (E.D.Pa. 1943) in which the defense motion for arrest of judgment was granted when the state presented no evidence other than an impeaching statement. See also McCormick on Evidence, § 39, p. 78 (1954).
Even with respect to administrative proceedings where discerning application of evidentiary rules should not be as strict as in criminal casesalthough concededly the evidentiary standard is normally substantial evidence rather than some evidencethere have been decisions holding that hearsay evidence alone is not sufficient to support an administrative decision. See for example Lee v. Brown, 148 So. 2d 321 (La.App. 3rd Cir. 1963); William H. Van Vleck, Inc. v. Klein, 50 Misc. 2d 622, 271 N.Y.S.2d 64 (1966); In re Lendall's Case, 342 Mass. 642, 174 N.E.2d 422 (1961); Unemployment Compensation Board of Review v. Cooper, 25 Pa.Cmwlth. 256, 360 A.2d 293 (1976).
We thus hold (even more narrowly than some of the authorities cited hereinabove, for anything more would be dicta in this case) that unobjected to hearsay which is the exclusive evidence of a defendant's guilt of the crime or an essential element thereof, and where contradicted at trial by the sworn recantation of the out-of-court declarant, is no evidence at all. The instant inquiry thus is a question of law and within our criminal appellate jurisdiction.
Finding that the state presented no evidence that the defendant committed the crime charged, we conclude that defendant's conviction must be reversed. Moreover, the Supreme Court has held that the double jeopardy clause of the Fifth Amendment, which is applicable through the Fourteenth Amendment to state criminal trials, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), precludes a second trial once the reviewing court has found a total absence of evidence as to an essential element of the crime charged. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); see State v. Thompson, 366 So. 2d 1291 (La.1978), and State v. Liggett, 363 So. 2d 1184 (La.1978). Accordingly, we are also compelled to enter a judgment of acquittal in favor of the defendant.
Decree
For the foregoing reasons, defendant's conviction and sentence are reversed and set aside and the defendant is ordered discharged.
CONVICTION REVERSED; DEFENDANT ORDERED DISCHARGED.
SUMMERS, J., dissents.
SANDERS, C. J., and MARCUS, J., dissent and assign reasons.
SANDERS, Chief Justice (dissenting).
Article 5, Section 5(C) of the Louisiana Constitution (1974) limits the jurisdiction of this Court in criminal matters to questions of law. Hence, this Court does not pass *1313 upon the sufficiency of the evidence. When there is some evidence to sustain a conviction, no matter how little, this Court cannot review its sufficiency. It is only when there is no evidence at all of an essential element of the crime that this Court may as a matter of law set aside a conviction. State v. Williams, La., 339 So. 2d 728 (1976); State v. McDonell, 208 La. 602, 23 So. 2d 230 (1945); State v. Gani, 157 La. 231, 102 So. 318 (1924).
Here, the law enforcement officers arrested two teen-aged girls for shoplifting. Each of them was found in possession of a quantity of marijuana. After a promise of immunity from prosecution, they agreed to inform the officers of the source of the marijuana. They then orally and in writing stated that the defendant delivered the marijuana to them, giving the time, place, and circumstances.
Prior to trial, the Assistant District Attorney discovered that, despite the grant of immunity, he could not rely on their in-court testimony. Nonetheless, he proceeded to trial.
The State's first witness was Deputy Sheriff Jack H. Tolar. Without objection, he testified that he and Deputy Sheriff Rex Powell interviewed the girls after their arrest and each of them stated that they secured the marijuana from the defendant, Allien. [Tr. 47-48.]
Deputy Sheriff Powell was called, and he testified that each of the girls stated that they secured the marijuana from the defendant. [Tr. 59, 60.] This testimony was likewise admitted without objection. He also testified that the officers took written statements, and related the facts showing that the statements were voluntary.
The State then called the two girls. Each of them testified that they had made the statements attributed to them, but they were untrue.
The defense cross-examined all four witnesses, including the two girls.
Later, the State introduced evidence establishing that the substance was marijuana. It also introduced the written statement of each of the girls. The defense announced, "No objection." [Tr. 79.]
It can be seen from the recitation of facts that the precise question is whether the hearsay statements made by the two young girls, admitted as substantive evidence without objection, is some evidence that defendant delivered the marijuana to them. I think so.
Almost uniformly, courts hold that hearsay evidence admitted without objection can be considered and given its natural probative effect. Alone or in connection with other evidence, hearsay evidence may support a verdict or finding. See, e. g., Wainer v. Wainer, 210 La. 324, 26 So. 2d 829 (1946); Saulter v. Cousin, La.App., 294 So. 2d 251 (1974); Karcher v. American Service Mutual Insurance Co., La.App., 159 So. 2d 795 (1972); Chivers v. Couch Motor Lines, Inc., La.App., 159 So. 2d 544 (1964); Dafoe v. Grantski, 143 Neb. 344, 9 N.W.2d 488 (1943); 29 Am.Jur.2d, Evidence, § 494, p. 552; 30 Am.Jur.2d, Evidence, § 1103, p. 268; 88 C.J.S. Trial § 153, p. 299; McCormick on Evidence, § 54, p. 125 (2d ed. 1972).
A collation of decisions from all jurisdictions supporting the rule is set forth in 79 A.L.R. 2d 890.
The majority rule is correctly summarized in 30 Am.Jur.2d, Evidence, § 1103, pp. 268-269 as follows:
"Although hearsay evidence may, as a rule, be incompetent and inadmissible to establish a fact, such incompetency and inadmissibility may be waived by failure to object thereto, in which case it is almost uniformly held that it may be considered, if relevant, and may be given probative, or its natural probative, effect, as if it were in law competent evidence. Accordingly, it has been held that hearsay evidence which would be inadmissible if objected to but which is admitted without objection may properly be considered by the trier of facts, and that it should be considered by the trial court in passing upon a motion for a directed verdict, a motion to set aside a verdict for insufficiency of evidence, or a motion for nonsuit. Hearsay evidence which has been admitted *1314 without objection has also been held entitled to consideration by an appellate court in support of the trial court's findings, and in support of a verdict or judgment of conviction in a criminal case."
In his treatise on evidence (§ 54, pp. 125-126), McCormick formulates the applicable rule as follows:
"The incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding."
The probative-value rule is stronger in the present case, because the individuals who made the statements appeared as witnesses and were subject to defense cross-examination. See Stevens v. Mirakian, 177 Va. 123, 12 S.E.2d 780 (1941); A.L.I. Model Code of Evidence Rule 503(b); Uniform Rules of Evidence Rule 63.
In my opinion, the majority's postulation that a timely objection to the admission of the statements would properly have been overruled since the statements were admissible for impeachment purposes is in error. The record discloses that the statements were introduced as substantive evidence beginning with the State's first witness. The State laid no prior impeachment foundation. See LSA-R.S. 15:493.
Under accepted constitutional doctrine, there is no denial of confrontation here, since the individuals who made the statements appeared as witnesses and were subject to cross-examination. See Nelson v. O'Neill, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222 (1971); California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).
The majority has apparently adopted the rule followed by only two states, Georgia and Texas, that hearsay evidence, even when admitted without objection, is no evidence at all. Apart from being a weak minority position, the holding is contrary to our own jurisprudence. See Wainer v. Wainer, supra; Saulter v. Cousin, supra; Chivers v. Couch Motor Lines, Inc., supra; Gray v. Great American Indemnity Company, supra.
The majority relies upon State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960) and a series of decisions involving administrative proceedings. These decisions are inapposite. In each of them, the court was vested with jurisdiction to review the facts to determine whether there was "sufficient evidence" or "substantial evidence." In none of these decisions was the court governed by the no-evidence rule.
For the reasons assigned, I respectfully dissent.
MARCUS, Justice (dissenting).
The testimony of Officers Tolar and Powell that the two young ladies had told them that they had received the marijuana from defendant was not objected to. Hearsay evidence not objected to constitutes substantive evidence. Certainly, this is "some" evidence to support defendant's conviction, the extent of our appellate review. Accordingly, I respectfully dissent.
NOTES
[1] Although not essential to our resolution of the legal issue here, we deem it worth noting that counsel for defendant was not oblivious during trial to the deficiency in the state's case, nor completely mute insofar as alerting the trial judge to that deficiency (which counsel ultimately presented in his post-trial no evidence motion). Unable to move for a directed verdict in this jury trial (La.Code Crim.Pro. art. 778 as amended by Acts 1975 No. 527 § 1) counsel did, following the testimony of the two principal witnesses, move that the case be dismissed "due to the state's failure to go forth."
[2] Inherently untrustworthy and insubstantial is how the Supreme Court of New Mexico described it in State v. Romero, 67 N.M. 82, 352 P.2d 781 (N.M.1960).
[3] A transcript of this conference was introduced at the hearing on the motion for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607512/ | 21 So. 3d 170 (2009)
Sean P. McCANN, Appellant,
v.
Hillary A. CRUMBLISH-McCANN, Appellee.
No. 2D08-6227.
District Court of Appeal of Florida, Second District.
November 13, 2009.
*171 Mark S. Howard and Laura H. Howard of Mark S. Howard, P.A., Tampa, for Appellant.
No appearance for Appellee.
LaROSE, Judge.
Sean McCann appeals a nonfinal order awarding $1500 per month in temporary alimony to his wife, Hillary Crumblish-McCann. He contends that the trial court failed to make specific findings about the wife's needs and his ability to pay. He also claims that the trial court incorrectly imputed $1000 in monthly income to him. We affirm, in part, and reverse, in part.
Trial courts have broad discretion to award temporary alimony. See Driscoll v. Driscoll, 915 So. 2d 771, 773 (Fla. 2d DCA 2005). Where competent, substantial evidence demonstrates need and ability to pay, we will not reverse for absence of statutory findings in the written order. See id.; Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d DCA 2001); see also Gonzalez v. Gonzalez, 834 So. 2d 291, 292 (Fla. 3d DCA 2002) (holding specific findings not necessary where record adequately supports amount awarded).
The trial court imputed income of $1000 per month to the husband because his mother provides rent-free housing. The husband argues that there is no evidence as to the value of the housing or that the free housing will continue. See Meighen v. Meighen, 813 So. 2d 173, 176 (Fla. 2d DCA 2002); Rogers v. Rogers, 824 So. 2d 902, 903 (Fla. 3d DCA 2002). However, the mother's testimony that she was not charging anything for housing is sufficient evidence of ongoing free rent. The husband's financial affidavit also listed his monthly rent expense as $1000. The record contains ample evidence to support the imputation of income.
The husband also argues that the temporary award exceeds his ability to pay. His financial affidavit reflects monthly gross income as $3113. After taxes, his net income is $2733.34. Adding the imputed income raises his net income to $3733.34. The husband's affidavit reflects monthly expenses, including rent, as $3994.14; this leaves a $260.80 deficit, before paying any support for the wife or children. We note that the husband's monthly expenses include over $1332 for payments on a new Corvette and for another vehicle, a Tahoe.
Our review of the husband's financial information establishes that even without the automobile payments, the husband, facing a $1500 per month temporary alimony *172 payment, would still have a several-hundred-dollar monthly deficit. Thus, the temporary award exceeds his ability to pay. See Hotaling v. Hotaling, 962 So. 2d 1048, 1051 (Fla. 2d DCA 2007) (holding trial court abused discretion in ordering temporary support that virtually exhausted husband's income); Barclay v. Barclay, 554 So. 2d 1191, 1192 (Fla. 2d DCA 1989) (holding award exceeded ability to pay with $5666 gross earnings and $3278 mortgage payments leaving $2388 before paying $2500 alimony and child support); De Luca v. De Luca, 722 So. 2d 947, 948 (Fla. 3d DCA 1998) (finding abuse of discretion in ordering husband to pay alimony and child support in excess of net income).
We reverse and remand with instructions to determine a reasonable amount of temporary support for the wife.
NORTHCUTT and VILLANTI, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607325/ | 7 So.3d 1162 (2009)
In re Andrew Charles ENGOLIO.
No. 2009-B-0193.
Supreme Court of Louisiana.
May 5, 2009.
*1164 ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Andrew Charles Engolio, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Engolio, 05-0648 (La.3/16/05), 896 So.2d 984.
UNDERLYING FACTS AND PROCEDURAL HISTORY
The ODC filed two sets of formal charges against respondent, consisting of a total of sixteen counts of misconduct. The two sets of formal charges were considered by separate hearing committees before being consolidated by the disciplinary board, which then filed in this court a single recommendation of discipline encompassing both sets of formal charges.
06-DB-071
Count I
In January 2002, Adelle Robinson hired respondent to handle her Chapter 7 bankruptcy. Respondent filed the bankruptcy petition in February 2002 and attended the creditors' meeting in March 2002. Thereafter, over the period of one year, respondent failed to communicate with Ms. Robinson.
In October 2002, Ms. Robinson filed a complaint against respondent with the ODC. Respondent failed to file a written response. However, he did appear for a sworn statement.
The ODC alleged that respondent's conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.
Count II
In July 2001, John Robert Jones, Jr. hired respondent to handle his divorce. Respondent collected a $700 fee. Respondent filed the petition for divorce and an amended petition for divorce but did not obtain the judgment of divorce, despite Mr. Jones' numerous requests to do so. Respondent also failed to communicate with Mr. Jones. Consequently, in July 2003, Mr. Jones discharged respondent and requested a refund of the fee he paid. Mr. Jones also hired a new attorney, who obtained the judgment of divorce in August 2003. Respondent refunded the unearned fee to Mr. Jones in October 2003.
In April 2003, Mr. Jones filed a complaint against respondent with the ODC. Respondent failed to file a written response. However, he did appear for a sworn statement.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 8.1(c), 8.4(a), and 8.4(d) (engaging in conduct prejudicial *1165 to the administration of justice) of the Rules of Professional Conduct.
Count III
In April 2001, Shirley Barnes hired respondent to handle her divorce and community property settlement, paying him $700. She informed respondent that her husband was incarcerated and would not contest the divorce. Respondent filed the petition for divorce in June 2001. Thereafter, Ms. Barnes spoke with respondent twice, but otherwise respondent failed to communicate with her despite her repeated telephone calls. In September 2002 and January 2004, respondent informed Ms. Barnes he had been unable to serve her husband even though he was still in jail. In March 2004, attorney David Lambert, on behalf of Ms. Barnes, requested that respondent refund the $700 to Ms. Barnes. Respondent failed to do so and did not provide an accounting.
In June 2004, Ms. Barnes filed a complaint against respondent with the ODC. Although he filed a written response to the complaint, respondent failed to appear for a sworn statement despite being personally served with a subpoena.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5 (fee arrangements), 1.16(d) (obligations upon termination of the representation), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.
Count IV
In January 1999, respondent agreed to represent Robert Garcia in five collection matters. Respondent took possession of Mr. Garcia's original documents and agreed to forward copies of the documents to Mr. Garcia. In March 1999, respondent informed Mr. Garcia that he had filed the requested lawsuits and requested that Mr. Garcia reimburse him for the filing costs. In late 1999, respondent informed Mr. Garcia that he was no longer handling new lawsuits as he was focusing on bankruptcy matters. Mr. Garcia believed respondent would continue to represent him in the five collection matters, but respondent neglected the matters. Respondent also failed to communicate with Mr. Garcia. Furthermore, he failed to provide Mr. Garcia with his original documents, making it difficult for him to obtain new counsel.
In August 2004, Mr. Garcia filed a complaint against respondent with the ODC. Respondent failed to file a written response and did not appear for a sworn statement despite being personally served with a subpoena.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.15(a) (safekeeping property of clients or third parties), 1.16(d), 8.1(c), 8.4(a), and 8.4(d) of the Rules of Professional Conduct.
Count V
In March 2004, Elliot Marigny, III, hired respondent to handle his bankruptcy. At the time, respondent was employed by the law firm of Derren S. Johnson & Associates. Mr. Marigny paid respondent a total of $666. Respondent filed the Chapter 13 bankruptcy petition on March 26, 2004. The creditors' meeting was scheduled for May 12, 2004. On June 1, 2004, the bankruptcy court denied the confirmation for failure to establish a payment plan. During the representation, Mr. Marigny unsuccessfully attempted to contact respondent on several occasions. When he received the bankruptcy dismissal order, Mr. Marigny again tried to contact respondent for an explanation, but respondent failed to communicate with him. Furthermore, Mr. Marigny paid funds to respondent for his mortgage and Chapter 13 plan, but the funds were misappropriated. The law firm of Derren S. Johnson & Associates eventually reimbursed Mr. Marigny $666.
*1166 In August 2004, Mr. Marigny filed a complaint against respondent with the ODC. Respondent failed to file a written response and did not appear for a sworn statement despite being personally served with a subpoena.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.
Count VI
In April 2003, Joel Tally hired respondent to obtain a temporary restraining order ("TRO") against his neighbor. He paid respondent an $800 fee. Respondent filed the TRO in August 2003 and later amended it. The defendant was served, and a court date was set. However, respondent removed the case from the docket without the client's consent or knowledge and failed to reschedule the hearing. In October 2004, Mr. Tally discharged respondent and requested, in writing, the return of his file and all attorney's fees. Respondent failed to return any unearned fees or the file.
In December 2004, Mr. Tally filed a complaint against respondent with the ODC. Respondent failed to file a written response and did not appear for a sworn statement despite being personally served with a subpoena.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct.
Count VII
In October 2004, Rhonda Billoups hired respondent to handle a separation of property agreement, paying him $500. Thereafter, respondent neglected the matter and failed to communicate with Ms. Billoups. In January 2005, Ms. Billoups discharged respondent and made a written demand for the return of the $500. Respondent failed to refund any unearned fees. Respondent also failed to respond to the complaint filed against him by Ms. Billoups with the ODC.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.
Count VIII
Respondent worked in the New Orleans office of the law firm of Derren S. Johnson & Associates. Beginning in January 2004 and continuing through January 30, 2005, respondent directed the firm's clients to pay legal fees directly to him, then failed to perform the requested work. He also accepted funds from clients to be forwarded to the Chapter 13 Trustee but diverted the payments to himself. Respondent further misappropriated fees held in trust to be forwarded to the Clerk of Court as filing fees. Through communication with the law firm, respondent admitted that he misappropriated $13,118 in client payments.
In February 2005, the law firm filed a complaint against respondent with the ODC. Respondent failed to appear for a sworn statement despite being personally served with a subpoena.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5, 1.15, 1.16(d), 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Count IX
On March 16, 2005, this court placed respondent on interim suspension. Nonetheless, on March 22, 2005, respondent fax filed a second amended petition for damages in the matter entitled Ollie Doucette v. Alice Bremer and Patterson *1167 Insurance Company, No. 495,210 on the docket of the 19th Judicial District Court, on behalf of his client, Ollie Doucette. The ODC forwarded the disciplinary complaint in this matter to respondent at multiple addresses, but he failed to respond.
The ODC alleged that respondent's conduct violated Rules 5.5 (engaging in the unauthorized practice of law), 8.1(c), 8.4(a), and 8.4(d) of the Rules of Professional Conduct.
Count X
In August 2004, Lucien and Bobbie Watkins hired the law firm of Derren S. Johnson & Associates to handle their Chapter 13 bankruptcy. Their file was assigned to respondent, who filed a petition for bankruptcy on their behalf. Their Chapter 13 plan was confirmed. Respondent directed them to make their mortgage payments to the law firm, which they did. However, in January 2005, their mortgage company filed a motion to lift the bankruptcy stay, claiming the Watkins had failed to make their mortgage payments. When the Watkins received the motion, they attempted to contact respondent, who failed to communicate with them. The Watkins were forced to obtain new counsel to file a motion to reinstate the stay.
The firm terminated respondent's employment in late January 2005 and recovered its company vehicle from him. The firm found the Watkins' file inside the vehicle. The file contained the Watkins' mortgage payments for September 2004 to January 2005.
The ODC forwarded numerous notices of the disciplinary complaint in this matter to respondent at multiple addresses. Nonetheless, respondent failed to respond. Furthermore, the ODC was unable to personally serve respondent with a subpoena to obtain his sworn statement.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5(f)(6) (failure to refund an unearned fee), 1.15, 1.16(d), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Count XI
In December 2003, Jan Skrzypczynski hired respondent to handle his divorce, paying him $680. Respondent did not file the petition for divorce until January 2005. In March 2005, Mr. Skrzypczynski unsuccessfully attempted to contact respondent. Respondent also failed to obtain a judgment of divorce, and Mr. Skrzypczynski was forced to obtain new counsel to complete the divorce proceeding.
In April 2005, Mr. Skrzypczynski filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, and the ODC was unable to serve him with a subpoena to obtain his sworn statement.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct.
Count XII
In May 2005, after respondent was placed on interim suspension, he accepted $500 from Scott Mosbey to prepare incorporation documents for two of Mr. Mosbey's companies. Respondent failed to inform Mr. Mosbey that he was unable to practice law. Thereafter, Mr. Mosbey learned that respondent was suspended. He also called the Louisiana Secretary of State's office and learned that respondent had not filed the incorporation documents on his behalf. Mr. Mosbey requested that respondent refund the $500, but respondent failed to do so.
In June 2005, Mr. Mosbey filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.
*1168 The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5, 1.16(d), 5.5, 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Count XIII
In April 2005, after respondent was placed on interim suspension, he introduced himself to Ron Bimes as an attorney employed with the New Orleans law office of Derren S. Johnson & Associates. Soon thereafter, Mr. Bimes requested that respondent conduct legal research on his behalf. Mr. Bimes paid respondent a fee but later learned that respondent was interimly suspended. Mr. Bimes requested a refund of the fee, but respondent failed to provide the refund.
In June 2005, the ODC became aware of respondent's actions and initiated an investigation. However, respondent failed to cooperate with the ODC in the investigation, and the ODC was unable to serve respondent with a subpoena to obtain his sworn statement.
The ODC alleged that respondent's conduct violated Rules 5.5, 8.1(c), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.
Count XIV
In 2004, Randy Wells hired respondent to handle his divorce and community property settlement, paying him $1,100. Respondent informed Mr. Wells that he filed the petition for divorce and obtained the judgment of divorce. Mr. Wells obtained a copy of the judgment of divorce from respondent. Later, Mr. Wells learned from the Family Court of East Baton Rouge Parish that the judge's signature on the judgment of divorce was a forgery. The judgment was not signed by any of the judges elected to the family court, and there was no record of a signed judgment in the case.
In July 2005, one of the judges of the Family Court of East Baton Rouge Parish filed a complaint against respondent with the ODC. Respondent failed to respond, and the ODC was unable to serve him with a subpoena to obtain his sworn statement.
The ODC alleged that respondent's conduct violated Rules 1.4, 1.5, 4.1 (truthfulness in statements to others), 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Formal Charges
In November 2006, the ODC filed fourteen counts of formal charges against respondent as set forth above. Respondent was served with the formal charges via certified mail. However, he failed to answer, and accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the committee's consideration.
Hearing Committee Report
After considering the ODC's deemed admitted submission, the hearing committee submitted the following written report:
The captioned matter was submitted to this hearing committee for review, discussion, and report. By conference call on Thursday, November 8, 2007, the committee discussed the substance of the documentation provided by the Disciplinary Counsel concerning Mr. Engolio. After review of the materials included and discussion among committee members, it was unanimously concluded that the motions and recommendations of the Disciplinary Counsel be adopted by this committee. The committee is in complete agreement with regard to the findings and the recommended discipline *1169 and sanctions as suggested by Disciplinary Counsel.[[1]] The committee chair has been authorized to sign this report on behalf of each committee member.
Neither respondent nor the ODC filed an objection to the hearing committee's recommendation.
07-DB-079
Counts I & II
In May 2003, Gregory Brisco hired respondent to handle a personal injury matter. Respondent informed Mr. Brisco that he had filed legal documents on his behalf when, in fact, he had not. Respondent did not file the petition for damages on behalf of Mr. Brisco until May 2004. Thereafter, Mr. Brisco tried to contact respondent via telephone, but respondent would not return his calls. When Mr. Brisco arrived at respondent's office for scheduled appointments, he was told respondent was not there. In December 2004, respondent informed Mr. Brisco that his personal injury matter had settled and that he should expect a settlement check in two weeks. However, when respondent received the $6,000 settlement check, he failed to remit to Mr. Brisco his portion of the funds. Instead, he negotiated the check with Mr. Brisco's forged endorsement on it and converted the entire $6,000 to his own use. Consequently, the Louisiana State Bar Association's Client Assistance Fund reimbursed Mr. Brisco $4,000 to replace the funds respondent converted.
In May 2005, Mr. Brisco filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.
The ODC alleged that respondent's conduct violated Rules 1.1 (failure to provide competent representation to a client), 1.3, 1.4, 1.5(a)(4) (failure to timely return an unearned/unreasonable fee), 1.15(a) (failure to hold client's property separate from lawyer's property), 1.15(d) (failure to notify client upon receipt of client funds), 3.2 (failure to make reasonable efforts to expedite litigation), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 4.1, 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Formal Charges
In November 2007, the ODC filed two counts of formal charges against respondent as set forth above. Respondent failed to answer the formal charges, and accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the committee's consideration.
Hearing Committee Report
After considering the ODC's deemed admitted submission, the hearing committee determined that the salient facts are *1170 deemed admitted. The committee made the following factual findings:
Respondent represented Mr. Brisco in a claim for injuries arising from an automobile accident. Respondent failed to provide information about the personal injury lawsuit, and when he did communicate with Mr. Brisco, he misrepresented the status of the lawsuit. In December 2004, respondent advised Mr. Brisco that the lawsuit had been settled and that Mr. Brisco could expect to receive settlement proceeds within two weeks. The defendants in the suit issued a check in the amount of $6,000 payable to Mr. Brisco and respondent. Respondent forged Mr. Brisco's endorsement on the check and cashed it on or about December 12, 2004, converting the entire amount to his own use. The Louisiana State Bar Association's Client Assistance Fund eventually paid Mr. Brisco $4,000 as a result of the conversion. Respondent also failed to have the documents to dismiss Mr. Brisco's lawsuit properly executed. The defendants were required to file a motion to enforce the settlement or to dismiss the lawsuit. A hearing on the motion was held on December 12, 2005, but respondent failed to appear. Mr. Brisco represented himself, revealing that he had never received any portion of the settlement funds. Because the defendants proved that the settlement funds were paid, the lawsuit was dismissed. Respondent was served with the resulting disciplinary complaint by mail, but he failed to respond.
Based on these findings, the committee determined that respondent violated Rules 1.3, 1.4(a)(1) (promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required), 1.4(a)(2)(3)(4), 1.5(a)(4), 1.5(a)(8) (collecting an unreasonable fee), 1.15(a)(d), 3.2, 3.4(c), 4.1, 8.1(a)(b)(c), and 8.4(a)(b)(c)(d) of the Rules of Professional Conduct.[2] The committee also determined that respondent intentionally and knowingly violated duties owed to his client, the legal system, and the legal profession.
The committee found the aggravating factors of dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. The committee found no mitigating factors. Based on the ABA's Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.
Accordingly, the committee recommended that respondent be disbarred.
Neither respondent nor the ODC filed an objection to the hearing committee's recommendation.
06-DB-071 & 07-DB-079
Disciplinary Board Recommendation
After reviewing these consolidated matters, the disciplinary made the following findings:
In 06-DB-071, the board noted that the committee made no specific factual findings. Given that the matter was deemed admitted, the board adopted the factual allegations of the formal charges, with minor corrections to the dates of sworn statements and dates and locations of receipt of the initial complaints by respondent, as the factual findings in this matter. Based upon the factual findings and the evidence submitted in support thereof, *1171 the board found that respondent violated the Rules of Professional Conduct as charged.
In 07-DB-079, the board determined that the hearing committee's factual findings are not manifestly erroneous. The board agreed with the rule violations found by the committee but determined that the committee erred in failing to find a violation of Rule 1.1.
Based on the above findings, the board determined that respondent intentionally violated duties owed to his clients, the public, the legal system, and the legal profession. The board also determined that the amount of actual injury is great in that numerous clients lost their legal fees or bankruptcy fees or had their cases delayed, deemed abandoned, or dismissed. Furthermore, respondent converted the entire amount of Mr. Brisco's settlement. Ms. Derren Johnson, respondent's former employer, also discovered that he embezzled or converted more than $13,000 from her office and/or the firm's clients, and she made restitution to the affected clients. Respondent has failed to make restitution to her. Respondent also harmed the disciplinary system when he failed to answer complaints or appear for sworn statements.
In aggravation, the board found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, indifference to making restitution, and illegal conduct. The sole mitigating factor found by the board is the absence of a prior disciplinary record.
Turning to the issue of an appropriate sanction, the board cited Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, which states that permanent disbarment may be warranted when a lawyer engages in "repeated or multiple instances of intentional conversion of client funds with substantial harm." The board noted that respondent "converted client funds which were designated as client settlement funds, Chapter 13 bankruptcy plan payments, as well as unearned fees which were owed to numerous clients." Additionally, the board cited Guideline 8 of the permanent disbarment guidelines, which calls for permanent disbarment when a lawyer, following notice, engages in the unauthorized practice of law while suspended from the practice of law. The board noted that respondent engaged in the unauthorized practice of law after he was placed on interim suspension.
Accordingly, the board recommended that respondent be permanently disbarred.
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So.2d 444 (La.1992).
In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) *1172 does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.
In this consolidated and deemed admitted matter, the record reflects that respondent neglected numerous legal matters and failed to communicate with numerous clients. In addition, he failed to refund unearned fees and return client files upon termination of the representation, converted client funds to his own use, engaged in the unauthorized practice of law, and failed to cooperate with the ODC in its many investigations. In acting as he did, respondent violated the Rules of Professional Conduct as alleged in the formal charges.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984).
Respondent acted knowingly and intentionally and violated duties owed to his clients, the public, the legal system, and the legal profession. His conduct caused significant harm to his clients, many of whom were vulnerable victims seeking bankruptcy protection. He also harmed the legal system, the disciplinary system, and his former employer, Derren S. Johnson & Associates, who made restitution to many of the affected clients. The baseline sanction for this type of intentional misconduct is disbarment. Considering the numerous aggravating factors in this case, we see nothing which would cause us to deviate from that baseline sanction.
Having found respondent should be disbarred, the sole remaining issue for our consideration is whether respondent's misconduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the type of conduct which we believe might warrant permanent disbarment. See In re:. Yaeger, 05-0035 (La.3/18/05), 897 So.2d 571.
For purposes of the instant case, Guidelines 1 and 8 are relevant. Those guidelines detail the following conduct:
GUIDELINE 1. Repeated or multiple instances of intentional conversion of client funds with substantial harm.
GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
Guideline 1 is clearly implicated, as the record demonstrates respondent engaged in multiple instances of intentional conversion of client funds, causing substantial harm both to his clients and his former law firm. Furthermore, Guideline 8 is applicable, as respondent attempted to engage in *1173 the practice of law in blatant disregard of our order placing him on interim suspension.
Considering these guidelines, together with the indisputable evidence of respondent's fundamental lack of moral character and fitness, we can conceive of no circumstance under which we would readmit respondent to the practice of law. See In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503. Accordingly, we will accept the disciplinary board's recommendation and permanently disbar respondent.
DECREE
Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Andrew Charles Engolio, Louisiana Bar Roll number 22773, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from seeking readmission to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[1] In its deemed admitted submission on sanctions, the ODC argued that respondent acted intentionally, knowingly, and negligently in violating duties owed to his clients, the public, the legal system, the legal profession, and the disciplinary system. The ODC also argued that respondent caused "serious, substantial and egregious harm" to his clients, the public, the legal profession, and the legal system. For this misconduct, the ODC submitted that respondent should be permanently disbarred.
[2] The formal charges did not allege that respondent violated Rules 1.4(a)(1) and 1.5(a)(8). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3032115/ | FILED
NOT FOR PUBLICATION JAN 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOSESE MARAVOU; No. 07-72360
SITERI MARAVOU;
MEREWALESI ADIVUKIVU Agency Nos. A076-868-622
MARAVOU, A076-868-623
A076-868-624
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Mosese Maravou and his wife and adult daughter, natives and citizens of
Fiji, petition for review of the Board of Immigration Appeals’ (“BIA”) order
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
JK/Research
denying their motion to reopen removal proceedings. We have jurisdiction under
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the
petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely where the motion was filed over two years after the BIA’s final
decision, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to establish changed
circumstances in Fiji to qualify for the regulatory exception to the time limitation,
see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th
Cir. 2004) (“The critical question is . . . whether circumstances have changed
sufficiently that a petitioner who previously did not have a legitimate claim for
asylum now has a well-founded fear of future persecution.”).
PETITION FOR REVIEW DENIED.
JK/Research 2 07-72360 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1607159/ | 7 So. 3d 812 (2009)
Bobbie JEFFERS
v.
KENTUCKY FRIED CHICKEN.
No. WCA 2008-1380.
Court of Appeal of Louisiana, Third Circuit.
April 1, 2009.
*814 Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff Appellee, Bobbie Jeffers.
Kristine Smiley, Tierney and Smiley, LLC, Baton Rouge, LA, for Defendant Appellant, Kentucky Fried Chicken.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
GREMILLION, Judge.
Appellants, Kentucky Fried Chicken and Louisiana Retailers Mutual Insurance Company (KFC), appeal the judgment of the workers' compensation judge in favor of Appellee, Bobbie Jeffers (Jeffers). Jeffers answered the appeal seeking additional attorneys fees. For the reasons that follow, we affirm in part and reverse in part.
FACTS
Jeffers was employed by KFC on January 2, 2005, when, as she lifted a pan of food, she felt or heard a "pop" in her back. The following day, she experienced an exacerbation of that condition; nonetheless, she continued to work for several days thereafter. On January 14, 2005, Jeffers complained to Mr. Ron Wilson, owner of the restaurant. Wilson and Jeffers discussed a referral to a doctor. Although the import of this conversation about a doctor is greatly in dispute, as we will later discuss, the gist of the conversation is not. Wilson asked Jeffers if Dr. Ronald Menard was acceptable to her. Jeffers replied that Dr. Menard was her family physician, and she consented to see him.
Dr. Menard saw Jeffers on January 14, 2005, and diagnosed her with lumbar sprain, "new problem." He treated her with medications and advised that she could return to work on January 16 or 17.[1] Jeffers went back to Dr. Menard on January 17. Dr. Menard told her at that time to take the next three to four days off.
On January 21, Jeffers again saw Dr. Menard, who at that time initiated physical therapy. Dr. Menard released Jeffers to work light duty the following week, if such work was available.
Wilson had placed his workers' compensation carrier on notice of Jeffers' claim. It assigned Ms. Diane Spencer of Summit Claims Service to adjust the claim. Spencer forwarded a packet of information and documents to Jeffers. Included in that *815 packet was a form for Jeffers to designate a physician of her choice. Jeffers signed that document, dated it February 3, 2005, and wrote that her physician of choice was Dr. Menard.
On February 4, Dr. Menard referred Jeffers to Dr. Roland Miller, an orthopedic surgeon in Crowley, Louisiana. Dr. Miller was to have seen Jeffers on February 17. Dr. Menard excused Jeffers from work until her appointment with Dr. Miller. Sometime between February 4 and 17, Spencer requested an update from Dr. Menard on Jeffers' work status. Dr. Menard faxed Spencer a reply indicating that Jeffers could return to work on February 19, despite his earlier February 4 work excuse and the fact that he had not seen Jeffers since that February 4 visit.
Unfortunately, Dr. Miller was sick on February 17, and did not see Jeffers then. This fact was communicated to Dr. Menard that day, who noted in his records that he was extending Jeffers' work excuse until her rescheduled appointment with Dr. Miller in March. The records and testimony do not establish that this extension of the work excuse was communicated to Spencer.
Spencer had not initially been provided with Jeffers' wage information. Summit commenced weekly indemnity benefit payments to Jeffers, mailed directly to her home, beginning with the January 24 pay period, for which Jeffers was paid $88.33 per week. Spencer's supervisor issued this initial payment and based this payment on information that Jeffers was paid $5.30 per hour. Upon receipt on February 18 of Dr. Menard's reply indicating that Jeffers could return to light duty on February 19, Spencer terminated weekly indemnity payments.
Jeffers saw Dr. Miller on March 3, and he transmitted his report to Spencer. Dr. Miller indicated that Jeffers was unable to work. Her indemnity payments commenced again on March 4. These continued at the rate of $88.33 until March 31, when they were changed to $117.00 per week, based upon wage information Spencer at last received from KFC. Jeffers' indemnity checks were based upon the belief that she was a part-time employee.
Treatment by Dr. Miller continued. On April 7, Dr. Miller reported that an MRI indicated a small L5-S1 disc herniation. However, Dr. Miller felt it could be treated non-surgically with epidural steroid injections that he wanted performed by a pain management specialist. While a referral for a pain management specialist was not approved, the steroid injections were. However, Jeffers was afraid of the injections and refused them.
On June 16, Dr. Miller had reached the point that he felt Jeffers needed a surgical evaluation by a neurosurgeon. He relayed this to Spencer by his report of that date. No neurosurgeon was named as the doctor to whom Dr. Miller wished to refer Jeffers, and Jeffers did not specify a neurosurgeon herself.
On June 20, a representative of Cypress Vocational Services, L.L.C., the vocational rehabilitation consultants hired by KFC, confirmed by letter to Dr. Miller that he was sending Jeffers to undergo a functional capacity examination, and that her work status was dependent on the outcome of that examination. Representatives of the Fontana Center for Work Rehabilitation, Inc., in Lafayette, Louisiana, scheduled the one-day examination for August 4. Jeffers did not appear for that FCE, though, because her back was hurting.
On August 31, Jeffers' counsel forwarded a letter of representation to Spencer. In that correspondence, counsel requested that Spencer guarantee the referral to the still-unnamed neurosurgeon. Spencer *816 did not directly respond to this request, but testified at trial that she did not deny the referral. That correspondence also attached a statement from American Legion Hospital in the amount of $165.00 with the demand that Spencer pay same. Spencer testified at trial that $99.00 had been paid on the American Legion statement on August 23. The statement was dated August 16. The record contains no other evidence regarding the payment of the American Legion statement.
A similar issue arose at trial over a bill from Opelousas Radiology Group, Ltd., of Lafayette. Spencer testified that $33.00 toward the bill was paid on April 13, 2005. This bill, though, had been forwarded to Spencer by letter from Jeffers' attorney dated April 18, 2007, and was dated March 28, 2007. While the bill did not reflect the date of service by the radiology group, it showed that the bill was 31-60 days past due.
Jeffers filed a motion to compel medical treatment with Dr. John Cobb, a Lafayette orthopedic surgeon. In her motion, Jeffers asserted that she had scheduled an appointment with Dr. Cobb for October 24, 2005, but KFC had denied benefits for it. The basis for KFC's denial was that, because Dr. Menard was Jeffers' choice of general practitioner, and he had referred her to Dr. Miller, Dr. Miller was thus her choice of orthopedic surgeon. The motion to compel was held on April 5, 2006. The workers' compensation judge ruled that Dr. Menard was KFC's choice of general practitioner; thus Jeffers was free to seek treatment from Dr. Cobb. She did see Dr. Cobb, who ultimately performed a diskectomy and fusion on January 23, 2007.
Jeffers filed three "Disputed Claims for Compensation" (hereafter simply referred to as "1008s"). In her first 1008, Jeffers asserted that no medical treatment had been authorized, that the compensation rate was incorrect, that she had been denied her choice of orthopedic surgeon and "neuro," and she was entitled to penalties and attorneys fees. That 1008 was filed on October 5, 2005. The first amended 1008 was filed on July 18, 2006, and asserted as the bases for the dispute the aforementioned items plus interest on all amounts. The second amended 1008, filed on August 27, 2007, asserted as grounds for dispute incorrect indemnity rate; failure to authorize medical treatment; termination of benefits on February 18, 2005; failure specifically to authorize the "neuro," pain management and physical therapy; denial of choice of physician, "ortho/neuro"; penalties and attorneys fees; late weekly compensation checks; and legal interest on all amounts.
Trial commenced on December 5, 2007. The parties prepared pretrial memoranda. In her "Answer to Pretrial Questionnaire," Jeffers asserted that the issues before the court were: whether KFC provided reasonable medical treatment, including the timely guaranteeing of medical treatment and payment of bills; whether KFC paid the appropriate weekly benefit rate and whether it paid them timely; whether mileage had been paid and paid timely; whether KFC provided appropriate vocation rehabilitation services; and whether KFC was unreasonable, arbitrary and capricious in failing to pay the correct indemnity rate, failing to allow choice of physician, failing to approve the referral by Dr. Miller to a neurosurgeon, failing to approve the referral by Dr. Miller to a pain management specialist, terminating indemnity payments, paying indemnity checks untimely, and denying physical therapy. Shortly before trial, Jeffers' counsel served supplemental discovery responses thatKFC contendsfor the first time raised the issue of when her weekly indemnity benefits should have commenced. *817 KFC's counsel objected to this issue being heard at that time. The workers' compensation judge stated that if it appeared to him that KFC was going to be prejudiced by this late response, he would rule on allowing evidence on this issue at that time.
Following the close of evidence, the workers' compensation judge found for Jeffers and awarded her weekly indemnity benefits of $142.00, ordered KFC to pay for all reasonable and necessary medical treatment, and assessed $8,000.00 in penalties and $18,750.00 in attorneys fees. The workers' compensation judge awarded penalties because: 1) KFC failed to pay the correct compensation rate; 2) KFC failed to commence indemnity appropriately (failing to pay the "waiting week"); 3) KFC failed to timely guarantee treatment with a neurosurgeon; and, 4) KFC failed to timely pay medical bills.
This appeal ensued. Jeffers answered the appeal and seeks additional attorneys fees in the defense of the appeal. For the reasons that follow, we affirm in part and reverse in part.
ASSIGNMENTS OF ERROR
KFC urges ten assignments of error by the workers' compensation judge:
1) awarding indemnity benefits for the period of January 14 through 23, 2005;
2) allowing the introduction of evidence regarding the "waiting week" of January 14 through 23, 2005;
3) finding that KFC did not pay the "waiting week;"
4) awarding penalties and attorneys fees for failing to pay the "waiting week;"
5) ruling that Dr. Menard was KFC's choice of physician and not Jeffers';
6) awarding penalties for failing to approve a neurosurgeon;
7) applying a 40-hour work week presumption in the calculation of indemnity benefits;
8) awarding penalties for untimely payment of the American Legion Hospital statement and Opelousas Radiology Group bill;
9) finding that Jeffers did not violate La.R.S. 23:1208.1 by not disclosing on a post-hire questionnaire previous treatment for back ailment; and,
10) awarding excessive attorneys fees.
ANALYSIS
Generally, the factual findings of a workers' compensation judge are subject to the manifest error standard. That standard requires that the appellate court, in order to reverse, must find that the record reflects that there is no reasonable basis for the workers' compensation judge's factual determinations. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So. 2d 609, writ denied, 00-2006 (La.10/27/00), 772 So. 2d 124. However:
"[T]he appellate court is not required by [the manifest error/clearly wrong] principle to affirm the trier of fact's refusal to accept as credible uncontradicted testimony... where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles." West [v. Bayou Vista Manor, Inc.], 371 So.2d at 1150; See Thomas v. RPM Corp., 449 So. 2d 18, 21 (La.App. 1st Cir.), writ denied, 450 So. 2d 965 (La.1984).
Bruno v. Harbert Intern. Inc., 593 So. 2d 357, 361 (La.1992).
Assignments of error numbers 1 through 4: KFC complains of the award of indemnity benefits for the period of January 14-23, 2005. The record reflects that Jeffers first saw Dr. Menard on January 14. Dr. Menard initially opined that Jeffers *818 could return to work on January 16 or 17. However, on January 17, Dr. Menard saw Jeffers again and opined that she should take the ensuing three or four days off and return to light duty the following week. A fair reading of the record supports the workers' compensation judge's ruling that Jeffers' disability began on January 14. The issue regarding this period was whether Jeffers worked on the 16th and/or 17th. She was excused from work for the remainder of the week.
KFC complains that it was ambushed at trial because Jeffers had not made an issue of when her benefits should have commenced. We disagree. The second amended 1008, which was filed a full three months before the trial, specifically asserted that part of the dispute at issue was timeliness of benefits. Further, Jeffers' "Answer to Pretrial Questionnaire," filed even before the second amended 1008, twice referenced the timeliness of benefits. Further, the issue of when an employee actually worked during a given week should not be a mystery to either the employee or the employer; this is a fact equally verifiable by both. The argument in a workers' compensation trial should be about whether the employee could work, not whether she did. The issue was properly before the workers' compensation judge, and we find no error in his rulings on either the award of benefits for that week or the award of penalties for KFC's failure to pay indemnity for that week.
Assignment of error number 5: KFC's fifth assignment of error asserts that the workers' compensation judge incorrectly ruled that Dr. Menard was not Jeffers' choice of physician. This is a finding of fact, and cannot be disturbed absent manifest error.
A reasonable basis exists in the record for this finding. It is true that Jeffers signed a selection of physician naming Dr. Menard. We are also mindful that Dr. Menard was Jeffers' family physician. Indeed, she may have sought treatment from Dr. Menard without her employer's intervention, but that is purely hypothetical. The fact remains that the uncontradicted testimony established that her employer directed his injured employee to her family physician. The choice was the employer's.
Assignment of error number 6: The workers' compensation judge ruled that KFC failed to approve a neurosurgeon as recommended by Dr. Miller. He assessed a $2,000 penalty to KFC for this failure. KFC urges that this was error because Jeffers never specified a neurosurgeon until after the hearing was held in which it was ordered to provide her with such a consult.
The evidence establishes that KFC in fact never denied Jeffers the right to a neurosurgical consult. KFC merely requested that Jeffers designate to whom she wished to seek treatment. Jeffers did not designate a neurosurgeon until after the workers' compensation judge ordered one authorized. In that same order, the workers' compensation judge found that Jeffers had not chosen an orthopedic surgeon and was, therefore, free to choose Dr. John Cobb. Dr. Cobb, though, did not at any time recommend any neurosurgical consult. Indeed, the consult was recommended by Dr. Miller for the purpose of determining whether Jeffers was a candidate for surgery, while Dr. Cobb reached this determination on his own without the opinion of a neurosurgeon.
The Louisiana Supreme Court has held that, under certain circumstances, penalties can be awarded for an employer's refusal to authorize a referral to a health care provider. Authement v. Shappert Eng'g., 02-1631 (La.2/25/03), 840 So. 2d 1181. We note, however, that in Authement, *819 the employer had authorized treatment with a specified doctor, then refused to prepay $750 for the treatment. The employer under those circumstances would have been subject to a penalty anyway.
The purpose of penalties is to discourage indifference on the part of the employer. Id. In the matter at hand, the uncontradicted testimony establishes no such indifference on KFC's part regarding this authorization. It is not unreasonable that the employer at least be given the name of the physician to whom the referral is sought. KFC raises a valid point: the method Jeffers employed creates a "double authorization" procedure, in that the employer must initially authorize the referral to any neurosurgeon, then authorize the subsequent referral to a specific neurosurgeon. This when all Jeffers had to do was actually go see a neurosurgeon, as was her right. La.R.S. 23:1121. When Jeffers did actually name a neurosurgeon, Dr. Thomas Bertuccini, the referral was authorized by Spencer.
This is in keeping with the statutory scheme. La.R.S. 23:1201(F) imposes a penalty for the failure of the employer "to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121." Section 1201 does not impose a penalty for failing to authorize a specialist, but rather for failing to consent to the employee's selection of a treating physician. For the employer to fail to consent to the employee's selection of a treating physician, it stands to reason that an actual selection must be made. Consent for an initial treating physician of a given specialty is not required by La.R.S. 23:1121. See Apeck Constr., Inc. v. Bowers, 03-486 (La. App. 3 Cir. 12/10/03), 862 So. 2d 1087, writ denied, 04-459 (La.4/23/04), 870 So. 2d 301. We, therefore, find that the workers' compensation judge did clearly err in finding that KFC failed to authorize a neurosurgical consult, and reverse his award of penalties in the amount of $2,000.00.
Assignment of error number 7: The workers' compensation judge awarded Jeffers weekly indemnity benefits in the amount of $142.00 from January 14, 2005. KFC asserts that the amount was based upon an inappropriate presumption that Jeffers was a full-time employee whose compensation rate should have been based upon a 40-hour work week. We disagree.
La.R.S. 23:1021(11) defines a part-time employee as:
[A]n employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.
No evidence that the custom in the industry classifies Jeffers' position as part-time was introduced. There was no evidence that KFC classified Jeffers' position as part-time. No evidence demonstrated Jeffers' knowledge that the position was part-time. Nothing in the record, then, establishes that Jeffers was indeed a part-time employee as defined in La.R.S. 23:1021(11).
The workers' compensation judge properly calculated the weekly indemnity benefits. According to La.R.S. 23:1021(12)(a), unless a non-part-time hourly employee regularly works less than 40 hours per week at her own discretion, the average weekly wage is calculated by multiplying her hourly pay rate times either the average actual hours worked during the four full weeks before the accident, or times 40, whichever is greater.
KFC was the party in the best position to correctly calculate Jeffers' benefits. KFC failed to communicate Jeffers' wage information to its insurer, and the insurer *820 failed to pay the correct rate. We affirm the workers' compensation judge's awards of indemnity from January 14, 2005, and of penalties and attorneys fees.
Assignment of error number 8: The workers' compensation judge assessed KFC penalties in the amount of $2,000.00 for failure to timely pay medical bills. The first was a radiology statement from American Legion Hospital in the amount of $165.00. Spencer testified that the statement was paid. However, she further testified that the payment was made by someone else. Four key facts about this statement are noteworthy: 1) its date; 2) when the statement was forwarded by Jeffers' counsel; 3) when the bill was paid; and, 4) a "pending notice" included on it. This statement was dated August 16, 2005. The date of service on the statement was January 14, 2005. At trial, counsel for Jeffers introduced his correspondence of August 31, forwarding the statement to Spencer. The uncontradicted testimony at trial establishes that $99.00 toward this statement was paid on August 23, 2005. Why a lesser amount was paid remains a mystery, as there is no explanation in the record. While it appears that the bill was timely paid, it is clear that the full amount was not. Without a valid explanation, this court cannot say that the workers' compensation judge erred in his findings regarding the bill.
The Opelousas Radiology Group bill indicated on its face that it was more than 30 days past-due. Again, an amount less than the actual bill was paid. With no further evidence introduced than the bill itself, we cannot conclude the workers' compensation judge erred in ruling that it was not paid timely. We affirm the award of penalties.
Assignment of error number 9: KFC assigns as error the workers' compensation judge's adverse ruling on the issue of whether Jeffers forfeited her benefits pursuant to La.R.S. 23:1208.1. That section provides that an employer may require the employee to complete a questionnaire meeting certain formal requisites that inquires about the employee's previous injuries. The employee is required to answer those questions truthfully. If the employee fails to answer truthfully regarding a previous injury, her benefits may be subject to forfeiture.
The case of Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So. 2d 407, provides the test for determining whether benefits are subject to forfeiture under § 1208.1:(1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. The employer has the burden of proving each of the elements required by the statute. Id. The lack of any one of the elements is fatal to the employer's avoidance of liability under the statute. Id.
In determining whether an employer has been prejudiced by an untruthful response, the supreme court adopted the "inevitability test," under which the employer must demonstrate a direct relation between the two injuries, such that the previous injury rendered it inevitable or very likely that the subsequent injury would occur. See Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So. 2d 1214. This lays a very difficult test before the employer, and with good reason: forfeiture of benefits is a harsh remedy. It should require very strict proof.
The evidence demonstrated that Jeffers indeed suffered low back strain in the past. Nothing demonstrated any direct relation between the previous low back strain and Jeffers' herniated disc for which Dr. Cobb performed surgery. We cannot say that the workers' compensation judge was in error.
*821 Assignment of error number 10: The workers' compensation judge assessed attorneys fees in the amount of $18,750.00, which KFC asserts was excessive. The Louisiana Supreme Court has stated:
The amount awarded rests within the discretion of the workers' compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.
McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.11/28/00), 773 So. 2d 694, 700. Given the discretion vested in the workers' compensation judge, we must find that discretion abused in order to reverse his ruling.
The record reflects that the hearings held are best described as contentious. Much of the record is devoted to evidentiary objections. Additionally, Jeffers' counsel provided extensive documentation of the work he performed on the case. Given the nature of the claim and the documentation provided by Jeffers' counsel, we cannot conclude that the workers' compensation judge abused his discretion in awarding the fees.
Jeffers' request for additional attorneys fees on appeal: Jeffers seeks additional attorneys fees on appeal. This court has long held that an employee who successfully defends the workers' compensation judge's ruling should be entitled to additional fees. See Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So. 2d 313. Jeffers has succeeded in defending nine of ten assignments of error in this appeal. She is, therefore, entitled to additional fees in the amount of $3,000.00.
CONCLUSION
Addressing KFC's assignments of error, we find:
1), 2), 3) and 4) The issue of the "waiting week" of January 14 through 23, 2005, was properly before the workers' compensation judge, and he correctly calculated and awarded weekly indemnity. He further correctly awarded penalties for KFC's failure to pay timely and correctly the weekly indemnity benefits.
5) There was no error in the workers' compensation judge's finding that KFC made the choice of Dr. Menard;
6) The workers' compensation judge did err in determining that KFC failed to authorize a neurosurgeon and in awarding a penalty on that basis;
7) The workers' compensation judge accurately calculated Jeffers' average weekly wage;
8) KFC failed to properly and timely pay the American Legion Hospital and Opelousas Radiology Group invoices, and the workers' compensation judge correctly awarded a penalty for that failure;
9) The workers' compensation judge did not err in finding that Jeffers did not violate La.R.S. 23:1208.1; and
10) The award of attorneys fees was not an abuse of the workers' compensation judge's vast discretion. Therefore, with regard to the awards of penalties by the workers' compensation judge, we rule as follows:
Failing to pay the correct indemnity rate, $2,000.00: Affirmed
Failing to pay the "waiting week", $2,000.00: Affirmed
Failing to timely guarantee treatment with a neurosurgeon, $2,000.00: Reversed
*822 Failing to pay medical bills in a timely fashion, $2,000.00: Affirmed.
Plaintiff's request for additional attorneys fees in the defense of this appeal is granted and she is awarded $3,000.00 for same. All costs of the appeal are cast against KFC.
AFFIRMED IN PART, REVERSED IN PART.
NOTES
[1] All of the pertinent events, except as otherwise noted, took place in 2005. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607206/ | 366 So. 2d 1104 (1979)
Steven GUNNELLS
v.
David DETHRAGE, a Minor.
Steven GUNNELLS
v.
Fred DETHRAGE.
77-260, 77-261.
Supreme Court of Alabama.
January 26, 1979.
*1105 George M. Van Tassel, Jr., Birmingham, for appellant.
Gus Colvin, Jr., Anniston, and David D. Wininger, Birmingham, for appellees.
EMBRY, Justice.
These appeals present a question of first impression: Is a minor held to an adult standard in determining whether his conduct while operating a motor vehicle is wilful or wanton? We hold he is.
Appellee, David Dethrage, a minor, filed his action against appellant, Steven Gunnells, also a minor, to recover damages for personal injuries received while a passenger in an automobile driven by Gunnells. Dethrage had accompanied Gunnells on a late night trip from Birmingham to Anniston. During the trip Gunnells fell asleep at the wheel, and the automobile left the road and struck a bridge abutment. Fred Dethrage, David's father, also brought suit to recover for loss of services of his minor son and the medical expenses incurred on account of his son's injuries. The cases were consolidated for trial, and the jury returned a verdict of $25,000 for David Dethrage and $5,000 for Fred Dethrage. Gunnells' motions for new trial were overruled in each case and he appeals.
Gunnells contends the trial court committed reversible error by refusing to instruct the jury that, in determining whether Gunnells' conduct was willful or wanton, the standard by which he is judged is that reasonable to expect from children of like age, intelligence and experience.
We disagree.
The overwhelming majority of jurisdictions hold minors to an adult standard in determining whether their conduct while engaging in an adult activity is negligent. See e. g., Robinson v. Lindsay, 20 Wash. App. 207, 579 P.2d 398 (1978); Prosser, Law of Torts, § 32, pp. 156-57 (4th Ed.1971); Annot., 97 A.L.R. 2d 872 (1964). The prevailing view is that a minor who enters upon an adult activity such as the operation of a motor vehicle must exercise a commensurate degree of responsibility. Motor vehicles are dangerous instrumentalities and public safety demands that all who operate them exercise the same degree of care and competency. We adopt this view.
*1106 Gunnells, and some authorities, maintain that a minor should not be held to an adult standard because he cannot, in fact, meet it. See Wittmeier v. Post, 78 S.D. 520, 105 N.W.2d 65 (1960). Assuming, arguendo, this to be true, it is of little consolation to the innocent victim of a minor's negligent or wanton conduct. The victim usually cannot predetermine the age of drivers he encounters on the road in order to compensate for their minority.
This court in Tindell v. Guy, 243 Ala. 535, 10 So. 2d 862 (1942), held a person using a highway has the right to assume, without facts warning him otherwise, that other persons using the public highway will do so in a lawful manner. There is no room on the highways for multiple standards of conduct.
Additionally, we see no distinction between those cases involving negligent conduct and those involving wanton or wilful conduct. The policy reasons for holding all motorists to the same standard remain applicable. See e. g., Wagner v. Shanks, 56 Del. 555, 194 A.2d 701 (1963); Nielson v. Brown, 232 Or. 426, 374 P.2d 896 (1962); Fuller v. Wiles, 151 Ind.App. 417, 280 N.E.2d 59 (1972).
Gunnells contends he should not be held to an adult standard because wantonness, unlike negligence, involves intent. Thus, he argues, if he is to be punished for his intent instead of his act, he should be judged by a standard reasonable to expect from children of like age, intelligence and experience.
This contention fails to accurately identify the crucial element of wantonness. It is not intent, but knowledge, which is crucial to wantonness. No intent to injure is necessary. Wantonness is the doing of some act or omission to do some act with reckless indifference to the knowledge that such act or omission will likely or probably result in injury. See Whaley v. Lawing, 352 So. 2d 1090 (Ala.1977).
In determining whether a minor has knowledge of the circumstances and the probable consequences of his acts or omissions on the highways, he must be held to the same standard as all other users of the highways. Neither the licensing statute, § 32-6-1, Code 1975, nor the the guest statute, § 32-1-2, Code 1975, indicate there should be more than one standard. We will not now judicially recognize, or initiate, any lower standard.
Gunnells also contends the jury verdicts were not supported by the weight of the evidence. The verdicts, however, are presumed to be correct and we find nothing in the record to rebut that presumption. Gunnells testified he "might have had a little bit of drowsiness" and that the car had drifted over the center line and back just prior to the accident. There was also testimony by Greg Gossett, the ambulance driver, that Gunnells had told him he had dozed off two or three times before the accident. According to David Dethrage, Gunnells told him he had run off the road two times prior to the wreck.
In Lankford v. Monk, 283 Ala. 24, 214 So. 2d 301 (1968), this court held evidence of premonitory symptoms of sleep warranted submission to the jury the question of whether a defendant's falling asleep at the wheel was wanton conduct. We hold the evidence of premonitory symptoms presented in these cases supports the verdicts of the jury.
The circuit court correctly charged the jury that a minor is held to an adult standard in determining whether his conduct while operating a motor vehicle is wilful or wanton. The jury's verdicts finding Gunnells' conduct to be wilful or wanton were supported by the weight of the evidence. The judgments of the circuit court must, therefore, be affirmed.
AFFIRMED.
TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607226/ | 7 So. 3d 300 (2008)
J.K., individually and as next friend of his minor children, K.K. and S.K.; and P.K.
v.
UMS-WRIGHT CORPORATION et al.
1060407.
Supreme Court of Alabama.
September 19, 2008.
*301 Chris N. Galanos, Mobile; and James J. Dailey, Mobile, for appellants.
Christina M. Adcock of Adams & Reese, LLP, Mobile, for Appellees.
SEE, Justice.[1]
J.K., individually and as next friend of his minor children K.K. and S.K., and P.K., the mother of the minor children, appeal from a judgment enforcing a settlement agreement with the defendants, UMS-Wright Corporation; Dr. Tony Havard, individually and in his official capacity as headmaster of the school; Mr. Ed Lathan, individually and in his official capacity as upper-school principal; and the members of the board of trustees of UMS-Wright. We affirm in part, reverse in part, and remand.
*302 I. Facts and Procedural History
UMS-Wright Corporation operates UMS-Wright Preparatory School, which is located in Mobile. In 2001, J.K. and P.K. had three children, V.K., S.K., and K.K., enrolled at UMS-Wright Preparatory School. On November 8, 2001, V.K. was placed on behavior and academic probation. According to a memorandum prepared by Principal Lathan, on the day after V.K. was placed on probation he violated the terms of that probation by making physical threats toward another student. Principal Lathan recommended that V.K. be expelled. On November 10, Principal Lathan informed P.K. that V.K. was being expelled from UMS-Wright Preparatory School.
On November 17, 2004, V.K. entered the UMS-Wright campus. School administrators approached him and asked him to leave. UMS-Wright sent a letter to J.K. and P.K. informing them that V.K. had violated UMS-Wright policy by entering the campus without permission, that V.K. was not to enter the campus without prior administrative permission, and that the letter was to serve as "a trespassing after warning letter." Principal Lathan conferred with P.K. to discuss the trespassing incident. Principal Lathan informed P.K. that, if V.K. continued to enter the UMS-Wright campus, he would be arrested; and that any further incidents involving V.K. could jeopardize S.K. and K.K.'s enrollment at the school.
During the 2005-2006 school year, S.K. and K.K. were enrolled as students at the school. On March 28, 2006, V.K., who was by then an adult, and two unidentified companions entered the UMS-Wright campus and confronted a student. V.K., or one of his companions, assaulted the student and knocked him unconscious. Another student attempted to help his unconscious classmate. While the student was struggling with one of V.K.'s companions, his wallet fell onto the ground, and one of V.K.'s companions took the wallet. V.K. and his companions then left the campus.
The next day Dr. Havard learned about the incident. He believed that, so long as S.K. and K.K. were enrolled as students, V.K. would continue to have a reason to come onto the campus. Therefore, he concluded, S.K. and K.K.'s enrollment at UMS-Wright Preparatory School posed a safety risk to students and staff. On March 30, 2006, Dr. Havard met with P.K. and told her that S.K. and K.K. were being dismissed as students. Security escorted P.K., S.K., and K.K. from the UMS-Wright campus.
On April 6, 2006, J.K., individually and as next friend of S.K. and K.K., and P.K. sued UMS-Wright Corporation, Dr. Havard, and Principal Lathan (hereinafter referred to collectively as "UMS-Wright"), as well as the members of the board of trustees of UMS-Wright Corporation, alleging negligence, breach of contract, and due-process violations. J.K. and P.K. also alleged against Dr. Havard and Principal Lathan, both in their individual capacities and as employees of UMS-Wright Corporation, intentional infliction of emotional distress as to P.K., S.K., and K.K. In the final count of the complaint, J.K. and P.K. alleged that the members of the board of trustees negligently and/or wantonly failed to supervise the school's employees and staff.[2] J.K. and P.K. also moved for a temporary restraining order, contending that S.K. and K.K. would be irreparably *303 harmed if they were not immediately reinstated as students and contending that an expulsion on their academic records would adversely impact their prospects for admission to the college or university of their choice. After hearing arguments, the trial court denied the motion for a temporary restraining order.
Four days later, J.K. and P.K. moved for a preliminary injunction. The trial court held a hearing on the motion, but the parties reached an agreement before the trial court decided the motion. The agreement allowed S.K. and K.K. to complete their school year at home but prohibited S.K. and K.K. from entering the UMS-Wright campus or attending any school functions. This agreement effectively rendered moot the pending petition for injunctive relief.
On April 20, 2006, the members of the board of trustees moved the trial court to dismiss all claims against them, arguing that pursuant to § 10-11-3, Ala.Code 1975, the trustees, as non-compensated officers of a not-for-profit institution, are immune from suit. The trial court heard oral arguments from the parties and dismissed with prejudice all the claims against the members of the board of trustees. J.K. and P.K. moved the trial court to reconsider that dismissal, but the trial court denied the motion.
The remaining parties entered into settlement negotiations. They discussed the dismissal of the action in exchange for a letter of apology from Dr. Havard. At a second meeting, Chris Galanos, one of the attorneys for J.K. and P.K., apparently represented to the other parties that he had the authority to settle the case.[3] Counsel for UMS-Wright presented J.K. and P.K.'s attorneys with a proposed letter of apology, a stipulation for dismissal with prejudice, a proposed settlement agreement, and a proposed release. J.K. and P.K.'s attorneys reviewed the documents and signed the stipulation for dismissal; however, they did not sign the proposed settlement agreement or proposed release, in order to give J.K. the opportunity to review the documents, including the proposed letter of apology. According to UMS-Wright, J.K. and P.K. were to sign the settlement agreement, and counsel for UMS-Wright would then file the joint stipulation for dismissal.
J.K. refused to sign the settlement agreement. Consequently, UMS-Wright's attorney wrote a letter to J.K. and P.K.'s counsel stating that it was his belief that the parties had reached a valid settlement and that if J.K. and P.K. did not sign the settlement agreement UMS-Wright would move to enforce the settlement agreement. Counsel for J.K. and P.K. responded by letter indicating that his clients were willing to settle the case if Dr. Havard would agree to sign a proposed letter of apology drafted by J.K. The attorneys for the parties scheduled a meeting between Dr. Havard and J.K. so that they could attempt to resolve the dispute. That meeting, however, did not occur.
UMS-Wright moved to enforce the settlement agreement. J.K. and P.K. responded that the settlement agreement was not enforceable against S.K. and K.K., because a next friend does not have the authority to settle the case on behalf of a minor. Therefore, they argued, the settlement could not be enforced against S.K. and K.K. without the appointment of a guardian ad litem and a pro ami hearing. Also, although J.K. and P.K. acknowledged that an attorney has the authority to bind a client, they argued that the settlement *304 agreement is unenforceable against them because, they say, it does not comply with the requirements of § 34-3-21, Ala.Code 1975.[4] Specifically, J.K. and P.K. contended that the agreement does not satisfy the requirements of the statute because it had not been reduced to writing or entered upon the minutes of the court and because there had been no meeting of the minds as to the terms of the settlement. UMS-Wright agreed that a pro ami hearing was needed to enforce the settlement agreement against S.K. and K.K.
The trial court held a hearing and granted UMS-Wright's motion to enforce the settlement agreement against J.K. and P.K. and, based on the stipulation of dismissal, dismissed J.K. and P.K.'s claims against UMS-Wright and scheduled a pro ami hearing to determine whether the agreement was enforceable as to the minor children.
J.K. and P.K. moved the trial court to vacate and/or set aside the dismissal of their claims. J.K. and P.K. reiterated their argument that the settlement agreement was unenforceable against them because it had not been reduced to writing or entered upon the minutes of the court. J.K. and P.K. argued further that their attorney did not have the authority to bind them to the settlement agreement.
The trial court held a pro ami hearing that included testimony from J.K., P.K., S.K., and K.K. At the conclusion of the hearing, the trial judge found that the settlement was in the best interests of the children and dismissed the remaining claims against UMS-Wright. He later entered a final order denying J.K. and P.K.'s motion to vacate or set aside the dismissal of their claims and confirming the finding that the settlement was in the best interests of the children. J.K. and P.K. appeal.
II. Dismissal of the Board of Trustees
A. Standard of Review
"The appropriate standard of review of a trial court's grant of a motion to dismiss under Rule 12(b)(6) is
"`"`whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail.'"'"
Rester v. McWane, Inc., 962 So. 2d 183, 185 (Ala.2007) (quoting EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So. 2d 502, 507 (Ala. 2005), quoting in turn other cases).
B. Analysis
J.K. and P.K. first argue that the trial court erred in dismissing the members of the board of trustees as defendants only two weeks after their action was filed. In their motion to dismiss, the trustees argued that they were entitled to immunity under § 10-11-3, Ala.Code 1975, which provides:
"Any noncompensated officer of a qualified entity shall be immune from suit and not subject to civil liability arising from the conduct of the affairs of such qualified entity except when the act or omission of such officer, which gives rise to a cause of action, amounts to willful or wanton misconduct or fraud, or gross negligence. Provided however, such immunity shall not, except to such extent as may otherwise be provided by *305 law, extend to the qualified entity, to a for-profit subsidiary of such qualified entity or to the officers of such for-profit subsidiary but only to the qualified entity's officers as defined in this chapter. Nothing contained herein shall be construed to immunize the corporate entity or qualified entity for the acts or omissions of noncompensated officers as defined in this chapter."
A qualified entity is defined as "[a]ny not-for-profit corporation, association or organization which is exempt from federal income taxation under 501(c) of the Internal Revenue Code of 1954, as amended." Section 10-11-2(1)(a), Ala.Code 1975.[5] J.K. and P.K. contend that the trustees are not entitled to the qualified immunity provided by § 10-11-3 because their complaint alleged that the board of trustees had acted "negligently/wantonly." Therefore, we must determine whether J.K. and P.K. alleged any cause of action that could overcome the trustees's claim of immunity.
J.K. and P.K. named the board of trustees as defendants in four of the six claims asserted in the complaint. The only claims that could arguably overcome the trustees' invocation of immunity are the claims in Counts one and six of the complaint, alleging, as to the trustees, "negligent/wanton" conduct and "negligent/wanton" failure to supervise.
J.K. and P.K. do not adequately demonstrate in their brief to this Court how the trial court erred in dismissing with prejudice their claims against the trustees. They cite Shaddix v. United Ins. Co. of America, 678 So. 2d 1097 (Ala. Civ.App.1995), for the general proposition that a dismissal based upon a failure to state a claim for which relief can be granted is properly granted only when the plaintiff cannot prove any set of facts that would entitle the plaintiff to relief. Although this accurately describes the legal standard with which a court evaluates a Rule 12(b)(6), Ala. R. Civ. P., motion, J.K. and P.K. do not point to any set of facts that would entitle them to relief on their claims that the trustees acted wantonly by dismissing S.K. and K.K. as students.[6] J.K. and P.K. merely cite to page 7 of their complaint, where they allege that the defendants, including the members of the board of trustees, "owed the Plaintiffs' minor children the duty to fairly and impartially promulgate rules governing honor, personal conduct, and academic standards and avoid arbitrary and capricious decisions in enforcing those rules," and that UMS-Wright and the members of the board of trustees wantonly breached those duties by expelling the children based upon the conduct of a third party. These allegations do not demonstrate that the members of the board of trustees were or could have been wanton in the performance of their alleged responsibilities. Not only do J.K. and P.K. not describe with any specificity conduct of the trustees that they consider to have been wanton, but they also fail to cite any statute or caselaw that defines wantonness, and they do not *306 illustrate how the actions by the members of the board of trustees could satisfy any such definition. "`"Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant."'" McCutchen Co. v. Media General, Inc., 988 So. 2d 998, 1004 (Ala.2008) (quoting Henderson v. Alabama A & M Univ., 483 So. 2d 392, 392 (Ala.1986), quoting in turn Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala.Civ.App.1984)). Because J.K. and P.K. have not provided us with a standard against which to evaluate the trustees' allegedly wanton behavior in expelling the children on the basis of a third party's actions, the trial court's judgment on this issue is affirmed.
J.K. and P.K. also argue that the motion to dismiss filed by the members of the board of trustees should have been treated as a motion for a summary judgment, because in ruling on the motion the trial court considered matters outside the pleadings. J.K. and P.K. cite Phillips v. AmSouth Bank, 833 So. 2d 29 (Ala.2002), for the proposition that a trial court commits reversible error if it converts a Rule 12(b)(6), Ala. R. Civ. P., motion into a motion for a summary judgment under Rule 56, Ala. R. Civ. P., and enters a summary judgment without affording the opposing party a reasonable opportunity to conduct discovery. See Rule 12(c), Ala. R. Civ. P. In Phillips, this Court stated that when a motion to dismiss is converted into a motion for a summary judgment, the nonmovant is entitled to receive "`(1) adequate notice that the trial court intends to treat the motion as one for summary judgment and (2) a reasonable opportunity to present material in opposition.'" 833 So.2d at 31 (quoting Graveman v. Wind Drift Owners' Ass'n, 607 So. 2d 199, 202 (Ala.1992)). However, J.K. and P.K. do not argue that the members of the board of trustees submitted additional materials with their motion to dismiss. In fact, the materials in the record indicate that the trustees did not submit any accompanying affidavits or documents with their motion to dismiss. Therefore, Phillips does not support J.K. and P.K.'s argument. Because J.K. and P.K. have not adequately articulated how the trial court erred in dismissing with prejudice their claims against the members of the board of trustees, we affirm the trial court's dismissal of those claims.[7]
III. Enforceability of Settlement Agreement
J.K. and P.K. also argue that the trial court erred in finding that the settlement agreement was enforceable, because, they say, J.K. and P.K.'s attorney did not have express authority to bind them and their minor children to a settlement agreement. Section 34-3-21, Ala.Code 1975, provides: "An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court." In applying *307 § 34-3-21, Alabama courts have recognized that
"`"[a]n attorney may not consent to a final disposition of his client's case without express authority. Although an attorney of record is presumed to have his client's authority to compromise and settle litigation, a judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no right to consent to its entry."'"
Roberson v. State ex rel. Smith, 842 So. 2d 709, 712 (Ala.Civ.App.2002) (quoting Warner v. Pony Express Courier Corp., 675 So. 2d 1317, 1320 (Ala.Civ.App.1996), quoting in turn Blackwell v. Adams, 467 So. 2d 680, 684-85 (Ala.1985)). "`"[W]hether an attorney has authority to bind his client by an agreement to settle the case by consent is a question of fact."'" Alexander v. Burch, 968 So. 2d 992, 996 (Ala.2006) (quoting Warner, 675 So.2d at 1320, quoting in turn Blackwell, 467 So.2d at 684). "Where a trial court does not make an express finding of a particular fact, this court will assume that it found the fact necessary to support its judgment unless the finding of fact would be clearly erroneous and against the great weight of the evidence." Benitez v. Beck, 872 So. 2d 844, 847 (Ala. Civ.App.2003) (citing Jones v. Stedman, 595 So. 2d 1355 (Ala.1992)).
J.K. and P.K. also contend that the trial court erred in finding that the settlement agreement was enforceable because, they argue, the trial court never held a hearing to determine whether J.K. and P.K.'s attorney in fact had express authority to settle the case. J.K. and P.K. cite Alexander v. Burch for the proposition that "[a]n express finding of fact that the attorney had the authority to bind his client is a condition precedent to a conclusion that a settlement exists." J.K. and P.K.'s brief at 23. They maintain that "[t]he only way, therefore, to have determined the presence or absence of `express, special authority' would have been to conduct an evidentiary hearing for the purpose of considering the testimony of [J.K.] and Mr. Galanos, since they were the only two persons who participated in the conversation." J.K. and P.K.'s reply brief at 10-11.
In Alexander, the plaintiff contested the enforceability of a proposed settlement agreement because the plaintiff insisted that she never authorized her attorney to settle her personal-injury claim for the particular amount in the settlement offer. At a hearing to determine the enforceability of the settlement agreement, the trial judge heard conflicting testimony from the plaintiff and her attorney concerning whether the attorney had authority to settle the plaintiff's claim. Alexander, 968 So.2d at 995. The trial judge found that the settlement agreement was enforceable. However, we reversed the judgment of the trial court, concluding that "[i]f the judge had actually made a finding accepting [the attorney's] version of the disputed facts, or if the state of the record was such that a finding to that effect could be deemed implicit in the trial court's order, we would affirm." 968 So.2d at 997-98. We remanded the case with instructions for the trial court to explain on return to remand whether it had made a finding of fact regarding the settlement authority of the plaintiff's attorney.
Relying on Alexander, J.K. and P.K. argue that the trial court erred by failing to conduct a hearing to make an explicit finding of fact regarding whether their attorney was authorized to accept the proposed settlement agreement. In Alexander, the trial court had not made an explicit finding that the plaintiff's attorney was authorized to settle the plaintiff's claim. Further, the conflicting evidence in the record in Alexander, including a statement *308 by the trial judge that he was forgoing making a finding on the authority issue, did not allow this Court to assume that the trial judge had found that the attorney was authorized to settle the plaintiff's claim.
In this case, as in Alexander, the trial court did not make a finding of fact that J.K. and P.K.'s attorney was authorized to settle the case. Moreover, J.K. and P.K.'s attorney's refusal to sign the settlement agreement and to approve the letter, J.K.'s rejection of the proposed apology letter and his statement to the attorney that his authority to settle was subject to J.K.'s approval of the apology letter, the ongoing telephone conversations between counsel for UMS-Wright and J.K. and P.K.'s attorney after the settlement meeting, and the later scheduled-but-canceled meeting between J.K. and Dr. Havard indicate that no settlement had been reached because the attorneys were awaiting J.K. and P.K.'s approval of the settlement agreement. This Court will not assume that the trial court made the finding that J.K. authorized J.K. and P.K.'s attorney to settle the case because that would appear to be against the great weight of the evidence. See Benitez, 872 So.2d at 847 ("Where a trial court does not make an express finding of a particular fact, this court will assume that it found the fact necessary to support its judgment unless the finding of fact would be clearly erroneous and against the great weight of the evidence.").
This case, however, differs from Alexander in that J.K. and P.K. have argued only that the agreement was unenforceable because it was not reduced to writing or entered on the minutes of the court and because there was no meeting of the minds as to the terms of the agreement. J.K. and P.K. raised the argument that their attorney lacked the authority to settle the case in their postjudgment motion after the trial court had already found that the settlement agreement was enforceable and dismissed the claims against UMS-Wright. The trial court conducted a hearing, on September 27, 2006, to decide whether the settlement agreement was enforceable. Nothing in J.K. and P.K.'s response to UMS-Wright's motion to enforce the settlement, or in the record, indicates whether J.K. and P.K.'s attorney argued at that hearing that Galanos was not authorized to settle the case. As UMS-Wright points out, it was not until after the trial court decided that the settlement agreement was enforceable that J.K. and P.K. first argued that their attorney did not have the authority to settle the case. Because the issue of Galanos's authority to settle was not before the trial court at the enforceability hearing, the trial judge was not required to make a finding of fact on that issue, and Alexander is inapposite. Therefore, we must determine whether a challenge to an attorney's authority to settle a case raised in a postjudgment motion, requires the trial court to conduct a hearing and make a finding of fact as to whether the attorney was authorized to settle the claim. We hold that it does.
In Warner v. Pony Express Courier Corp., supra, the attorneys met in the trial judge's chambers to discuss the possibility of settling Warner's claim. During the settlement negotiations, Warner's attorney represented that Warner would accept $7,500 as a settlement for all demands. That settlement offer was ultimately accepted, and the trial court dismissed Warner's action with prejudice. Warner moved the trial court to set aside the dismissal, arguing that he was unaware of the settlement and that he would not have agreed to its terms. Warner, 675 So.2d at 1319. The Court of Civil Appeals cited Jones v. Blanton, 644 So. 2d 882 (Ala.1994), and Jones v. Stedman, 595 So. 2d 1355 *309 (Ala.1992), for the rule that "if a party is present when a settlement agreement is announced by counsel in open court and the party fails to object to the settlement, the trial court is warranted in concluding that counsel has the apparent authority to settle the dispute." Warner, 675 So.2d at 1320. The Court of Civil Appeals concluded, however, that there was insufficient evidence that Warner's attorney had settlement authority because the trial court relied on an agreement between the attorneys when it dismissed the claims, and there was "no indication in the record ... that Warner was present during the settlement discussion in chambers." Warner, 675 So.2d at 1321. The Court of Civil Appeals, therefore, reversed the trial court's order denying the motion to vacate its dismissal and remanded the case to the trial court with instructions "to conduct a hearing to determine whether, at the time the settlement was stated to the court and the dismissal was entered, Warner's attorney was authorized to settle Warner's claims for $7500." Warner, 675 So.2d at 1321.
In this case, neither J.K. nor P.K. was present at the settlement negotiations or at the enforceability hearing. Instead, the trial court relied on an agreement between counsel when it found that the settlement agreement was enforceable. Although the trial court was apparently not faced with the question whether J.K. had authorized J.K. and P.K.'s attorney to settle the case, the trial court was presented with that precise question when J.K. and P.K. moved the trial court to set aside or to vacate the dismissal of their claims against UMS-Wright. At that point, the trial court should have held a hearing to determine whether J.K. had authorized J.K. and P.K.'s attorney to settle the case. See Roberson, 842 So.2d at 713 (holding that "the trial court [exceeded] its discretion in failing to hold a hearing on the issue whether [counsel] had the authority to enter into the stipulation agreement on behalf of Roberson" when Roberson raised the issue of his attorney's authority to settle in a motion for a new trial); see also, Garabedian v. Allstates Eng'g Co., 811 F.2d 802, 804 (3d Cir.1987) (stating that the district court erred in denying the motion to vacate because "[t]he district court should have held a hearing to determine whether Garabedian had indeed authorized Di Pietro to settle on the terms set forth in the proposed settlement agreement."); Greater Kansas City Laborers Pension Fund v. Paramount Indus., Inc., 829 F.2d 644, 646 (8th Cir.1987) (holding that the trial court "erred in summarily denying the motion [to vacate the judgment] without any type of evidentiary hearing" after the plaintiffs argued that the attorney had agreed to the settlement without their consent). Because we hold that the trial court erred in denying the motion to set aside or to vacate its dismissal of J.K. and P.K.'s claims without first holding a hearing to make a finding of fact as to whether J.K. had authorized J.K. and P.K.'s attorney to settle the case, we reverse that aspect of the trial court's judgment and remand this case with instructions that it conduct such a hearing and make an express finding.
Conclusion
We affirm that portion of the trial court's judgment dismissing the claims against the members of the board of trustees. We reverse the trial court's judgment denying J.K. and P.K.'s motion to set aside or vacate the dismissal of their remaining claims as to all other defendants, and we remand this case for the trial court to conduct a hearing to determine whether J.K. had authorized J.K. and P.K.'s attorney *310 to settle the case.[8]
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.
BOLIN, J., concurs in part and dissents in part.
BOLIN, Justice (concurring in part and dissenting in part).
I agree with that portion of the main opinion that holds that the claims against the board of trustees of UMS-Wright Preparatory School were properly dismissed. However, I believe that J.K. and P.K. entered into a binding settlement agreement; therefore, I dissent from that portion of the main opinion reversing the trial court's order denying J.K. and P.K.'s motion to set aside the dismissal of their remaining claims and remanding the case for a hearing.
NOTES
[1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice See on April 22, 2008.
[2] Upon motion by UMS-Wright and the members of the board of trustees, V.K. was added as a third-party defendant.
[3] J.K. later informed Galanos that Galanos's authority to settle the case was subject to J.K.'s prior approval of Dr. Havard's apology letter.
[4] Section 34-3-21, Ala.Code 1975, provides:
"An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court."
[5] The Internal Revenue Code expressly provides that "[c]orporations, and any community chest, fund, or foundation organized and operated exclusively for ... educational purposes" qualifies as a tax-exempt entity. I.R.C. § 501(c)(3) (2000).
[6] J.K. and P.K. also alleged in the complaint that the trustees wantonly failed to supervise the school's employees. However, this claim is neither raised nor addressed in J.K. and P.K.'s principal or reply briefs on appeal; thus, we do not address this argument. "`[W]hen the appellant fails to invite the appellate court's review of any issues raised from the court below, the trial court's judgment is due to be affirmed."' Waters v. University of Alabama Hosps., 591 So. 2d 450, 451 (Ala.1991) (quoting Wilger v. James, 431 So. 2d 1166, 1168 (Ala.1983)).
[7] J.K. and P.K. also cite Parmater v. Amcord, Inc., 699 So. 2d 1238 (Ala. 1997), for the proposition that a dismissal with prejudice operates as an adjudication on the merits. J.K. and P.K. contend that "[t]he dismissal of the Board clearly was not an adjudication on the merits and resulted in a permanent denial of the fundamental right to prove a claim made in good faith." J.K. and P.K.'s brief at 35. However, Parmater does not support J.K. and P.K.'s argument because this Court in Parmater merely concluded that a dismissal with prejudice can operate as an adjudication on the merits for res judicata purposes. 699 So.2d at 1241 ("Iowa courts have held that a settlement or consent judgment and subsequent dismissal with prejudice ... can be the basis of a plea of res judicata.... Likewise, this Court has also held that a dismissal with prejudice is an adjudication on the merits.").
[8] Because we remand this case with instructions for the trial court to conduct a hearing to resolve whether J.K. and P.K.'s attorney was authorized to settle the case, we do not reach the remaining issues raised in this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607294/ | 459 N.W.2d 166 (1990)
THE RIVERS, Respondent,
Arnold Divine, et al., Appellant (C6-90-165),
Allied Insurance Company, Appellant (C4-90-195),
v.
RICHARD SCHWARTZ/NEIL WEBER, INC., Franklin Construction Company, Inc., Bernhagen Brick, Inc., Respondents,
The Rivers Association, Respondent (C4-90-195).
Nos. C4-90-195, C6-90-165.
Court of Appeals of Minnesota.
August 21, 1990.
Review Denied October 25, 1990.
*167 Jerome B. Simon, Maun & Simon and Steven Rau, St. Paul, for The Rivers.
Lawrence J. Skoglund, Thomas Emmer, and Robert E. Kuderer, Chadwick, Johnson & Condon, Minneapolis, for Allied Ins. Co.
David B. Sand, Briggs and Morgan, Minneapolis, for Richard Schwartz/Neil Weber, Inc.
James A. Reding, Mark Andrew Pilney, Reding & Votel, St. Paul, and William G. Bale, Hillstrom & Bale, Minneapolis, for Franklin Const. Co., Inc.
Marianne Settano, Peterson & Treat, P.A., Minneapolis, for Bernhagen Brick, Inc.
Thomas J. Rooney, Rooney & Neilson, Ltd., Arden Hills, for The Rivers Ass'n.
Considered and decided by CRIPPEN, P.J., and RANDALL and SCHULTZ[*], JJ.
*168 OPINION
CRIPPEN, Judge.
The trial court granted judgment in favor of architects, developers, and builders based on a two-year statute of limitations for suits involving defects to real property. The trial court had previously rejected a Miller-Shugart settlement between the parties. On appeal, this litigation was consolidated with the related appeal of Allied Insurance Company from a trial court decision that it could not avoid coverage for construction defects in the property, notwithstanding exclusions within its policy. We affirm the decisions in the defects suit, and reverse the judgment against Allied.
FACTS
1. Statute of limitations.
Appellant The Rivers Association[1] represents owners of a 19-unit condominium constructed in 1979 and 1980. The project was developed by respondent The Rivers, a partnership, and designed by respondent Richard Schwartz/Neil Weber, Inc. Respondent Franklin Construction Company was the construction manager of the project and respondent Bernhagen Brick, Inc. provided the masonry work.
On August 3, 1984, the association, together with the partnership, initiated a suit against Franklin, Schwarz/Weber, and Bernhagen. The suit claimed damages arising from construction defects in the condominium roof, the terrace and garage, and the brick facade. The association contends that evidence would show damages in excess of $1,000,000.
On January 9, 1987, the association, represented by separate counsel, initiated a suit against the respondent partnership for breach of warranty, negligent selection and supervision of architects and builders, and negligent failure to take remedial measures.
In orders of October and November 1989, the trial court ordered judgment for all four respondents on the association's claims and cross-claims. The court concluded that the 1984 suit and the 1987 cross-claim were precluded by Minn.Stat. § 541.051 (1988).[2] Based on testimony and exhibits, the trial court found that all the defects in the project were known to members of the association more than two years before the defects action was commenced.
2. Insurance.
While the defects suit was pending, appellant Allied Insurance Company filed a separate, declaratory judgment action alleging that certain exclusions in a policy issued to Franklin for the project precluded coverage. The policy issued is a standard form comprehensive general liability policy. The policy excluded coverage for loss of use of property resulting from the failure of Franklin's work product to meet the level of fitness warranted by Franklin. This exclusion did not apply to loss of use of property other than the work product. A further exclusion applied to property damage to Franklin's work product arising out of the product itself. The insurance policy also contained a so-called standard broad form endorsement which provided coverage for Franklin's completed projects. This endorsement contained an exclusion stating that with respect to completed projects, insurance would not be provided for property damage to projects completed by Franklin arising out of the work done on the projects.
*169 In December 1989, applying three theories, the trial court determined that these exclusions did not govern the case. Among those theories, the trial court stated that even though damages were claimed for defects in the construction project, the work product exclusions did not preclude coverage for Franklin's negligence in rendering services as a construction manager supervising labor and materials of other contractors.
3. Miller-Shugart agreement.
In March 1989, the association, the partnership, Franklin, Bernhagen, and Schwartz/Weber entered into a settlement agreement of the defects claims. Franklin confessed a $1.2 million judgment, subject to a covenant not to sue, under which the association would collect such judgment only from the Allied insurance policy. The agreement purported to release Franklin from all claims even if the trial court rejected the agreement. The agreement also stated that its construction would be governed by the principles set forth in Miller v. Shugart, 316 N.W.2d 729 (Minn.1982). The parties concede that the agreement was made without notice to Allied which had begun its declaratory action. The agreement was also made without notice to counsel furnished to Franklin by Allied to defend the association's defects claims. The trial court rejected the settlement as fraudulently devised.
ISSUES
1. Was dismissal appropriate?
2. Did coverage exist for Franklin under the insurance policy issued by Allied?
3. Did the trial court properly reject the Miller-Shugart agreement?
ANALYSIS
1. Statute of limitations.
The standard governing the two year limitations law is whether the association discovered, or in the exercise of reasonable diligence should have discovered, an injury sufficient to entitle it to maintain a cause of action. Greenbrier Village Condominium Two Ass'n, Inc. v. Keller Inv., Inc., 409 N.W.2d 519, 524 (Minn.App. 1987). This standard places the burden of discovery of the injury on the plaintiff. Id. at 525.
The injuries here are sufficient to sustain a cause of action. However, the trial court found that "it is clear that the matters of which the association complains had all been known to the members of the association prior to the period two years before the [claims were] commenced." This finding is sustained by evidence of record and is not clearly erroneous. Testimony to support the finding came from three witnesses, Sol Austrian, Sylvester Brand, and J. Donald Kelly.
Austrian testified that he moved into the building in July 1980. He had been president of the association from 1980 through the end of 1981, was on the association board from September 1983 to September 1985, and was a partner in the partnership. Austrian stated that while he was president of the association and after the construction problems arose, he had received reports from the architect and various testing agencies and that he had brought these reports to the attention of the association. Austrian testified to the existence of water problems in Brand's unit prior to the Brand's purchase of the unit. He also testified that drainage channels were constructed in the basement garage in 1981 to correct leakage problems.
Sylvester Brand testified that he lived in unit 501 and that when he first inspected the unit in June 1982 he noted that the ceiling was being repaired. J. Donald Kelly testified that when he moved into the building on April 18, 1981 he had problems with "severe water accumulation" on the floor of his garage stalls. He stated that later, a channel was cut in the garage floor to carry the water away, and that the channel partially carried the water away. He also affirmed that within a year after he moved in he "certainly was noticing" water problems in the basement garage.
All of these facts show knowledge more than two years before the suit against Franklin and the others in August 1984. *170 In addition, as reflected in the following discussion of other events after August 1982, some of these events also suggest knowledge before that date.
With reference to the cross-claim, these same individuals obtained additional knowledge of injuries prior to January 1985. For example, Austrian received a copy of a letter dated October 29, 1982, discussing repairs made to the penthouse unit roof in May 1982. He also testified to receiving other reports and letters detailing the defects and repair efforts. He testified to the further construction of drainage channels in 1983 to correct leakage problems in the basement garage. Brand testified that when he moved in, in October 1982, he noticed repair work proceeding in the garage. He said that after he moved in, the ceiling leaked after a rainstorm on October 22, 1982. He also testified that at different times from 1983 through 1985 he had buckets in his unit to protect from the leaks. Kelly said that he transferred garage stalls in September 1982 after he slipped and fell on accumulated water.
We have reviewed the trial court's findings under the clearly erroneous standard of Minn.R.Civ.P. 52.01. The association contends that the summary judgment standard should be used, i.e. that summary judgment is inappropriate where there is a genuine issue yet to be tried. The Association does not correctly characterize the trial court's work. As respondents argue, the trial court tried and decided the question in a full presentation, not on summary judgment. Although it does not appear of record, it is undisputed that the proceedings were to be tried to a jury. After the parties waived a jury trial, the court heard evidence on, and addressed the statute of limitations issue. Though this was a full presentation of the evidence, the association presented no evidence to support its claims. Even on appeal the association has not presented any evidence. Under the summary judgment standard, the evidence as to knowledge obtained by the parties between 1980 and 1985 is not disputed and leaves no genuine issue to be decided.
The association also contends that the significance of its knowledge of defects was destroyed by assurances that repairs would be made. They are essentially arguing that Franklin and others are estopped from asserting the statute of limitations defense for those periods of time during which they provided assurances that the repairs would be made. The elements of estoppel include "representations or inducements by the defendant upon which the plaintiff has reasonably relied to his detriment." Mutual Service Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn.App.1989) (quoting Brenner v. Nordby, 306 N.W.2d 126, 127 (Minn.1981)), pet. for rev. denied (Minn. Apr. 19, 1989). As to Franklin, Schwartz/Weber, and Bernhagen, there is no evidence of assurances. As to the partnership, there is evidence that a partner gave an association member assurances that repairs would be made, but these assurances occurred in 1982. Given the substantial passage of time until the cross-claim was brought in 1987, and given evidence of continuing defects after 1982, these assurances do not support an estoppel theory.
As to the cross-claim against the partnership, the association argues that the partnership may have prevented the association from asserting its cross-claim earlier and thus the partnership should be estopped from asserting the statute of limitations defense for the period in which both were represented by the same counsel. While we note that some of the partners are also association members, no evidence was offered to show that any partner prevented the association from asserting its cross-claim.
2. Insurance coverage.
Allied challenges the trial court's conclusion that Franklin, acting as a construction manager rather than as a general contractor, performed only services and thus did not have a "product" for which the policy provided an exclusion from coverage. In Bor-Son Bldg. Corp. v. Employers Commercial Union Ins. Co. of America, 323 N.W.2d 58, 63 (Minn.1982) and Knutson *171 Const. Co. v. St. Paul Fire and Marine Ins. Co., 396 N.W.2d 229, 236 (Minn. 1986) the test for whether the insured party had a product was based on the degree of control that the insured had over the project. Here, Franklin's president, James Culliton, testified that Franklin and its field supervisor were responsible for the entire project, coordinated all of the scheduling of the work, dealt with all of the contractors and subcontractors, obtained certificates of readiness for the utilities, prepared the contracts for the contractors, obtained building permits, ensured that the other contractors had insurance, arranged soil testing, inspected and approved the work, and approved payments for work as it was completed. Culliton agreed that Franklin had effective control of the project. Given this testimony, Franklin cannot successfully argue that the project is not its work product; the company clearly had ultimate responsibility and effective control of the project.
Concluding that Franklin has a product within the meaning of the general liability policy, we are compelled to follow the direction of Bor-Son and Knutson. In Bor-Son, the supreme court discussed the "business risks" that a contractor assumes by entering into a building contract. 323 N.W.2d at 61. Those risks include the obligation to construct buildings free from defects. Id. Any damage to the buildings themselves due to defects flows from the contractual obligations undertaken by a contractor. Id. To protect an owner from loss resulting from such building damage, the court stated, a contractor is required to furnish a performance bond. Id. To protect those who sustain personal injury or damage to property other than the building in question (for example, a passerby injured when a wall of the building collapses), a contractor is required to carry comprehensive general liability insurance. Id. at 61-62. Here, to allow the association to recover damages from Allied's policy would, in effect, convert Allied's general liability policy into a performance bond and allow Franklin to shift its responsibility to provide a project free from defects to its insurer. This result is expressly impermissible under Bor-Son and Knutson.
Franklin, et al., attempt to distinguish their case from Bor-Son and Knutson and cite Ohio Casualty Ins. Co. v. Terrace Enterprises, Inc., 260 N.W.2d 450 (Minn. 1977) and Western World Ins. Co. v. H.D. Engineering Design and Erection Co., 419 N.W.2d 630 (Minn.App.1988). In Western World the court of appeals found coverage under a general liability policy because the underlying lawsuit by the owner against the contractor was for damages caused by an accident rather than for damages due to defective workmanship. Id. at 635.
The Bor-Son court distinguished Ohio Casualty based on three considerations, including the fact that the contractor in Ohio Casualty did not have responsibility for the whole project. Bor-Son, 323 N.W.2d at 63. The major difference between Ohio Casualty and this case is that there was no supervision of the whole project by the contractor in Ohio Casualty.
The trial court identified three additional theories for avoiding the exclusions. First, the trial court found an ambiguity in the fact that the main portion of the policy excluded completed operations coverage while the schedule of premiums showed that a premium had been paid for completed operations. It is evident from a reading of the policy that there is coverage for completed operations under section VI of the policy but that exclusions within these provisions, although not wholly eliminating the coverage, are consistent with the work product exclusions discussed earlier in this opinion.
Second, the trial court found that Allied had provided coverage to Franklin for liabilities that it assumed in its contract with the owners. In that contract, Franklin gave a warranty for defects in workmanship. The trial court found coverage under an exception to an exclusion which provided:
This insurance does not apply: (a) to liability assumed by the insured under contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality *172 of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
However, coverage under the policy is limited if the claimed damage flows from property damage. The exclusions noted earlier clearly limit the property damage coverage by excluding damage to Franklin's products. Atlantic Mut. Ins. Co. v. Judd Co., 367 N.W.2d 604, 608 (Minn.App. 1985), aff'd 380 N.W.2d 122 (1986) Furthermore, affording coverage to Franklin on this construction of the policy would violate the principle set forth in Bor-Son and Knutson against insuring contractors against their own faulty workmanship.
Third, the trial court applied the reasonable expectations doctrine to provide coverage for Franklin. The doctrine applies to defeat the language of the policy and honor a construction based on what a reasonable person would believe the terms of the policy meant. Atwater Creamery Co. v. Western Nat'l. Mut. Ins. Co., 366 N.W.2d 271, 277 (Minn.1985). In Hubred v. Control Data Corp., 442 N.W.2d 308, 311 (Minn.1989) the supreme court stated that the doctrine does not remove from the insured the responsibility to read the policy, but does not hold the insured to an unreasonable level of understanding. Other factors to consider are the presence of an ambiguity, language which operates as a hidden exclusion, communications by the insurer explaining the policy, and whether the provisions in a contract are known by the public generally. Whether the doctrine applies depends on consideration of all the facts and circumstances. Id.
Here, the office employee responsible for procuring insurance for Franklin's operations testified that she did not read the policy. There are not hidden ambiguities in the policy itself. Furthermore, given the prominence of the rationale of Bor-Son and Knutson, the exclusions can only be viewed as a primary part of the policy. Also, as Allied argues, the face of the policy shows the type of coverage by its identification of the insured's work premises as those of a "general contractor." Based on the limited situations in which it has been applied, and given the factors above, the reasonable expectations doctrine does not apply.
Because of our disposition of the matter on the declaratory judgment action, Franklin is not entitled to requested attorney fees.
3. Miller-Shugart agreement.
Franklin, et al., argue that the trial court improperly rejected the settlement agreement. The parties concede that Allied was not notified of any negotiations leading up to the agreement. The trial court was alarmed that secrecy of negotiations even excluded counsel provided to Franklin by Allied. Notice is a crucial element under Miller v. Shugart, 316 N.W.2d 729, 734 (Minn.1982). Moreover, we think it is significant that the agreement in Miller was negotiated after the trial court had determined coverage. Id. at 732. Here, the trial court had not yet ruled on Allied's declaratory action when the parties negotiated the settlement. Fair dealing was compromised here by denying Allied a chance to decide if it wanted to settle the claims or litigate them.
DECISION
The trial court correctly determined that the two-year statute of limitations prevented the Association from asserting its claims. The trial court also correctly rejected the parties' settlement agreement. It was error to find coverage under Allied's policy for the claims.
Affirmed in part and reversed in part.
NOTES
[*] Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 2.
[1] Throughout this opinion, we refer to the association as "appellant," its status in the defects litigation. In the insurance action, however, the association is a respondent.
[2] This statute provides that unless fraud is involved, no action to recover damages for any injury arising out of a defect in an improvement to real property may be brought against any person performing or furnishing the design, planning, supervision, materials, or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury nor, in any event more than ten years after substantial completion of the construction. Prior to amendments effective in 1988, the cause of action accrued upon discovery of the defect, rather than discovery of the injury. The 1988 amendments are applicable to this matter. See 1988 Minn.Laws ch. 607, § 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608166/ | 791 So. 2d 525 (2001)
James CARTER, Appellant,
v.
STATE of Florida, Appellee.
No. 1D00-2638.
District Court of Appeal of Florida, First District.
July 24, 2001.
*526 Nancy A. Daniels, Public Defender and Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General and James W. Rogers, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
PADOVANO, J.
We find no error in the defendant's conviction, but reverse the assessment of $100.00 in favor of the Florida Department of Law Enforcement Trust Fund and the imposition of a public defender lien in the amount of $250.00. The assessment was improper because it is a discretionary cost that was not orally pronounced at the time of sentencing, and the public defender lien must be reversed because the trial court failed to advise the defendant of his right to contest the amount.
After the appeal was filed, the defendant's appellate counsel filed a timely motion in the trial court under rule 3.800(b) of the Florida Rules of Criminal Procedure challenging both the assessment and the lien. The trial court denied the motion stating that "no such objections were raised by trial counsel at the time of sentence." This was not a valid reason to deny relief.
Rule 3.800(b) authorizes the defendant to file a motion in the trial court to correct a sentencing error. The motion may be filed within the time for filing a notice of appeal or it may be filed during the pendency of an appeal if it is served no later than the date for service of the defendant's first brief. In either case, the defendant may assert a claim that was not previously raised by objection at the time of sentencing. A sentencing issue that has not been raised in the trial court either by an objection at the sentencing hearing or in a subsequent rule 3.800(b) motion will not be *527 addressed on direct appeal. See Fla. R.App.P. 9.140(d).
The procedure established by rule 3.800(b) enables the parties to object to sentencing errors that were not apparent at the time of the sentencing hearing. See Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure, 9.020(h), 9.140, and 9.600, 761 So. 2d 1015 (Fla.1999). As a practical matter, the rule also ensures that a trial judge will not be reversed for a sentencing error presented for the first time on appeal. If the trial judge corrects the sentence in response to a rule 3.800(b) motion, the sentencing issue will never ripen into an appellate argument. On the other hand, if the trial court declines to correct a sentencing error identified in a rule 3.800(b) motion, the issue will have been preserved by the filing of the motion, and the appellate court must then address the issue on the merits.
We are obligated to consider the sentencing issues in this case because they were preserved for appellate review by a timely rule 3.800(b) motion. The defendant has shown that the trial court erred in imposing the assessment and lien. Accordingly, we reverse with instructions to eliminate these aspects of the sentence.
Affirmed in part and reversed in part.
MINER and VAN NORTWICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607255/ | 61 F. Supp. 722 (1945)
EDWARD B. MARKS MUSIC CORPORATION
v.
WONNELL et al.
District Court, S. D. New York.
May 8, 1945.
*723 Julian T. Abeles, of New York City (Julian T. Abeles and Leopold Bleich, both of New York City, of counsel), for plaintiff.
Irwin H. Clark, of New York City (Wm. B. Petermann, of Cincinnati, Ohio, of counsel), for defendants Harry S. Wonnell, Administrator, etc., and Sallie Black Waldo.
Isidore Scherer, of New York City (Charles H. Tuttle and Gerald J. Craugh, both of New York City, of counsel), for defendant Mattie E. Shanks.
CONGER, District Judge.
This is an action in the nature of an interpleader brought under 28 U.S.C.A. § 41, Sub. 26.
The case was tried to the Court without a jury.
Three parties are interested in this controversy: The defendants, Harry S. Wonnell, as administrator of the estate of Johnny S. Black (also known as John S. Black), deceased, Sallie Black Waldo and Mattie E. Shanks. Willie Icia Black (Kissick), a defendant, was served but did not appear.
The following is a brief summarization of the pertinent facts set forth in the complaint: That prior to December 9, 1915, said Johnny S. Black wrote the original musical composition entitled "Paper Doll" which was duly copyrighted by him on December 9, 1915. That htereafter the said musical composition was duly assigned by Johnny S. Black to plaintiff. That the said Johnny S. Black died, intestate, one year prior to the expiration of said copyright and that said Sallie Black Waldo as widow of Johnny S. Black, deceased, duly renewed and extended said copyright for the further term of 28 years, and that on November 11, 1943, she duly assigned said renewal copyright to plaintiff. That plaintiff is the sole proprietor of all the rights, title, and interest in and to said renewal copyright. That four claims have been made against plaintiff arising out of this copyright and renewed copyright as follows: By Harry S. Wonnell, as administrator; *724 by Sallie Black Waldo, widow of Johnny S. Black; by Willie Icia Black who also claims to be the widow of Johnny S. Black and by Mattie E. Shanks. That by reason of the conflicting claims of the defendants, plaintiff is in great doubt as to the rights of the defendants and as to which defendants are entitled to be paid the moneys that have become due under the copyright and the renewal copyright. That plaintiff had in its possession $15,220.17 payable under the copyright and $2,214.18 payable under the renewal copyright. That plaintiff has paid these two sums with the Registry of the Court to abide the judgment of this Court. Plaintiff prays that it be adjudged the sole owner of the said renewal copyright. That defendants be required to interplead and settle among themselves their respective claims and that plaintiff be discharged from liability in the premises.
The two defendants, Harry S. Wonnell, administrator, and Sallie Black Waldo do not dispute the title of plaintiff to the song, but rather by alleged facts support plaintiff's claim to title thereto, both to the original copyright and the renewal copyright; but they do assert that each is entitled to part of the fund, one as the administrator of Johnny S. Black to the moneys due Black under the copyright agreement and assignment and the other, as the widow of Johnny S. Black, to the moneys due under the renewal copyright agreement and assignment. Both ask for an accounting.
Defendant Mattie E. Shanks in her answer, however, by way of counter-claim and cross-claim alleges that she is the real owner of this song. That she was the joint composer of the song with Black, and that when he died she became the sole owner. She attacks plaintiff's title to the song and the right of the defendants to any of the moneys from the royalties of said song. She also attacks the validity of the renewal of the copyright and asks that it and the assignment thereunder be set aside and declared void. She also asks for an accounting from the plaintiff of all moneys due. At the trial, however, defendant Shanks by stipulation in open court withdrew any claim she might have or have had against the plaintiff concerning the title to the song, either because of the original copyright or the renewal of the copyright. In brief she, by this stipulation, recognizes the title of plaintiff to the song. She does claim, however, all the royalties or sums due by reason of the agreement made in connection with the assignment of the original copyright and the agreement made in connection with the assignment of the renewal copyright; so that now the real issue is the division of the funds due from the plaintiff under the royalty agreements.
At the outset, therefore, to clarify the issues, I find that plaintiff is the sole owner of the renewal copyright of the song "Paper Doll."
The following facts I believe are undisputed: On or about December, 1915, Johnny S. Black made application for copyright of a musical composition, "Paper Doll," not to be reproduced for sale. With the application he filed one complete copy of the words and music. In the application, the said Johnny S. Black stated he was the arranger of the music and the author of the words of the song.
A certificate of copyright registration was thereupon issued to the said Black by the Register of Copyrights. The copy of the song so filed bore the inscription "Words and music by John S. Black."
On or about September 12, 1924, Edward B. Marks Music Co. (plaintiff's predecessor) became the owner, by assignment from Black, of all his interest in and to said song and the original copyright thereof. In and by said assignment the said assignee agreed to pay the said Black a certain royalty on each copy of the song published and sold.
On August 27, 1942, plaintiff copyrighted the song as a published work.
Johnny S. Black died on June 9, 1936, a resident of the State of Ohio, leaving him surviving a widow, Sallie Black Waldo.
On November 9, 1943, Harry S. Wonnell was appointed, by the Probate Court of the State of Ohio (Butler County), administrator of the goods, chattels, etc., of the said Black.
The original copyright to the song expired on December 8, 1943.
During the year prior thereto and on November 13, 1943, Sallie Black Waldo, as "the widow of the author," renewed and extended said copyright.
On or about the same date the said Sallie Black Waldo assigned the said renewal copyright to the plaintiff and the plaintiff at the same time agreed to pay to the said Sallie Black Waldo, certain royalties due from the publication and use of the song *725 by the plaintiff under the said renewal copyright.
There are certain sums now due from the plaintiff for royalties due under the original copyright and also under the renewal copyright.
Perhaps it might be as good a time as any to mention the fact that this song rested in oblivion until some time during the summer of 1942. It was then sung by a popular radio singer and after that this song enjoyed marked popularity. Hence this lawsuit.
The defendants, Wonnell as administrator and Sallie Black Waldo have made out a prima facie case. Both claim title through Black. These defendants have made a prima facie case of title by the production of the original certificate of copyright registration which shows that the author of the lyrics and words of the song "Paper Doll" was John S. Black. Such a certificate is prima facie evidence of all that appears on its face. Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 23 F.2d 159; Jerry Vogel Music Co., Inc. v. Forster Music Publishers, 2 Cir., 1945, 147 F.2d 614.
The burden of going ahead with the evidence is with defendant Shanks; to show that the title of Black and those claiming by and through Black is defective is upon her. She has the burden of proof in this respect and to prove that she has or had any interest in this song and the proceeds therefrom.
The defendant has undertaken this burden and has testified herself and others have testified on her behalf.
The defendant, Mattie E. Shanks, in attempting to meet this burden and to prove her case, took the witness stand herself. She testified that as a young girl she was gifted in music and dancing and was teaching dancing and playing the piano in various schools in Chicago at an early age. That in connection with her work as an instructor she wrote her own music. That she went on the stage as a solo dancer. That when she started to dance professionally she continued to create her own dances and make her own costumes and write her own music for the numbers she used. That she met Johnny S. Black at the end of 1914. That she wrote the song "My Doll" (the words and music). That she got the idea from Nell Brinkley's dolls, which Nell Brinkley drew for the newspapers. That she called the piece originally "My Doll." That when she came to New York in 1915 with her brother she met Johnny S. Black and Andy M. Boyle, a pianist, at Remick's Music Publishing House. That she sang three songs there; the other two numbers were two other songs which she had written, "Adorable You" and "I Love You." That she became engaged to Black in 1915. That she brought with her from Chicago on the visit in 1915 the three songs: "Adorable You", "I Love You" and "My Doll." That the last song had two verses and a chorus. That she continued in musical vaudeville from 1915 to 1927 when she left the stage permanently. That during that time she played the leads in various Broadway productions and when she left the stage she was receiving a salary of between $400-500 per week.
Her testimony was that she wrote this song "Paper Doll," then named "My Doll" and brought the words and music to New York in 1915, where it was played by Boyle, the pianist, in the presence of Johnny S. Black. Mattie Shanks produced in corroboration of her story four witnesses. A brief resume of their testimony follows:
James W. Miller, who testified that he and Black in 1916, 1917 and 1918 were members of an act known as the "Three Chums"; that in the act they used this song "Paper Doll" a number of times; that Black spoke to him (Miller) about this song and told him that he (Black) would introduce him "to the little girl who wrote the song and who was responsible for this song"; that later Black did introduce him to Mattie E. Shanks who then had the stage name of Shirley Sherman; that Black said to him (Miller), "Here is the little girl who wrote that song"; that about this time Black said to Miller that he (Black) and Shirley Sherman would some day make a lot of money out of this song.
The next witness was Andy M. Boyle, who was a piano player and musician. He testified that he met Mattie E. Shanks known then as Shirley Sherman at Coney Island about 1915; that he was a piano player and band leader there; that Miss Sherman was accompanied by Black; that an appointment was made the next day for all three to meet at Remick's Music Publishing House so that Boyle could assist Miss Sherman with some new dance routines; that the next day they did meet, Boyle, Miss Sherman and Black; that Miss *726 Sherman worked with said Boyle in connection with some dance music and that then Miss Sherman produced three manuscripts of the three songs: "Adorable You", "I Love You" and "My Doll"; that he (Boyle) liked this doll song and the question of copyrighting the song came up and he (Boyle) suggested it be copyrighted in the name of Black and that Black then stated, "It's a family affair anyway. It's going to be a man and wife proposition"; that at that time someone said (the witness thought Miss Sherman), "Let's call it `Paper Doll'." The witness further stated that, "That is the way `Paper Doll' was born."
Miss Sherman produced as a witness her brother, Sidney Shanks, who testified among other things that Black visited the Shanks' home in the latter part of 1915 or 1916; that Black and Mattie Shanks played a number of songs on the piano, particularly this doll song and that Black remarked in connection with that song, "She's got something there," and that they, Mattie Shanks and Black, had it together but that he was going to copyright it.
The last witness was Black's foster father, Huber. He testified that he met Mattie Shanks in 1915 when Black brought her to his mother's home; that on one of the visits Black told him with reference to this "Paper Doll" song that they (Black and Shirley Sherman) had it in partnership; that he (Black) had had it copyrighted the previous year and that the survivor was to take all; that it was Shirley's piece.
It also appears from the testimony that Black and Mattie Shanks were married in May, 1918, and that Mattie Shanks divorced Black in 1924; that Black died in 1936. Mattie Shanks is now Mattie Shanks Goeller.
It also appears from the evidence in the case that Johnny S. Black was a well-known musician; that he had written a number of musical compositions and arrangements, some of which were quite successful.
If the above testimony of Mattie Shanks and her witnesses is to be believed, there is only one conclusion that can be drawn and that is that Mattie Shanks was the author in the main of this song "Paper Doll."
The attorney for the other defendants contends that this testimony is not creditable; that the witnesses have discredited themselves and that they were confused. In support thereof he has picked out a number of instances where inaccuracies have occurred in the testimony and instances which he contends show that the witnesses were confused and that their testimony was unconvincing. I have gone into this very carefully. Some of the criticism of this testimony is not justified. Some is. Some of the inaccuracies pointed out are innocuous. Some are only what one would expect of witnesses giving testimony of what occurred 25 years ago. Some of the witnesses are interested, Mattie Shanks herself and her brother.
One of the witnesses (Boyle), seemed to me, related some circumstances which could only be born out of his imagination, yet from anything which I could find, he was uninterested. He wasn't particularly acquainted with Mattie Shanks but had been a great personal friend of Black.
The witness Lewis Huber (foster father of Black) is 71 years of age. He seemed to be a rather slow and unresponsive witness at times and yet at other times prompt in his answers. Whether or not he is interested, I am unable to say. It would seem, at least from his testimony, that he claims some interest in part of the royalties in dispute, and might be said to be testifying against his interest. He apparently is very friendly with Mattie Shanks. During the trial he was living here in New York with her brother. He was not too satisfactory a witness.
One witness, Miller, impressed me very much. He was absolutely disinterested as far as I could tell. He is not related to Mattie Shanks. His recollection is that he hadn't seen her from 1915 until about a year before the trial. He had never visited her at her home. Down through the years he had never seen her. His statements were positive and direct. It is so important that I quote several of them in which he is referring to what Black said to him in 1917 or 1918 about this song and about Mattie Shanks and the connection of Mattie Shanks with this song:
"Some day I am going to introduce you to the little girl who wrote the song, who is responsible for this song."
"The witness: He told me he would introduce me to the girl that wrote that song.
"Q. Did he mention any name in that connection at all? A. No, he said that, *727 later, that he would introduce me to the girl and he finally did.
"Q. When was that, that he finally did? A. Well, it was quite a few months after. We were working in the Beacon Hotel in Buffalo and this was when I met Shirley Sherman. She was a dancer in the show at the time and he says, `Here is the girl that wrote the song.'"
At the end of the trial I was rather impressed with the testimony given by the defendant Mattie Shanks and her witnesses. Since then I have read over the minutes, considered the testimony in connection with the law applicable to this type of case. I realize that this type of testimony should be scrutinized closely; that testimony given of occurrences 25-30 years before might be tinged with the desire to aid the litigant; witnesses might be mistaken after such a long period of years, also a story might easily be fabricated which would be hard to disprove; that this type of evidence is frequently unsatisfactory.
I realize that in order to succeed Mattie Shanks should prove her case by clear and satisfactory evidence; that her evidence should be scrutinized with great care and perhaps even with suspicion.
With all this in mind I have come to the conclusion, however, that Mattie Shanks has met the burden which the law imposes upon her. I am satisfied from the evidence that she, a person with considerable talent as a musician, was the main author and did write in the main the words and music of the song "My Doll"; that in the year 1915 Mattie Shanks came to New York where she met Andrew Boyle, a musician, and Black; that on that visit Boyle played the song "My Doll" at Remick's Music Publishing House in New York City; that as the result of a conversation there held, the name of the song was changed to "Paper Doll"; that Black agreed to have it copyrighted in his name and that Black did have this song copyrighted in his name; that Mattie Shanks first met Black in 1914; that she became engaged to him in the summer of 1915 when she came to New York; that she was married to him in 1918 and divorced him in 1924.
I have come to the above conclusion after a review of the testimony. There can be no question of mistake here or of faulty memory in the main. These witnesses are either telling the truth in the main or they are committing perjury. I can't see where there can be any middle road. The story told by each of these witnesses is either essentially true or it is not. I can't conceive that all of these witnesses committed perjury.
I have above criticized the nature and character of their testimony and I have come to the conclusion that adding it all up that Mattie Shanks was the main author of the words and music of this song "Paper Doll" and that she did collaborate with Black, he completing it so that it might be copyrighted.
I, therefore, hold that when Black took out this copyright, he took it out for himself and Mattie Shanks; that when Black copyrighted this song in his own name it was a copyright upon a joint work and that he (Black) as the copyright owner held the copyright with a trust impressed upon it, a trust for the benefit of Mattie Shanks and that the renewal of the copyright taken out by the defendant Sallie Black Waldo is held by her with a constructive trust imposed upon it for the benefit of Mattie Shanks. See Edward B. Marks Music Corporation v. Jerry Vogel Music Co., 2 Cir., 140 F.2d 266.
I am convinced that when Black took out the original copyright to the song that it was a joint venture; that he took out the copyright for himself and his then fiance, Mattie Shanks. I am not impressed, however, neither do I hold with the contention of Mattie Shanks that the survivor was to take all. In other words that this was to be a joint tenancy with the right of survivorship. In coming to this conclusion I am impressed by the fact that it was never the intent of these two parties to make a testamentary disposition of the title to this song. Passing on a question of this kind and in determining as to the intent of the parties, one must look at the surrounding circumstances. When the conversations were had which led to the copyrighting of this song, Black and Mattie Shanks were engaged to be married; no doubt very much in love. The idea, undoubtedly, was as expressed by the conversations testified to, that they were soon to be man and wife; that whatever one had belonged to the other; that would be the natural thought in the minds of each. I certainly can't conceive that they had in mind that if divorced there would still be a right of survivorship. It seems to me it would be inequitable to hold here that this oral agreement made between the two was ever intended *728 to cover such a situation. Such oral agreements are frowned upon by the Courts and should only be enforced when they have been established by evidence so strong and clear as to leave no doubt and when the result of enforcing them would not be inequitable or unjust. See Hamlin v. Stevens, 177 N.Y. 39, 69 N.E. 118.
It seems to me it would be inequitable to take from the defendant Sallie Black Waldo any right or benefit which should come to her by reason of her renewal of the copyright. Had she not renewed the copyright, this song would undoubtedly be in the public domain.
It is significant to note that Mattie Shanks testified that she heard this song played publicly in October or November, 1943. She apparently consulted an attorney at that time and notified the plaintiff of her interest in this song. Her claim then was that "she was co-writer with Johnny S. Black of the musical composition `Paper Doll.'" There is nothing in the case to indicate what Black did in collaborating with Mattie Shanks. There is testimony, however, which would indicate that there were some changes made in either the music or the words from the original copy, brought by Mattie Shanks to New York, which original copy, it might be noted here, was not the one filed when the application was made for copyright.
In her answer and cross-complaint interposed herein, Mattie Shanks alleged that she and Johnny S. Black entered into an agreement in and by which they "agreed to collaborate each with the other in the creation and writing of a musical composition, and that the said musical composition thereafter was by them called and came to be known as `Paper Doll'" (Par. 11); that pursuant to said agreement and in fulfillment thereof, she, Mattie Shanks and Johnny S. Black "created and wrote in collaboration the aforesaid musical composition which thereupon was and now is named and entitled `Paper Doll'" (Par. 13).
My attention has been called by the attorney for the defendants Wonnell and Waldo to a decision handed down recently by the United States Circuit Court of Appeals for the Second Circuit. Jerry Vogel Music Co. v. Forster Music Publisher, 2 Cir., 147 F.2d 614, 615.
The attorney for these defendants contends that this decision is applicable to this case. I can't see that it is. In the Vogel case, both the District Court and the Circuit Court of Appeals held that evidence introduced in support of a contention similar to the one made here by Mattie Shanks, was not sufficient to overcome the presumption of authorship in favor of the one who obtained the original copyright. The Circuit Court of Appeals said this in the Vogel case:
"We do not, under familiar rules, undertake to weigh the evidence to determine its preponderance. The appellee established a prima facie case by producing the copyright certificate, and while the ultimate burden was upon it to establish its right to a declaratory judgment of sole ownership of the copyrighted publication, the appellant had the burden of establishing its affirmative defense, and we are not persuaded that the District Judge was clearly wrong in holding that it failed to do so."
I hold here that there is this same presumption which is obtained from the production of the copyright certificate, but I hold here that the evidence has overcome that presumption. An examination of the testimony in the Vogel case indicates that the other testimony produced was not clear and one might very well hold that it was not sufficient to overcome the prima facie case made by producing the copyright certificate. I hold differently here.
We now come to the question of laches. There was not a great deal said of this at the trial, but it is a question which has given me much concern. Mattie Shanks made no claim apparently to this song until November 24, 1943. I know that claims of this type made so many years later may very well be frowned upon and discredited, but after all delay alone in asserting a claim is seldom a bar. That which converts passage of time into laches is some prejudice to one of the parties. In re Stilwell, 2 Cir., 120 F.2d 194.
Certainly the plaintiff has not been prejudiced in any way. The only prejudice that could come to the other two defendants here is the difficulty in obtaining witnesses after this period of time. This is the thing which has given me a great deal of thought. The peculiar facts of the case, however it seems to me, justify the non-application of the doctrine of laches here, although as I have said this question has given me a great deal of trouble and concern and some doubt. This is a peculiar situation. This song after it was copyrighted apparently never had any vogue. It laid on the shelf. It was apparently *729 dead. It never came to life until some time in 1942, when a popular radio performer sang it over the radio. At once it seemed to take hold and became a so-called popular song overnight. There was no reason for Mattie Shanks ever to make any claim up to this time. She did make a claim, as she says, shortly after she heard the song on the radio.
A similar situation arose in the case of Jerry Vogel Music Co. v. Forster Music Publisher, supra. In that case there had been a claim made after some 25 years by a man who claimed to be a co-collaborator in a song "Down by the Old Mill Stream." In that case the question was raised that the claimant was guilty of laches. An examination of the brief on appeal interposed by the attorney for the opposition indicates that practically the same cases were cited there as are cited here in support of the defense in laches, but the Circuit Court of Appeals apparently passed by or did not consider that defense, except that they did state that the fact that the claimant in the Vogel case had made no legal claim to the copyright during almost 28 years was a circumstance to be considered by the Court upon the issue of co-authorship. In other words, they held that it was to be an evidentiary circumstance to be considered by the Court in passing upon the strength of the claimant's case. This case is a bit different in that respect. The song in the Vogel case was popular during practically the whole 28 years. The song in this case was never popular until about 28 years after it had been copyrighted.
There is another issue to be disposed of which is between Sallie Black Waldo and the plaintiff herein. She claims that when she assigned the renewal copyright to the plaintiff herein she only warranted "that she is the widow of Johnny S. Black, the writer of said work" and that she had not previously disposed of her interest in the song and her right to renew the contract. Her contention is that no matter what happens, the plaintiff agreed to pay her certain compensation and this they must pay her in any event no matter what the result of this lawsuit is.
I hold against this defendant in this contention. Whatever she has here she has under the statute, because she is the widow of Johnny S. Black. The plaintiff by the assignment took all the right and interest in and to the renewal copyright. From an examination of the papers which were executed by this defendant and the plaintiff in connection with this assignment it clearly appears that the plaintiff was to have the sole and exclusive right to this renewal copyright for which it was to pay a certain royalty to Sallie Black Waldo who succeeded to the interest of Johnny S. Black as his widow. This interest as I have heretofore held is impressed with a trust in favor of Mattie Shanks.
I, therefore, hold that Harry S. Wonnell, as administrator of the estate of Johnny S. Black, and Mattie E. Shanks are entitled to share equally in the royalties which were due under the original copyright and that Mattie Shanks and Sallie Black Waldo are entitled to share equally in the royalties due and to become due from the plaintiff upon the renewal copyright.
If the parties are unable to agree as to the division of the royalties due, then I will provide for an accounting to be had before a Special Master.
Settle decree on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607265/ | 366 So. 2d 550 (1979)
STATE of Louisiana
v.
Newton BROWN.
No. 62616.
Supreme Court of Louisiana.
January 8, 1979.
*551 Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
*552 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
DENNIS, Justice.
The question presented by this case is whether a person who lawfully obtains a dose of methadone from the Louisiana Narcotics Rehabilitation Commission while participating in an experimental pilot clinic program is guilty of illegal possession of methadone if he carries the methadone off the clinic premises without permission.
Defendant Newton Brown was charged by bill of information with possession of methadone, La.R.S. 40:967, and convicted by a six-person jury of attempted possession of a controlled dangerous substance. The defendant was adjudged a multiple offender, La.R.S. 15:529.1, and sentenced to serve nine years at hard labor.
Defendant relies on three assignments of error in appealing his conviction and sentence. Because we find reversible error in the first assignment of error, the remaining assignments are pretermitted.
At approximately 9:45 a. m. on May 5, 1975, while on patrol near the intersection of Baronne and Melpomene Streets in New Orleans, Officers Van Dalen and Cavilar saw Newton Brown, the defendant. Officer Van Dalen, a part-time employee at a nearby methadone rehabilitation clinic, had been informed that Brown, a patient of the clinic, on occasion had smuggled some of his methadone from the premises. The methadone clinic is one of several facilities established by the Louisiana Narcotics Rehabilitation Commission to aid in the prevention and correction of narcotic addition. Among its other functions, the commission is authorized to carry on programs for the administration, under medical supervision, of methadone to addicts as a substitute for narcotic or addictive drugs.
When the officers observed him on the morning of May 5, 1975, Brown was holding a Coca-Cola bottle. Officer Van Dalen questioned Brown about his activities and the defendant replied that he had just come from the rehabilitation clinic. The officer took the bottle and, holding it up to the light, noticed a reddish tint in the liquid with which it was partly filled. Since Van Dalen knew that the rehabilitation clinic administered methadone in a bright pink syrup, he suspected that the reddish tint was caused by methadone. The officers searched the defendant, informed him of his constitutional rights, and placed him in the police car. The defendant was formally arrested an hour and a half later when the laboratory results confirmed that the bottle contained methadone.
In his first assignment of error the defendant urges that the evidence seized should have been suppressed because it was obtained as a result of an unlawful arrest. Possession of a Schedule II controlled dangerous substance, the crime of which the defendant was suspected, and for which he was arrested, is defined by La.R.S. 40:967(C), as follows:
"It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this part. Any person who violates this subsection shall be imprisoned with or without hard labor for not more than five years; and, in addition, may be sentenced to pay a fine of not more than five thousand dollars."
The statute referred to in the crime definition, La.R.S. 40:978, in pertinent part, provides:
"A. Except when dispensed or administered directly by a medical practitioner or administered by a person authorized to administer by such practitioner, other than a pharmacist, to an ultimate user, no controlled dangerous substance included in Schedule II, which is a prescription *553 drug[1] as determined under the Louisiana Revised Statutes, may be dispensed or administered without the written prescription of a practitioner, except that in emergency situations, as prescribed by the State Board of Health by regulation, such drug may be dispensed or administered upon oral prescription reduced promptly to writing and filed by the pharmacist. Prescriptions shall be retained in conformity with the requirements of R.S. 40:976. No prescription for a Schedule II substance may be refilled."
Accordingly, under the exceptions provided by the statutes, it is permissible for a person to possess a Schedule II controlled dangerous substance if he obtains it directly, or pursuant to a valid prescription order from a practitioner (La.R.S. 40:967(C)) or if it is dispensed or administered directly to him by a medical practitioner or administered by a person authorized to administer by such practitioner, other than a pharmacist, to an ultimate user. (La.R.S. 40:978(A)).
It is not disputed that the methadone found in Brown's possession was given to him for his ultimate use and consumption by the Louisiana Narcotics Rehabilitation Commission at one of its clinics established for that purpose. Since the prosecution did not present evidence to the contrary, it is presumed that the commission acted lawfully in administering the methadone to the defendant. Therefore, from the record before us we must conclude that the commission, in fact, administered the drug according to La.R.S. 40:1052, which, in pertinent part, provides:
"[The Louisiana Narcotics Rehabilitation Commission] is authorized to establish, direct and carry on experimental pilot clinic programs for the treatment and rehabilitation of narcotic addicts, which programs may include the administration, under medical supervision and control, of methadone or other drugs as a substitute for narcotic or addictive drugs. * * *" (emphasis added)
Since the commission's administration of methadone, under medical supervision and control, for the treatment and rehabilitation of a narcotic addict necessarily involves the administration of such drugs by a physician or under the direction of a physician, the receipt and possession of methadone under these circumstances falls within the express exception of La.R.S. 40:967 and is therefore lawful.
Accordingly, possession of methadone, when obtained by a person under medical supervision and control, as part of a program for the treatment and rehabilitation for narcotic addicts administered by the Louisiana Narcotics Rehabilitation Commission is not a crime. Although the prosecution introduced evidence that the commission has adopted regulations limiting the circumstances under which an addict may carry methadone off clinic premises, there is no statute or constitutional provision by which this conduct is defined as criminal.[2]
There is no evidence that the arresting officers had any reason to believe that the initial administration of the methadone to Brown was unlawful. Consequently, the officers had no probable cause to suspect or believe that Brown was engaged in criminal activity at any time during their encounter with him. Thus, the investigatory stop, the seizure of the soft drink bottle and the arrest of Brown were all constitutionally invalid. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Matthews, 366 So. 2d 1348 (La.1978); *554 State v. Washington, 364 So. 2d 958 (La. 1978); State v. Davis, 359 So. 2d 986 (La. 1978); State v. Sims, 350 So. 2d 1189 (La. 1977); State v. Smith, 347 So. 2d 1127 (La. 1977); State v. Kinneman, 337 So. 2d 441 (La.1976); State v. Saia, 302 So. 2d 869 (La. 1974). If the officers had acted upon specific and articulable facts within their knowledge indicating that defendant had obtained the methadone without medical supervision, or that he possessed the drug with the intent to distribute it,[3] the policemen would have had reasonable cause to suspect Brown of criminal activity and the right to stop him for questioning. See, Terry v. Ohio, supra; State v. Matthews, supra; State v. Washington, supra; State v. Davis, supra; State v. Sims, supra; State v. Smith, supra; State v. Kinneman, supra; State v. Saia, supra. However, the state has the burden of proving that the warrantless search and seizure was justified under one of the narrow exceptions to the warrant requirements, State v. Franklin, 353 So. 2d 1315 (La.1978), and the prosecution failed to educe any evidence that the officers had information that Brown obtained the drugs illegally or intended to use them for an unlawful purpose.
Consequently, the defendant's motion to suppress should have been granted, and his conviction and sentence which were based on the illegally obtained evidence must be reversed. Furthermore, it is clear as a matter of law that the jury could not properly have returned a verdict of guilty because the entire proof assembled by the state does not constitute any evidence of the charged offense.[4] Under circumstances in which a defendant's conviction has been overturned due to a total lack of evidence as to an essential element of the crime, as distinguished from reversal for a trial error, the Double Jeopardy Clause precludes a second trial and requires the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); cf. State v. Allien, 366 So. 2d 1308 (La.1978).
For the reasons assigned, the defendant's conviction and sentence are reversed and a judgment of acquittal is entered in his favor.
REVERSED; JUDGMENT OF ACQUITTAL RENDERED.
SUMMERS, C. J., dissents for the reasons assigned.
MARCUS, J., dissents for reasons assigned by SUMMERS, C. J.
SUMMERS, Justice (dissenting).
Section 978 of Title 40 of the Revised Statutes prescribes the general rule that controlled dangerous substances may not be dispensed or administered without prescription.
It is significant, therefore, that Section 1052 of Title 40 regulating the use of methadone only authorizes the Louisiana Narcotic Rehabilitation Commission to administer that substance under medical supervision and control. The omission is meaningful. As used in the context of the statutes under consideration and when applied to a program for rehabilitation of drug addicts, administering methadone under medical supervision and control does not imply the dispensation of that drug for use or possession off the premises; nor does the statute imply that methadone is a "prescription" drug, which would permit possession of it beyond the limits of medical supervision and control. To administer as used there is, according to Webster's Third New International Dictionary, "to give remedially (as medicine) (the amount of the antitoxin administered *555 is determined by the doctor.)" On the other hand, to dispense is "to prepare and distribute (medicines) to the sick." Administer and dispense have different meanings. Section 1052 refers to administering, not dispensing the drug.
As I read the statute methadone must be administered under medical supervision and control. It may not be merely dispensed to addicts.
Thus the police had ample cause to arrest the defendant for they correctly understood the law to mean that methadone must be consumed on the premises of the clinic where medical supervision and control existednot on the streets; they had been told by a reliable informant that defendant was taking methadone out of the clinic, contrary to law; and they confirmed the fact that defendant was in possession of methadone when they viewed the Coke bottle and noticed a reddish tint to the liquid content. Officer Van Dalen knew the rehabilitation clinic administered methadone in a bright pink syrup.
I would affirm the conviction.
NOTES
[1] Methadone is a "prescription drug". Schedule II substances are designated as having a "currently accepted medical use in treatment." La.R.S. 40:963(B)(2). "Prescription" is defined as "a written request for a drug or therapeutic aid issued by a licensed physician, dentist, veterinarian, osteopath, or podiatrist for a legitimate medical purpose." La.R.S. 40:961(30). Therefore, by authorizing the dispensation of methadone under medical supervision and control as part of rehabilitation and treatment programs, the legislature tacitly, if not expressly, designated methadone as a "prescription drug."
[2] La.R.S. 14:7 provides that "[a] crime is that conduct which is defined as criminal in this code, or in other acts of the legislature, or in the constitution of this state."
[3] Even legal possession of a Schedule II controlled dangerous substance, if "with intent to produce, manufacture, distribute or dispense," is prohibited. La.R.S. 40:967(A)(1).
[4] Although methadone legally obtained at a commission clinic may constitute evidence of possession of methadone with intent to distribute if the quantity is sufficient, the defendant herein could not be retried for the more serious offense which is based upon the same evidence as the present prosecution. State v. Smith, 323 So. 2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So. 2d 596 (La.1975); State v. Didier, 262 La. 364, 263 So. 2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So. 2d 504 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304610/ | ANDERSON, P. J.
This is a suit brought by the State Commissioner of Highways and Public Works to enjoin the defendant Smith from placing waste matter and trash upon, and exercising acts of ownership over a portion of the right-of-way of State Highway No. 1. The Chancellor granted the relief prayed for and the defendant appealed.
The right-of-way was acquired by a consent decree entered in a condemnation suit pending in the Circuit Court of Benton County, Tennessee, styled Benton County *610v. Republic Creosote Company and Fred Ballard. The defendant admits that the right-of-way in question had been acquired by the State in a condemnation proceeding but he contends that it had been abandoned.
At the time of the condemnation proceeding, Fred Ballard owned the fee to the area in question. He was a party to the condemnation suit. The strip, said to contain three acres more or less, is located just west of Camden, Tennessee. While the evidence is not precise on the point, a portion of it at least seems to be within the corporate limits of the municipality. If not, the strip is immediately adjacent thereto. It was acquired by the State in connection with the re-location of Highway No. 1. It lies between the new location and -the old road to the north. It is said to extend 790 feet along the new highway and to be 40 feet wide on the east side and 75 feet on the west side, including and excluding two access roads leading from the new highway north across said area to the old highway.
The defendant Smith claims to have acquired the land by deed from Fred Ballard et ux. on the 14th day of October, 1947. The deed recites, among other things, that, ‘ ‘ The lot or parcel of land herein described is a part of the real estate acquired by Benton County for the use and benefit of the State of Tennessee for highway purposes under and by virtue of a compromise judgment entered into by the parties in the case of Benton County v. Republic Creosote Company at the September Term of the Circuit Court of Benton County, Tennessee, said portion of said condemned acreage being that part which has not been, and'is not being used for highway purposes, and which therefore reverted to the claimants herein as the Owners of the basic fee”,
*611In executing the conveyance to the defendant Smith, Ballard did not undertake to convey all of the land that had been condemned but omitted from the conveyance a strip 50 feet wide lying adjacent to the new pavement on the north as a right-of-way for the state highway. It appears to be his insistence that a rig’kt-of-way of 100 feet in width, 50 feet on each side of the pavement, is all that the state needs or is using as a right-of-way, and that all of the remainder of the strip that was used for highway purposes has been abandoned. He seems to reason that on the highway from Camden east to the Tennessee Biver a right-of-way only 100 feet wide was acquired, and that therefore the right-of-way through his property west of Camden is automatically limited to 100 feet regardless of the amount acquired by the consent decree entered in the condemnation proceeding.
The necessity for a right-of-way of the size taken was settled in the condemnation proceeding and it cannot be relitigated in this one.
But the principal contention is that even so, the state must be held to have abandoned all of the area in question north of the new highway except a strip 50 feet wide immediately adjacent thereto. The circumstances relied upon as constituting abandonment are substantially as follows:
At the time the highway was re-located the land to the north of the old highway in the vicinity in question, was owned by Bedford Hall, R. H. Wismer and W. C. Ballard. Each could enter the said highway from any point on the south margin of his tract. Bedford Hall had sold about 40 feet off the west side of his tract to the Tennessee Yalley Authority. Wismer had constructed a tourist court on his property.
*612When the new highway was constructed, the state built two access roads leading north from it to the old highway as a means of access for those who owned the property fronting on that thoroughfare. The two access roads are 500 or 600 feet apart. One is between the lands of Hall and Wismer and the other between lands of the latter and those owned by W. C. Ballard. The area in controversy lies between these two access roads, one on the east and one on the west, and between the old highway on the north and a line 50 feet north of the new highway on the south.
There was a ditch or depression between the new highway and the old highway and in the area in front of Wismer’s property. With the permission of the state, Wismer filled this in, built a black-top circle drive and beautified the area by planting a hedge and grass. He also drained it with tile.
The Tennessee Yalley Authority also put in some tile to drain the right-of-way in front of its property and constructed a driveway from it to the new highway.
It seems to be the defendant’s contention that the area in front of Wismer’s property and between the two access roads is not being used by the state but by Wismer in connection with his tourist court business, and that in permitting this use by Wismer the state abandoned its easement or so much of it as is being so used. We do not agree. With reference to what will constitute abandonment in an easement, the Supreme Court, in the case of Boyd v. Hunt, 102 Tenn. 495, 499, 52 S. W. 131, said: “Further, that mere nonuser will not amount to an abandonment which will impair or defeat an easement . . . The failure to use must be accompanied by some act of the owner of the dominant estate clearly indicating his purpose to set up no further claim in order to work *613abandonment. Washb. Easem. [& Ser.] pp. 707-717. And the cases as well as textbooks concnr in the proposition that this is true, especially as to easements created, as the one in controversy was, by grant. Curran v. City of Louisville, 83 Ky. 628; Kuecken v. Voltz, 110 Ill. 264; Wiggins v. McCleary, 49 N. Y. [346] 348; Bombaugh v. Miller, 82 Pa. [203] 208; 2 Washb. Real Property, p. 312. In Dill v. Board of Education, 47 N. J. Eq. 421, 20 A. 739 [10 L. R. A. 276], it was held that nonnse alone, for any length of time, will not extinguish an easement created by express grant, and that to accomplish this result there mnst be nonnse accompanied by ‘some conduct on the part of the owner of the servient tenement adverse to and defiant of the easement, and the nonuse must be the result of it.’ ” See also, Woods v. Bonner, 89 Tenn. 411, 18 S. W. 67; Phy v. Hatfield, 122 Tenn. 694, 126 S. W. 105; Smelcer v. Rippetoe, 24 Tenn. App. 516, 147 S. W. (2d) 109.
Wismer’s property fronted 500 feet on the old highway and, as said, he could enter that thoroughfare from any point on his southern line. What he has done is no more than to create the same situation with respect to the new highway by filling in the depression and constructing a circular driveway in front of his property. In other words, he now has the same access to the new highway from his property that he had to the old thoroughfare.
It is not necessary to hold that the improvements made by Wismer and the use by him of the area did not constitute an additional burden on the fee. There is presented only the question of whether in permitting the construction of the improvements by Wismer and the use of the area by him as above specified, the state authorities manifested an intention to abandon the right-of-way. This question must be answered in the negative. *614Even an unlawful encroachment placed upon a public highway will not constitute an abandonment of the easement of the public. 39 C. J. S., Highways, Section 133, p. 1070; 29 C. J. 539, Sec. 254; Hill v. Hoffman, Tenn. Ch. App., 58 S. W. 929. Much less will abandonment result from the permission of competent authorities to use the easement in a manner not inconsistent with the purpose of a highway or its use, and which is not in derogation of the rights of the public. Cf. Hardy v. Mayor, etc., of City of Memphis, 57 Tenn. 127.
In the present case it cannot be contended successfully that the act of Wismer in filling up the ditch or depression on the right-of-way was an interference with the rights of the public. Upon the contrary, the effect, if anything, was to promote safety of travel along the paved portion of the road. Nor was his beautification of the area and the construction of the circular driveway giving an additional means of ingress and egress adverse to the rights of the public. It may be that in years to come the state will require an additional portion of the right-of-way in order to widen the pavement. If so, the area will be available. In the meantime, under its general power to control its highways, the state has authority to authorize any use of the right-of-way consistent with the purpose of the highway and not in derogation of the rights of the public or those of the abutting landowners.
The defendant relies upon the recently decided case of Clouse v. Garfinkle, 190 Tenn. 677, 132 S. W. (2d) 345. In that case the City of Nashville, by a consent decree entered in a condemnation proceeding, acquired certain rights in a piece of land for street purposes. All of the land was not needed for the improvements, and when the street was completed, the city passed an ordinance declaring that the part not needed was abandoned and there*615after for a valuable consideration undertook to convey that portion to Garfinkle. ’The defendant insisted that in the condemnation proceeding the City acquired only an easement in the property and that the adoption of an ordinance and the conveyance to Garfinkle amounted to an abandonment. The City insisted that upon a proper construction of the consent decree entered in the condemnation proceeding it acquired the fee to the property and therefore had a right to dispose of that part of it not needed for street purposes. The majority of the Court held that upon a proper construction of the language of the decree the City acquired only an easement and not the fee to the property, and that the passage of the ordinance authorizing the sale amounted to an abandonment, as a result of which the property reverted to the original owner.
The pivotal point in the case was the construction of the consent decree, — that is, whether it vested the fee in the City, or only an easement. There seems to have been no question but what, if the City had only an easement, the adoption of the ordinance and the attempted conveyance to Garfinkle amounted to an abandonment.
The present case presents no such situation. In view of the decision in the Clouse case there can be no serious contention that more than an easement was acquired by the consent decree in the condemnation proceeding. Hence the issue here is as to whether there was an abandonment. Upon this issue the Clouse case is not in point. There has been no attempt to sell any part or interest in the right-of-way acquired in the condemnation proceeding. Upon the contrary, the State Highway Department has continuously and vigorously asserted its rights. The right-of-way was acquired in September, 1947, and was promptly marked with standard concrete, mark*616ers. The deed of Ballard and wife purporting to convey the tract to the defendant Smith was executed October 24, 1947. The present injunction suit was filed by the Commissioner of Highways and Public Works on November 3, 1947, less than two months after the title to the right-of-way was vested by the consent decree in Benton County for the use of the Highway Department of the State.
We hold, (1) that the necessity of a right-of-way of the size acquired in the condemnation proceeding was conclusively settled by the consent decree in that case and is not open for consideration in the present one; and (2) that there is no evidence indicating a purpose to abandon the right-of-way so acquired or any part of it.
The result is the decree of the Chancellor is affirmed at the cost of the defendant. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1607282/ | 366 So. 2d 777 (1978)
Joseph GREENE, Appellant,
v.
Patsy J. FLEWELLING et al., Appellees.
No. 78-78.
District Court of Appeal of Florida, Second District.
December 15, 1978.
Rehearing Denied January 29, 1979.
*778 Thomas F. Icard, Jr. and Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
Lynn H. Groseclose and Kingswood Sprott, Jr. of Sprott & Groseclose, Lakeland, for appellees.
SCHEB, Judge.
Appellant Greene obtained a favorable jury verdict for damages in an action arising out of an automobile accident. The trial court set aside the jury verdict on the grounds that it was not supported by competent, substantial evidence. This appeal by Greene ensued. We affirm.
On October 24, 1976, a car driven by appellee Patsy Flewelling collided with a Volkswagen bus driven by appellant Greene. A passenger in Greene's bus sued the Flewellings, who in turn filed a third-party complaint against Greene. Greene then filed a third-party counterclaim against the Flewellings seeking to recover for his personal injuries.
Greene's passenger settled with the Flewellings, and the cause went to trial on the Flewellings' claim against Greene and Greene's counterclaim against them. The jury found Mrs. Flewelling 100% negligent, and awarded Greene $20,600. Upon motion by the Flewellings the court set aside the jury's verdict and entered judgment in favor of Greene for $550, the stipulated amount of his property damage.
On this appeal Greene argues that the trial court erred in overturning the jury's verdict. He also contends that the trial judge erred in refusing to give a jury instruction concerning a "serious, nonpermanent injury."[1] Since both of these contentions *779 depend to a large extent upon the evidence presented at trial, it is necessary that we review the testimony in some detail.
To support his claim Greene presented his own testimony, that of his wife, and the deposition of a physician who had examined him. First to testify was Greene's wife. She said that her husband had been released from the hospital several hours after the accident, but that he was in considerable pain from various bruises and lacerations for about a month. She said she first discovered that her husband could not smell several days after the accident when she came home and detected a pungent odor of gas in the house. Mrs. Greene asked her husband if he could smell anything and he said he could not. She then checked the stove and found the pilot light was out and that it was emitting gas. Alarmed, she presented a number of household substances to her husband and asked him if he could smell them. He said he could not. Mrs. Greene further testified that her husband subsequently informed her that he could not taste either. She noted that his condition had not improved as of the time of trial, slightly over a year after the accident.
The deposition of Dr. DeWeese, a neurosurgeon, was next introduced into evidence. The doctor said that Greene had been referred to him about a month after the accident because of his claimed loss of smell. He said that Greene had told him he could smell before the accident, but could not afterwards.[2] Dr. DeWeese asked Greene to smell various pungent substances around his office, but Greene reported that he could not smell any of them. The doctor explained that when a person loses his sense of smell it usually means the olfactory nerves have been damaged in some manner; yet, in his opinion Greene had not sustained the type of injury that would damage the olfactory nerves. Dr. DeWeese said he had no way of predicting when or if Greene would regain the ability to smell and taste, and concluded that Greene suffered from "a subjective complaint that can't be corroborated with objective findings."
Greene testified that he could not recall anything about the accident itself, or how he received his injuries. He said he remembered very little until two days after the accident, at which time he recalled being in pain from rib, neck, head, and back injuries. He said he had never had any trouble with his senses of smell and taste before the accident. He corroborated the incident his wife had related about his not being able to smell gas from the stove, and referred to various other instances when he had not been able to smell or taste.
At the conclusion of the evidence the Flewellings moved for a directed verdict. The trial judge, while expressing considerable doubt as to whether the evidence was sufficient to sustain Greene's personal injury claim, reserved his ruling on the motion. See Fla.R.Civ.P. 1.480(b).
The jury was then instructed that it could return damages in favor of Greene for his personal injuries if: (1) Mrs. Flewelling was found to be negligent; (2) Greene sustained a "permanent loss of bodily function"; and (3) Mrs. Flewelling's negligence was the legal cause of Greene's personal injuries. The jury answered all three of these questions affirmatively and awarded Greene $20,600 in damages.
The Flewellings then moved to have the jury's verdict set aside and to have judgment entered in accordance with their previous motion for a directed verdict. As mentioned previously the court granted their motion, stating in its order that Greene had produced "no competent medical evidence" to prove that his loss of taste and smell was caused by the accident or that the loss of these senses was permanent.
The rules governing a posttrial motion for judgment in accordance with a previous motion for directed verdict are the same as those governing a motion for a directed verdict at the close of the evidence. *780 Hendricks v. Dailey, 208 So. 2d 101 (Fla. 1968); Hall v. Ricardo, 331 So. 2d 375 (Fla. 3d DCA 1976). A trial court is authorized to grant such a motion only if there is no evidence or reasonable inferences to support the nonmoving party's position. Stirling v. Sapp, 229 So. 2d 850 (Fla. 1969); Brown v. Walker, 306 So. 2d 209 (Fla. 1st DCA 1975); see H.I. Resorts, Inc. v. Touchton, 337 So. 2d 854 (Fla. 2d DCA 1976).
One of the bases upon which the trial court set aside the jury's verdict was that it perceived that there was no evidence of proximate or legal causation.[3] Since we feel this issue is dispositive of the case, we proceed to it first.
It is rudimentary that a claimant must plead and prove that the negligent act of the person against whom he seeks a recovery was the cause of his injuries. Salinetro v. Nystrom, 341 So. 2d 1059 (Fla. 3d DCA 1977); McWhorter v. Curby, 113 So. 2d 566 (Fla. 2d DCA 1959); W. Prosser, The Law of Torts 236 (4th ed. 1971). Since Greene relied upon his loss of smell and taste to meet the nofault thresholds, it was incumbent upon him to prove that Mrs. Flewelling's negligence was the legal or proximate cause of his loss of these senses. See § 627.737(2), Fla. Stat. (Supp. 1976).
Greene first contends the trial court erred in holding that it was necessary for him to produce "competent medical evidence" of legal causation, because there is no legal requirement that medical evidence be produced on this issue. The general rule seems to be that it is necessary to demonstrate legal causation by expert testimony where this issue is beyond the common knowledge of laymen. W. Prosser, The Law of Torts 241 (4th ed. 1971); see, e.g., Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628 (1939); Parris v. Johnson, 3 Wash. App. 853, 479 P.2d 91 (1970). However, several recent Florida cases seem to indicate that expert testimony is not necessary to establish legal causation, even in instances where this issue is beyond the common knowledge of laymen. Hernandez v. Clinica Pasteur, Inc., 293 So. 2d 747 (Fla. 3d DCA 1974); Alton Box Board Co. v. Pantya, 236 So. 2d 452 (Fla. 1st DCA 1970). But even these cases do not obviate the claimant's burden of demonstrating legal causation by some competent evidence in order for him to recover for his injuries.
The trial court gave the following jury instruction on legal causation patterned on Fla.Std.Jury Instr. (Civ.) 5.1(a):
Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.
The standard jury instruction, of course, reflects the law of Florida on this subject. Sardell v. Malanio, 202 So. 2d 746 (Fla. 1967); Broome v. Budget Rent-A-Car of Jax, Inc., 182 So. 2d 26 (Fla. 1st DCA 1966); 23 Fla. Jur. Negligence §§ 26, 29 (1959). Viewing the evidence presented by Greene in light of the above standard we are compelled to agree with the trial court that Greene did not carry his burden of demonstrating that Mrs. Flewelling's negligence was the legal cause of his loss of smell and taste.
Greene offered no explanation of how his injuries affected his ability to smell or taste he merely stated that he possessed these senses before the accident but did not shortly thereafter. Both Mrs. Greene and Dr. DeWeese verified that Greene had indeed said he could not smell shortly after the accident. The only other evidence going to the issue of causation was the following testimony from Dr. DeWeese:
Well, this is a very interesting case. This man [Greene] was in a car accident in which he sustained minor trauma to his head. When I say minor trauma, he was knocked unconscious; he was not comatose; he did not have any spinal fluid, *781 rhinorrhea, and his complaint afterwards is loss of smell. Well, to have a complaint of loss of smell implies the olfactory nerves have been transected or sheared in the trauma. This, without any other signs, say, of rhinorrhea, contusion or fracture of the base of the skull or severe facial fracture or any other coincident or corroborating injury, is unlikely. I can never remember a patient that transected the olfactory nerve or both olfactory nerves, which is what his complaint implies, that didn't have a severe injury to the brain or to the skull. I took the liberty to rule out a tumor. He didn't have it. So I really can't say on medical probability that he's transected his olfactory nerves. In fact, based on medical probability, I'd say he did not transect his olfactory nerves.
This testimony certainly does not support Greene's claim that he lost his ability to smell and taste as a result of the accident. In fact, the doctor's testimony militates against this conclusion. But even disregarding the doctor's testimony, Greene's evidence of causation boiled down to simply this: he could smell and taste before the accident, but could not shortly thereafter. We find that this evidence at best raises a mere possibility of legal causation, and nothing more. It has long been held that a possibility of causation is not sufficient to allow a claimant to recover. As said by Dean Prosser:
On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. (Emphasis added, footnotes omitted.)
W. Prosser, The Law of Torts 241 (4th ed. 1971). This is the law of Florida also. Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Bryant v. Jax Liquors, Inc., 352 So. 2d 542 (Fla. 1st DCA 1977); Wirt v. Fontainbleau Hotel Corp., 306 So. 2d 547 (Fla.3d DCA 1974).
Though legal causation must be judged on a case-by-case basis, two cases serve to illustrate the concept involved here. In Depfer v. Walker, 125 Fla. 189, 169 So. 660 (1936) the supreme court held that a plaintiff who merely showed that she sustained abdominal injuries in an automobile accident did not carry her burden of showing that her subsequent nervous condition and deafness were caused by the defendant's negligence. In Rutherford v. Modern Bakery, 310 S.W.2d 274 (Ky.App. 1958) the court held that plaintiff's evidence that he had become violently ill shortly after eating two pies from the defendant bakery was not sufficient to show that the bakery's negligence caused his injury. See also Eckley v. Seese, 382 Pa. 425, 115 A.2d 227 (1955); Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625 (1939). In the instant case, as in Rutherford and Walker, the only evidence of legal causation was the proximity of Greene's loss of smell and taste to the accident. This is not enough there must be some substantive link between the negligent act and the injury.
Greene also argues that the second basis upon which the trial court overturned the jury's verdict, i.e., that Greene did not adequately demonstrate by medical evidence that his loss of bodily function was permanent, was error. Since we have held that the court's first basis for overturning the verdict, i.e., that Greene did not prove legal causation, was correct, it is not necessary that we address this point. For the same reason, it is unnecessary that we address Greene's further argument that the court erred in refusing to give a jury instruction on a "serious, nonpermanent injury" as described in § 627.737(2)(e).
Accordingly, the order of the trial court setting aside the jury's verdict and entering *782 a judgment in favor of Greene for only his property damage is affirmed.
GRIMES, C.J., and DANAHY, J., concur.
NOTES
[1] In order for Greene to maintain his tort suit for personal injuries, § 627.737, Fla. Stat. (Supp. 1976) required him to prove at least one of the following:
(a) Loss of a body member.
(b) Permanent loss of a bodily function.
(c) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(d) Significant permanent scarring or disfigurement.
(e) A serious, nonpermanent injury which has a material degree of bearing on the injured person's ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.
(f) Death.
The trial court gave an instruction on "permanent loss of bodily function" as described in subsection (b), but refused to give an instruction on a "serious, nonpermanent injury" as described in subsection (e).
[2] The doctor testified that Greene had not mentioned anything to him about his loss of taste until the day of the deposition, only a week before trial.
[3] The standard jury instruction on this subject refers to "legal causation" rather than "proximate causation" because this latter term is often misunderstood by juries. Fla.Std.Jury Instr. (Civ.) 5.1 (comment 1); see also W. Prosser, The Law of Torts 236 (4th ed. 1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607270/ | 366 So. 2d 740 (1978)
Herbert TEMPLE
v.
STATE.
6 Div. 813.
Court of Criminal Appeals of Alabama.
December 19, 1978.
Rehearing Denied January 16, 1979.
*741 Stephen R. Arnold of Jones, Arnold & Roden, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and James L. O'Kelley, Birmingham, Asst. Atty. Gen., for the State, appellee.
BOWEN, Judge.
The appellant was indicted and convicted for the unlawful possession of cocaine in violation of The Alabama Controlled Substances Act. Section 20-2-20, Code of Alabama 1975. Sentence was set at thirty months' imprisonment.
The only question presented on appeal is the legal sufficiency of the State's evidence in proving the appellant's possession of cocaine. The only disputed fact is the appellant's knowledge of the presence of the cocaine. The remaining facts are undisputed.
The appellant resided with his wife and four children at 200116th Avenue North, Birmingham, Alabama. On August 12, 1977, several officers of the Birmingham Police Department executed a search warrant at this address. Entry was gained only after four series of knocks and a three or four minute waiting period. Mrs. Temple opened the door. The only occupants in the house were Mrs. Temple and her children. The appellant was at work.
A small amount of cocaine (1.153 grams) was found in a Goody's Headache Powder packet located in the freezer compartment of the refrigerator in the kitchen. Though the search was not limited to the kitchen no other drugs were found. Four days later the appellant was arrested. These facts constitute the entire case of the State. No information concerning the search warrant or the basis for probable cause was introduced or offered.
The appellant testified that he had no knowledge of the presence of the cocaine; that his kitchen had been recently remodeled and that several workmen had access to the refrigerator.
The specific question is whether the presence of a prohibited drug located in the refrigerator in the kitchen of the residence of the accused and his family constitutes evidence of constructive possession by the accused?
Knowledge by the accused of the presence of the controlled substance is an essential element and prerequisite to conviction for the offense of illegal possession of a controlled substance under The Alabama Controlled Substances Act. Walker v. State, 356 So. 2d 672 (Ala.1977). Such guilty knowledge may be established by circumstantial evidence. Walker v. State, 356 So. 2d 674, 675 (Ala.Cr.App.), cert. denied, 356 So. 2d 677 (Ala.1978). It may be proved by evidence of acts, or conduct of the accused, from which it may be fairly inferred that he knew of the existence of the narcotics at the place where they were found. Walker, 356 So.2d at 676. Where constructive possession is relied on the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Daniels v. State, 49 Ala.App. 654, 275 So. 2d 169 (1973). Proof of constructive possession alone will not justify a conviction. Cook v. State, 341 So. 2d 183 (Ala.Cr.App.1976); Coker v. State, 25 Ala.App. 191, 143 So. 206 (1932).
In McHellen v. State, 351 So. 2d 689 (Ala.Cr.App.1977), this Court held that the evidence presented a jury question on the issue of the knowledge of the accused of the presence of heroin.
"We think the evidence sufficiently supported an inference for the jury's consideration that appellant knew the controlled substance was in his house:
(a) Appellant was home when the search was made and had lived at such address since 1938.
(b) Even though appellant testified that he rented one bedroom to a young lady, the heroin was found in the kitchen area, a neutral part of the house.
(c) The heroin was found underneath a loose piece of linoleum tile in front of a refrigerator, a place which is not easily unnoticed."
McHellen, 351 So.2d at 692. (Emphasis added) *742 McHellen does not stand for the proposition that the mere fact that narcotics are found in a "neutral" area of a house jointly occupied by the accused and another person will support an inference that the accused had knowledge of the presence of the controlled substance. McHellen coupled ownership and occupancy with the relatively obvious location of the drugs to supply the inference of knowledge.
When the accused does not have the exclusive possession of the premises where a controlled substance is found, some other corroborating circumstance must exist before he can be convicted of illegal possession. This is clearly demonstrated in the situation where drugs are found in an automobile occupied by several persons. The mere presence of an accused in an automobile containing drugs is not sufficient to establish that the accused had knowledge of their presence. Roberts v. State, 349 So. 2d 89, 91 (Ala.Cr.App.), cert. denied, 349 So. 2d 94 (1977); Parks v. State, 46 Ala.App. 722, 724, 248 So. 2d 761 (1971); Pryor v. State, 48 Ala.App. 465, 265 So. 2d 907 (1972). However knowledge of the presence of drugs may be inferred from the accused's possession, control and ownership of the vehicle. Roberts, supra; Kinard v. State, 335 So. 2d 916, 920 (Ala.Cr.App.), reversed on other grounds, 335 So. 2d 924 (Ala.1976).
The well established rule in cases involving possession of prohibited liquors is that where illegal beverages are found on the premises of an accused during his absence, and other persons also occupy the premises, then the circumstance of the beverage being found on the premises is not sufficient, without more evidence, to establish scienter to the degree required to support a conviction for illegal possession. Clayton v. State, 22 Ala.App. 276, 114 So. 787 (1927) (Liquor found in the back part of a pressing shop owned by accused and evidence that others had recently been in back of shop was insufficient); Huckabaa v. State, 23 Ala.App. 333, 125 So. 202 (1929) (Fact that whiskey was found in the home of the accused when he was absent, but his wife was present, in a receptacle in the dining table and under one of the leaves will not support a conviction); Duncan v. State, 25 Ala.App. 197,143 So. 201 (1932) (Evidence that accused came from bathroom where whiskey container had been broken in commode was insufficient); Cunningham v. State, 26 Ala.App. 312, 159 So. 267 (1935) (Evidence disclosed that defendant was very old, sick, and bedridden for two months before raid and did not know of presence of whiskey in an old trunk, while only evidence tending to connect him with whiskey was that those who attended him occasionally gave him from a cup some eggs with whiskey in them, insufficient); Pate v. State, 27 Ala.App. 73, 165 So. 783 (1936) (Whiskey found in the home of accused in a secret and hidden device under a table, which belonged to another who had recently left and had been unable to take his table with him in his car, insufficient); Bivens v. State, 27 Ala.App. 304,171 So. 755, cert. denied, 233 Ala. 304, 171 So. 756 (1936) (Whiskey found in a sack of peanuts in one of the back rooms of the house when the accused was not home and evidence disclosed that two other men lived in the same house was insufficient); Wilbanks v. State, 28 Ala.App. 456, 185 So. 770 (1939) (The bare fact that the accused was the husband of the woman who owned and occupied the home in which the beer and whiskey were confiscated was insufficient to support conviction); Lance v. State, 28 Ala.App. 571, 190 So. 108 (1939) (Fact that whiskey found under kitchen floorby means of raising a loose plankstanding alone was not sufficient to support conviction); Thurman v. State, 29 Ala.App. 394, 196 So. 748 (1940) (Whiskey and some empty beer cans and bottles found in different places, adjacent to defendant's home and premises, while defendant and his wife were absent therefrom was insufficient); Grimes v. State, 38 Ala.App. 94,97, 76 So. 2d 684 (1954) (Whiskey found in a churn under a table in kitchen of house where the accused, his wife, and another lady lived is insufficient to show knowledge by accused. Grimes listed other factual situations as we have done here. The court noted that, "A four gallon churn in a kitchen, a domain *743 usually controlled by the [woman] of a house, is hardly an object which in itself would create suspicion on the part of the average male or give notice as to its illegal contents. Certainly such fact is insufficient to overcome appellant's presumption of innocence."); Kennedy v. State, 39 Ala.App. 588, 106 So. 2d 257 (1958) (The finding of whiskey in a pitcher in the kitchen and of the whiskey in the sink trap, coupled with the defendant's being in the doorway between the kitchen and the living room when presented with the search warrant, were sufficient to allow the jury to infer that he, the head of the household, was the possessor of the almost disposed of whiskey). These examples are only a few of the many cases and different factual situations which support the proposition that the finding of liquor on the accused's premises in and of itself will not support a conviction without showing his knowledge or connection with it. Compare Cunningham, supra, with Williams v. State, 27 Ala.App. 548, 176 So. 314 (1937), in which the evidence was found to support a conviction for violating the prohibition law where the whiskey, to which no one else had access, was found in the defendant's room in a locked trunk, to which the defendant had the key. These principles are equally applicable to prosecutions for the possession of controlled substances. Walker, 356 So.2d at 674; Rueffert v. State, 46 Ala.App. 36, 39, 237 So. 2d 520 (1970).
A review of these and numerous other cases convinces this Court that the law in Alabama is clear that where a person is in possession, but not exclusive possession of premises, it may not be inferred that he knew of the presence of any controlled substance found there unless there are other circumstances tending to buttress this inference. 56 A.L.R. 3d 948, 957 (1974). See also Mulligan v. State, 513 P.2d 180 (Wyo.1973); Feltes v. People, 178 Colo. 409, 498 P.2d 1128 (1972). This holding is simply a corollary of the presumption of innocence and the rule that to convict a person on circumstantial evidence it is necessary that the evidence exclude all rational conclusions except that of the defendant's guilt. Campbell v. State, 28 Ala.App. 240, 182 So. 89 (1938); Copeland v. State, 23 Ala.App. 91, 121 So. 445 (1929). While nonexclusive possession may raise the suspicion that all occupants had knowledge of the contraband found, a mere suspicion is not enough. Campbell, supra. What is required is some evidence that connects the defendant with the contraband that is found.
While the kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case, 56 A.L.R. 3d 948 (1974), it has been generally stated that:
"The kinds of circumstances which provide such a connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant's person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.
"The kinds of evidence which might be relevant, but which by themselves do not add the necessary connection are: (1) admissions of previous use; (2) conduct that might be construed as evidencing a consciousness of guilt which was not displayed upon the defendant's confrontation of the possibility that an illicit drug would be discovered; (3) evidence of previous use; (4) evidence that showed the defendant's physical proximity to the contraband."
9 Land and Water L.Rev. 236, 248-249 (1974).
There was not one single circumstance here that would tend to connect the *744 appellant with the cocaine other than the fact that the drug was found in the refrigerator of the kitchen in his home while he was at work. This simply will not sustain a conviction for possession.
"To permit a conviction of this character to stand upon such testimony would be unconscionable. It would be an exceedingly dangerous precedent to hold that the mere finding of prohibited liquor in the home of a citizen, with nothing to connect the accused therewith, and nothing to indicate or to impute any knowledge of the fact to him, is sufficient to deprive him of his liberty and brand him as a criminal before the world. If such were the law, every citizen would be at the mercy of an enemy who by merely surreptitiously placing the inhibited article in the home of his enemy could wreak his vengeance through the aid of the law in this dastardly manner. The law contemplates no such condition, nor will the courts countenance such a thing. The law in its wisdom provides that every person charged with crime is presumed to be innocent, and this presumption is not an empty or meaningless provision; to the contrary, it is regarded as evidence in behalf of the accused, and attends him as such throughout the trial, or until the presumption is overcome by legal evidence which shows his guilt beyond all reasonable doubt and to a moral certainty. Conjectures, suspicions, hatred, prejudices, conclusions, and guesswork have no place in the proper administration of the law; and to willfully hold otherwise would do violence to the conscience and integrity of the person so doing, be he judge, juror, officer, or witness."
Talbot v. State, 23 Ala.App. 559, 129 So. 323 (1930), quoted in Bivens v. State, 27 Ala.App. 304, 305, 171 So. 755, cert. denied, 233 Ala. 304, 171 So. 756 (1936).
Since the evidence is insufficient to sustain the jury's verdict this case must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).
REVERSED AND RENDERED.
All Judges concur.
ON REHEARING
BOWEN, Judge.
Though it has no bearing on the legal conclusions and principles involved, we will extend our opinion to include the fact that there was testimony presented that the refrigerator where the cocaine was found was located in the kitchen of the apartment where the appellant and his family resided. The appellant testified that he was "remodeling the kitchen, front bedroom, remodeling the whole house really"; that this was going on about a month before and even after August 12th, the date the cocaine was found; and that some days there would be four and some days six workmen coming and going from his home on a regular basis.
No argument is presented on application for rehearing that was not considered by this Court in writing our initial opinion. Therefore the application is denied.
APPLICATION OVERRULED; OPINION EXTENDED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3755743/ | Powell, P.J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Young, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Walsh, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed.
It is further ordered that a mandate be sent to the Montgomery County Court of Common Pleas for execution upon this judgment and that a certified copy of this Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
Stephen W. Powell, Presiding Judge
William W. Young, Judge, James E. Walsh, Judge | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1607457/ | 7 So. 3d 1107 (2009)
PACH
v.
STATE.
No. 2D08-1246.
District Court of Appeal of Florida, Second District.
April 15, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607802/ | 366 So. 2d 264 (1978)
Daniel J. McKIEVER and Elizabeth L. McKiever
v.
KING & HATCH, INC.
77-525.
Supreme Court of Alabama.
December 22, 1978.
Rehearing Denied January 19, 1979.
C. Stephen Trimmier and Albert C. Swain of Trimmier, Daniel & Hartman, Birmingham, for appellants.
J. Howard Perdue, Jr., Reid B. Barnes, III, Birmingham, for appellee.
BLOODWORTH, Justice.
This is an appeal by two of seven defendants from the grant of summary judgment in favor of plaintiff in a suit on a promissory note. The appeal must be dismissed because summary judgment against fewer than all defendants where there are multiple defendants is not a final judgment and is not appealable unless the trial judge makes the determination and entry required by Rule 54(b), ARCP.
Plaintiff, a general contractor, sought to recover $125,000 from seven defendants, makers of a promissory note executed to cover construction costs on an apartment complex. Defendants McKiever filed a cross-claim and a third-party claim based upon an indemnity agreement. The contractor moved for summary judgment. The court severed the McKievers' cross-claim *265 and third-party claim from the action on the note, and granted summary judgment against five of the seven defendants, including the McKievers. Summary judgment as to the two remaining defendants, the Guests, was denied because "these two defendants have petitioned the United States District Court * * * for a discharge of the indebtedness claimed by the plaintiff * * *." Only the McKievers appealed.
When there are multiple parties or multiple claims, any order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final judgment. Appeal may be had "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Rule 54(b), ARCP; Kelley v. U. S. A. Oil Corp., 363 So. 2d 758 (Ala.1978); Chiniche v. Smith, 362 So. 2d 853 (Ala.1978).
Multiple claims are not involved here. Rule 54(b) does not apply when claims are severed from the original action under Rule 21. Key v. Robert M. Duke Insurance Agency, 340 So. 2d 781 (Ala.1976).
However, there are multiple parties to the original claim. The rights and liabilities of the Guests, who are averred to have filed for bankruptcy, were not finally adjudicated by the trial court when it denied summary judgment as to them.
A denial of summary judgment is interlocutory and is not a final judgment. Whitehead v. Clix Photo Centers, Inc., 355 So. 2d 327 (Ala.1978).
The filing of a petition for bankruptcy by a defendant does not terminate an action in state court against him. A pending suit founded upon a claim for which discharge would be a release is automatically stayed until adjudication or dismissal of the bankruptcy petition. 11 U.S.C. § 29(a) (1976); Bankruptcy Rule 401(a), (b). The stay may be annulled as to claims not scheduled in time for proof and allowance. Bankruptcy Rule 401(c). The stay may be vacated by the bankruptcy court upon application by the creditor. Bankruptcy Rule 401(d). Moreover, the petition may be dismissed and the stay vacated if the petitioner has obtained a discharge in bankruptcy within the past six years. See generally 1A Collier on Bankruptcy ¶ ¶ 11.01-.08.
The stay does not operate as a dismissal of the action. 1A Collier on Bankruptcy ¶ 11.07, at 1167. There is no statute or rule authorizing dismissal of a pending claim simply because the defendant has filed for bankruptcy. Johnson Dry Goods Co. v. Drake, 219 Ala. 140, 121 So. 402 (1929). See Piel v. Harvard Interiors Manufacturing Co., 490 F.2d 1272 (8th Cir. 1974).
There is no indication of the progress or status of the bankruptcy petition. The stay may have been, or may soon be, dissolved or vacated and the contractor will be able to pursue his claim against the Guests. Since there has been no final disposition of the rights and liabilities of two of the defendants, the order granting summary judgment as to the other five is not a final judgment and, because there has been no entry and determination under Rule 54(b), it is not appealable.
The appeal must be dismissed ex mero motu. Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So. 2d 359 (1974).
APPEAL DISMISSED.
TORBERT, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607620/ | 21 So.3d 805 (2008)
ROBERT LEWIS
v.
STATE.
No. CR-07-0375.
Court of Criminal Appeals of Alabama.
February 22, 2008.
Decision of the Alabama Court of Criminal Appeals Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607626/ | 366 So.2d 690 (1978)
INN OF OXFORD, INC., a corp.
v.
CITY OF OXFORD, Alabama, a Municipal Corp., et al.
77-426.
Supreme Court of Alabama.
December 22, 1978.
Rehearing Denied January 26, 1979.
*691 George L. Stevens, Jr., of Rutledge, Williams, Williams & Norton, Anniston, for appellant.
John R. Phillips, of Phillips & Watson, Anniston, for appellees.
SHORES, Justice.
The issue presented, but not reached by the court, in a prior appeal involving these same parties is squarely presented on this appeal. As stated in Dopson v. City of Oxford, 340 So.2d 777, 778 (Ala.1976):
"The issue which the parties present by this appeal is whether the city council of the City of Oxford, Alabama, has an irrevisable discretion to grant or withhold its approval of the issuance of an on-premises liquor license by the State ABC Board in order to prevent any such license from being granted to anyone."
After its application for an on-premises liquor license was denied, the appellant filed an action for declaratory judgment against the City of Oxford, its Mayor and City Council, alleging that in an effort to keep the City of Oxford "dry," the Oxford City Council has arbitrarily refused to ratify proposed ordinances providing for a procedure to govern the submission of applications for the purpose of obtaining the consent and approval of the Oxford City Council for the issuance of on-premises liquor licenses by the Alabama Alcoholic Beverage Control Board (ABC Board); the Oxford City Council has arbitrarily and in abuse of the discretion granted by §§ 28-3-133; 134; 135, Code of Alabama 1975, refused to give their consent and approval to the issuance of an on-premises liquor license by the ABC Board to appellant; and it was the policy of the Oxford City Council to deny arbitrarily and without justification, consent and approval to all applying entities for the sole purpose of preventing the sale of liquor by the drink within the City of Oxford.
The complaint sought a declaration that §§ 28-3-133; 134; 135, supra, do not grant to the governing body of a municipal corporation an irrevisable discretion to withhold their consent and approval of the issuance of on-premises liquor licenses by the ABC Board in order to prevent the issuance of any license to any eligible applicant within the corporate limits.
After a hearing on the merits, the trial court found that, although the appellant had made proper application to the City for its approval,
". . . the defendants have no intention of issuing or approving any person or firm for a liquor license in Oxford unless directed by Legislative Act or Court Order. At the present time this Court is of opinion this is within their discretion as the duly elected Council and Mayor of the City of Oxford. This Court finds the law of this State as to the issuance of liquor license is stated in Paulson[`s] Steerhead Restaurant, Inc. vs. Morgan, 273 Ala. 235 [139 So.2d 330] [1962], `The Court will not inquire into the motives of the members of the Municipal Council in exercising a legislative discretion, except to examine the records of the council . . . . The discretion to approve or disapprove the issuance of a restaurant liquor license, conferred on the municipal governing body by Title 29 (now 28-3-133, 134, 135) is irrevisable and is of the nature of a legislative discretion.'
". . .
" . . . Assuming the systematic and arbitrary denial of all applicants to *692 be true, it is still within the pronouncements of the Paulson[`s] Steerhead Restaurant case."
The trial court then dismissed the complaint and this appeal followed.
It is clear from the trial court's order that it believed it had no authority to revise a decision of the City in withholding approval of a liquor license even though such action was arbitrary, capricious and systematic, because of this court's holding in Paulson's Steerhead Restaurant, supra, cited in the order. That case did hold that a city's discretion in this area was "irrevisable." That holding itself, however, has, since this case was tried, been "revised." In Black v. Pike County Commission, 360 So.2d 303 (Ala.1978), we held that § 28-3-133 as construed in Paulson's does not grant counties (nor municipalities) an irrevisable discretion to deny approval of liquor licenses. We noted that, while the scope of the state's power to regulate the sale of liquor is admittedly broader than its power to regulate an ordinary lawful business, even so, in the exercise of that power, neither the state nor local government units are exempt from constitutional limitations, whether it be the Commerce Clause, the Due Process Clause or Equal Protection Clause, citing Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Paulson's was overruled to the extent that it denied judicial review of violations of constitutional rights.
The appellant contends that the City withheld its approval of all applications for the sale of liquor by the drink within the City for the sole purpose of keeping the City "dry." The trial court held that, assuming that was true, it had no authority under Paulson's to review the City's action. As previously noted in Black v. Pike County Commission, supra, arbitrary action of a local government unit in withholding its approval of a liquor license is subject to judicial review.
The judgment appealed from is reversed and the cause remanded to the trial court for its consideration consistent with the views expressed herein and in Black v. Pike County Commission, supra.
REVERSED AND REMANDED.
TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543383/ | 54 So. 3d 493 (2011)
HUTTO
v.
STATE.
No. 1D11-0250.
District Court of Appeal of Florida, First District.
February 10, 2011.
DECISION WITHOUT PUBLISHED OPINION
Habeas Corpus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607481/ | 366 So. 2d 1025 (1978)
Noless J. ARCENEAUX, Jr. and Virginia Lee Arceneaux
v.
Robert J. ADAMS and Evelyn M. Adams.
No. 11339.
Court of Appeal of Louisiana, First Circuit.
December 27, 1978.
*1026 Stanley L. Perry, Galliano, for petitioners and appellants.
Christopher M. Smith, Golden Meadow, for defendants and appellees.
Before LANDRY, COVINGTON and PONDER, JJ.
LANDRY, Judge.
Plaintiffs, Noless J. Arceneaux and his wife Virginia Lee Arceneaux, appeal from judgment dismissing their claims for damages allegedly resulting from the failure of defendants, Robert Adams and his wife Evelyn, to take title and possession of certain real property pursuant to an executed but unrecorded act of sale with mortgage. The trial court rejected Appellants' demands upon finding that the parties mutually rescinded the transfer by subsequent verbal agreement. The trial court also rejected defendants' reconventional demand to recover certain items of expense allegedly incurred in operating a restaurant situated upon the premises. Since defendants have neither appealed nor answered plaintiffs' appeal, the only issues before us are the claims of Appellants. The pivotal issue presented is whether an unrecorded act of sale with mortgage may be nullified by the parties by a subsequent oral agreement.
For several years prior to August, 1977, Appellants owned and operated a restaurant in a building which contained both the business establishment and Appellants' living quarters. Because of Mr. Arceneaux's ill health, the establishment was put on the market for sale and on August 1, 1977, an act of sale with mortgage was entered into between the Arceneauxs and Adamses pursuant to which defendants purchased the property for $50,000.00 of which amount the sum of $20,000.00 was to be furnished by the purchasers. It was understood the remaining $30,000.00 would be borrowed from a local bank. The instrument was confected before J. J. Erny, Jr., notary public. It provides that the purchaser-mortgagor is required to keep the premises insured in the sum of $30,000.00. Approximately one week prior to signing the agreement, defendants, at the request of Appellants, took possession of the premises and began operating the business which had apparently been closed for some time previously. After signing the agreement, defendants attempted to secure the required insurance but could not do so because of the prohibitive cost of quoted premiums. From this point, the sequence of ensuing events is somewhat confusing.
Defendants testified that upon informing Mrs. Arceneaux of defendants' inability to obtain the insurance required by the act of sale and mortgage (which insurance was insisted upon by the prospective lender), on Friday, August 5, 1977, Mrs. Arceneaux ordered defendants to vacate the premises by the following Monday, August 8, because Mrs. Arceneaux had another buyer for the property. J. J. Erny, Jr., notary public, testified that upon being informed by Mr. Adams of the insurance problem he, Erny, informed plaintiffs that plaintiffs would not get their money; that the sale could not go through under the circumstances; that he recommended the agreement be cancelled; and that he advised against recording the instrument. Erny also testified that plaintiffs thereupon advised him to cancel the transaction following which either Erny or his secretary inscribed the word "void" in large letters upon the face of the instrument.
On September 30, 1977, Appellants filed suit for damages allegedly sustained during defendants' two week operation of the restaurant, including loss of income, depletion of inventory and compensation for the interval allegedly involved in restoring the premises to operating condition. On October 31, 1977, Appellants sold the premises to a third party for the price of $45,000.00. By supplemental petition, plaintiffs requested damages of $5,000.00 for the difference in sale price, and rental for the two week period during which defendants operated the business. Defendants' reconventional demand included a claim for inventory left on the premises and the value of certain alleged improvements.
*1027 The trial court rejected the demands of all parties upon finding a mutual verbal agreement to rescind the transfer. He also concluded in part in reliance upon the testimony of the notary public, Erny, that Erny would not have marked the instrument void unless he had been verbally requested to do so by the vendors named therein. In making the decision, the trial court was also influenced by the fact that Appellants neither attempted to record the act of sale with mortgage nor sought specific performance of the contract. We note, in addition, that although both Appellants testified herein, neither denied having instructed Erny to void the instrument.
It is well settled that factual findings of the trier of fact are entitled to great weight on appeal and, when there is a conflict in testimony, reasonable inferences of credibility and reasonable inferences of fact made and drawn by the trier of fact are not to be disturbed on appeal. Canter v. Koehring Company, 283 So. 2d 716 (La.1973). Not only do we find no manifest error in the trial court's findings above noted, we note that the record amply supports these conclusions.
In contending that the trial court erred in allowing parol evidence to establish revocation of a contract required by law to be in writing (an act of sale with mortgage of real property), Appellants rely upon Hornsby v. Ray, 327 So. 2d 146 (La.App. 3d Cir. 1976); Christ v. Christ, 251 So. 2d 197 (La.App. 3d Cir. 1971); WWOM, Inc. v. Grapes, 181 So. 2d 289 (La.App. 4th Cir. 1965).
We find the cited authorities distinguishably inapplicable to the case at hand in that each involved a contract not legally required to be in writing. For example, Hornsby, above, involved the question of whether a written lease may be modified verbally. Christ, above, raised the issue of whether a written lease may be rescinded by oral agreement. WWOM, above, concerned the question of whether a written contract for radio advertising time may be changed or altered by subsequent verbal agreement. We hold, therefore, that these authorities are not dispositive of the question of whether a contract legally required to be in writing may be revoked, amended or modified by subsequent parol agreement.
Pertinent herein are the provisions of La. C.C. Article 2275 which provides that every transfer of immovable property must be in writing and La.C.C. Article 2276, which states:
"Article 2276. Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since." Our jurisprudence contains some apparent confusion and uncertainty on the question before us. In Salley v. Louviere, 183 La. 92, 162 So. 811 (1935), a suit on rent notes issued pursuant to a written lease, our Supreme Court interpreted Article 2276, above, to mean that although parol evidence timely objected to may not be received to modify, alter or vary the terms of a written instrument, parol evidence is admissible, nevertheless, to establish a subsequent agreement constituting a new contract between the parties, which new agreement has the effect of modifying or revoking an earlier contract. We note in Salley, above, language which appears to limit admissibility of parol evidence to cases involving contracts not required by law to be in writing. Despite such apparently qualifying language, we note instances wherein the Supreme Court, over timely objection, allowed parol evidence to revoke or modify agreements required to be in writing, on the theory that such testimony established a new and subsequent agreement independent of the previous contract. Thus, in Tholl Oil Co. v. Miller, 197 La. 976, 3 So. 2d 97 (1941), parol evidence was received to show a subsequent new agreement concerning oil, gas and mineral subleases containing an option to purchase.
In Parlor City Lumber Co. v. Sandel, 186 La. 982, 173 So. 737 (1937), a subsequent parol agreement was admitted to establish an agreement whereby the maker of a collateral mortgage note was absolved of personal *1028 liability in consideration of his agreement not to bid on the mortgaged property at the foreclosure sale.
We note also Investors Homestead Ass'n. v. Anglada, 193 La. 596, 192 So. 69 (1939), which concerned a letter written by a husband and in which mention is made of the rule concerning admissibility of parol evidence to vary or modify a written instrument.
More particularly, we note Torrey v. Simon-Torrey, Inc., 307 So. 2d 569 (La.1974) in which the Supreme Court's original opinion appears to overrule the three authorities hereinabove cited, and reaffirm the rule of Salley v. Louviere, above, that a contract required by law to be in writing may not be revoked or modified by subsequent parol agreement. On rehearing, however, the Supreme Court expressly declined to rule on this precise question because it found such a ruling unnecessary to disposition of the case. It follows, we think, that the language in the original opinion in Torrey, above, on the issue of admissibility of parol evidence to modify or revoke an instrument required to be in writing, must be deemed obiter dicta.
In his dissent from the original opinion in Torrey, above, Justice Tate notes:
"I see no reason to overrule these cases, which I believe to represent the better view: The policy of the code articles is designed only to prevent the use of parol evidence to take away title to immovables, or the use of parol evidence to confer title to immovables. It does not include within its compass any arbitrary prohibition of the use of parol evidence to prove independent later agreements, relating to mortgage notes or interest due thereupon."
In this instance the parol evidence tendered was not offered to establish, confer, take away or defeat title to immovable property. Neither was it offered against or beyond any provision of the written instrument concerned. It did not seek to show that the parties had agreed to some price other than the stated consideration or that the parties had originally agreed to some method of payment other than that stipulated in the written instrument. On the contrary, the evidence in question was offered to show a subsequent mutual agreement to cancel the transfer and return the parties to their ante written agreement status. We see no basis in reason, law or public policy which prohibits such a rule.
It is significant also that the parol evidence was not offered to enlarge, restrict or contradict any provision of the original agreement, but merely to show mutual intent to abrogate the entire arrangement. In this regard, our jurisprudence recognizes that contracts may be subsequently modified, abrogated or revoked by mutual consent of the parties. Bruhl v. White, 346 So. 2d 734 (La.App. 1st Cir. 1977); Brooks v. Griggs Casing Crews, Inc., 136 So. 2d 693 (La.App. 2d Cir. 1961). Having consented to abrogation of the agreement, Appellants are not entitled to damages for an alleged loss resulting from its later sale at a lower price.
Appellants claim $2,500.00 rental value of the premises for defendants' two weeks of occupancy. Plaintiffs' own appraiser fixed the rental value at $910.00 monthly, on which basis plaintiffs would be entitled to $455.00, at most, for this item. The trial court disallowed the claim completely upon finding that the parties intended defendants' early occupancy was to be rent free. We find no error in this factual determination.
Appellants' claim for depletion of inventory was dismissed by the trial court because of a lack of proof of such damages. Appellants submitted an inventory based solely on memory, many items thereon being disputed by defendants or claimed by defendants to have been unusable due to spoilage. We find no error in the disallowance of this item of damages.
Finally, the trial court rejected Appellants' demand for $10,400.00 as the alleged cost of resuming operation of the restaurant after defendants vacated the premises. It suffices to say that the trial court found a total absence of proof to support the claim.
*1029 The judgment of the trial court is affirmed, all costs of this appeal to be paid by plaintiffs-appellants.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607514/ | 366 So. 2d 538 (1979)
J.E.S., a Child, Appellant,
v.
STATE of Florida, Appellee.
No. KK-345.
District Court of Appeal of Florida, First District.
January 25, 1979.
*539 Leo A. Thomas of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
PER CURIAM.
This is an appeal from a judgment and sentence for manslaughter. Appellant juvenile contends that his statement was obtained in violation of his rights and the motion to suppress the statement should have been granted. We agree and reverse.
Appellant lacked eight days of having reached his fifteenth birthday when he cut another juvenile with a knife during an argument; the victim subsequently died. Appellant and all the witnesses to the incident were taken to the Juvenile Justice Center for questioning. Before the police officers left the house where the incident occurred, they informed his father that he was being taken for questioning. The father stated that he wanted to be present during the questioning and that he would get there as soon as he could; he needed to stay and calm his wife down first. The testimony shows that appellant was taken from the house about 4:30 p.m. His statement was taken by one of the police officers out of the presence of either parent at 6:03 p.m. The father had arrived at the Juvenile Justice Center at 6 p.m. but was detained by a receptionist who said he needed to fill out some forms.
At the hearing on the motion to suppress the statement, appellant stated that the officer said he was waiting for appellant's father because the father wanted to be there, but that the officer waited only three or four minutes and then said, "I can't wait on him and he went ahead and started." The officer did not testify at the hearing on the motion to suppress. At trial, however, the officer did testify that he waited for other parents and that at least one parent of every other individual interviewed relative to this case was present before the interview took place.
Section 39.03(3)(a), Florida Statutes (1977), requires that when a person determines that a child should be detained, he must immediately notify the parents or legal guardian. In this case, there is no question but that the parents were notified. We believe, however, that the purpose of the statute is not only notice to the parents or legal guardians, but also a reasonable opportunity for them to confer with the juvenile. Just as we held in Dowst v. State, 336 So. 2d 375 (Fla. 1st DCA 1976), that where the child requested to speak to his parents and was denied, any confession given by him was inadmissible because his request constituted a continuous assertion of his privilege against self-incrimination, we now hold that where a parent or legal guardian requests to be present and makes himself or herself reasonably accessible, it is error to proceed in questioning the juvenile. Under facts such as those in this case, the parent or legal guardian must be given a reasonable opportunity to confer with the juvenile. The statute is not satisfied by a race of diligence between the parent and the officer.
Accordingly, the judgment and sentence are reversed and the cause is remanded for a new trial.
MILLS, Acting C.J., and SMITH and MELVIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607511/ | 366 So. 2d 1389 (1978)
STATE of Louisiana
v.
Russell LASSAI.
No. 62964.
Supreme Court of Louisiana.
December 15, 1978.
*1390 Roy V. Ladner, Student Practitioner, William J. O'Hara, III, New Orleans, Supervising Atty., Loyola Law School Clinic, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Julie C. LeBlanc, Asst. Dist. Atty., for plaintiff-respondent.
DIXON, Justice.
This writ was granted to review the probation violation of a narcotics addict for a single instance of drug use while undergoing treatment for addiction.
Petitioner, Russell Lassai, pleaded guilty on July 8, 1977 to theft and receiving stolen property and to being a guadruple offender. He was sentenced to serve twenty-five years in custody of the Department of Corrections. His sentence was suspended and he was placed on probation for five years, with the special condition that he be accepted in the Odyssey House for treatment of heroin addiction, and remain as a resident, confined to those premises until he is released as cured to the satisfaction of the court and Odyssey House personnel. Petitioner was prematurely discharged from the Odyssey House on June 19, 1978 for kissing another resident. The trial judge then transferred him to the Euterpe Center for treatment. In July, 1978 petitioner's probation officer recommended revocation after one of the required urine tests indicated the presence of drugs, and after petitioner admitted to both his counselor and his probation officer that he had used drugs. Petitioner's probation was revoked and the suspended sentence was made executory after a revocation hearing. Writs were granted to review the regularity of the revocation hearing.
While at the Euterpe Center he was given almost daily urine tests, and on July 16 the test was positive for preludin. A director there had been instructed by the probation officer to inform him of the first time Lassai "made a mistake." When informed, he commenced proceedings to revoke the probation. On August 10 the probation was revoked by the district judge.
Defendant complains of two procedural errors. The procedural claims would not change our result in this review. Defendant's admissions made to his probation officer were properly admitted by the trial judge in spite of the absence of Miranda warnings; the Miranda rule has not been extended to probation hearings. United States v. Johnson, 455 F.2d 932 (5th Cir. 1972), cert. den. 409 U.S. 856, 93 S. Ct. 136, 34 L. Ed. 2d 101 (1972); accord, State of Washington v. Johnson, 9 Wash.App. 766, 514 P.2d 1073 (1973). Nor does the record disclose a privilege which would prevent the *1391 evidentiary use of an admission by defendant to the director of counseling at the Euterpe Center; it was not shown that she was a social worker, and for that reason R.S. 37:2714 is not applicable. Privileges are narrowly construed, and will not be extended to the counselor solely because she was "in the same position" as a physician (making R.S. 15:476 applicable) or social worker. See State v. Kaufman, 331 So. 2d 16 (La.1976); State v. McKinnon, 317 So. 2d 184 (La.1975).
The objection to the introduction of the urinalysis reporta form filled in by an unknown person purporting to convey information about a laboratory computer report of the urinalysis resultsshould have been sustained. It violated minimum due process rights of confrontation and examination of witnesses. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Baggert v. State, 350 So. 2d 652 (La.1977). Nevertheless, the error is not reversible. The report was not the only evidence of drug use; defendant's admissions sufficiently proved the violations.
The object of probation is rehabilitation. If not cured during the probation period, defendant will serve his twenty-five year penitentiary sentence. He almost completed his first year at Odyssey House and was transferred by the court to the Euterpe Center because he kissed a female inmate. Although addicted to drugs, the record shows only the single use of preludin on July 16, 1978. The violation was reported because the probation officer had told the counselor to report the first mistake. The Euterpe Center did not want the revocation, and complained of lack of time to work with the defendant and his problems. Defendant's counselor thought defendant a good candidate for rehabilitation, and would have taken him back for treatment if permitted by the court.
In his reasons for judgment the trial judge spoke mainly about the admissibility of the evidence, and emphasized that "probation is a matter of grace in the first place to start with by this court." Morrissey v. Brewer, supra and Gagnon v. Scarpelli, supra have established that even the qualified liberty of a probationer is protected by fundamental fairness and due process rights. This court, in State ex rel. Robertson v. Maggio, 341 So. 2d 366 (La.1976), reversed the Criminal District Court of Orleans Parish when it revoked a probation for a relatively minor violation, stating that C.Cr.P. 900 vests the trial judge with substantial discretion when a defendant violates a condition of probation, and that the failure to exercise that discretion is error. Even in the absence of that statute, fundamental fairness would require the exercise of sound discretion, and would prohibit arbitrary and capricious revocation.
The record before us does not support the decision to revoke defendant's probation.
The judgment revoking defendant's probation and the order making the sentence of July 8, 1977 executory is reversed.
SUMMERS, J., dissents.
DENNIS, J., concurs and assigns reasons.
DENNIS, Justice, concurring.
Although I agree with the majority opinion in all other respects, I am not prepared to hold that the right of "any person . . . arrested or detained in connection with the investigation or commission of any offense" to be advised fully of his constitutional rights, La.Const.1974, Art. I, § 13, is not guaranteed to a probationer under interrogation by his probation officer in connection with an offense which may constitute a violation of his probation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607963/ | 366 So. 2d 734 (1979)
MID-STATE HOMES, INC.
v.
Walter STARTLEY and Elizabeth Startley.
Civ. 1613.
Court of Civil Appeals of Alabama.
January 24, 1979.
R. A. Norred, Birmingham, for appellant.
Billy L. Church of Church, Trussell & Robinson, Pell City, for appellees.
WRIGHT, Presiding Judge.
This is a statutory action for fraud brought under § 6-5-101, Code of Alabama (1975). Plaintiffs recovered a verdict and judgment for $7,780. Defendant appeals. We affirm.
*735 Defendant held a mortgage on a house constructed by them in 1973 for the Goodwins. The amount of the mortgage including finance charges was originally $19,944. In January 1975, Tyler purchased the house and assumed the mortgage with permission of defendant. In March 1976, plaintiffs purchased the house from Tyler and agreed with Tyler to assume defendant's mortgage. Plaintiffs began making the payments on the mortgage although the account remained in the name of Tyler. There was evidence that defendant knew through its resident agent that plaintiffs had purchased from Tyler and were in fact making the mortgage payments although there had been no record assumption and transfer of the account on defendant's record.
Plaintiffs were delinquent in making payment and were visited by defendant's collector while residing in the house. Plaintiffs told defendant's agent they were considering selling the house and inquired as to the mortgage balance. The agent informed them that the balance was about $15,000 but a pay-off figure would be considerably less. Plaintiffs were told to request the balance and a pay-off figure from defendant's office in Tampa, Florida.
In June 1977, plaintiffs listed the house for sale with Lovejoy, a real estate broker. Believing the pay-off on the mortgage to be approximately $9,500, and desiring to clear approximately $10,000 from the sale, plaintiff listed the house for sale at a price of $19,500. In the meantime, inquiry was made of defendant's office in Tampa as to the balance owed on the mortgage and the amount for which it could be paid off.
Plaintiffs received a letter from defendant dated June 28,1977. That letter was in body as follows:
"We are pleased to advise that the amount necessary to pay this account in full is $1,871.71.
The out-standing balance on this account, including any unpaid insurance premiums is $10,389.00; however, a discount in the amount of $8,517.29 is being allowed for prepayment, which makes the net amount due $1,871.71.
This payoff will be good until July 31, 1977 after which time a new payoff will have to be quoted. Please let us hear from you on or before that date." (Plaintiffs' Exhibit 1.)
Prior to receiving the letter, there had been no prospects for sale of the house for the list price of $19,500. After receiving the letter indicating a pay-off of only $1,871.71, plaintiffs reduced their list price to $14,900. On July 19, 1977, a contract of sale at that price was executed with a purchaser.
There was a delay in closing the sale beyond July 31. The agent therefore requested a new pay-off figure from defendant. He received a letter from defendant dated August 2, 1977, stating the unpaid balance to be $15,334.80, with a pay-off of $9,651.78. The purchaser insisted on adherence to the contract of sale at the agreed price of $14,900. Plaintiffs acquiesced. They paid defendant $9,651.78 and defendant satisfied the mortgage. Plaintiffs had remaining $5,200 and owed the real estate agent a fee of $1,490.
The testimony of defendant was that the letter of June 28 contained misrepresentations of the true state of its mortgage due to a computer error and that such error was innocently made. That testimony is not disputed. However, under the statute, even though a misrepresentation be made by mistake and innocent of any intent to deceive, if it is a material fact and is acted upon with belief in its truth by the one to whom it is made, it may constitute legal fraud. International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977).
Defendant's first issue on appeal is the contention that no action could lie upon the representations of the letter of June 28 because it was merely an offer made without consideration and expired before acceptance by plaintiffs. The theory of defendant that the principle of nudum pactum is a defense to plaintiffs' suit does not apply. Plaintiffs' action is not upon a contract and is not founded upon a contractual relationship. It is not necessary to an *736 action for misrepresentation that there be a contractual relationship between the representor and the person deceived. Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So. 2d 361 (1964).
The second issue presented by the defendant is that the award of damages is unsupported by the evidence.
Plaintiffs' evidence was that they were informed by the agent of defendant at the time they first considered selling, that the pay-off on the mortgage was probably around $9,500. They considered they had to net $10,000 if they sold. Therefore, they originally listed the house at $19,500. There were no buyers at that price. When they received the letter showing a pay-off on the mortgage at only $1,871.71, they immediately offered the house for sale at $14,900. The real estate agent testified that $14,900 was a fair market price. They sold it at that price. There is no support in the evidence that plaintiffs suffered damages because they reduced the price of the house. The price received was indisputably a fair market value. No evidence was presented that the house would have sold for more. Therefore, if plaintiffs suffered damages, they arose from a decision to sell at $14,900, made in reliance upon the representation of defendant that they could satisfy the mortgage for $1,871.71.
There is no dispute that defendant made the representation, and that it was an erroneous representation. If plaintiffs relied upon that false representation, reasonably believing it to be correct and because of such belief sold their home, they were entitled to recover damages suffered. The answers to these issues were properly given by the jury. Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So. 2d 476 (1974).[1] The jury found liability in this case. The question presented is as to the basis for the award of damage.
The measure of damage must be the difference between the amount represented as a pay-off in the letter of June 28 and the amount plaintiffs actually were required to pay defendant in order to fulfill their contract of sale. The first was $1,871.71. The latter was $9,651.78. The difference is $7,780.07. Deducting the odd cents, we have the amount set by the jury. The standard for measuring damages in fraud cases has been met. Fogleman v. National Surety Co., 222 Ala. 265, 132 So. 317 (1931). The verdict and judgment below are affirmed.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.
NOTES
[1] Defendant has not raised by this appeal any issue that there was not evidence for the jury to find a verdict for defendant on the basic question of liability but only that it failed to establish damage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607973/ | 366 So. 2d 119 (1979)
Barbara SEITZ, Appellant,
v.
DUVAL COUNTY SCHOOL BOARD, Appellee-Cross Appellant, and
Public Employees Relations Commission, Appellee.
No. JJ-365.
District Court of Appeal of Florida, First District.
January 4, 1979.
Rehearings Denied January 31, 1979.
*120 Sidney L. Matthew, Tallahassee, for appellant.
Dawson A. McQuaig, William Lee Allen and Eve Dunkerley Peck, Jacksonville, for appellee-cross appellant.
Michael M. Switzer, William E. Powers, Jr., Tallahassee, for appellees.
BOYER, Acting Chief Judge.
Seitz appeals a portion of an order rendered by the Public Employees Relations *121 Commission (PERC) disallowing back pay and reinstatement. The School Board cross appeals that portion of the order holding it an unfair labor practice not to allow a union representative at a teacher's conference with a principal and requiring the School Board to post notices it had violated the law.
Seitz was dismissed for cause in February 1976. She appealed the School Board's decision to the circuit court and that court affirmed. An appeal was taken to this court. This court upheld the School Board's action. Seitz v. Duval County School Board, 346 So. 2d 644 (Fla. 1st DCA 1977). In that opinion, Judge Smith writing for this court stated:
"The School Board was justified in discharging Seitz. Her substantive claim to the right of union presence at the principal's conference was when made and is now unrecognized in Florida. It had no foundation in her contract. Seitz acted knowingly and with union advice when she refused to confer alone with her principal on matters critical to her duties. She had the clear opportunity to assert her conceived right, acquiesce in the principal's decision under protest, participate in the conference unattended, and preserve a claim that the conference was coerced in violation of PERA and was an unfair labor practice. Thus, without sacrificing her opportunity to vindicate her asserted right and those of other public employees, she might have acknowledged the concomitant right and duty of the School Board, through its principal, to inquire into her derelictions as a teacher. Instead, Seitz chose unnecessarily to frustrate the Board's claim of right in order to satisfy her own, thereby exacerbating disharmony which she created. We will grant Seitz no remedy for the consequence. Her insubordination in unnecessarily declaring herself free of accountability for violations of school policy, coupled with her subsequent absence once again from class, fully justified dismissal. "We do not here foreclose PERC's consideration of Seitz' claim that the Board, by denying her a substantive right secured by PERA, committed an unfair labor practice which should be remedied otherwise than by reinstatement. * * *" (346 So. 2d 646 and 647, emphasis supplied)
We hold that PERC did not err in failing to order reinstatement and back pay to Seitz. This court's prior ruling in the proceeding above cited clearly precluded that remedy and established the law of the case. Further, we agree with that determination.
Concerning PERC's finding that the School Board was guilty of an unfair labor practice for refusing to allow a union representative at a principal's conference, a question which this court declined to consider in its prior opinion, we hold that the Public Employees Relations Act (PERA) as it existed in 1976 did not provide Seitz with standing to bring the charge nor did PERA contain the necessary language to provide Seitz with a substantive right to a union representative at a principal's conference.
In 1976, F.S. 447.503(1) authorized unfair labor practice proceedings "[w]henever it is charged by an employer or an employee organization ..." (emphasis supplied). Although Florida Administrative Code Rule 8H-4.01, in existence at that time, provided that an employee might also bring an unfair labor practice charge, we decline to follow that rule since it was invalid. A rule cannot be contrary to, nor enlarge, the provisions of the Florida Statutes. Therefore, Seitz did not have standing to bring an unfair labor practice charge in 1976.
PERC urges that Chapter 77-343, which amended F.S. 447.503(1), by allowing an unfair labor practice charge to be brought by a public employee is remedial and should be given retrospective effect. We disagree. A statute is presumed to be prospective in nature unless the legislature manifests a contrary intention in the statute itself. Fleeman v. Case, 342 So. 2d 815 (Fla. 1977) In the Fleeman case, the Supreme Court declined to infer legislative intent either from a declaration of legislative *122 purpose or from one attempt to amend the proposed law in one chamber of the legislature and insisted that as a condition to retroactive application a declaration to that effect be made in the legislation under review. Accordingly, since there is no such express language in Chapter 77-343 we hold that Chapter 77-343 is inapplicable to the charge brought in this case.
PERC also urges that in Maxwell v. School Board of Broward County, 330 So. 2d 177 (Fla. 4th DCA 1976), the court determined that PERA was remedial and could be applied to events which occurred before the enactment of the act. However, we read that case as simply holding that Chapter 74-100 which created PERA was remedial and confirmed existing rights: The court did not hold that every amendment to PERA, no matter when enacted, was remedial in nature.
The School Board was charged with interfering with the exercise of employee rights guaranteed by F.S. 447.301(1) and (2) of Chapter 447, Part II, Florida Statutes 1975 and engaging in unfair labor practices under F.S. 447.501(1)(a). We observe though that in 1976, F.S. 447.301 did not contain the words "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." That language (or other similar language having equivalent meaning) is necessary in order for the right to exist to have the company of a union representative at a principal's conference. The statute was amended by Chapter 77-343 to include those words. However, again, no language in that statute indicates that it was intended to have retrospective application. Therefore, the right to union representation at a conference with a principal where the employee reasonably anticipated disciplinary action did not exist in 1976.
PERC contends that F.S. 447.03 was applicable to this situation in 1976 through the language in F.S. 447.016 which was created by Chapter 74-100. F.S. 447.03, which is contained in Part I of Chapter 447 and was amended in Section 1 of Chapter 74-100 reads in part: "Employees shall have the right to ... engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." Although Part II of Chapter 447, which was created by Chapter 74-100, did not include a specific guarantee of the right to "engage in concerted activities", F.S. 447.016(1)(a) did state that Public Employers were prohibited from interfering with rights guaranteed public employees "under this act". However, when F.S. 447.016 appeared in the 1974 Supplement to the Florida Statutes (as F.S. 447.501) the phrase "this act" had been modified to read "this part", a change apparently made by the statutory revision service. Nevertheless, PERC contends that the law which should be applied is the law as it appeared in Chapter 74-100. Therefore, PERC reasons that the term "this act" as used in F.S. 447.016 included F.S. 447.03 which granted employees the right "to engage in concerted activities ...". On the other hand, the School Board contends that the term "act" as used in F.S. 447.016 (Chapter 74-100) referred to the Public Employees Relations Act created in Section 3 of Chapter 74-100 and not the whole of Chapter 74-100. The Public Employees Relations Act became Part II of Chapter 447. We find the School Board's reasoning persuasive and must agree that the legislature did not intend to make F.S. 447.03 pertaining to private employees applicable to public employees through the use of the word "act" in F.S. 447.016.
Accordingly, that portion the order appealed disallowing back pay and reinstatement to Seitz is AFFIRMED. That portion of the order holding it an unfair labor practice not to allow a union representative at a teacher's conference with a principal in 1976 and requiring that the School Board post notices it had violated the law is REVERSED.
It is so ordered.
MILLS and BOOTH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607842/ | 366 So. 2d 1071 (1979)
John H. MORGAN, Individually and as Administrator of the Estate of his minor child, Dan Morgan
v.
MATLACK, INC., State Farm Mutual Insurance Company, Inc., Cumis Insurance Society, Inc., the Louisiana Department of Highways and Parish of East Baton Rouge.
No. 12243.
Court of Appeal of Louisiana, First Circuit.
January 10, 1979.
Rehearing Denied February 12, 1979.
*1072 Chapman L. Sanford, Baton Rouge, of counsel for plaintiff-appellant, John H. Morgan, Indiv., Etc.
Frank M. Coates, Jr., Baton Rouge, of counsel for defendant-appellee, Cumis Ins. Society.
Vincent J. de Salvo, James A. George, Baton Rouge, of counsel for defendants-appellees, Matlack, Inc. & Rollins Intern.
Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendant-appellee State Farm Mut. Auto. Ins. Co.
Joseph F. Keogh, Parish Atty., A. Foster Sanders, III, Asst. Parish Atty., Baton Rouge, of counsel for defendant-appellee, Parish of East Baton Rouge.
Lawrence A. Durant, Charles William Roberts, Baton Rouge, of counsel for defendant-appellee, Dept. of Hwy., State of Louisiana.
Before SARTAIN, CHIASSON and EDWARDS, JJ.
EDWARDS, Judge.
Plaintiff, John H. Morgan (individually and as administrator of the estate of his minor son, Dan Morgan), filed this suit against inter alia[1] Matlack, Inc. and the Louisiana Department of Highways to recover damages for injuries sustained by Dan Morgan in an automobile accident. A jury trial was had as to the claim against Matlack and resulted in a verdict in favor of Matlack, finding no fault on its part. The claim against the Department of Highways was tried by the court, which rendered judgment in favor of the Department dismissing plaintiff's suit. Plaintiff appealed.
The accident occurred on November 3, 1973, a foggy night, at approximately 12:01 a. m. on Louisiana Highway 30 (Nicholson Drive) just south of the intersection of Bob Pettit Boulevard in Baton Rouge. La. 30 had previously been resurfaced and no center stripe had been installed at the time of the accident.
Dan Morgan, a student at Lee High School, had attended earlier that night a high school football game and a levee bonfire, at which alcoholic beverages were being consumed. At the bonfire, Morgan encountered Robert G. Gutierrez, a friend from school, who admittedly had been drinking. The two, Morgan and Gutierrez, left the bonfire in a borrowed Volkswagon with Gutierrez driving to get some beer from a store on Bob Pettit Blvd. They turned westbound onto La. 30 and proceeded toward Baton Rouge. When they were *1073 approximately .3 of a mile south of the intersection, the Volkswagon collided with the rear wheels of an eastbound tractor-trailer vehicle, owned by Matlack and driven by Matlack's employee, Douglas M. McEvers.
McEvers, the only eyewitness who could recall details of the collision, testified that the Volkswagon veered into his lane and, despite his efforts to pull onto the shoulder, collided with his rear wheels. Lt. Aubrey Hamilton of the State Police, who investigated the accident, testified that the point of collision was in McEver's (the eastbound) lane.
The jury's verdict, on the claim against Matlack, answered the interrogatory "Do you find that the driver of the Matlack truck was at fault?" in the negative.
The trial judge in Written Reasons for Judgment found that the Department was not liable for the accident inasmuch as it had no duty to re-stripe La. 30 with a center line and in any event that the absence of a center line was not a cause in fact of the accident.
MATLACK
Plaintiff assigns three errors allegedly committed in the trial court in connection with his claim against Matlack: 1) the trial judge erred in failing to instruct the jury that Matlack's failure to call a witness listed on the pretrial order raises a presumption that his testimony would be adverse to Matlack; 2) the jury failed to interpret properly the evidence at trial; and 3) the jury erred in finding Matlack free of negligence.
The first issue concerns plaintiff's contention that the trial judge erred in refusing to give a requested jury instruction. In this regard, LSA-C.C.P. art. 1793 provides in pertinent part:
"A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."
Counsel's objection in this case was not made in the record until after the court had instructed the jury and after the jury had retired to consider its verdict. Were it not for certain language in the record indicating that there may have been a stipulation that objections to the charge would be dictated into the record after the jury retired, we would conclude that the objection was not timely and that the right to complain on appeal was waived. Compare Watts v. Aetna Casualty & Surety Company, 309 So. 2d 402 (La.App. 2nd Cir. 1975). However in view of this stipulation and the failure of counsel for Matlack to complain of the tardiness of the objection, we will not rest our decision on the failure to object timely to the charge, rather we will reach the merits of the objection.
Plaintiff argues 1) that Matlack's failure to call an investigating officer, listed by Matlack on the pre-trial order, raises an adverse presumption that the officer's testimony would have been unfavorable to Matlack and 2) that the jury should have been instructed regarding this presumption.
It is well established that such a presumption is available in this state. See e. g. Walters v. Coen, 228 La. 931, 84 So. 2d 464 (1955); Tillman v. Canal Insurance Co., 305 So. 2d 602 (La.App. 1st Cir. 1974); Wolfe v. Employers Commercial Union Insurance Co., 272 So. 2d 714 (La.App. 3rd Cir. 1973); The Work of the Louisiana Appellate Courts for the 1967-1968 TermEvidence, 29 La.L.Rev. 310, 317 (1969). This principle states that the unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the litigation entitles the opposing party to the presumption that the witness' testimony would be unfavorable.
The witness in the instant case, a private investigator, was not an eyewitness to the accident. By plaintiff's own admission, this witness was not on the scene until the Monday following the accident at a *1074 time when the vehicles had long since been moved. The investigation consisted only of an inspection of the accident scene, which was equally accessible to all parties.
Under these circumstances, we do not feel that this witness qualifies as one possessing peculiar knowledge of material facts such that the failure to call the witness raises the adverse presumption. Feehan v. Travelers Insurance Company, 251 So. 2d 534 (La.App. 1st Cir. 1971). The trial judge correctly declined to give the requested instruction.
The remaining issues concern the jury's verdict and finding that Matlack was not at fault in causing the accident.
It is well recognized that jury verdicts are accorded great weight on appeal and should not be disturbed unless there is no reasonable evidentiary basis for the jury's conclusions. Canter v. Koehring Company, 283 So. 2d 716 (La.1973).
We cannot find manifest error in the jury's conclusion that Matlack was not at fault, i. e. not negligent. There is ample evidence in the record which, upon a reasonable evaluation by the trier of fact, would support this conclusion.
DEPARTMENT OF HIGHWAYS
Plaintiff contends that the trial court's judgment in favor of the Department is erroneous and argues: 1) the trial court erred in finding that the Department did not have a duty to re-stripe the center line of La. 30 or, in the alternative, to place warning signs on the highway; and 2) the trial court erred in finding that the lack of a center line was not a cause in fact of the accident.
Addressing the latter contention first, there is a total absence of evidence to establish that the lack of a center line was a cause in fact of the accident, i. e. a substantial factor in bringing about the harm. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So. 2d 298 (1962). The testimony of Gutierrez, who was driving the Volkswagon, is to the effect that the absence of the center line did not hinder his driving or cause the accident. We conclude that the trial court's determination that the absence of highway markings was not a cause in fact of the accident is correct. We can find no manifest error.
In view of the above conclusion on causation, we find it unnecessary to and do not address the issue of the Department's duty to center stripe all highways and/or to post warning signs.
For the above reasons, the judgment appealed is affirmed at plaintiff's cost.
AFFIRMED.
NOTES
[1] Other defendants were also sued, however they were each dismissed from this suit as a result of a compromise with plaintiff prior to trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607834/ | 773 F. Supp. 1483 (1991)
Samuel R. BROOKS, Jr., Plaintiff,
v.
VETERANS ADMINISTRATION, et al., Defendants.
No. 88-4108-R.
United States District Court, D. Kansas.
September 23, 1991.
*1484 Patrick R. Barnes, Scott, Quinlan & Hecht, Topeka, Kan., for plaintiff.
Jackie A. Rapstine, U.S. Attorney's Office, Topeka, Kan., for defendants.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This case is now before the court upon long-pending cross-motions for summary judgment. The court has carefully reviewed the pleadings of the parties and has determined that both motions should be denied.
Under FED.R.CIV.P. 56, summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Id. at 323, 106 S.Ct. at 2552. However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. The nonmoving party is then required to go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id.
A party opposing a properly supported motion for summary judgment cannot simply rest on allegations and denials in his pleading without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986). A genuine issue of material fact exists if the evidence is such that a reasonable factfinder could return a verdict *1485 for the nonmoving party. Id. at 249, 106 S.Ct. at 2510-11. A mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact and to avoid summary judgment. Id. at 252, 106 S.Ct. at 2512.
This is a Privacy Act case. Plaintiff alleges that his rights under the Privacy Act, 5 U.S.C. § 552a, were violated when an employee of defendant, Wanda Lyon, disclosed to plaintiff's friend, Loretta Kasting, that one doctor had supported and one doctor had not supported plaintiff's pending application for disability retirement.[1] Defendant claims that the disclosure of this type of information is not covered by the Privacy Act. Defendant further claims that even if this type of disclosure is covered by the Privacy Act, plaintiff cannot prove this was a "willful and intentional" disclosure, as required for recovery under the Privacy Act.
The Privacy Act places limits upon the disclosure of "records" maintained by federal agencies. See 5 U.S.C. § 552a(b). The term "record" is defined broadly as:
any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
5 U.S.C. § 552a(a)(4). The Act further provides that if an agency "fails to comply with any ... provision of this section or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency ..." 5 U.S.C. § 552a(g)(1).
Plaintiff has requested the court to issue an order of partial summary judgment finding that the "disclosure" of a doctor's support or lack of support of his disability retirement application is a violation of the Privacy Act. However, the employee who allegedly disclosed this information denies having done so. Furthermore, some of the people allegedly present when the disclosure was made have sworn that they have no recollection of such a disclosure. A factual issue exists as to whether a disclosure occurred and, therefore, plaintiff's motion for partial summary judgment must be denied.
As stated previously, defendant contends that the alleged disclosure did not violate plaintiff's rights under the Privacy Act because the information is not so "personal" as to be barred from disclosure under the Act. The statute does not expressly limit its coverage to "personal" information. The statute limits the disclosure of "records" which are defined without using the term "personal." The records must contain "information about an individual" however, which is arguably the same as "personal" information.
Defendant cites three cases in support of its argument that the alleged disclosure is not covered by the Privacy Act: Houston v. United States Dept. of Treasury, 494 F. Supp. 24 (D.D.C.1979); American Federation of Government Employees v. National Aeronautics and Space Administration, 482 F. Supp. 281 (S.D.Tex.1980); and Parks v. United States Internal Revenue Service, 618 F.2d 677 (10th Cir.1980). In Houston, the court held that information the plaintiff provided about his work assignments as an IRS agent was not covered by the Privacy Act.[2] In the American *1486 Federation of Government Employees case, the court held that daily time sheets were not "records" covered by the Privacy Act. In Parks, the Tenth Circuit held that lists of employees who had not bought savings bonds, were "records" covered by the Privacy Act. The Circuit quoted the legislative history of the Act as follows:
This section is designed to prevent the office gossip, interoffice and interbureau leaks of information about persons of interest in the agency or community, or such actions as the publicizing of information of a sensational or salacious nature or of that detrimental to character or reputation.
This would cover such activities as reading results of psychological tests, reporting personal disclosures contained in personnel and medical records, including questionnaires containing personal financial data filed under the ethical conduct programs of the agency. It is designed to halt the internal blacklisting that frequently goes on in agencies and on Federal installations of persons who do not comply with the organizational norms and standards for some reason, such as not participating in savings bonds drives or charity campaigns; and the listing of results of employee tests or performances.
S.Rep. No. 93-1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6916, 6966 (emphasis added).
618 F.2d at 681.
We believe that whether an unidentified doctor supported or failed to support an employee's disability retirement application is an item of "information about an individual" which is covered by the Privacy Act. This information is ordinarily a part of a personnel or medical record. These records seem to be the focus for protection of the Privacy Act, according to the legislative history. There is evidence that this information was leaked, albeit briefly, during what could be termed as office gossip. We believe this information is sufficiently "personal" and not strictly job-related, so that it falls within the broad statutory definition of "records" as well as within the purpose of the Privacy Act as described in the legislative history. Therefore, we reject defendants' first argument for summary judgment.
To recover damages under the Privacy Act for the violation alleged by plaintiff, plaintiff must demonstrate that the defendant agency "acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4). Defendants' second argument for summary judgment is that there is no proof that the disclosure was willful or intentional. The Tenth Circuit has stated:
the term "willful or intentional" clearly requires conduct amounting to more than gross negligence. We are persuaded by the District of Columbia Circuit's definitions of willful or intentional that contemplate action "so `patently egregious and unlawful' that anyone undertaking the conduct should have known it `unlawful.'" Laningham [v. United States Navy], 813 F.2d [1236] at 1242 [D.C.Cir. 1987] (quoting Wisdom v. Dept. of Hous. & Urban Dev., 713 F.2d [422] at 425 (8th Cir.1983)), or conduct committed "without grounds for believing it to be lawful" or action "flagrantly disregarding others' rights under the Act," Albright [v. United States], 732 F.2d [181] at 189, and we adopt those definitions, and add the view expressed in Moskiewicz [v. United States Dept. of Agriculture], 791 F.2d [561] at 564 (7th Cir.1986), that the conduct must amount to, at the very least, reckless behavior. Those and similar definitions, describe conduct more extreme than gross negligence.
Andrews v. Veterans Administration, 838 F.2d 418, 425 (10th Cir.1988).
Defendants' primary point is that the issue of whether the Privacy Act was violated is so close, any violation which is found cannot be considered reckless, willful or intentional. We are reluctant to grant summary judgment on this basis alone. See Britt v. Naval Investigative Service, 886 F.2d 544, 551 (3d Cir.1989) (case remanded when district court's summary *1487 finding against plaintiff may have been based on mistaken belief that there had been no Privacy Act violation). Issues of what is intentional or what is reckless misconduct are often difficult to resolve on a summary judgment motion. There is evidence in the record to support the contention that a reasonable person should have known that the disclosure was a violation of the Act. Thus, a factual dispute exists which is improper to resolve in a summary judgment motion.
In conclusion, defendants' motion for summary judgment and plaintiff's motion for partial summary judgment are denied.
IT IS SO ORDERED.
NOTES
[1] We do not believe there is sufficient evidence of any other disclosure to create a triable issue. Ms. Kasting testified that she had knowledge of the nature of plaintiff's problems prior to her conversation with Wanda Lyon. Thus, any discussion of that matter by Ms. Lyon would not qualify as a "disclosure" under the Privacy Act. Pellerin v. Veterans Administration, 790 F.2d 1553, 1556 (11th Cir.1986). Furthermore, Ms. Kasting testified that she cannot recall how she learned of other information regarding plaintiff, such as what kind of doctor he had seen. The circumstantial evidence is not sufficient for a reasonable person to conclude that such information must have come from Ms. Lyon.
[2] This case has been criticized as taking an "unduly narrow" view of the Privacy Act. GUIDEBOOK TO THE FREEDOM OF INFORMATION AND PRIVACY ACTS, 2d Ed., § 2.04[3] at p. 2-32 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2748738/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Respondent,
4 v. No. 33,900
5 ORIANA FARRELL,
6 Defendant-Applicant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
8 John M. Paternoster, District Judge
9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM
12 for Respondent
13 Alan Maestas Law Office, P.C.
14 Alan H. Maestas
15 Kathryn J. Hardy
16 Taos, NM
17 for Applicant
18 MEMORANDUM OPINION
19 SUTIN, Judge.
1 {1} Defendant filed an application for interlocutory appeal to challenge the district
2 court’s refusal to dismiss the indictment brought against Defendant. We granted the
3 application and issued a notice of proposed disposition proposing to reverse. The
4 State has filed a response indicating it is unable to offer any additional facts or legal
5 argument to challenge the proposed disposition. The State also requests issuance of
6 an expedited mandate, and Defendant concurs in that request. Therefore, for the
7 reasons stated in the notice, we reverse the district court’s decision in this case.
8 Mandate shall issue immediately.
9 {2} IT IS SO ORDERED.
10 __________________________________
11 JONATHAN B. SUTIN, Judge
12 WE CONCUR:
13 _______________________________
14 TIMOTHY L. GARCIA, Judge
15 _______________________________
16 M. MONICA ZAMORA, Judge
2 | 01-03-2023 | 11-06-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/897250/ | 662 N.W.2d 270 (2003)
2003 ND 87
Barbara RAMEY, Plaintiff and Appellant,
v.
TWIN BUTTE SCHOOL DISTRICT, Defendant and Appellee.
No. 20020342.
Supreme Court of North Dakota.
June 3, 2003.
*271 Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff and appellant.
Thomas W. Fredericks, Fredericks, Pelcyger & Hester, LLC, Louisville, CO, for defendant and appellee.
KAPSNER, Justice.
[¶ 1] Barbara Ramey ("Ramey") appeals from a summary judgment dismissing her employment discrimination claim against Twin Buttes School District ("Board"). We conclude Ramey failed to establish a prima facie case of discriminatory *272 non-hiring because she did not present sufficient evidence to demonstrate she was qualified for the positions for which she applied. We affirm the trial court's grant of summary judgment to the Board.
I
[¶ 2] Ramey, an enrolled member of the Standing Rock Sioux Tribe, lives on the Fort Berthold Reservation. Twin Buttes School is a public school located on the Fort Berthold Reservation. More than 90 percent of the students at the Twin Buttes School are enrolled or are eligible for enrollment in the Three Affiliated Tribes. Members of the Twin Buttes School Board are responsible for hiring applicants seeking employment at the school.
[¶ 3] In July and August 1999, Ramey applied to the Board to be hired for the positions of instructional aide or computer specialist. The minutes from the Board's August 20, 1999, special meeting to hire teacher's aides and instructional aides indicate a school board member made a motion to hire Ramey as a teacher's aide and that motion was seconded by another member "for discussion purposes." The motion to hire Ramey was rescinded following comments by the Board members. The minutes from the meeting indicate "[t]he Board stressed being Three Affiliated Tribe ..., and [the Board] felt with Barb Ramey's qualifications she could be better utilized in different places. Also, the Board had just hired her husband, PJ Little Owl." The Board did not hire Ramey for any of the open teacher's aide positions and she was not hired for the computer specialist position.
[¶ 4] Ramey contends the Board violated the North Dakota Human Rights Act by discriminating against her because of her tribal affiliation; Ramey is a member of the Standing Rock Sioux Tribe and not a member of the Three Affiliated Tribes of the Fort Berthold Reservation. Ramey filed a motion for summary judgment, arguing she established a prima facie case for employment discrimination. The Board contested Ramey's motion for summary judgment and filed its own motion for summary judgment, arguing (1) Ramey failed to file a timely claim as required under the North Dakota Human Rights Act; (2) the North Dakota Human Rights Act does not apply to the Board because it is preempted by federal and tribal law; and (3) Ramey has failed to establish a prima facie case of discrimination under the North Dakota Human Rights Act.
[¶ 5] The trial court denied Ramey's motion for summary judgment and granted the Board's motion for summary judgment on the basis that Ramey failed to establish she was a member of a protected class, and, alternatively, Ramey failed to establish she was qualified for the position, both essential elements of a discrimination claim. Ramey appealed the trial court's decision.
II
[¶ 6] Ramey argues the trial court erred when it granted summary judgment to the Board because genuine issues of material fact existed as to whether she failed to establish a prima facie case of discrimination under the North Dakota Human Rights Act.
[¶ 7] Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Engel v. Montana Dakota Utilities, 1999 ND 111, ¶ 6, 595 N.W.2d 319. "On appeal, we review the evidence *273 in the light most favorable to the party opposing the summary judgment motion." Id.
[¶ 8] We have outlined the burden on the litigants in a motion for summary judgment:
Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact, and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial.
Engel, at ¶ 7 (citations omitted). "When no pertinent evidence on an essential element is presented to the trial court in resistance to summary judgment, it is presumed no such evidence exists." Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 15, 630 N.W.2d 46.
III
[¶ 9] Ramey contends she established she was a member of a protected class and she was qualified for the positions for which she applied; therefore, the trial court erred when it concluded she failed to establish a prima facie case of discrimination.
[¶ 10] "The North Dakota Human Rights Act was passed `to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions ....'" Miller v. Medcenter One, 1997 ND 231, ¶ 10, 571 N.W.2d 358 (quoting N.D.C.C. § 14-02.4-01). Under the Human Rights Act, "[i]t is a discriminatory practice for an employer to fail or refuse to hire a person ... or to accord adverse or unequal treatment to a person or employee with respect to application, [or] hiring ... because of ... national origin." N.D.C.C. § 14-02.4-03.[1]
[¶ 11] To establish a prima facie case of discrimination for failure-to-hire under the North Dakota Human Rights Act, a plaintiff must show: (1) she is a member of a protected class under the Human Rights Act; (2) she sought and was qualified for the position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably. See Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 18, 630 N.W.2d 46.
A
[¶ 12] Under the first element for establishing a prima facie case of discriminatory non-hiring, Ramey must show she is a member of a protected class under the Human Rights Act. Anderson, at ¶ 18. The North Dakota Human Rights Act protects classes based on:
race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in lawful activity *274 off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.
N.D.C.C. § 14-02.4-03.
[¶ 13] Ramey contends the discrimination was based on national origin because she is a member of the Standing Rock Sioux Tribe and not a member of the Three Affiliated Tribes. Discrimination based on tribal affiliation can give rise to a claim for national origin discrimination. Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120 (9th Cir.1998). In Dawavendewa, the court concluded that "[b]ecause the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a `national origin' claim." Id.
[¶ 14] In this case, the trial court concluded Ramey "failed to establish how she was a member of a protected class or how she was discriminated against because of her Tribal affiliation." The trial court mentioned Ramey did not "attach evidence of Tribal affiliation with her job application" and it is well known that applicants "need to submit proof of enrollment with their job application." Ramey argues she is a member of a protected class because there is no dispute that she is an Indian and there is a genuine issue of material fact as to whether the Board had knowledge of Ramey's tribal affiliation.
[¶ 15] The minutes of the Board's August 20, 1999, special meeting indicate the motion to hire Ramey was rescinded following a discussion in which "[t]he Board stressed being Three Affiliated Tribe[s]." Although we assume, without deciding, that the minutes raise an inference of discrimination based on tribal affiliation, it is not necessary in this case to decide this issue because the question of whether Ramey was qualified for the job is dispositive of this appeal.
B
[¶ 16] Ramey must show, under the second element for establishing a prima facie case of discriminatory non-hiring, that she applied for a position and was qualified for that position. See Engel v. Montana Dakota Utilities, 1999 ND 111, ¶ 13, 595 N.W.2d 319.
[¶ 17] Ramey applied to the Board for two positions, computer specialist and instructional aide.[2] The job announcement for the computer specialist position listed the following qualifications:
A Bachelors degree in education with a valid North Dakota Teaching Certification would be highly preferred. College experience necessary; will be working toward a teaching certificate, 3-5 years in computer technician experience with Macintosh/Apple and IBM computer in classroom and/or lab experience, working knowledge on systems, installation, networking and Internet application, ability to conduct inservice and demonstration lessons and assist the instructional staff with computer applications, knowledge of Three Affiliated Tribes history, language preferred, Native American Preference, must be drug and alcohol free as a condition of employment.
The job announcement advertising the instructional aide position stated the following qualifications:
Must have at least one year of college in Elementary Education/or Bilingual Education,/or Liberal Arts, or Special Education, *275 must have ability to speak, read and write English, must have knowledge of the Mandan Language and the Culture of the Three Affiliated Tribes, 1-3 years of experience working with Native American Children preferred, must have a valid North Dakota driver's license and be drug and alcohol free as a condition of employment.
[¶ 18] Ramey's resume and application indicate she has experience as a floor/ change person at 4 Bears Casino & Lodge from August to December 1994, as an assembly line worker at Killdeer Mountain Manufacturing from May to August 1997, and as a "clerk/bagger/invoice" for five years at Super Valu. Ramey stated in her resume that her responsibilities at 4 Bears Casino & Lodge
required the technical knowledge of slot machines and change machines. Filling various machines with correct change, [c]orrecting bill and coin jam problems, reel tilts, and documenting all in-machine repairs by time, date, and situation. Finally, distributing all jackpots to the proper winners.
Ramey's resume indicates her duties while working at Killdeer Mountain Manufacturing included:
assembl[ing] circuit board[s], and all computer chips accurately. Making sure all boards and bulbs on boards worked. Soldered computer chips on circuit board to the standard of the Manufacturing Company and Customer. Doing top priority projects for the Government and getting Governmental clearance for those projects.
[¶ 19] Ramey also included on her resume her computer skills and computer experience. Ramey states: "I have approximately five yrs of experience with personal computers, Windows `95, Windows 6.0, and some knowledge of DOS/Microsoft Office Suite.... I have worked with QuickBooks Pro 99, for computerized accountings since January of 1999."
[¶ 20] In this case, the trial court concluded "Ramey's application and resume show that she was indeed not qualified for the positions sought." (Emphasis in original). Ramey's application and resume indicate she has an Associate of Arts degree in Business Administration/Accounting, not a Bachelors degree in education with a North Dakota Teaching Certification which was "highly preferred" for the computer specialist position. Ramey disclosed she has "experience with personal computers" in her resume; however, Ramey did not indicate in her application or resume whether she has any experience as a computer technician when the job required three to five years of computer technician experience. The job announcement sought applicants with computer experience, including experience with Macintosh/Apple and IBM computers; a working knowledge concerning installation, networking, and Internet applications; and the ability to conduct demonstration lessons. Nothing in Ramey's application or resume show that she met the qualifications for the computer specialist position. Melissa Starr, the elected President of the Board, stated in an affidavit Ramey was not hired because:
Ms. Ramey's application and resume did not establish any work or educational experience that qualified her for the computer tech position. She has worked as a floor/change person at the tribal casino and an assembly line worker in a factory. Her education was in business and accountingnot computers. The successful candidate had an Associate of Science degree from North Dakota State at Dickinson, as well as impressive work experience, including office administration and computers.
*276 [¶ 21] Although Ramey argues she was qualified for the computer specialist position, she has failed to provide any evidence that she met the qualifications, as advertised, for the position. Ramey's work and educational background do not demonstrate any experience as a computer technician. Ramey did not meet her burden of putting forth enough evidence to show she was qualified for the computer specialist position; therefore, Ramey failed to establish a prima facie case of discrimination under the law.
[¶ 22] Ramey also argues she was qualified for the position of instructional aide. Ramey contends she possessed all of the listed qualifications for the instructional aide position except for one year of college, and she has an Associate of Arts degree which is equal to or better than the qualification requested. Although Ramey may have taken some liberal arts or education classes, neither Ramey's application nor her resume establish she has the required one year of college in elementary education, bilingual education, liberal arts, or special education; Ramey's college education pertains to business administration and accounting. The job announcement also stated the applicant "must have knowledge of the Mandan Language and the Culture of the Three Affiliated Tribes." Nowhere in Ramey's application or resume does she indicate any knowledge of the Mandan language or the culture of the Three Affiliated Tribes. Ramey's work experience and educational background do not demonstrate she has any experience teaching or working with children despite the preference that the applicant have one to three years of experience working with Native American children. Ramey failed to demonstrate that she possesses each of the qualifications listed in the job announcement advertising the instructional aide position.
[¶ 23] Ramey asserts that the Board considered her qualified for the instructional aide position because at least two Board members felt she was qualified when one member made a motion to hire Ramey and another member seconded that motion. The minutes from the meeting indicate the motion was seconded "for discussion purposes" and not to immediately hire Ramey for the position. The trial court concluded "[a] review of the record shows that the weight of the evidence suggests that Ramey was not hired because three of the five Board members simply felt she was not qualified to fill the positions."
[¶ 24] Ramey also argues the Board thought she was qualified for the instructional aide position because of its comments, reflected in the August 20, 1999, minutes, that the Board "felt with Barb Ramey's qualifications she could be betterutilized in different places." Ramey contends in her affidavit that a Board member not only thought she was qualified but said Ramey was "over qualified." Melissa Starr's affidavit states that Ramey was not hired for the instructional aide position because "Ms. Ramey lacks any experience educating children. The Board felt that the successful applicants were better qualified and/or more reliable." Ramey failed to meet her burden of establishing she met each qualification listed on the job announcement for the instructional aide position. We conclude Ramey did not establish a prima facie case of discrimination.
IV
[¶ 25] Because Ramey has failed to establish an essential element of unlawful discrimination, this Court does not need to discuss the other elements for establishing a prima facie case of discrimination. Miller v. Medcenter One, 1997 ND 231, ¶ 19, *277 571 N.W.2d 358 (citing Braaten v. Deere & Co., 1997 ND 202, ¶ 19, 569 N.W.2d 563).
V
[¶ 26] We conclude Ramey failed to establish a prima facie case of discriminatory non-hiring because she did not put forth enough evidence showing she was qualified for the positions for which she applied. The judgment of the trial court granting summary judgment to the Board is affirmed.
[¶ 27] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.
NOTES
[1] Ramey does not argue that an Indian preference itself violates the North Dakota Human Rights Act.
[2] Ramey does not challenge that the job skills are reasonably necessary to the position, nor does she dispute that those hired met the qualifications. | 01-03-2023 | 06-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608486/ | 656 N.W.2d 617 (2003)
265 Neb. 335
Jennifer J. MAXWELL, Appellee,
v.
Kristy J. MONTEY and Marvin L. Montey, Appellants, and
Zebadiah Kain Stebbins et al., Appellees.
No. S-02-361.
Supreme Court of Nebraska.
February 21, 2003.
*619 Thomas B. Wood, Lincoln and Stephen L. Ahl, Omaha, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellants.
Daniel H. Friedman, of Friedman Law Offices, for appellee Jennifer J. Maxwell.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
MILLER-LERMAN, J.
NATURE OF CASE
Jennifer J. Maxwell filed a lawsuit against Kristy J. Montey (Montey) and her father, Marvin L. Montey; Zebadiah Kain Stebbins (Stebbins) and his mother, Diana Lynn Stebbins; and Continental Western Insurance Company for injuries she sustained in an automobile accident. Maxwell alleged that the accident occurred as the result of a "speed contest" between Montey and Stebbins. Maxwell named Montey's father and Stebbins' mother as defendants under the family purpose doctrine. The district court granted Stebbins' motion for directed verdict at the close of Maxwell's case in chief, and the jury returned a verdict in favor of Maxwell and against the Monteys in the amount of $250,000. After trial, the district court granted Maxwell's motion for a new trial against Stebbins but denied the Monteys' motion for a new trial. Stebbins appealed, and the Monteys cross-appealed. Stebbins and Maxwell subsequently settled their dispute prior to oral argument in the Nebraska Court of Appeals. The Court of Appeals affirmed the judgment of the district court, and we granted the Monteys' petition for further review. We affirmed the judgment of the Court of Appeals. See Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001) (Maxwell I).
As part of the settlement between Stebbins and Maxwell, Stebbins paid Maxwell $15,000 for a full release. Subsequently to the filing of Maxwell I, the Monteys moved the district court to credit the $15,000 payment against the $250,000 judgment against them. The Monteys asserted that such credit was required under Neb.Rev.Stat. § 25-1222.01 (Reissue 1995). The district court concluded that § 25-1222.01 did not provide for the relief requested by the Monteys and overruled the Monteys' motion for credit. The Monteys appeal. We affirm.
STATEMENT OF FACTS
The facts relevant to the underlying lawsuit in this case are set forth in Maxwell I. In Maxwell I, we held, inter alia, that the Monteys were not entitled to an allocation of damages between them and Stebbins under Neb.Rev.Stat. § 25-21,185.10 (Reissue 1995) because the plain language of the statute allowed for the allocation of damages between defendants only when there were multiple defendants at the time the case was submitted to the finder of fact. At the time the case was submitted to the jury, Stebbins had been dismissed. This court's decision in Maxwell I was issued on July 13, 2001.
On August 27, 2001, the Monteys filed a motion in the district court, seeking credit for the $15,000 paid by or on behalf of Stebbins to Maxwell. A hearing on the Monteys' motion for credit was held December 6. On December 21, Maxwell and the Monteys filed a stipulation of facts for the court to consider in deciding the motion. The stipulated facts were as follows:
1. Jennifer J. Maxwell filed a lawsuit against Kristy J. Montey and Marvin L. Montey as a result of an automobile accident that occurred on June 30, 1993 on "O" Street near its intersection with Piazza Terrace in Lincoln, Lancaster County, Nebraska. Zebadiah Kain *620 Stebbins was later added by the Plaintiff as a party Defendant to the lawsuit[.]
2. The Plaintiff's only claim against Defendant Stebbins was based upon the theory that Stebbins was jointly and severally liable with Defendant Montey because he was engaged in a "speed contest" or "race" at the time of the accident. Both Defendant Stebbins and Defendant Montey denied there was a "race" or "speed contest."
3. Neither Defendant Montey nor Defendant Stebbins filed a cross claim against the other in the lawsuit.
4. At the conclusion of the Plaintiff's case in chief, Defendant Stebbins filed a Motion for Directed Verdict which was sustained on the basis that there was not sufficient evidence as a matter of law for the issue of whether Defendant Stebbins and Defendant Montey were engaged in a "speed contest" or a "race" at the time fo [sic] the accident to go to the jury. Defendants Montey did not oppose this motion, nor object to Stebbins being dismissed from the suit.
5. At the conclusion of the trial, the issues of Montey's liability and the amount of Maxwell's damage as a result of the accident went to the jury.
6. The jury determined that Montey was responsible for the accident and the total amount of damages sustained by Maxwell as a result of the accident was in the amount of $250,000.00.
7. Following the trial, Maxwell filed a Motion for New Trial against Stebbins on the theory that there was sufficient evidence of a "race" or "speed contest" between Stebbins and Montey for the issue to have been presented to the jury. This Motion for New Trial was sustained. The Monteys did not file a motion nor did they join in the Plaintiff's Motion for New Trial against Stebbins.
8. The Monteys also filed a Motion for New Trial against Maxwell, which was heard at the same time, and did not join Stebbins in the motion[.]
9. Maxwell's motion against Stebbins was sustained, and the Monteys['] motion against Maxwell was overruled.
10. The sustaining of the new trial against Stebbins was appealed to the Nebraska Court of Appeals by Stebbins. Defendant Montey did not appeal the Court[`]s granting of a new trial against Defendant Stebbins, but did appeal the overruling of their motion against Maxwell.
11. During the pendency of the appeal of the granting of a new trial against Stebbins, a settlement was reached between the Plaintiff Maxwell and Defendant Stebbins that in exchange for the payment to the Plaintiff in the amount of $15,000.00 the Plaintiff waived her right to a new trial against Defendant Stebbins and agreed not to retry the case against Defendant Stebbins.
12. As part of the settlement between Plaintiff Maxwell and Defendant Stebbins, the Plaintiff agreed to execute and file a Stipulation for Dismissal with Prejudice and allow a corresponding Order to be entered by the Court in the case caption Jennifer J. Maxwell, Plaintiff, v. Kristy J. Montey, Marvin L. Montey, Zebadiah Kain Stebbins and Diana Lynn Stebbins, Defendants found at Docket 547, Page 108. The Monteys did not object to this Stipulation, nor did they object to the Order dismissing Stebbins.
The Monteys argued to the district court that they were entitled to a credit pursuant to § 25-1222.01, which provides:
No advance payments or partial payment of damages made by an insurance *621 company or other person, firm, trust, or corporation as an accommodation to an injured person or on his behalf to others or to the heirs at law or dependents of a deceased person made under any liability insurance policy, or other voluntary payments made because of an injury, death claim, property loss, or potential claim against any insured or other person, firm, trust, or corporation thereunder shall be construed as an admission of liability by the insured or other person, firm, trust, or corporation, or the payer's recognition of such liability, with respect to such injured or deceased person or with respect to any other claim arising from the same accident or event. Any such payments shall constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. In the event of a trial involving such a claim, the fact that such payments have been made shall not be admissible in evidence or brought to the attention of the jury, and the matter of any credit to be deducted from a judgment shall be determined by the court in a separate hearing or upon the stipulation of the parties.
On March 20, 2002, the district court issued an order denying the Monteys' motion for credit. The court concluded that § 25-1222.01 did not "provide the post trial relief sought by [the] Montey[s] which is based on the actions of a non-party (Stebbins) subsequent to the verdict against [the] Montey[s]." The Monteys appeal.
ASSIGNMENT OF ERROR
The Monteys assert on appeal that the district court erred in concluding that under § 25-1222.01, they were not entitled to a $15,000 credit against the $250,000 jury verdict against them.
STANDARDS OF REVIEW
Statutory interpretation presents a question of law. Eyl v. Ciba-Geigy Corp., 264 Neb. 582, 650 N.W.2d 744 (2002). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.
ANALYSIS
The Monteys framed their motion, and the district court decided their motion, solely as a motion for a credit pursuant to § 25-1222.01. Therefore, the only issue before this court on appeal is whether the Monteys were entitled to a credit pursuant to § 25-1222.01.
The Monteys argue that § 25-1222.01 provides that they are entitled to a credit against the $250,000 judgment against them for the $15,000 payment that Stebbins made to Maxwell and that the district court erred in denying their motion for credit. In support of their claim, the Monteys rely on the word "any" found in the portion of § 25-1222.01 which states, "Any such payments shall constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person." (Emphasis supplied.) The Monteys argue that the use of the word "any" gives a broad meaning to the statute, such that "any" payment to the injured person, regardless of source, would entitle the unsuccessful defendant to a credit. We reject the Monteys' argument.
In construing a statute, a court must look to the statute's purpose and give the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002). The Monteys' argument regarding the credit provided for *622 under § 25-1222.01 places emphasis on the word "any" in the credit sentence noted above. Reading the statute as a whole, however, it is clear that the purpose of the statute is to facilitate advance payments to injured persons while allowing the party making such payments to avoid having evidence of the payment used at trial as an admission of liability and to ensure that such payments constitute a credit to the payor upon "final settlement" or "judgment" involving the payor. In the context of the entire statute, the "any" language cannot be read broadly to provide that a party subject to a final judgment can receive credit for a payment that was not made by or on behalf of such party.
The construction we place on § 25-1222.01 is consistent with the language of the statute and our prior opinions. In considering § 25-1222.01, we note that § 25-1222.01 as it read in 1967 existed in much the same form as it exists today except, for our purposes, that the statute referred only to payments made by an insurance company. The list of payors whose payment is to be credited was expanded in 1975 to include "other person[s], firm[s], trust[s], or corporation[s]." § 25-1222.01. This court has previously considered § 25-1222.01 and stated, inter alia, that under § 25-1222.01, a party is entitled to a credit on any judgment rendered against him or her for payments or partial payment of damages made on behalf of such party to an injured person. See Beeder v. Fleer, 211 Neb. 294, 318 N.W.2d 708 (1982). We did not, nor do we now, approve of the proposition advanced by the Monteys that any payment to an injured person, regardless of source, should be credited to the unsuccessful defendant.
In the present case, the Monteys sought a credit for the $15,000 payment made by Stebbins to Maxwell. With reference to this payment, the record indicates that a settlement was reached between Maxwell and Stebbins after trial, during the pendency of the appeal. Pursuant to the settlement, Maxwell waived her right to a new trial against Stebbins and agreed not to retry her case against Stebbins in exchange for Stebbins' payment of $15,000 to Maxwell. Stebbins' payment was not made on behalf of the Monteys. Because the $15,000 payment by Stebbins was not a payment made by or on behalf of the Monteys, it was not the type of payment for which the Monteys could receive a credit pursuant to § 25-1222.01. We therefore reject the Monteys' assignment of error on appeal and conclude that the district court did not err in overruling the Monteys' motion for a credit pursuant to § 25-1222.01.
CONCLUSION
We conclude that the district court did not err in determining that § 25-1222.01 does not provide the relief sought by the Monteys in their motion for credit. We therefore affirm the district court's denial of the Monteys' motion for credit pursuant to § 25-1222.01.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7213/ | 53 F.3d 723
4 A.D. Cases 802, 10 A.D.D. 31, 6 NDLR P 332
Tamela J. DUTCHER, Plaintiff-Appellant,v.INGALLS SHIPBUILDING, Defendant-Appellee.
No. 94-60499
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
June 5, 1995.
James Clayton Gardner, Sr., Marie Paulette Turner, Sabrina Johnson, Pascagoula, MS, for appellant.
Brooks Eason, Brunini, Grantham, Grower & Hewes, Jackson, MS, Robert J. Ariatti, Jr., William J. Powers, Jr., Pascagoula, MS, for appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.
POLITZ, Chief Judge:
1
Tamela J. Dutcher appeals an adverse summary judgment in her suit against her former employer, Ingalls Shipbuilding, Inc., for discrimination under the Americans with Disabilities Act.1 We affirm.
Background
2
On November 27, 1989 Dutcher sustained serious injury to her right arm in a gun accident. After extensive repair surgery, Dutcher began training as a welder, hoping thereby to prevent deterioration in the use of her arm. In July of 1991 she completed welding school and was hired by Ingalls.
3
Ingalls initially assigned Dutcher to the "bay area," a job requiring welders to climb as much as 40 feet to reach their work. On her second day of work Dutcher requested a transfer to the fab shop, an assignment involving little or no climbing, because of difficulties she experienced due to the injury to her arm. The request was denied because she had insufficient seniority to transfer to a fab shop position.
4
During the following month Dutcher worked in the bay area without any time off because of problems with her arm. At the end of that month, however, she secured a transfer to the fab shop because of her father's influence with the welding superintendent. She worked as a welder in the fab shop, or similar assignments, until laid off as part of a large-scale reduction in force in May 1992.
5
Ingalls recalled Dutcher on September 8, 1992 at which time she was told to report to the infirmary for a pre-employment physical. She advised the examining doctor that the condition of her arm prevented her from climbing and that she needed a job which did not require such. The doctor gave Dutcher the requested job restriction. Ingalls then advised Dutcher that it could not then employ her in light of the job restriction.
6
Dutcher contacted Ingalls' labor relations office which asked her to provide a current medical report on her arm. Five weeks later she returned with the requested information. Ingalls asked for an explanation of the delay and while reviewing the proffered reasons experienced another reduction in force resulting in every welder in Dutcher's job classification being laid off.
7
On June 21, 1993 Dutcher filed the instant action, asserting that Ingalls violated the ADA by refusing reinstatement in September of 1992 to her job in the fab area. The district court entered summary judgment in favor of Ingalls, finding that the impairment of Dutcher's arm did not qualify as a "disability" under the ADA. Dutcher timely appealed.
Analysis
8
We review a grant of summary judgment applying the same standard as the district court.2 Summary judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fact questions are viewed in the light most favorable to the nonmovant and questions of law are reviewed de novo.
9
Dutcher contends that the district court erred when it concluded that she does not have an ADA-qualified disability. She maintains that when the summary judgment evidence on the extent of her disability is viewed in the most favorable light that there is a genuine issue of material fact whether her injured arm qualifies as a disability.
10
The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."3 The term "disability" as used in the ADA means:
11
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
12
(B) a record of such an impairment; or
13
(C) being regarded as having such an impairment.4
14
The ADA restricts the meaning of impairment; the parties, however, do not dispute that Dutcher's gun accident left her with a permanent impairment within the meaning of the statute.5 Dutcher, however, misconstrues the significance of this finding. A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA. The statute requires an impairment that substantially limits one or more of the major life activities.
15
The ADA defines neither "substantial limits" nor "major life activities," but the regulations promulgated by the EEOC under the ADA provide significant guidance. These regulations adopt the same definition of major life activities as used in the Rehabilitation Act.6 "Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."7 Whether an impairment substantially limits8 a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact.9
16
We first examine whether Dutcher's impairment substantially limits a major life activity other than working.10 Despite assertions to the contrary, both her deposition testimony and that of her physician inform that Dutcher can "take care of the normal activities of daily living." It is undisputed that she can feed herself, drive a car, attend her grooming, carry groceries, wash dishes, vacuum, and pick up trash with her impaired hand. In her deposition testimony Dutcher admits that she has trained herself to do "everything ... [she is] supposed to do" and that she can do "all of the basic things" she needs to do in life with her arm. Her medical expert testified that Dutcher can do lifting and reaching as long as she avoids heavy lifting and repetitive rotational movements. While her medical expert offered the opinion that her arm is impaired, this fact, as we noted above, is not disputed. More relevant to today's inquiry is that there was no evidence offered on which a jury could find that this impairment substantially limited a major life activity.11
17
Having concluded that Dutcher failed to present summary judgment evidence of a substantial limitation on a major life activity other than working, we turn to her strongest argument: Ingalls' actions demonstrate that her impairment affects the major life activity of working. With regard to the activity of working:
18
[S]ubstantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.12
19
Dutcher presents no evidence that her disability prevents her from performing an entire class of jobs.13 Her experience in the fab shop prior to her first layoff demonstrates that she can work as a welder; her injured arm adversely affects only the functioning in a welding position requiring substantial climbing. As we noted in Chandler,14 the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working.15 "An impairment that affects only a narrow range of jobs can be regarded either as not reaching a major life activity or as not substantially limiting one."16 Thus, we conclude that Dutcher failed to provide summary judgment evidence that her impairment substantially limited a major life activity.
20
Dutcher also fails to raise a genuine question of fact about whether she has a disability under the ADA because she has a record of an impairment that substantially limits a major life activity.17 There is no summary judgment evidence of such; similarly, there is no evidence that she had a "history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities."18
21
Dutcher might have qualified as disabled under the ADA if she could have provided sufficient summary judgment evidence that she was regarded by Ingalls as having an impairment that substantially limited a major life activity, whether she actually had such an impairment or not.19 The uncontroverted facts, however, are that Ingalls continued to employ her as a non-climbing welder after her initial transfer out of the bay area--the transfer which she claims put them on notice of her impairment. Dutcher concedes in her brief that Ingalls denied her a position solely because she could not climb; she does not suggest that she was denied a welding job because of a belief that her impaired arm would prevent her from performing adequately the welding function.20
22
Moreover, Dutcher offers no summary judgment evidence to controvert Ingalls' evidence that no non-climbing welding positions were available when she was denied reinstatement. Accordingly, the district court properly found that Ingalls did not deny Dutcher any available welding position on the basis of her impairment. We perforce conclude that, on these facts, a jury could not find that Ingalls regarded Dutcher as having a disability as contemplated by the ADA.
23
The judgment appealed is AFFIRMED.
1
42 U.S.C. Secs. 12101-12213 (Supp. III 1991)
2
Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993)
3
42 U.S.C. Sec. 12112(a)
4
42 U.S.C. Sec. 12102(2). We note that this definition of "disability" is substantially equivalent to that in the Rehabilitation Act, 29 U.S.C. Secs. 701-797 (1988, Supp. III 1991 & Supp. V 1993). See Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 18 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994)
5
A physical or mental impairment is defined as:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
29
C.F.R. Sec. 1630.2(h)(1), (2)
6
Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995); see Chandler
7
29 C.F.R. Sec. 1630.2(i). This listing, however, is not intended to be exhaustive. Other major life activities could include lifting, reaching, sitting, or standing. 29 C.F.R. Sec. 1630, Appendix to Part 1630--Interpretive Guidance on Title I of the Americans with Disabilities Act, Sec. 1630.2(1)
8
To substantially limit means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity.
29
C.F.R. Sec. 1630.2(j)(1)(i), (ii)
9
29 C.F.R. Sec. 1630, App., Sec. 1630.2(j)
10
42 U.S.C. Sec. 12102(2)(A); 29 C.F.R. Sec. 1630, App., Sec. 1630.2(j) ("If an individual is not substantially limited with respect to any other major life activity, the individual's ability to perform the major life activity of working should be considered. If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working.")
11
Dutcher contends that her deposition also set forth that she has difficulty picking up little things from the floor, that she has trouble holding things up high or real tight for long periods of time, and that she sometimes has problems turning the car's ignition. We are persuaded that a jury could not find that her impairment substantially limits major life activities on this basis. Cf. Coghlan v. H.J. Heinz Co., 851 F.Supp. 808 (N.D.Tex.1994) (denying summary judgment in light of evidence that impairment affected eating and sleeping)
12
29 C.F.R. Sec. 1630.2(j)(3)(i)
13
We note that three additional factors can be considered when determining whether an impairment substantially limits the major life activity of working. Those are:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).
29
C.F.R. Sec. 1630.2(j)(3)(ii)(A)-(C). Dutcher provided no such evidence in opposing Ingalls' summary judgment motion
14
That Chandler construed provisions of the Rehabilitative Act is of no moment; the substantial equivalency of the definition of disability under the Rehabilitation Act and the ADA strongly suggests that prior constructions of the Rehabilitation Act should be generally applicable in construing the ADA definition of "disability." See Bolton, 36 F.3d at 943 ("The legislative history of the ADA indicates that 'Congress intended that the relevant caselaw developed under the Rehabilitation Act be generally applicable to the term "disability" as used in the ADA.' ") (quoting 29 C.F.R. Sec. 1630, App., Sec. 1630.2(g) (citing legislative history) (citations omitted))
15
Chandler (citing with approval Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328 (S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988) (unpublished), where court held that service technician with impaired knee that prevented him from climbing utility poles was neither handicapped nor regarded as such within the meaning of the Rehabilitation Act because he could still perform work that did not require climbing)
16
Jasany v. United States Postal Service, 755 F.2d 1244, 1249 n. 3 (6th Cir.1985) (interpreting Rehabilitation Act)
17
42 U.S.C. Sec. 12102(2)(B)
18
29 C.F.R. Sec. 1630.2(k)
19
42 U.S.C. Sec. 12102(2)(C). "Regarded as having such an impairment" means that the individual:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in ... [29 C.F.R. Sec. 1630.2(h) ] but is treated by a covered entity as having a substantially limiting impairment.
29
C.F.R. Sec. 1630.2(l)(1)-(3)
20
See Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir.1986) ("The statutory reference [in the Rehabilitation Act] to a substantial limitation indicates instead that an employer regards an employee as handicapped in his or her ability to work by finding the employee's impairment to foreclose generally the type of employment involved.") | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/901111/ | 662 N.W.2d 288 (2003)
2003 SD 51
STATE of South Dakota, Plaintiff and Appellant,
v.
I-90 TRUCK HAVEN SERVICE, INC., Licensee, Defendant and Appellee.
Nos. 22215, 22228.
Supreme Court of South Dakota.
Considered on Briefs August 26, 2002.
Reassigned November 20, 2002.
Decided May 7, 2003.
*289 David R. Nelson, Minnehaha County State's Attorney, Colleen Moran, Deputy Minnehaha County State's Attorney, Sioux Falls, for plaintiff and appellant.
Mark E. Salter, Michael D. Bornitz of Cutler & Donahoe, LLP, Sioux Falls, for defendant and appellee.
GILBERTSON, Chief Justice (on reassignment).
[¶ 1.] An employee of I-90 Truck Haven Services, Inc. (Truck Haven), pled guilty to selling alcohol to a minor. Several months later, the State requested that the magistrate court impose an administrative sanction or fine on Truck Haven. Truck Haven filed a motion to dismiss. Although the magistrate court refused to dismiss the case against Truck Haven, the circuit court later reversed the magistrate court's order and found that an administrative fine could not be imposed on a licensee pursuant to SDCL 35-4-78 through SDCL 35-4-78.4. We reverse.
FACTS AND PROCEDURE
[¶ 2.] On March 30, 2000, an employee of Truck Haven, Donald Soulek (Soulek), sold alcohol to a person under the age of twenty-one.[1] This was in violation of SDCL 35-9-1.1.[2] Soulek pled guilty to this offense and received a criminal fine and a suspended jail sentence. Eight months later, in magistrate court, the State filed an application and order to show cause, requesting that the court impose an administrative fine under SDCL 35-4-78.3 on Truck Haven, the employer of Soulek. Truck Haven filed a motion to dismiss, which the magistrate court denied. Truck Haven appealed the magistrate court's order to the circuit court. The circuit court dismissed the State's case against Truck *290 Haven, finding that a fine was not statutorily authorized. State appeals, raising the following issue for our review:
Whether SDCL 35-4-78.2 allows for the imposition of administrative fines against Truck Haven.
STANDARD OF REVIEW
[¶ 3.] This appeal involves the interpretation of a statute. In Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611, we stated:
Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.
(citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (citing U.S. West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D. 1993) (citations omitted)).
ANALYSIS AND DECISION
[¶ 4.] Whether SDCL 35-4-78.2 allows for the imposition of administrative fines against Truck Haven.
[¶ 5.] The relevant statutes at issue in this appeal are SDCL 35-4-78 through SDCL 35-4-78.4. The starting point is SDCL 35-4-78, which provides, in relevant part:
No licensee[3] may sell any alcoholic beverage: (1) To any person under the age of twenty-one years[.]...
A violation of this section is a Class 1 misdemeanor.
[¶ 6.] The express words of this statute clearly state that a licensee can be criminally charged with selling alcohol to a person under the age of twenty-one. However, SDCL 35-4-78.1 provides the licensee a defense to criminal charges. Specifically, this statute provides:
A licensee ... is not in violation of § 35-4-78, and no criminal penalty may be imposed on the licensee if:
(1) The person making the sale in violation of § 35-4-78 is an employee or agent of the licensee;
(2) The employee or agent does not own a controlling interest in the licensee; and
(3) The licensee or person having a controlling interest in the licensee is not present at the time of the sale.
[¶ 7.] Although SDCL 35-4-78.1 provides a defense to the licensee in the context *291 of criminal charges, the next statute in this section, SDCL 35-4-78.2, provides for an imposition of a civil or administrative fine, even if no criminal penalty can be imposed:
If a sale is in violation of § 35-4-78 and does not constitute a criminal offense against the licensee, the state's attorney for the county in which the sale took place may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine in accordance with §§ 35-4-78.1 to 35-4-78.4, inclusive.
[¶ 8.] SDCL 35-4-78.3 provides:
Upon a request from the state's attorney and notice to the licensee, the court shall conduct a hearing to determine if the licensee is liable under §§ 35-4-78.1 to 35-4-78.4, inclusive, and upon a finding that the licensee is liable, the court may order the licensee to pay a fine not to exceed:
(1) Five hundred dollars upon the first violation within two years;
(2) Seven hundred fifty dollars upon the second violation within two years; and
(3) One thousand dollars for the third violation within two years.
We stated in Faircloth v. Raven Industries, Inc:
Ultimately, the purpose of statutory interpretation is to fulfill the legislative dictate. Intent is ordinarily ascertained by examining the express language of the statute. We therefore defer to the text where possible. We read statutes as a whole along with the enactments relating to the same subject. We assume that the Legislature intended that no part of its statutory scheme be rendered mere surplusage.
2000 SD 158, ¶ 6, 620 N.W.2d 198, 201 (citations omitted). Therefore, the statutes at issue must be read as a whole, not in isolation. We have specifically applied this standard of statutory analysis in a previous case concerning the legal rights and responsibilities of alcohol beverage licensees. Rushmore State Bank v. Kurylas, Inc., 424 N.W.2d 649, 653 (S.D.1988).
[¶ 9.] Truck Haven first raises the argument that because SDCL 35-4-78.1 provides a defense to SDCL 35-4-78, one of the requirements of SDCL 35-4-78.2 is not satisfied. Specifically, it argues that SDCL 35-4-78.2 authorizes a fine against a licensee only when there has been a violation of SDCL 35-4-78. An interpretation of the statutes read as a whole does not support its assertion. If SDCL 35-4-78.1 was to act as an absolute bar from any liability, then SDCL 35-4-78.2 and SDCL 35-4-78.3 would be "mere surplusage." See Faircloth, 2000 SD 158, ¶ 6, 620 N.W.2d at 201. See also DeSmet Ins. Co. v. Gibson, 1996 SD 102, ¶ 7, 552 N.W.2d 98, 100 (citation omitted) (stating that "in cases where a literal approach would functionally annul the law, the cardinal purpose of statutory constructionascertaining legislation intentought not be limited to simply reading a statute's bear language...").
[¶ 10.] This statutory interpretation is bolstered by the legislative history that exists. SDCL 35-4-78.1 and 35-4-78.2 were jointly enacted as part of the same act. See 1999 SD Sess.L. ch. 186. Thus, they clearly were intended to be interpreted together and not each in isolation. Moreover, although not part of the act, the act's title give a further indication of legislative intent: "[a]n Act [to] restrict certain criminal liability for alcoholic beverage licensees and to provide for administrative sanctions." (emphasis added). The title makes clear that the administrative sanctions of SDCL 35-4-78.2 were not solely voided by failure to be in criminal violation of the portions of SDCL 35-4-78.
*292 [¶ 11.] The text of SDCL 35-4-78 also runs counter to Truck Haven's argument. The second portion of the statute declares that a violation does not constitute a basis for a finding of civil liability in favor of a third party who claims injury from an illegal sale prohibited by this section. Noticeably missing is any grant of civil protection to the licensee as against the State's regulatory power.
[¶ 12.] In summary, SDCL 35-4-78 through 35-4-78.4 constitutes a single, yet thorough, method of regulation, both as to civil and criminal liability against licensees.
[¶ 13.] Truck Haven next argues that the dismissal of the case against it was supported by additional grounds. Specifically, Truck Haven contends that the action against Truck Haven was not part of the proceeding against its agent, Soulek, which SDCL 35-4-78.2 mandates it should be. Truck Haven's employee, Soulek, was sentenced on April 19, 2000 but was placed on conditions for a period of two years. First, we would note his criminal proceeding was still open at the time the State brought its action against Truck Haven eight months after Soulek's sentencing. More importantly, Truck Haven's argument fails to comport with the terms of SDCL 35-4-78.3[4] which states in part: "[u]pon a request from the state's attorney and notice to the licensee, the court shall conduct a hearing to determine if the licensee is liable under §§ 35-4-78.1 to 35-4-78.4...." This statute contemplates a separate civil hearing for a licensee under SDCL 35-4-78.2 concerning the issue of an administrative fine, separate from the criminal trial available under SDCL 35-4-78 and the criminal charge's statutory defenses available under SDCL 35-4-78.1.
[¶ 14.] Next, Truck Haven argues as an additional ground that the action against Truck Haven violates the constitutional doctrine of separation of powers. Truck Haven asserts that the authority to regulate an alcoholic beverage licensee is exclusively an administrative function. The statutory language of the statutes at issue clearly requires a hearing before the judiciary, not an administrative agency. Specifically, SDCL 35-4-78.2 requires that the "state's attorney ... may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine[.]" As with a myriad of other statutes, the Legislature sets the statutory guidelines and the courts determine whether a person charged with their violation has indeed done so. See, e.g., Kurylas, 424 N.W.2d at 649, and the cases cited therein.
[¶ 15.] Finally, Truck Haven argues that its right to due process of law was violated because it did not have the opportunity to participate in Soulek's criminal proceeding. We stated in Wuest v. Winner School Dist., 2000 SD 42, ¶ 25, 607 N.W.2d 912, 918, that "[d]ue process requires notice and an opportunity to be heard." (additional citations omitted). However, we have also stated that "the sufficiency of the notice and opportunity required under due process is flexible and `requires only such procedural protections as the particular situation demands.'" Matter of Estate of Washburn, 1998 SD 11, ¶ 19, 575 N.W.2d 245, 250 (additional citations omitted).
[¶ 16.] This Court has held that the rule in this jurisdiction, as it is in others, is that as between the state and the licensee, "there exists no property right in the license, but merely a privilege to conduct that state regulated business." Kurylas, *293 424 N.W.2d at 653. In Kurylas, we held that the license holder is nevertheless entitled to "fundamental due process rights such as a hearing, notice thereof and a right to be heard at such proceedings when consideration is given to grant, renew or revoke a license." Id. Herein, we find that Truck Haven was provided with just that, a hearing, notice thereof and a meaningful opportunity to be heard all in accordance with SDCL 35-4-78.3.
[¶ 17.] There are substantial constitutional and statutory differences between the conduct of a misdemeanor criminal proceeding versus an administrative proceeding, which may lead to the imposition of a civil fine. See, e.g., City of Pierre v. Blackwell, 2001 SD 127, 635 N.W.2d 581. Truck Haven was served with an application and order to show cause. In addition, the State provided Truck Haven with a detailed affidavit that contained all of the relevant information on which the State's action was based. Further, Truck Haven had a full opportunity to be heard on this matter in front of the court. It received the full amount of due process protection guaranteed to it under such a civil regulatory proceeding. See Kurylas 424 N.W.2d at 653.
[¶ 18.] For the above reasons, we reverse and remand for further proceedings consistent with this opinion.
[¶ 19.] SABERS, KONENKAMP, and ZINTER, Justices, concur.
[¶ 20.] AMUNDSON, Retired Justice, dissents.
[¶ 21.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.
AMUNDSON, Retired Justice (dissenting).
[¶ 22.] In this case, clearly the criminal action against Soulek had concluded. The criminal case Cri. # 0011625, the State of South Dakota v. Donald Lee Soulek, was filed on April 12, 2000. Soulek pleaded guilty and was sentenced on April 19, 2000. At that time the status of this criminal case was listed as terminated. Then more than eight months after Soulek pleaded guilty, the State filed an order to show cause in civil case Civ. # 00-3583, State of South Dakota v. I-90 Truck Haven Service, Inc., Licensee, seeking a civil fine against Truck Haven.
[¶ 23.] SDCL 35-4-78.2 provides that "the state's attorney ... may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine in accordance with §§ 35-4-78.1 to 35-4-78.4, inclusive." Black's Law Dictionary defines proceeding as the progression of a lawsuit "including all acts and events between the time of commencement to the entry of judgment." 1221 (7th ed. 1999). Here when the state brought this action against Truck Haven, it was certainly not part of the "same proceeding" against Soulek since criminal judgment had already been entered.
[¶ 24.] We should follow the "paramount rule of statutory construction and simply declare `what the legislature said, rather than what the courts think it should have said.'" Goetz v. State, 2001 SD 138 at ¶ 20, 636 N.W.2d 675, 682 (2001). Statutory construction as established by the precedence of the Court clearly provides that these two actions should have been brought in the same proceeding and they were not. Therefore I would affirm the trial court.
NOTES
[1] It is undisputed that no person having a controlling interest in the corporate licensee, Truck Haven, was present at the time of Soulek's illegal sale.
[2] SDCL 35-9-1.1 provides:
It is a Class 2 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person who is eighteen years of age or older but less than twenty-one years of age unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age or by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.
[3] The term "licensee" is not defined in the code. Black's Law Dictionary (7th ed.1999), defines "licensee" as "[o]ne to whom a license is granted." The resolution of this case does not hinge on the definition of a "licensee."
[4] SDCL 35-4-78.3 was also passed as part of 1999 SL ch 186 as part of the comprehensive legislative package that also resulted in SDCL 35-4-78.1 and 35-4-78.2. | 01-03-2023 | 06-13-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/6855/ | 41 F.3d 997
1995 A.M.C. 1517, 63 USLW 2440, 31Fed.R.Serv.3d 1069
BOLAND MARINE & MANUFACTURING CO., and Continental InsuranceCo., Petitioners,v.Billy C. RIHNER, son of Paul Rihner, deceased, and Director,Office of Workers' Compensation Programs, U.S.Department of Labor, Respondents.
No. 93-5114.
United States Court of Appeals,Fifth Circuit.
Jan. 9, 1995.
James R. Logan, IV, Cornelius, Sartin & Murphy, New Orleans, LA, for petitioner.
1
Joseph P. Tynan, Lea, Plavnicky & Moseley, New Orleans, LA, for Rihner.
2
Laura J. Stomski, Marianne D. Smith, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Washington, DC, for Director.
3
Paul E. Trayers, Clerk, BRB, Washington, DC, for other interested parties.
4
Petition for Review of a Final Order of the Benefits Review Board.
5
Before KING and BENAVIDES, Circuit Judges, and LAKE, District Judge.*
KING, Circuit Judge:
6
This case involves an award of attorney's fees for proceedings conducted under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950. Below, an Administrative Law Judge determined that the Director of the Office of Workers' Compensation Programs fostered litigation without reasonable grounds in the proceedings involving the claim of Billy C. Rihner. Therefore, the Administrative Law Judge assessed attorney's fees as costs against the Special Fund under the provisions of 33 U.S.C. Sec. 926. The Director appealed, and the Benefits Review Board determined that the Administrative Law Judge erred in awarding fees from the Special Fund and reversed the award of attorney's fees. Furthermore, invoking 33 U.S.C. Sec. 928(b), the Benefits Review Board found that the employer, Boland Marine & Manufacturing Company, was liable for the attorney's fees. On remand, an Administrative Law Judge ordered Boland Marine & Manufacturing Company to pay $4,060.56 in attorney's fees and expenses. Subsequently, the Benefits Review Board affirmed the Administrative Law Judge's order. Boland Marine & Manufacturing Company and its insurer, Continental Insurance Company, appeal the BRB's decisions. Finding no reversible error, we affirm.
I. BACKGROUND
7
In February 1981, Paul Rihner suffered a fatal heart attack while at work. His wife, Carmelite Rihner, filed a claim for benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA") in August of that same year, and Boland Marine and Manufacturing Company and its insurer, Continental Insurance Company (collectively "Boland Marine"), began to pay benefits retroactively from the time of Paul Rihner's death. Carmelite Rihner continued to receive monthly payments from Boland Marine until her death in February 1985. At that time, Billy Rihner ("Rihner"), the child of Paul and Carmelite Rihner, began to receive benefit payments.1
8
Soon thereafter, Boland Marine sought relief under Section 8(f) of LHWCA which limits the time an employer must pay benefits for a disability caused, in part, by an existing injury or disability.2 Although the Deputy Commissioner recommended that relief be granted under Section 8, the Associate Director denied relief under that section, noting that "it could be concluded that the claimant's demise was a natural progression of his underlying condition"; "it is questionable whether the claimant's fatal heart attack 'arose out of his employment' "; and "it is not clear from the file the basis for Billy C. Rihner's entitlement since he is an adult child." Several months later, in July of 1985, Boland Marine again requested relief under Section 8(f). Once again, contrary to the recommendation of the Deputy Commissioner, in November of 1986, the Associate Director found "that compensability ha[d] not been established" and denied the request. Additionally, in the letter denying Section 8(f) relief, the Associate Director advised "that no further administrative action should be taken in regard to the claim for compensation or the application for section 8(f) relief."
9
The month after it was notified of the second rejection of its claim, Boland Marine filed a "Notice of Final Payment or Suspension of Compensation Payments" and discontinued paying benefits to Rihner. A claim for benefits under LHWCA was filed on behalf of Rihner and the case was referred to the Office of Administrative Law Judges. In its pre-hearing statement, Boland Marine listed, inter alia, "[w]hether Mr. Rihner suffered an accident ... while working for Boland Marine," "the nature and causes of Mr. Rihner's death," and "[w]hether or not Mr. Rihner's prior cardiac ailments and other medical conditions constitute a pre-existing permanent partial disability" as issues to be presented in the hearing.
10
In June 1988, the Administrative Law Judge ("ALJ") determined that Paul Rihner's "pre-existing conditions of diabetes mellitus, coronary arteriosclerosis and hypertension ... constituted a permanent partial disability for purposes of Section 8(f) of the Act." Further, the ALJ found that: if Paul Rihner had not suffered from these conditions "his heart attack might not have been fatal, or it might not have occurred at all"; "Mr. Rihner's preexisting permanent partial disability predisposed him to disability, and in combination with his heart attack ... resulted in his death"; and "Mr. Rihner's disability was manifest to his employers." Thus, the ALJ concluded that "Section 8(f) of the Act is applicable to this case so as to limit the Employer's liability to 104 weeks of compensation payments." Finally, the ALJ determined that since Rihner was successful in his claim, Boland Marine was required to pay his attorney's fees.
11
Boland Marine contested the award of attorney's fees against it, and the ALJ altered its decision, ordering the "Special Fund to pay [Rihner's] attorney's fees as the Director [of the Office of Workers' Compensation Programs ("the Director") ] fostered litigation without reasonable grounds for doing so." Specifically, the ALJ determined that:
12
the record clearly indicates that [Rihner] was entitled to benefits and that the Employer/Carrier was entitled to Sec. 8(f) relief. No contradictory evidence was submitted. Therefore, I find the Director's stance prior to hearing to be unreasonable, particularly in light of the fact that Director failed to pursue its position at the formal hearing. Accordingly, I find that the Director instituted the proceedings in this case without reasonable ground, and the Special Fund is therefore liable for [Rihner's] attorney's fees pursuant to Section 26.
13
Thus, the ALJ ordered the Special Fund to pay attorney's fees of $3885 and expenses of $175.56.
14
The Director appealed the order granting attorney's fees from the Special Fund to the Benefits Review Board ("BRB"). The BRB found that the ALJ erred "in assessing attorney's fees against the Special Fund pursuant to Section 26, as this section provides for the assessment of the costs of a proceeding only against a party who has instituted or continued the proceedings without reasonable grounds." Specifically, the BRB found that it was Boland Marine's actions "that necessitated a formal hearing ... [r]egardless of the merit of the Director's position in denying Section 8(f) relief." Moreover, the BRB reasoned that, because from a pre-hearing perspective the Director did not know or should not have known that his position would be unsuccessful, the Director did not continue the proceedings without reasonable ground.
15
Additionally, the BRB noted that the "Special Fund cannot be held liable for an attorney's fee under Section 28." The BRB, however, did find that since Boland Marine terminated payments to Rihner, Boland Marine was liable for Rihner's attorney's fees under Section 28(b) notwithstanding its stipulation to Rihner's entitlement to compensation at the hearing or its successful petition for relief under Section 8(f). Thus, the BRB vacated the ALJ's order granting attorney's fees from the Special Fund under Section 26 and modified the ALJ's decision so to hold Boland Marine liable for Rihner's attorney's fees.
16
Subsequently, the case was remanded to an ALJ who assessed attorney's fees against Boland Marine. Boland Marine then appealed to the BRB which affirmed the ALJ's order on remand. This appeal followed. Specifically, Boland Marine argues that: (1) the BRB erred in concluding that Director did not institute or continue the proceedings in this case without reasonable grounds, and, therefore, according to Section 26 of LHWCA, attorney's fees may be assessed against the Special Fund; (2) Rihner should be entitled to attorney's fees from the Special Fund under the "bad faith" exception to the American Rule, the Administrative Procedure Act, the Federal Rules of Civil Procedure, or the ALJ's general equitable powers; and (3) an employer cannot be liable under Section 28 of LHWCA when it did not controvert a claimant's entitlement to benefits. We reject all of Boland Marine's contentions, and we affirm the decision of the BRB.
II. STANDARD OF REVIEW
17
In reviewing the decisions of the BRB, the scope of this court's review is relatively narrow. In examining the orders of the BRB our role is limited to " 'considering errors of law and making certain that the BRB adhered to its statutory standard of review of factual determinations, that is, whether the ALJ's findings of fact are supported by substantial evidence and consistent with the law.' " Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90 (5th Cir.1990) (quoting Miller v. Central Dispatch, Inc., 673 F.2d 773, 778 (5th Cir. Unit A 1982)); accord Tanner v. Ingalls Shipbuilding, 2 F.3d 143, 144 (5th Cir.1993); Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir.1991). In our review we "may not substitute [our] judgment for that of the ALJ, nor may we reweigh or reappraise the evidence," instead we inquire whether there was evidence supporting the ALJ's factual findings. Empire United Stevedores, 936 F.2d at 822 (citations omitted).
III. DISCUSSION
A. Assessment of Fees under Section 26
18
Boland Marine's first contention is that the BRB improperly disregarded substantial evidence supporting the ALJ's determination that the Director instituted or continued the proceedings in this case without reasonable ground. As a consequence, Boland Marine asserts that the BRB should have affirmed the ALJ's award of attorney's fees from the Special Fund pursuant to Section 26 of LHWCA. Regardless of the propriety of the BRB's review, we cannot support Boland Marine's position because we find, as did the Ninth Circuit in Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887 (9th Cir.1993), that Section 26 vests neither the ALJ nor the BRB with the power to award attorneys fees.
Section 26 of LHWCA states that:
19
If the court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.
20
33 U.S.C. Sec. 926. This section grants the power to assess costs only to courts, not to administrative agencies. Thus, while in the past, the BRB has assumed that Section 26 allowed ALJs to assess costs, Toscano v. Sun Ship, Inc., 24 B.R.B.S. 207, 211-13 (1991), see, e.g., Medrano v. Bethlehem Steel Corp., 23 B.R.B.S. 223, 225-26 (1990), "we cannot ... disregard the plain meaning of the statute or its legislative history, nor may we create rights not given or implied by the terms of the Act." Brickner, 11 F.3d at 889.
21
As the Ninth Circuit noted in Brickner, it is clear from other provisions of LHWCA that Congress knew the difference between the ALJ, the BRB, and the federal courts when it parceled out the power to award attorney's fees in LHWCA's various provisions. Id. at 890. For example, Section 28 of LHWCA provides for an award of attorneys fees to a successful claimant in "an amount approved by the deputy commissioner, Board, or court, as the case may be." 33 U.S.C. Sec. 928(a); see also Brickner, 11 F.3d at 890 (discussing the powers granted by Section 28). Conversely, Section 26 does not provide administrative agencies with such power; instead, that section specifically grants the power to assess costs only to "the court having jurisdiction of the claim or the proceeding." 33 U.S.C. Sec. 926.
22
The legislative history of LHWCA further buttresses the notion that the power to assess costs under Section 26 rests only with courts. The original bill provided that "[i]f the deputy commissioner or the District Court before whom any proceedings are brought determines that such proceedings have been brought, prosecuted, or defended without reasonable ground, the whole cost of the proceedings shall be assessed upon the party who has so brought, prosecuted or defended them." Compensation for Employees in Certain Maritime Employments: Hearings on S. 3170 Before a Subcomm. of the Senate Comm. on the Judiciary, 69th Cong., 1st Sess. 11 (1927). When the bill was passed, however, the power to assess costs was given only to the courts. See 33 U.S.C. Sec. 926; Brickner, 11 F.3d at 890.
23
Moreover, although other sections of LHWCA have been amended in the more than sixty years since it was passed, Section 26 has not been changed. Notably, in 1972, Congress altered the procedures for adjudicating claims under LHWCA, transferring formal adjudication responsibilities from deputy commissioners to ALJs. Brickner, 11 F.3d at 890. At the same time, Congress also moved the forum for initial review proceedings from the district courts to the BRB. Id. Despite these changes, Congress did not alter Section 26. As the Ninth Circuit concluded, "[i]f Congress wanted to confer cost awarding power upon the Board, it could easily have done so when it amended the statutory scheme. Instead, it continued the prior division between court and administrative proceedings." Id. Thus, while we note that it is somewhat unusual that costs for unreasonably instituting an action cannot be assessed in the forum where the action is instituted or continued, we cannot ignore the plain language of the statute. Simply, neither the ALJ nor BRB is a court, and Section 26 provides only courts with the power to award costs. Consequently, we find no reversible error in the BRB's decision vacating the ALJ's award of attorney's fees under Section 26.3
24
B. Attorney's Fees Under Other Statutes or Equitable Powers
25
Boland Marine also argues that since the Director acted unreasonably, the Director should be held liable for Rihner's attorney's fees under the " 'bad faith' exception to the American Rule and/or under the general powers and authorities of ALJ's pursuant to the Administrative Procedure Act, the Federal Rules of Civil Procedure, and equity."
26
1. Attorney's Fees under the Federal Rules of Civil Procedure.
27
Boland Marine asserts that the Director should be forced to pay Rihner's attorney's fees pursuant to Federal Rules of Civil Procedure 11 or 16(f), both of which, according to Boland Marine, "allow for an award of attorneys fees as sanctions."
28
The Federal Rules of Civil Procedure apply "to proceedings for enforcement or review of compensation orders under [LHWCA Secs. 18 and 21], except to the extent matters of procedure are provided for in the Act." Fed.R.Civ.P. 81(a)(6); see also Brickner, 11 F.3d at 891 (discussing the Rule). Section 18 of LHWCA governs the enforcement of benefit awards--the "collection of the defaulted payments" from an employer, or, if the employer is insolvent or otherwise unable to make payments, Section 18 authorizes payment from the Special Fund. 33 U.S.C. Sec. 918. The enforcement procedures set out in this section require certain filings with the deputy commissioner and in the federal district court. Similarly, Section 21 of LHWCA sets forth the procedures for the review of compensation orders by the BRB and the federal courts. 33 U.S.C. Sec. 921. Yet Rule 81(a)(6) does not make the Federal Rules of Civil Procedure applicable to all LHWCA proceedings since by its very language, it extends the reach of the Rules to enforcement and review proceedings only. Brickner, 11 F.3d at 891.
29
The Federal Rules of Civil Procedure, however, do apply in proceedings under LHWCA "in any situation not provided for or controlled ... by any statute, executive order, or regulation." 29 C.F.R. Sec. 18.1(a). Nevertheless, while federal regulation incorporates the Federal Rules into some aspects of LHWCA proceedings, the imposition of attorney's fees and sanctions for instituting or continuing a proceeding without reasonable ground is an area provided for or controlled by the Act. Accordingly, we find that Rules 11 and 16 find no application in those situations.
30
As noted above, Section 26 of LHWCA "provides for the situation when a party institutes or continues a proceeding without reasonable ground." Brickner, 11 F.3d at 891. We agree with the reasoning of the Ninth Circuit that the inclusion of this section in LHWCA, "which allows a sanction for unreasonable claims against either party, impliedly precludes a sanction for bad faith claims, and therefore Rule 11 should not be incorporated." Id. Moreover, the notion that attorney misconduct in LHWCA proceedings should be governed by Section 26 instead of the sanctioning procedures of the Federal Rules of Civil Procedure is further supported by the federal regulations. Specifically, the federal regulations direct an ALJ to certify instances of attorney misbehavior to the "Federal District Court having jurisdiction in the place in which he or she is sitting to request appropriate remedies." 29 C.F.R. Sec. 18.29.
31
We agree with the Brickner court that the sanctioning mechanism provided in Section 26 "makes it plain that Congress has considered the possibility that either party will do the acts contemplated by Rule 11 and has determined the stage at which corrective disciplinary action can be taken." Brickner, 11 F.3d at 891. Thus, we find that because Section 26 controls the circumstances of a party continuing a proceeding without reasonable ground, the sanctioning procedures of the Federal Rules of Civil Procedure are not applicable to that conduct.
2. Attorney's Fees Under the American Rule
32
Under the well-established American Rule used in the federal courts, "absent statute or enforceable contract, litigants pay their own attorney's fees." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257, 95 S. Ct. 1612, 1621, 44 L. Ed. 2d 141 (1975); accord Holliday v. Todd Shipyards Corp., 654 F.2d 415, 419 (5th Cir.1981), overruled on other grounds, Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033 (5th Cir.1990); Director v. Robertson, 625 F.2d 873, 876 (9th Cir.1980). There are, however, a few nonstatutory exceptions to the American Rule. Courts may depart from the general rule that each party pays his own attorney's fees in "cases involving a common fund, situations where a party has willfully violated a court order, and cases of fraudulent, groundless, oppressive, or vexatious conduct." Holliday, 654 F.2d at 419 n. 4; see also Alyeska Pipeline, 421 U.S. at 257-59, 95 S.Ct. at 1621-22. A court's ability to award attorney's fees, even under these judicially-created exceptions to the American Rule, is not unfettered. In a statute such as LHWCA, Congress, "while fully recognizing and accepting the general rule, [has made] specific and explicit provisions for the allowance of attorney's fees," and the statute must guide courts in the award of such fees. Alyeska Pipeline, 421 U.S. at 260 & n. 33, 95 S. Ct. at 1623 & n. 33. In these situations, the Supreme Court has noted that "it is apparent that the circumstances under which attorneys' fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine." Id. at 262, 95 S.Ct. at 1624; see also Holliday, 654 F.2d at 419-20 (discussing the applicability of the American Rule's statutory exceptions to LHWCA). Thus, Alyeska Pipeline seems to indicate that when a Congressional statute sets out the framework for the award of attorney's fees, courts should look to that statutory framework alone to determine whether sanctions should be awarded.
33
Notwithstanding this language, the Supreme Court recently indicated that even if a statute governs the imposition of attorney's fees a court may "resort to its inherent power to impose attorney's fees, as a sanction for bad faith conduct. This is plainly the case where the conduct at issue is not covered by one of the other sanctioning provisions." Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S. Ct. 2123, 2135, 115 L. Ed. 2d 27 (1991). In Chambers, the Court stated that while the "inherent powers of the lower federal courts can be limited by statute and rule[,] ... we do not lightly assume that Congress has intended to depart from established principles such as the scope of a court's inherent power." Id. at 47, 111 S.Ct. at 2134 (internal quotations and citations omitted). Consequently, the Court concluded that, even in the face of a statute or a rule, a court's ability to levy attorney's fees as sanctions was not limited to situations covered by that rule or statute. The Court noted that in a situation where a party acts in bad faith, and when "neither the statute nor the rules [is] up to the task [of sanctioning the conduct], the court may safely rely on its inherent power" to assess attorney's fees. Id. at 50, 111 S.Ct. at 2136; see also United States v. Horn, 29 F.3d 754, 760 (1st Cir.1994) ("[E]ven though a particular abuse is covered by a specific statute or rule, a court still may invoke its supervisory power to address the abuse if the remedial provision is inadequate to the task."); Amsted Indus. v. Buckeye Steel Castings Co., 23 F.3d 374, 378 (Fed.Cir.1994) ("[S]tatutes governing sanctions do not displace the federal courts' inherent power to impose sanctions for bad faith and vexatious conduct.").
34
We recognize that there may be some tension between Chambers and Alyeska Pipeline regarding the ability of a court to exercise its equitable powers to assess attorney's fees for bad faith conduct in the face of a statute describing the circumstances in which fees may be assessed. See Chambers, 501 U.S. at 61, 111 S.Ct. at 2141 (Kennedy, J. dissenting) (noting the case "permits the exercise of inherent sanctioning powers without prior recourse to controlling rules and statutes, thereby abrogating to federal courts the power to regulate fees and costs"). Nevertheless, in the instant case, we need not concern ourselves with that tension. Simply, this is not a case in which the conduct of the Director rises to the level of abuse warranting the use of the court's inherent power to sanction. A court should invoke its inherent power to award attorney's fees only when it finds that "fraud has been practiced upon it, or that the very temple of justice has been defiled." Chambers, 501 U.S. at 46, 111 S.Ct. at 2133; accord Amsted Indus., 23 F.3d at 379.
35
In the instant case, the ALJ commented that the "Director's stance prior to the hearing was unreasonable" because, despite contesting the 8(f) request of Boland Marine, the Director did not offer any evidence in opposition to the motion or pursue his position in opposition to the request for 8(f) relief at the formal hearing. Thus, the ALJ determined that the Director should be liable for Rihner's attorney's fees for "institut[ing] proceedings in this case without reasonable grounds." While this is the appropriate standard for a federal court (and, as discussed above, only a court) to assess attorney's fees under Section 26 of LHWCA, it is not the equivalent to the finding that a fraud was perpetrated on the court or that "very temple of justice has been defiled" which is required for a court assess attorney's fees through its inherent powers. Accordingly, we do not find that the director's actions warrant the exercise of the court's equitable powers to award attorney's fees.
3. Equal Access to Justice Act
36
Finally, Boland Marine makes a cursory argument that the Special Fund should be held liable for attorney's fees under the provisions of the Equal Access to Justice Act ("EAJA"), 5 U.S.C. Sec. 504. We find their argument meritless.
37
The EAJA allows parties in "certain adversary administrative proceedings to recover attorney's fees and costs from the government." Hodge v. United States Dep't of Justice, 929 F.2d 153, 154 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 866, 116 L. Ed. 2d 772 (1992). In order to receive such an award, certain procedures must be followed. Specifically, "[a] party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under [the] section...." 5 U.S.C. Sec. 504(a)(2). Here, there is no evidence in the record that Rihner, the party seeking fees, followed these procedures. Accordingly, we will not address whether attorney's fees should be awarded under the provisions of the EAJA in this case.
38
C. Boland Marine's Liability for Attorney's Fees under Section 28
39
Boland Marine also argues that attorney's fees cannot be assessed against it under Section 28 of LHWCA because "it did not controvert [Rihner's] entitlement to benefits" and Rihner "did not successfully obtain an order which [Boland Marine] had contested." Specifically, Boland Marine argues that it "never contested the underlying compensability of Mr. [Paul] Rihner's heart attack ..., and [it] voluntarily paid death benefits to Mr. Rihner's widow and son." These contentions, however, are belied by the record of this case.
40
Section 28(b) of LHWCA provides for an award of attorney's fees when "the employer tenders partial compensation but refuses to pay the total amount claimed by the claimant, and the claimant uses the services of an attorney to successfully recover the total amount claimed."4 Savannah Mach. & Shipyard Co. v. Director, 642 F.2d 887, 889 (5th Cir.1981); accord Holliday, 654 F.2d at 419.
41
In addition to ceasing payment of benefits, Boland Marine specifically listed "[w]hether Mr. Rihner suffered an accident ... while working for Boland Marine, and the surrounding circumstances thereof" and "[t]he nature and causes of Mr. Rihner's death" as issues requiring resolution by the ALJ. In the initial proceeding, the ALJ expressly "found the evidence sufficient to establish that [Paul Rihner's] heart attack could have been caused by his employment" and that "death benefits are warranted in this case." Accordingly, the ALJ concluded that Rihner was entitled to attorney's fees from Boland Marine.
42
Although, when the ALJ revisited this issue, it determined that "it was the Director who placed compensability in issue," we find that the BRB accurately determined that this finding was not supported by the facts. Regardless of whether Boland Marine was entitled to relief from the Director under section 8(f), it was Boland Marine's actions ceasing payment and contesting compensability for the underlying claim that required Rihner to hire an attorney to pursue his claim. As the BRB noted, the fact that an "employer is discharged from some compensation due to the operation of Section 8(f) does not affect its obligation for attorney's fees under Section 28(b)." See Henry v. George Hyman Constr. Co., 749 F.2d 65, 69 (D.C.Cir.1984) ("a claimant has no interest in the source of compensation") (citing, inter alia, Price v. Greyhound Bus Lines, Inc., 14 B.R.B.S. 439, 440 n. 1 (1981), dismissed for lack of subject matter jurisdiction, No. 81-1934 (4th Cir. Jan. 4, 1982), cert. denied, 459 U.S. 831, 103 S. Ct. 70, 74 L. Ed. 2d 70 (1982); Creasy v. Bateson, 14 B.R.B.S. 434, 437 (1981)).
43
In this case, Boland Marine discontinued payment of benefits. Rihner brought a claim, and in the pre-hearing filings, Boland Marine listed causation and compensability as issues to be resolved in the proceeding. Eventually, Rihner successfully recovered the full amount of his claim. Therefore, we find no error in the BRB's finding that under Section 28(b) of LHWCA, Boland Marine is liable for attorney's fees.
44
Additionally, we find that Boland Marine is responsible for Rihner's attorney's fees and expenses (totalling $5520.57) in this appeal. As we have noted, "when an employer contests its liability in whole or in part and the claimant is ultimately successful, the employer and not the claimant must pay the claimant's attorney's fees for services necessary to that success." Hole v. Miami Shipyards Corp., 640 F.2d 769, 774 (5th Cir.1981); see also Vincent v. Consolidated Operating Co., 17 F.3d 782, 787 (5th Cir.1994) (per curiam) (holding in a LHWCA case that "[b]ecause the defendants denied their liability but lost this appeal, they are liable ... for the attorney's fees incurred in defending this appeal"). Thus, Rihner is entitled to "a fee rendered ... for the successful prosecution of this appeal." Hole, 640 F.2d at 774 (quoting American Stevedores, Inc. v. Salzano, 538 F.2d 933, 937 (2d Cir.1976)).
45
Finally, Rihner requests an award of interest on the attorney's fees. We, however, decline this request. In short, there is no indication in the statute or in the case law that interest is available on attorney's fees granted under Section 28 of LHWCA. See Hobbs v. Director, 820 F.2d 1528, 1531 (9th Cir.1987) (holding that interest is not available for attorney's fees and noting that "[i]t is the prerogative of Congress ... to establish the circumstances, if any, under which such interest may be available"); Fisher v. Todd Shipyards, 21 B.R.B.S. 323 (noting that "there is no legal authority under the Act for awarding interest" on attorney's fees).
IV. CONCLUSION
46
For the foregoing reasons, we AFFIRM the decision of the BRB, and we award attorney's fees and expenses for the appeal against Boland Marine and in favor of Rihner in the amount of $5520.57.
*
District Judge of the Southern District of Texas, sitting by designation
1
Although Billy Rihner is an adult, he was entitled to benefits as a dependent child under the provisions of LHWCA because of mental disabilities. Specifically, LHWCA provides that the word child, as used within the Act, includes persons "who, though, eighteen years of age or over, [are] wholly dependent on the employee and incapable of self-support by reason of mental or physical disability." 33 U.S.C. Sec. 902(14)
2
Specifically, LHWCA states:
In any case in which an employee having an existing permanent partial disability suffers injury, the employer shall provide compensation for such disability as is found to be attributable to that injury based upon the average weekly wages of the employee at the time of the injury. If following an injury falling within the provisions ... of this section, the employee is totally and permanently disabled, and the disability is found not to be solely due to that injury, the employer shall provide compensation for the applicable prescribed period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is greater.... In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide ... compensation payments or death benefits for one hundred and four weeks only.
33 U.S.C. Sec. 908(f)(1).
3
This result is consistent with the Second Circuit's holding in Overseas African Construction Corp. v. McMullen, 500 F.2d 1291 (2d Cir.1974). In Overseas African Construction, the court discussed the actions of the district court in assessing attorneys fees. Id. at 1297. Similarly, the Ninth Circuit's holding in Stevedoring Services of America, Inc. v. Eggert, 953 F.2d 552 (9th Cir.1992), cert. denied, --- U.S. ----, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992), is not contrary to this decision. The only information regarding the award of attorney's fees by the ALJ in that case is a reference to an award of 60 dollars granted as "a sanction for having made a proceeding to compel discovery necessary." Id. at 554. The court did not discuss the propriety of an ALJ's assessment of attorney's fees under Section 26, and we assume that the position of the Ninth Circuit on this issue is that which it recently expressed at length in Brickner
4
Section 28 states, in part:
If the employer or carrier pays or tenders payment of compensation without an award to section 914(a) and (b) of this title, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy.... If the claimant is successful in review proceedings before the Board or court in any such case an award may be made in favor of the claimant and against the employer or carrier for a reasonable attorney's fee for claimants counsel....
33 U.S.C. Sec. 928(b). | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/6889/ | 43 F.3d 163
31 Fed. R. Serv. 3d 1498
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of EmpireSavings and Loan Association, Plaintiff-Appellee,v.Nora P. LeGRAND, et al., Defendants,Andrew M. Roughton, Defendant-Appellant.
No. 93-1890.
United States Court of Appeals,Fifth Circuit.
Jan. 26, 1995.
Rodney R. Elkins, Dallas, TX, for appellant.
Richard E. Anderson, FDIC-Legal Div., Dallas, TX, Kathleen V. Gunning, Atty., FDIC, Appellate Lit. Sec., Washington, DC, for appellee.
Appeal from United States District Court for the Northern District of Texas.
Before GARWOOD, JOLLY and STEWART, Circuit Judges.
STEWART, Circuit Judge:
1
This case involves an appeal from an order of contempt resulting from Andrew Roughton's failure to comply with a postjudgment discovery order compelling the production of his federal income tax returns. We affirm the civil portion of the contempt order and vacate the criminal portion of the order.
Background
2
On July 18, 1991, the Federal Deposit Insurance Corporation (FDIC) obtained a final judgment against defendants LeGrand and Roughton in the amount of $846,879.59, plus $1,085,444.30 in interest, plus $8,585.59 in attorney's fees. The judgment was later amended on September 6, 1991, to provide for an additional $81,589.92 in interest the FDIC had left out of the original judgment. When post-judgment discovery disputes arose over the production of Roughton's federal income tax returns for the years 1989, 1990, and 1991, Roughton filed a motion for protective order, seeking in camera review of his federal income tax returns and a ruling that FDIC not be permitted to obtain copies of the returns or to inquire into their contents. Alternatively, Roughton sought a confidentiality order prohibiting FDIC from disseminating the returns or any information therein to third persons except as required for the collection of the judgment against Roughton. The FDIC also filed a motion to compel production of the returns. The matter was referred to the federal magistrate. The magistrate issued an order compelling disclosure of Roughton's income tax returns to counsel for FDIC within ten days.1 Each party applied to the district judge for relief from this order; both parties' motions were denied on March 22, 1993.
3
On May 28, 1993, the FDIC filed its Motion for Contempt. The matter was referred to the magistrate by the district judge. Roughton objected to the reference, claiming that the magistrate was without authority to conduct a hearing on the motion for contempt because such power is not vested in a magistrate under the Federal Magistrates Act.2 The magistrate conducted a hearing on May 28, 1993, and issued a Report and Recommendation3 in which he made numerous findings of fact, including generally that Roughton had been ordered to produce the tax returns, but that he had not done so, nor had he proffered the returns to the magistrate or offered any evidence demonstrating his inability to comply with the order, despite threats by FDIC that it would file a motion for contempt if the returns were not produced. The magistrate's recommendation stated as follows:
4
It is recommended that the District Court enter its order directing Defendant Andrew M. Roughton to appear forthwith before the District Court to show cause why he should not be held in civil contempt for his failure to comply with the order of the magistrate judge filed on February 24, 1993, and in the event that Defendant fails to show cause for his failure to comply or to produce at the hearing the subject tax returns that the District Court hold him in civil contempt and order that he be confined in a jail-type institution until he purge [sic] himself of his contempt by producing his federal tax returns, previously ordered, and by tendering the sum of $909.00 to the FDIC. (Emphasis added.)
5
Roughton timely objected to the Report, reasserting his objections to the magistrate's authority to make the factual findings and also alleging a defect in the reference procedure. Roughton also alleged there was no testimony adduced at the hearing to support the factual findings made by the magistrate.
6
On October 4, 1993, a show cause hearing was held before the district judge. Counsel for FDIC stated in open court that Roughton had not produced the returns to him as required by the order. Counsel for Roughton did not object to FDIC's counsel's comments regarding Roughton's noncompliance with the order. The district court adopted the recommendation of the magistrate judge and held Roughton in contempt. Accordingly, Roughton was immediately taken into custody by the United States Marshal. The order issued by the district judge stated that:
7
Defendant did not show just cause for his failure to comply with the February 24, 1993 order directing him to produce to the FDIC tax returns for the years 1989, 1990, and 1991. Accordingly, the Court found Defendant in contempt and ordered that he be taken into custody for a period of 72 hours and until he produces the subject tax returns and pays attorneys' fees in the amount of $909.00. (Emphasis added.)
8
Notwithstanding the literal wording of the order requiring that Roughton be taken into custody for 72 hours and until he produced the tax returns, Roughton was released from custody immediately upon producing the returns and paying $909.00 to the FDIC on the day of the hearing.
9
On appeal, Roughton alleges that the above order was one of criminal contempt, and that he was found guilty without the requisite protections which must be afforded to one in jeopardy of a criminal sanction, including proper notice and the appointment of an independent prosecutor. Roughton also alleges that no testimony or other evidence was requested or received at either of the hearings on the Motion for Contempt. Thus, even if the order was one of civil contempt, Roughton alleges it is not supported by the record. Roughton also alleges that the magistrate was without authority to conduct the hearing on the motion for contempt.
10
We conclude that the district judge's order contained both a civil element and a criminal element, but that the order was executed as though it were entirely civil. We vacate the criminal element of the contempt order and affirm the civil element.
Standard of Review
11
We review a contempt order for abuse of discretion, and we review the district court's underlying factual findings under the clearly erroneous standard. Martin v. Trinity Industries, Inc., 959 F.2d 45, 46-47 (5th Cir.1992).Analysis
12
Magistrate's Authority under 28 U.S.C. Sec. 636 to enter a postjudgment discovery order and submit a report and recommendation concerning a contempt determination
13
As noted above, Roughton questions the sufficiency of the district court's referrals to the magistrate and the statutory and constitutional bases for the magistrate's authority. We conclude that the district court properly referred the motions relating to postjudgment discovery of the tax returns for determination. We also conclude that the district court properly referred the motion for contempt to the magistrate, who issued a postjudgment discovery order and a report/recommendation on Roughton's contempt in accordance with 28 U.S.C. Sec. 636(b)(3).
14
The Federal Magistrates Act was passed to assist the judiciary in its overload by permitting the assignment of various judicial duties to magistrates. Several specific duties that may be assigned to magistrates are outlined in the statute. To encourage experimentation with delegations to magistrates, Congress allowed district courts to assign magistrates "such additional duties as are not inconsistent with the Constitution and laws of the United States". 28 U.S.C. Sec. 636(b)(3).
15
In this case, the district court referred Roughton's motion for protective order and the FDIC's motion to compel to the Magistrate for hearing and determination pursuant to 28 U.S.C. Sec. 636(b) and Local Rule 1.3 of the Northern District Court of Texas. Section 636(b) provides for the referral of various matters without the parties' consent. The District Court's Local Rule incorporates an order of that court, which delineates additional powers and duties of Magistrates under Sec. 636(b).4
16
This statutory provision and local rule provide a jurisdictional basis for the magistrate's entry of a postjudgment discovery order. See, Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1018 (5th Cir.1981).
17
Roughton challenges Section 636(b)(3) as a basis for the magistrate's jurisdiction, claiming that the grant of authority in (b)(3) cannot exceed specific jurisdictional grants in other provisions of 28 U.S.C. Sec. 636. Because no other provision of Sec. 636 expressly authorizes a federal magistrate to issue postjudgment discovery orders or to conduct a hearing and issue a report and recommendation on a contempt motion in a discovery dispute, Roughton contends that the magistrate acted without authority. He relies upon Gomez v. United States, 490 U.S. 858, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989), Stockler v. Garratt, 974 F.2d 730 (6th Cir.1992) and Olympia Hotels Corp. v. Johnson Wax, 908 F.2d 1363 (7th Cir.1990). These cases examine a magistrate's authorization to conduct voir dire. Given the critical nature of voir dire and its potentiality for affecting the outcome of a trial, these cases should have little relevance to determining the applicability of 28 U.S.C. Sec. 636(b)(3) in this case, where the issue is whether the magistrate can conduct a nondispositive postjudgment discovery motion in a collection proceeding, as FDIC correctly points out.
18
The legislative history of Sec. 636 also illustrates that Congress placed the "additional duties" clause in a separate subsection of Sec. 636 to emphasize that it was not tightly restricted by other statutory grants of authority. H.R.Rep. No. 94-1609, 94th Cong., 2d Sess. 12 (1976), U.S.Code Cong. & Admin.News 1976, 6162. Gomez, supra, provided only that these additional duties reasonably relate to the existing statutory scheme. Given the fact that the discovery motions in this case are the types of nondispositive discovery motions specifically authorized for pretrial determination by a magistrate under Sec. 636(b)(1)(A), jurisdiction to decide these types of motions postjudgment bears a reasonable relationship to the existing statutory scheme and should be found under Sec. 636(b)(3).
19
Roughton argues that the Magistrate was not authorized to enter a final decision without the consent of the parties, citing Jaliwala v. United States, 945 F.2d 221 (7th Cir.1991) and Parks by and through Parks v. Collins, 761 F.2d 1101 (5th Cir.1985). As FDIC points out, the Jaliwala case is inapposite because the judgment in that case was an appealable, final judgment, whereas in this case the magistrate's order as well as his report and recommendation related to a nondispositive postjudgment discovery motion which was reviewed by the district judge.
20
The Parks case involved a magistrate's determination on a Rule 60(b) motion to set aside a default judgment issued by the district court. We declined to consider the application of Sec. 636(b)(3) as a source for the magistrate's jurisdiction in Parks because we found that the district court never referred the motion to the magistrate, nor had the parties consented to have the motion heard by a magistrate. In the instant case, we have determined that both the motion to compel/motion for protective order and the motion to compel were properly referred to the magistrate. Thus, Roughton's reliance on Parks is misplaced.
21
Roughton also challenges the constitutional basis for the magistrate's authority to issue postjudgment discovery orders, citing Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57-63, 102 S. Ct. 2858, 2864-67, 73 L. Ed. 2d 598 (1982). This and all other arguments forwarded by Roughton and pertaining to the authority of the magistrate in this case are meritless. We find that the matters involved herein were properly referred to the magistrate, who had the requisite constitutional and statutory authority pursuant to Sec. 636(b)(3) to order the production of the returns and to issue a report and recommendation on the motion for contempt.
22
Civil or Criminal Contempt?
23
Having determined that the magistrate had the authority to issue the Report and Recommendation in this case, the next issue is whether the district court's order that Roughton be taken into custody for a period of 72 hours and until he produced his tax returns to the FDIC and paid to the FDIC attorneys' fees in the amount of $909.00 amounts to civil or criminal contempt. Roughton argues that the order was one of criminal contempt. FDIC argues that the contempt order provided only civil relief.
24
A contempt order is characterized as either civil or criminal depending on its primary purpose. Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir.1990). If the primary purpose is to punish the contemnor and vindicate the authority of the court, the order is viewed as criminal. If the primary purpose of the sanction is to coerce another party for the contemnor's violation, the order is considered purely civil. A key determinant is whether the penalty imposed is absolute or conditional on the contemnor's conduct. When a contempt order contains both a punitive and a coercive dimension, for purposes of appellate review it will be classified as a criminal contempt order. Lamar, 918 F.2d at 566-67.
25
The face of the order in this case does not indicate whether it is civil or criminal in nature. However, the order contains both a punitive element (the initial 72 hour imprisonment) and coercive elements (the $909.00 attorney's fee award to FDIC and the order that Roughton remain in custody until he produced the returns). A civil contemnor remains imprisoned only until he complies with an order or condition imposed by the court. In this case, the 72 hour imprisonment imposed by the court reads as an absolute punishment that would have to be served even if Roughton immediately handed over the returns and paid the attorney's fees. Thus, this portion of the order is punitive in nature. The District Judge's order stated that Roughton was to serve 72 hours and thereafter until he produced the returns and paid the money. Thus, the face of the contempt order reflects both a punitive and a coercive dimension and should be classified as a criminal contempt order, notwithstanding the fact that the magistrate's Report and Recommendation recommended that Roughton be held in civil contempt. However, we find that the order was executed as though it were civil.
26
In order for a notice of show cause hearing to be sufficient for a hearing at which criminal contempt may be found, either the offending conduct forming the basis for the hearing must be such that it can only be punished by punitive or criminal sanctions, or it must specifically state that the hearing will be a criminal contempt proceeding. American Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523, 530-31 (5th Cir.1992). Roughton argues that the conduct described in the district court's order to show cause, i.e., failure to produce tax returns, could have been punished with purely coercive sanctions, of which Roughton might have been able to purge himself through compliance. We agree. For example, the contempt order could have provided for Roughton to be taken into custody only until he complied with the magistrate's order, with no absolute 72 hour imprisonment.5
27
The Show Cause Order does not reflect that a criminal proceeding would be conducted. Rule 42(b) of the Federal Rules of Criminal Procedure provides in relevant part:
28
A criminal contempt ... shall be prosecuted on notice. The notice shall state the place and time of hearing, ... and shall state the essential facts constituting the criminal contempt charged and describe it as such. (Emphasis added.)
29
Because the offending conduct could have been eliminated by coercive civil sanctions, notice was required if this was to be a criminal contempt proceeding. American Airlines, supra. Because the Order to Show Cause did not describe the proceeding as a criminal contempt proceeding, the notice requirement of F.R.C.P. 42(b) was not followed, and Roughton's due process rights were violated. Richmond Black Police Officers v. City of Richmond, Va., 548 F.2d 123, 127 (4th Cir.1977). Moreover, no independent prosecutor was appointed, which is another procedural defect.6
30
FDIC attempts to characterize the proceeding as civil in nature based upon the fact that the magistrate had recommended in his report that Roughton be held in civil contempt until the tax returns were paid. It points out that Roughton was taken into custody on the morning of October 4, 1993, and released later that day after he "purged" the contempt by fulfilling the conditions of the District Court's order. Thus, the district judge released Roughton from the strict terms of the order, i.e., the absolute 72 hour sentence, once he produced the returns and paid the money to FDIC. Nonetheless, the written order reads like a criminal contempt order in that it imposes an absolute 72 hour sentence, after which Roughton could then be released upon compliance. Pursuant to the wording of the order, Roughton was placed in criminal contempt, without notice. The fact that the district judge actually released Roughton from custody immediately upon Roughton's compliance with the court's orders means only that the criminal portion of the order was not in fact executed, not that it was not imposed. As far as Roughton or anyone else can tell from a review of the written order, Roughton appears to have been held in criminal contempt. Roughton seeks to have the criminal portion of the order vacated in order to avoid any negative connotation which might result from what appears on the face of the order to be a conviction for criminal contempt.
31
FDIC also attempts to characterize the proceeding as civil based upon the fact that the Court granted remedial relief to FDIC, i.e., the attorney's fees, rather than a fine to be paid to the Court. FDIC points out that typically a fine is punitive when paid to the court and remedial when paid to the harmed party. The contempt order in this case involves a true mixture of both criminal and civil relief. Accordingly, it should be characterized as criminal for purposes of appeal. Lamar, supra, 918 F.2d at 567. This characterization permits the review of civil contempt orders which would otherwise not be final and appealable. However, it does not necessarily follow that, even if this is a true "mixed relief" case, a Court must vacate and remand the whole proceeding for failure to comply with criminal procedure. In Lamar, the reviewing court vacated and remanded the criminal portion of the order but affirmed the civil portion after finding the district court had not abused its discretion in granting the civil relief. Ibid.
32
Thus, as FDIC correctly points out, even though we find that the 72 hours custody provision is a separate criminal sanction, we need only vacate the criminal element of the order. A remand is not necessary because the order has already been executed as though it were one of civil contempt, with the criminal portion (the 72 hour sentence) of the order unimposed, and Roughton has been purged of contempt via the district judge's order. We merely vacate the criminal portion to clear Roughton's name and record and to avoid any possible negative connotation that might inure by virtue of the criminal element of the order.
33
Was there sufficient evidence for a finding of civil contempt?
34
Having determined that we should vacate the criminal portion of the order, we next turn our attention to the civil aspects of the order. Roughton argues that there was insufficient evidence to support a finding of civil contempt, and that the civil contempt order should be reversed. He claims that the FDIC did not present sufficient evidence to satisfy the "clear and convincing" evidentiary standard required for civil contempt. He argues that the District Court erred in finding contempt in the absence of any evidence, witnesses or documents demonstrating Roughton's violation of the underlying order compelling production of tax returns. He argues that he was denied the right to present witnesses and that the underlying order compelling production of the returns was "vague" and "ambiguous" and not susceptible to enforcement through a contempt proceeding. We disagree with each of Roughton's contentions.
35
In a civil contempt proceeding, the party seeking an order of contempt need only establish (1) that a court order was in effect, and (2) that the order required certain conduct by the respondent, and (3) that the respondent failed to comply with the court's order. Martin v. Trinity Industries, Inc., 959 F.2d 45, 47 (5th Cir.1992). To determine compliance with an order, the court simply asks whether the respondent has produced the documents. If he has not, the burden shifts to the respondent to rebut this conclusion, demonstrate an inability to comply, or present other relevant defenses. United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984); Star Brite Distributing, Inc. v. Gavin, 746 F. Supp. 633, 643 (N.D.Miss.1990).
36
There was no dispute that the order compelling production of the returns was in effect at the time of the hearing. Despite numerous attempts, Roughton failed to obtain a stay of the order either from the district court or from this Court. At the show cause hearing, counsel for FDIC notified the district court of the denial of these stays. Second, the magistrate's order clearly required the following:
37
Within ten days of the date of this order Defendant Roughton will produce his federal tax returns for 1989, 1990 and 1991 to counsel for Plaintiff. (emphasis added.)
38
Roughton's assertions that this order is vague have no merit. FDIC claims it established Roughton's violation of this order through the representations of its counsel and documentary evidence submitted to the Court. In the FDIC's motion for contempt hearing before the magistrate and at the show cause hearing, FDIC counsel advised the district court of Roughton's continuing violation of the order. The FDIC's motion for contempt supplemented these representations with various letters showing its efforts to secure Roughton's tax returns and an affidavit supporting the $909.00 attorney's fee claim.
39
Roughton claims this information does not provide a sufficient basis for the District Court's finding of contempt. He points to the fact that argument of counsel during a hearing on a motion does not constitute evidence. He also notes that the letters between counsel regarding the returns were not authenticated nor offered into evidence. Roughton claims it was an abuse of discretion for the district judge to have made a finding of contempt without adducing any evidence, relying instead upon statements of counsel for FDIC that the returns had not been produced. FDIC counters by pointing out that the attorney had personal knowledge of Roughton's failure to comply. The magistrate's order required that the documents be produced to counsel for FDIC. Moreover, the attorney for FDIC signed the motion for contempt, which stated that the returns had not been produced, thereby certifying under his Rule 117 duty that the statements therein were well-grounded in fact.
40
Roughton never opposed this allegation forwarded by FDIC, either in a memorandum in opposition to the motion for contempt or at the hearings. Roughton has never denied that, at the time of the contempt hearing, he was in violation of the order compelling productions. He points to nothing which would rebut the FDIC's representations concerning his noncompliance. Until the show cause hearing, Roughton presented no proffer of evidence to demonstrate an inability to comply with the order. Roughton raised objections at the show cause hearing only as to the jurisdiction and fact-finding of the magistrate and the purported vagueness and ambiguity of the order compelling production of the returns. Roughton has never offered any evidence or anything at all to rebut the position of FDIC that the returns had not been produced. In fact, evidence presented by Roughton at the show cause hearing helps to establish that the returns had not been produced.
41
Roughton's wife, Pricilla Roughton, submitted to the district court an affidavit asserting her sole possession and custody of their joint tax returns and her unwillingness to deliver them to her husband. This affidavit itself implicitly establishes as well the fact that Andrew Roughton had not produced the returns to FDIC. Although Pricilla Roughton's last-minute submission apparently was found not to be credible in helping Roughton to avoid the contempt ruling, it nonetheless is a part of the record and helps to establish that the returns had not been produced.
42
Also, counsel for FDIC submitted an affidavit concerning the attorneys' fees which had been incurred relative to the motion for contempt. In the affidavit, counsel for FDIC reiterates that defendant had failed to produce the returns. Thus, we squarely reject Roughton's argument that there was not clear and convincing evidence to support a finding that Roughton had not in fact produced the returns.
43
Should Roughton have been ordered to produce the tax returns?
44
Roughton's final argument is that he should not have been ordered to produce the tax returns in question. Accordingly, he seems to request that we try to "unring the bell" and order the return of all documents produced, all copies thereof, and that FDIC be ordered to expunge from its files any information which may have been derived from the production of the returns. We do not have to attempt this impossible task. The tax returns were relevant to the case, and the district judge and magistrate did not err in ordering their disclosure.
45
Roughton erroneously argues that state procedural rules apply to the determination of the post-judgment discovery issue. F.R.C.P. 69(a) permits a party to obtain postjudgment discovery from the judgment debtor "in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held." A judgment creditor thus has the choice of which method to use. FDIC clearly indicated its intent to pursue postjudgment discovery in the manner provided by the Federal Rules of Civil Procedure, thus, Texas law does not apply to the FDIC's discovery request. Instead, federal law will apply. Texas cases cited by Roughton to establish that production of the tax returns should not have been ordered are irrelevant. Tax returns are not privileged. Moreover, state privilege laws should not be relied upon where the documents in question are sought by a governmental agency, like the FDIC. See, Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1513-14 (D.C.Cir.1993).
46
The scope of postjudgment discovery is very broad to permit a judgment creditor to discover assets upon which execution may be made. Some courts have applied a two-part test in determining whether returns should be produced. See United States v. Bonanno, 119 F.R.D. 625, 627 (E.D.N.Y.1988). The party seeking production of the documents must show their relevance to the inquiry. Then, the burden shifts to the party opposing production to show that other sources exist from which the information contained in the income tax returns may be readily obtained.
47
Under these facts, relevance of the tax returns to a judgment creditor is virtually presumed. A tax return necessarily contains information relating to a taxpayer's financial position, which is highly relevant to a judgment creditor. The tax return can verify the information provided by the judgment-debtor concerning his assets and income, and it can reveal a judgment-debtor's attempts to hide assets. We find that FDIC has met its burden of showing relevance. However, we conclude that Roughton failed to carry his burden since he apparently failed to present any evidence at the hearing establishing other sources by which FDIC could have obtained a copy of Roughton's returns or otherwise could have verified the truth of the information Roughton had given FDIC regarding his income and/or assets. Roughton misreads Bonanno as requiring the party seeking the documents to prove both prongs of the test. Roughton's other arguments with reference to the discoverability of the tax returns lack merit as well.
Conclusion
48
We affirm the civil portion of the contempt order and vacate the criminal portion of that order. Remand is not necessary because the order was executed by the district court as though it were civil. AFFIRMED in part and VACATED in part.
1
The magistrate ruled that only the returns filed by Roughton individually or jointly with his spouse Priscilla Roughton were to be produced. Roughton's primary objection to producing the returns was that they contained information relating to his wife's separate income or property. The magistrate addressed this concern in his order, noting that Priscilla Roughton's separate returns, if any, would not have to be produced. Additionally, the magistrate issued a confidentiality order providing that, for any returns Roughton filed jointly with his wife, disclosure of the contents of the jointly-filed returns was to be limited to FDIC and its counsel and experts
2
28 U.S.C. Sec. 636
3
Although the order of reference purported to refer the motion for contempt to the magistrate judge for determination, the magistrate concluded that he lacked contempt powers and instead was limited to making a report and recommendation on the contempt motion. Roughton contends that because the order of reference was one referring the contempt motion to the magistrate for determination, the magistrate lacked proper authority to issue only a report and recommendation. We disagree, finding that the order of reference properly gave the magistrate authority to issue a report and recommendation on the contempt motion
4
Miscellaneous Order No. 6, Rule 2(f) of that court provides that upon entry of an order of reference by a district judge, or when required to do so under the provisions of a local rule or general order of this Court, a magistrate may perform "[a]ny other duties assigned by the Court, or any Judge thereof, which are not inconsistent with the Constitution and laws of the United States."
5
In fact, this is exactly how the order was actually executed, notwithstanding the face of the contempt order, which indicated that the 72 hour imprisonment was absolute. Once the district judge learned that Roughton had complied with the order to produce the returns and to pay the $909.00 attorney's fee, he immediately signed an order granting Roughton's release, finding that he had purged himself of contempt
6
In a Rule 42(b) criminal contempt proceeding, the judge may not prosecute the contempt and at the same time act as judge. To do so deprives the defendant of an impartial decisionmaker. American Airlines, supra, 968 F.2d at 531
7
Federal Rule of Civil Procedure 11 provides generally that, in presenting a pleading, motion, etc., to the court, one is certifying that to the best of that person's knowledge, information, and belief, formed after reasonable inquiry, that any factual contentions therein have evidentiary support. Sanctions may be imposed for violations of Rule 11 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1607779/ | 21 So. 3d 821 (2009)
ATKINS
v.
STATE.
No. 3D09-162.
District Court of Appeal of Florida, Third District.
October 7, 2009.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607788/ | 366 So. 2d 194 (1978)
Freddie B. NEGEM, Plaintiff-Appellee,
v.
The PAUL REVERE LIFE INSURANCE COMPANY, Defendant-Appellant.
No. 13687.
Court of Appeal of Louisiana, Second Circuit.
December 4, 1978.
*195 Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for defendant-appellant.
Baker, Culpepper & Brunson by J. Michael McDonald, Farmerville, for plaintiff-appellee.
Before BOLIN, MARVIN and JONES, JJ.
BOLIN, Judge.
In 1974 plaintiff obtained judgment against Paul Revere Life Insurance Company for monthly benefits under a health and accident policy issued by defendant to plaintiff. The present suit was filed for past due benefits under the 1974 judgment, penalties, attorney fees and interest on the entire amount. For oral reasons made part of the record, judgment was rendered in plaintiff's favor substantially as prayed for. Defendant appeals questioning the award of penalties and attorney fees and also the award of interest on the penalties and attorney fees. We affirm.
The 1974 judgment provided that Paul Revere would pay to plaintiff the sum of $200 per month beginning February 27, 1974 and "continuing thereafter for as long as the plaintiff continues to be disabled from the injuries which formed the basis of his disability as alleged in this suit." Defendant paid under this judgment until March of 1976, when payments were terminated because plaintiff failed to submit a medical progress report to defendant evidencing his continued disability.
Plaintiff brought this suit seeking unpaid monthly benefits, penalties in a like amount, and attorney fees under La.R.S. *196 22:657.[1] In answer to the suit defendant relied upon an alleged agreement between it and plaintiff's attorney under which progress reports were to be submitted to defendant every six months. Because no progress report had been received since August 20, 1975, benefits were discontinued.
The record reflects the defendant requested progress reports initially on a monthly basis and later at six-month intervals. The forms were sent to the office of plaintiff's attorney. Some reports were supplied intermittently by the plaintiff at his expense. At trial plaintiff's attorney denied making an agreement with defendant that the reports would be submitted as a prerequisite for the monthly payments.
The trial court did not directly address the question of whether an agreement existed between plaintiff's attorney and Paul Revere concerning the submission of progress reports. However, the trial court reasoned that defendant acted arbitrarily and unreasonably in requiring plaintiff to continually submit progress reports, at his own expense, after it had been judicially determined that he was totally disabled. The court observed that if Paul Revere had doubts about plaintiff's condition it was incumbent upon it to arrange for plaintiff to be examined by a physician at its expense. Accordingly, the court rendered judgment in favor of plaintiff for $4,800 for past due benefits, $4,800 for statutory penalties, and $1,000 attorney fees, together with legal interest on the entire amount from date of judicial demand.
On appeal, defendant first contends it did not act unreasonably or arbitrarily in discontinuing the benefits because it was relying upon an agreement with plaintiff's attorney that progress reports would be submitted. Although there was evidence one of Paul Revere's agents believed his company had an agreement with plaintiff's attorney, defendant failed to prove any agreement existed or that it even had reasonable ground to believe it existed. The insurance policy contained no provision relative to the duty of the insured to furnish proof of disability following a final judgment decreeing the insurance company's liability to the insured. Once adequate proof of a claim is submitted, it is not the claimant's responsibility to submit, at his expense, additional proof. Matthews v. Coastal States Life Ins. Co., 291 So. 2d 475 (La.App. 3rd Cir. 1974); Smith v. Mutual Life Ins. Co. of New York, 165 So. 498 (La.App. 2d Cir. 1936). The company's requirement that plaintiff continually submit, at his expense, proof of his disability was unreasonable.
Defendant next argues that the trial court erred in awarding legal interest on the penalties and attorney fees because La.R.S. 22:657 does not expressly provide for this. Defendant contends this statute is penal in nature and should be strictly construed. Although we are unable to find any jurisprudence dealing with the issue of whether legal interest may be awarded on penalties and attorney fees imposed under La.R.S. 22:657[2], our research reveals that *197 interest has been awarded on the 12% penalty provision and attorney fees imposed under La.R.S. 22:658, which deals with payment of claims under policies other than life, health and accident. Baghramain v. MFA Mutual Ins. Co., 315 So. 2d 849 (La.App. 3d Cir. 1975) (writ denied 320 So. 2d 207, 209 (La.1975)); Doty v. Central Mutual Ins. Co., 186 So. 2d 328 (La.App. 3d Cir. 1966) (writ denied 249 La. 486, 187 So. 2d 451 (1966)); Roberts v. Houston Fire & Casualty Co., 168 So. 2d 457 (La.App. 3d Cir. 1964). This statute, like R.S. 22:657, does not expressly provide for legal interest. Analogizing from this jurisprudence, we find the insurer should be required to pay legal interest upon the penalties and attorney fees provided for in La.R.S. 22:657.
The judgment is affirmed at appellant's cost.
NOTES
[1] La.R.S. 22:657 provides in pertinent part:
A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney's fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.
[2] In Humphries v. Puritan Life Ins. Co., 311 So. 2d 534 (La.App. 3d Cir. 1975), the appellate court held the trial court did not err in refusing to allow legal interest on penalties and attorney fees awarded under La.R.S. 22:657 because plaintiff failed to specifically pray for interest on these items. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607705/ | 21 So. 3d 827 (2009)
STEAMPLANT CONDOMINIUMS, LLC
v.
RING.
No. 3D09-2163.
District Court of Appeal of Florida, Third District.
November 6, 2009.
Decision Without Published Opinion Vol. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607642/ | 366 So.2d 964 (1978)
James CORSEY
v.
The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS et al.
No. 12247.
Court of Appeal of Louisiana, First Circuit.
November 20, 1978.
Rehearing Denied January 16, 1979.
*965 Joseph S. Russo, Jefferson Parish, Jefferson, of counsel for plaintiff-appellant, James Corsey.
J. Marvin Montgomery, Baton Rouge, of counsel for defendant-appellee, State of Louisiana, et al.
Before LANDRY, COVINGTON and PONDER, JJ.
LANDRY, Judge.
Plaintiff (Appellant) appeals from judgment sustaining defendants' (Appellees) exception of prescription and dismissing Appellant's suit in tort for damages for personal injuries allegedly sustained from stab wounds inflicted upon Appellant, an inmate of Angola State Penitentiary, by a fellow inmate, and alleged failure of the institution to afford Appellant adequate medical attention and care following Appellant's injury. We affirm.
Appellant alleges he was stabbed during the course of a basketball game conducted on the prison grounds on June 18, 1972. Following the incident, Appellant was reputedly taken on a stretcher to the prison hospital emergency room where Appellant was treated by an inmate attendant and directed to return to normal activities. The next morning, Appellant allegedly requested leave of his superior to report to sick call but was ordered instead to work in the cotton fields as per Appellant's regular assignment. Within a short time of commencing work, Appellant allegedly collapsed from his wounds and the loss of blood. Appellant was then allegedly taken to the prison hospital where he remained unconscious continuously until taken to the Earl K. Long Hospital, Baton Rouge, on June 22, 1972. Appellant maintains he was hospitalized in the Earl K. Long Hospital until August 19, 1972.
For a cause of action Appellant alleges negligence on the part of prison officials in not preventing the stabbing, allowing his assailant to possess a knife, and failing to take proper measures to supervise inmates. Appellant also alleges he was given inadequate and inefficient medical care and treatment by prison hospital employees and doctors at the time of the stabbing and on his return from the Earl K. Long Hospital. In addition to the Department, Appellant names as defendants the prison warden, the prison hospital supervisor, the prison doctor who allegedly attended Appellant, the inmate hospital attendant who initially treated Appellant, and the guard or employee who forced Appellant to work the day following the stabbing.
*966 Two basic issues are presented: (1) Whether Appellant's action is prescribed for failure to institute suit within one year of the stabbing; and (2) Whether prescription, having run, was waived by Appellees.
A clear understanding of the issues requires narration of the following operative facts: on March 27, 1974, a suit entitled Walter H. Brown v. State of Louisiana (No. 74-833) was filed in the Federal District Court, Eastern District of Louisiana, which action attempted a class action on behalf of all Angola inmates. The nature of this action, as respected the various plaintiffs therein, is not shown in the record before us. By supplemental and amending petition, Appellant joined in said action on June 25, 1974. In November, 1975, the Brown suit was dismissed voluntarily by plaintiffs therein, Appellant included. Said dismissal was based in part on the following stipulation:
"That said plaintiffs may refile their actions individually either in the state or federal court, and the statute of limitations shall be tolled for that purpose."
Pursuant to the aforesaid stipulation, Appellant filed an individual suit in Federal District Court, Middle District of Louisiana, on November 20, 1975, seeking damages for his alleged injuries. On November 26, 1976, Appellant filed this present action. Later, on December 6, 1976, Appellant dismissed his individual Federal Court action.
Appellant contends prescription was suspended because, from the time of injury until he regained complete control of his faculties in July, 1973, he was either unconscious or so physically incapacitated that he could not hear, speak or write; that he was paralyzed from the waist down; and that he was unaware of his surroundings. It is contended further that this condition continued during this period due to Appellees' failure to accord Appellant adequate medical attention and treatment.
In urging suspension of prescription, Appellant relies upon the doctrine of contra non valentum agere nulla currit praescriptio which holds that prescription does not run against a person unable to bring an action. In this regard, Appellant relies heavily upon the fact that since his alleged injury, he has been in confinement under the supervision and control of the Department of Corrections, whose negligence assertedly amounts to gross fault and is the cause of his subsequent inability to bring his action.
In Israel v. Smith, 302 So.2d 392 (La.App. 3d Cir. 1974), it is recognized that there is neither statutory nor jurisprudential authority to support the rule that prescription on a claim is interrupted if a defendant negligently causes a plaintiff's mental incapacity.
The doctrine of contra non valentum has been given limited application in this state. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970).
Our jurisprudence also holds that the doctrine in question is inapplicable to mental incapacity resulting from feeblemindedness. Perrodin v. Clement, 254 So.2d 704 (La.App. 3rd Cir. 1971). Neither does it apply to an irrational plaintiff. Gaspard v. Liberty Mutual Insurance Company, 243 So.2d 839 (La.App. 3rd Cir. 1971). More pertinently, our courts have held that institutionalization does not suspend the running of prescription until the institutionalized party has been formally interdicted. Buvens v. Buvens, 286 So.2d 144 (La.App. 3rd Cir. 1973). See also Vance v. Ellerbe, 150 La. 388, 97 So. 735 (1922).
Our jurisprudence does recognize two instances when the doctrine urged by Appellant may be utilized to suspend the running of prescription. These are when the cause of action has not manifested itself with sufficient certainty to be susceptible of proof in a court of justice, and when defendant has concealed information or deceptively lulled plaintiff into inaction. McClendon v. State, Through Department of Corrections, 357 So.2d 1218 (La.App. 1st Cir. 1978); Brown v. State, Through Department of Corrections, 354 So.2d 633 (La. App. 1st Cir. 1977); Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La. App. 1st Cir. 1970).
*967 Appellant's action, being one in tort, must be instituted within one year of the commission of the offense unless prescription has been suspended or interrupted. LSA-C.C. Article 3536.
Since no action was instituted by Appellant within one year of June 18, 1972, his cause of action has prescribed on its face. Article 3536, above.
When an action is prescribed on its face and plaintiff relies upon an interruption or suspension of prescription, plaintiff bears the burden of establishing the alleged interruption or suspension. Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565 (La.App. 1st Cir. 1970) and authorities cited therein.
Apparently the plea of prescription filed herein was tried on the face of the pleadings. The record is barren of proof of any of the allegations made by Appellant. Appellant did not testify either in person or by deposition. Neither did he offer any prison or hospital records or the testimony or deposition of any other witness to prove even a single allegation. Interrogatories propounded by Appellant resulted in answers filed by defendants to the effect that there is no prison hospital record of Appellant having received medical treatment at the prison hospital. We do find of record an affidavit by an acquaintance of Appellant in support of Appellant's motion to be allowed to sue in forma pauperis. This affidavit states simply that Appellant is an inmate of the state penitentiary.
Based on the foregoing affidavit, we conclude that Appellant is an inmate of the penitentiary at all times pertinent herein. This fact alone, however, is insufficient to interrupt or suspend the running of prescription on Appellant's claim. Buvens v. Buvens, above. Assuming, solely for argument's sake, that Appellant's joinder in the federal class action on June 25, 1974, constitutes bringing an action on his claim, said action was instituted more than one year subsequent to June 18, 1972, and was therefore untimely. It follows that Appellant's action has prescribed.
LSA-C.C. Article 3460 provides that a litigant may not renounce a prescription before it has run, but that prescription may be renounced once it has run.
LSA-C.C. Article 3461 states that:
"Such renunciation of prescription is either express or tacit.
A tacit renunciation results from a fact which gives a presumption of relinquishment of the right acquired by prescription."
Relying upon Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972), Appellant argues that defendants' failure to plead prescription in the federal court suit, together with the stipulation entered into therein, constitutes a tacit waiver by defendants of prescription which had accrued, in the event this court determines that prescription had in fact run. We disagree with this premise.
It is well settled jurisprudence that a renunciation of accrued prescription takes place only when intent to renounce is manifest from either the words or actions of the party in whose favor prescription has run. Moreover, such an acknowledgment must be clear, direct and absolute. Torrey v. Simon-Torrey, Inc., 284 So.2d 130 (La.App. 3rd 1973); Succession of Brower v. State, 80 So.2d 217 (La.App. 2d Cir. 1955); H. J. Cottam & Co. v. Raphael, 198 So. 513 (La. App. 1st Cir. 1940).
Considering the nature of the Brown action in which the stipulation was made, the language of the stipulation does not evince a clear, direct and absolute intent to renounce acquired prescription as to the claims of all parties plaintiff therein. On the contrary, we are of the view that defendant entered into the stipulation to mitigate, as far as plaintiffs in the Brown suit were concerned, the effect of LSA-C.C. Article 3519, which provides that the interruption of prescription resulting from filing an action, as provided for by LSA-C.C. Article 3518, does not apply when plaintiff voluntarily abandons his action, because in the event of such abandonment the interruption is considered as having never happened. See Franklin v. Insurance Company of *968 North America, 284 So.2d 158 (La.App. 3rd Cir. 1973).
The details of the Brown action in the Federal Court are not of record herein. It is stated that the action was a class action. Presumably, numerous plaintiffs asserted actions therein which may or may not have prescribed before they were pursued in that action. With respect to those plaintiffs whose actions had not prescribed, the stipulation in question was necessary because the interruption of prescription by filing that suit would have been nullified by the voluntary dismissal of that action. Thus, plaintiffs who may have timely joined in said action would have lost their cause of action if the stipulation had not been made by defendants and if the prescriptive period on their claims would have expired between the time they joined in the action and the time that the action was voluntarily dismissed. We believe defendants intended the stipulation to mean that any suspension or interruption resulting from the filing of the Federal Action would be honored and recognized by defendants in a subsequent action, LSA-C.C. Article 3519 notwithstanding. We see nothing to indicate that defendants intended to renounce the benefit of any prescription which accrued in their favor.
Failure of defendants to urge a plea of prescription in their federal suit does not influence or affect our determination that no renunciation of prescription was intended herein. A plea of prescription may be filed at any stage of a proceeding, even on appeal. Gulotta v. Cutshaw, 283 So.2d 482 (La.1973); Moreau v. Falgout, 304 So.2d 429 (La.App. 1st Cir. 1974).
Without citation of authority, Appellant contends that failure to plead prescription in a federal action constitutes a waiver of such a defense in a subsequent state action. We find this position without merit and decline to so hold.
Our review of Foster v. Breaux, supra, does not disclose, as contended by Appellant, that the holding therein is dispositive of the issue of renunciation. Foster involved a suit for slander, which action was filed in a court of improper venue. Service was made on defendant after the prescriptive period of one year had expired. Defendant filed an exception to the venue after a preliminary default had been entered. On appeal, the matter was remanded to the trial court and defendant entered a plea of prescription. The Supreme Court held in Foster, above, that prescription had not run because, under the circumstances, prescription had been interrupted by the filing of a suit, even though the venue was not proper. In effect the court held that mere filing of a suit in an improper venue will interrupt prescription where venue is waived and the venue becomes proper before a plea of prescription is entered. As we understand Foster, above, it did not hold that prescription in such instances is waived but rather that prescription is interrupted and has not run. We are of the view that Foster, above, should be limited to its peculiar facts which do not pertain herein.
The judgment of the trial court is affirmed at Appellant's cost.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607710/ | 21 So. 3d 1000 (2009)
Johnny CUBLEY and Kathy Cubley, Plaintiffs-Appellees
v.
WILLIS-KNIGHTON MEDICAL CENTER, Defendant-Appellant.
No. 44,435-CA.
Court of Appeal of Louisiana, Second Circuit.
September 23, 2009.
Opinion on Grant of Rehearing November 4, 2009.
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, LLP, by Lawrence W. Pettiette Rendi Wiggins, Shreveport, *1001 for Appellants, Louisiana Patient's Compensation Fund & Louisiana Patient's Compensation Fund Oversight Board.
Wallace Law Firm, by Lacey P. Wallace, Bossier City, for Appellees, Johnny Cubley & Kathy Cubley.
Watson, Blanche, Wilson & Posner, by Thomas H. Wartelle, Baton Rouge, for Appellant, Willis-Knighton Medical Center.
Before WILLIAMS, PEATROSS & LOLLEY, JJ.
PEATROSS, J.
In this medical malpractice case, this court issued a Rule to Show Cause why this appeal should not be dismissed as moot and referred resolution of the issue to the merits of the appeal. In addition, with leave from this court, the Patient's Compensation Fund ("PCF") has filed a brief on the merits of the appeal challenging the trial court's partial summary judgment in favor of Plaintiffs, Johnny and Kathy Cubley. For the reasons stated herein, we conclude that the appeal is properly before this court, with the PCF as appellant. Furthermore, we reverse the partial summary judgment and remand the matter to the trial court for further proceedings.
FACTS
Mr. Cubley underwent a total knee replacement at Willis-Knighton Medical Center ("Willis-Knighton") in Shreveport on October 29, 2003. On October 31, he was transferred to the rehabilitation unit for physical therapy until his discharge on November 10. On November 2, while Mr. Cubley was being transported in his wheelchair by technician Debra Houston from physical therapy back to his room, the foot or leg rest unexpectedly swung out and Mr. Cubley's surgical leg fell from the rest and lowered toward the floor causing him pain. It is undisputed that the leg rest was not locked into position. Mr. Cubley submits that Ms. Houston was weaving down the hall, talking to other employees who were walking down the hall. According to Mr. Cubley, when the foot rest swung out, he screamed in pain, but Ms. Houston told him to quit "hollering" and continued her conversation. He states that his leg was actually pulled under the wheelchair and his entire body had to arch up leaving only his head resting on the back of the chair. Mr. Cubley contends that, as a result, he suffered a prolonged recovery and hospital stay and has experienced back pain, which has required further medical care.
Ms. Houston testified in deposition that she heard Mr. Cubley "scream" in pain and she went around the wheelchair, locked the footrest back in place and positioned Mr. Cubley's leg back on the footrest and continued to his room. She denies that his leg was hyperflexed under the wheelchair and does not recall that his leg actually hit the floorjust that it lowered down some.
After Mr. Cubley was returned to his hospital bed, polar packs were applied to the knee and he was given pain medication. Ms. Houston filled out an incident report as required by hospital policy. The nurse on duty noted that the knee "appeared as before" and x-rays revealed that the prosthesis was still well positioned. Mr. Cubley's physician noted that the knee was stable and there was "no significant injury."
Mr. Cubley filed this malpractice claim, asserting that the physical therapy technician breached the standard of care in transporting him from physical therapy back to his hospital room with the wheelchair footrest unlocked. According to the Cubleys, the failure to secure the footrest *1002 allowed it to swing out of position allowing his leg on which he had just had knee surgery to fall to the floor causing further injury to his leg and back. The medical review panel found no breach of the standard of care, addressing only the knee surgery with no reference to the alleged wheelchair incident in its brief opinion. The Cubleys then moved for summary judgment, which was granted as to liability and denied as to post-accident medical treatment. Willis-Knighton subsequently moved for new trial, which was denied, and Willis-Knighton filed notice of appeal.
Prior to the filing of briefs on appeal, however, the Cubleys and Willis-Knighton mediated and settled the claim for approximately $53,000. In the settlement document, the Cubleys reserved their right to proceed against the PCF and made a demand for excess judgment against the PCF. Notice of settlement was provided to the PCF. The parties then petitioned for court approval of the settlement. The petition alleged that the appeal filed by Willis-Knighton would be dismissed, absent an objection by the PCF. The PCF subsequently filed an "Objection to Petition for Court Approval of Settlement" alleging that the appeal should continue and not be dismissed. The appeal was not dismissed and Willis-Knighton filed for an extension of the briefing deadline to allow counsel to enroll for the PCF on appeal. The extension was granted by this court and a motion to enroll as counsel on behalf of the PCF was filed. The motion was initially denied on the basis that the PCF was not a party to the action, had not been substituted as a party or intervened in the suit and because the record contained no court-approved settlement.
The record on appeal was then supplemented to include a judgment of the trial court approving the settlement and reserving the Cubleys' right to proceed against the PCF. Counsel for the PCF then filed a "Motion to Substitute Parties, Enroll as Counsel of Record for Louisiana Patient's Compensation Fund, and For Leave to File Attached Brief on Behalf of Appellant, Louisiana Patient's Compensation Fund." In this motion, the PCF argued that, when the PCF received notice of the petition for court approval of the settlement and filed its objection thereto, it became a party to the litigation and now steps into the shoes of Willis-Knighton on appeal. This court then issued a Rule to Show Cause to the Cubleys, Willis-Knighton and the PCF why the appeal should not be dismissed as moot. The PCF and the Cubleys filed briefs on the issue and this court then ordered that the issue be referred to the merits of the appeal and allowed the PCF to file a brief on the merits. As a threshold issue, we will first rule on the PCF's motion and the dismissal of the appeal as moot.
DISCUSSION
Dismissal of Appeal as Moot
Summarily stated, the question to be resolved is whether or not the appeal is moot by virtue of the settlement between the initial party plaintiff and defendant and PCF's failure to intervene or become a party to the action prior to the appeal. Stated another way, can the PCF continue the appeal in Willis-Knighton's capacity as Defendant/Appellant in order to exercise its statutory right to contest the ruling on liability in the partial summary judgment below? We conclude that the appeal may proceed with the PCF as Appellant.
Pursuant to the Louisiana Medical Malpractice Act ("MMA"), La. R.S. 40:1299.41, et seq., the liability of a single qualified health care provider is limited to $100,000 for the injury or death of any one person. La. R.S. 40:1299.42(B)(2). The act provides that damages in excess of $100,000, *1003 but which do not exceed $500,000, shall be paid by the PCF. La. R.S. 40:1299.42(B)(3). In approving a settlement or determining the amount, if any, to be paid by the PCF, the court is required to consider the liability of the health care provider as admitted and established when the provider or its insurer has paid $100,000. La. R.S. 40:1299.44(C)(5). A settlement for the health care provider's maximum liability of $100,000 triggers the PCF's liability for excess damages and precludes the PCF from contesting the health care provider's liability. La. R.S. 40:1299.42(B)(3); Allen v. Bridges, 41,169 (La.App. 2d Cir.11/1/06), 942 So. 2d 686, citing Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So. 2d 879. A settlement of less than the full $100,000, however, does not trigger the PCF's statutory liability for excess damages and is insufficient to preclude the PCF from contesting the health care provider's liability. Allen, supra; Russo, supra; Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4th Cir.9/17/97), 699 So. 2d 1117. In such cases, the PCF has an absolute right to contest liability.
In medical malpractice cases, the PCF is not a co-obligor or co-defendant with the health care provider. Dodson v. Community Blood Center of Louisiana, Inc., 92-2068 (La.App. 1st Cir.11/24/93), 633 So. 2d 252, writs denied, 93-3158, 93-3174 (La.3/18/94), 634 So. 2d 850, 851. Rather, when the fund is defending an action for excess damages after a plaintiff has settled with a health care provider, the PCF is in the nature of a statutory intervenor rather than a party defendant. Dodson, supra; Stuka v. Fleming, 561 So. 2d 1371 (La. 1990), cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). Again, the issue presented in the case sub judice is what action is required by the PCF in order to bring it into the suit for purposes of exercising its statutory right to contest liability when there has been a prior summary judgment on the issue of liability, and an appeal filed thereto, before the health care provider and plaintiffs settled and before the PCF has been given notice of the settlement and an opportunity to object.
As previously described, a petition for court approval of the settlement was filed which contained a provision for dismissal of the present appeal, absent an objection to the settlement by the PCF. On receipt of notice of the petition for court approval, the PCF filed an objection, urging that the appeal not be dismissed. While it may have been optimal for the PCF to have filed a Petition for Intervention as well as its objection, we conclude that the PCF entered the litigation at the time the demand for excess judgment was made against it and it objected to the settlement, requesting that the appeal proceed. In Dodson, supra, the court treated a petition for approval of settlement and the PCF's objection thereto as the PCF's entrance into the suit and held that the PCF "takes the proceedings as it finds them" upon entering the litigation. In this regard, we note that the PCF enters the current litigation, taking the proceeding as it finds them, with a pending appeal from a partial motion for summary judgment on the issue of liability, an issue that it has a statutory right to contest. The PCF could not have contested liability earlier, as the PCF is not a party defendant until a demand for excess judgment is made against it. If the PCF were not allowed to proceed with the appeal, its statutory right would be abrogated by a judgment rendered before the PCF was on notice of any claim for excess damages against it. We do not believe that such a result was envisioned by the legislature in adopting the process outlined in La. R.S. 40:1299.41, et seq. We find, therefore, that the appeal is not moot *1004 and grant the motion to enroll of the PCF and now turn to the merits of the appeal.
Partial Motion for Summary Judgment
The PCF presents two assignments of error: 1) that there is a genuine issue of material fact as to liability and 2) that the trial court erred in dividing the issue of negligence from causation in granting the motion for partial summary judgment. Finding merit in the second argument of the PCF, we conclude that the trial court improperly bifurcated the issues of liability and causation; and, therefore, we must reverse the partial summary judgment.
In oral reasons for granting the partial summary judgment, the trial judge stated:
. . . no genuine issue of material fact and that the mover is entitled to summary judgment on the issue of liability arising out of the incident involving the wheelchair. . . Insofar as post-incident treatment, summary judgment must be denied. That sort of care would require an expert opinion. So to restate briefly, motion for summary judgment as to liability of the wheelchair incident is granted. The issue remaining will be that of damages.
The ruling was reduced to judgment reading, in pertinent part, as follows:
It is hereby ORDERED, ADJUDGED, AND DECREED that plaintiff's motion for summary Judgment on the issue of liability arising out of the "wheelchair incident" is GRANTED.
Plaintiff's motion for Summary Judgment on all other issues is DENIED.
This court has previously addressed the issue of a partial summary judgment on the issue of liability in the case of Jones v. LSUSHSC, 39,292 (La.App. 2d Cir.9/2/04), 880 So. 2d 269, wherein we held that the trial court erred in granting a partial motion for summary judgment on the sole issue of the breach of standard of care in a medical malpractice action. In Jones, the trial court ruled only on liability, or the breach of the standard of care, and did not address the issue of whether the breach caused the plaintiff's injury. Writing for this court, J. Moore explained:
We further conclude that while La. C.C.P. art. 966 E permits summary judgment dispositive of "a particular issue," in this instance, the grant of a summary judgment on a single element of La. R.S. 9:2794, which sets out the elements to show liability in a medical malpractice claim, was improper. By dividing the issue of liability into smaller issues, the court's judgment that the defendant breached the standard of care might be used at trial to preclude the introduction of evidence by the defendant regarding whether there was a breach in the standard of care and that breach caused the plaintiffs injury. There is possibility of confusion arising out of the factual interrelationship between the adjudicated element and the unadjudicated element that could lead to inconsistent rulings and piecemeal litigation.
As in Jones, the partial summary judgment in the instant case ruled only on liability and did not speak to the issue of causation. As such, the judgment improperly divided the issues on summary judgment. For this reason, we reverse the partial summary judgment of the trial court and remand the matter for further proceedings.
DECREE
For the foregoing reasons, the "Motion to Substitute Parties, Enroll as Counsel of Record for Louisiana Patient's Compensation Fund, and For Leave to File Attached Brief on Behalf of Appellant, Louisiana Patient's Compensation Fund" filed by the Patient's Compensation Fund is granted. The judgment of the trial court granting partial summary judgment in favor of the *1005 Cubleys on the issue of liability is reversed and the matter is remanded for further proceedings. Costs of appeal are assessed to Plaintiffs/Appellees Johnny and Kathy Cubley.
MOTION GRANTED; JUDGMENT REVERSED AND REMANDED.
Per Curiam on Rehearing
Before BROWN, WILLIAMS, PEATROSS, MOORE and LOLLEY, JJ.
PER CURIAM.
Rehearing was granted in the case sub judice to reconsider whether the appeal is moot. Briefly, this is an appeal by Defendant Willis-Knighton of a partial summary judgment in favor of the Plaintiffs, the Cubleys, in a medical malpractice action. Following the partial summary judgment, Willis-Knighton settled with the Cubleys for less than $100,000, with the Cubleys reserving their rights to proceed against the PCF. The appeal of the partial summary judgment was not dismissed and counsel for the PCF then filed in this court a "Motion to Substitute Parties, Enroll as Counsel of Record for Louisiana Patient's Compensation Fund, and For Leave to File Attached Brief on Behalf of Appellant, Louisiana Patient's Compensation Fund" seeking to "step into the shoes" of Willis-Knighton on appeal. This court then issued a Rule to Show Cause to the Cubleys, Willis-Knighton and the PCF why the appeal should not be dismissed as moot.
After further consideration, this court finds the instant appeal to be moot, because the partial summary judgment therein, between the Cubleys and Willis-Knighton, is not binding on the PCF.
As set forth in the original opinion of this court:
Pursuant to the Louisiana Medical Malpractice Act ("MMA"), La. R.S. 40:1299.41, et seq., the liability of a single qualified health care provider is limited to $100,000 for the injury or death of any one person. La. R.S. 40:1299.42(B)(2). The act provides that damages in excess of $100,000, but which do not exceed $500,000, shall be paid by the PCF. La. R.S. 40:1299.42(B)(3). In approving a settlement or determining the amount, if any, to be paid by the PCF, the court is required to consider the liability of the health care provider as admitted and established when the provider or its insurer has paid $100,000. La. R.S. 40:1299.44(C)(5). A settlement for the health care provider's maximum liability of $100,000 triggers the PCF's liability for excess damages and precludes the PCF from contesting the health care provider's liability. La. R.S. 40:1299.42(B)(3); Allen v. Bridges, 41,169 (La.App. 2d Cir.11/1/06), 942 So. 2d 686, citing Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So. 2d 879. A settlement of less than the full $100,000, however, does not trigger the PCF's statutory liability for excess damages and is insufficient to preclude the PCF from contesting the health care provider's liability. Allen, supra; Russo, supra; Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4th Cir.9/17/97), 699 So. 2d 1117. In such cases, the PCF has an absolute right to contest liability.
Based on the above statutory scheme and jurisprudence, we conclude that there are two instances in which the PCF may become bound on liability: (1) where there is a settlement for a minimum of $100,000; and (2) where there is a judgment following trial in the amount of $100,000 or more, neither of which occurred in this case. Accordingly, we further conclude that the partial summary judgment in the instant case, between the Cubleys and Willis-Knighton, is not binding on the PCF. Moreover, the partial summary judgment in favor of the Cubleys has no res judicata effect, as the continuing proceedings below *1006 involve the Cubleys' demand for excess judgment against a wholly different defendant, the PCF. It logically follows, therefore, that the PCF does not "stand in the shoes" of Willis-Knighton for purposes of appealing the partial summary judgment. Rather, the appeal is moot, as Willis-Knighton, after taking the appeal, settled with the Cubleys.
In summary, since the partial summary judgment is not binding on the PCF, the PCF may exercise its right to contest liability in the trial court. In addition, the PCF is not required to proceed with the appeal of a partial summary judgment rendered against a different defendant. Regarding the latter, we note that the PCF did not have the opportunity to oppose the motion for partial summary judgment in the trial court and, under this holding, the PCF will have the opportunity to fully contest liability with the presentation of evidence to the court if necessary.
In light of our conclusion that the current appeal is moot, we will not address the merits of the appeal concerning the alleged improper division of issues in the partial summary judgment.
APPEAL DISMISSED AS MOOT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607700/ | 280 F. Supp. 674 (1968)
MINNESOTA MINING AND MANUFACTURING COMPANY, Plaintiff,
v.
NORTON COMPANY, Studebaker-Packard Corporation, and Hadco Corporation, Defendants.
Civ. A. No. 37154.
United States District Court N. D. Ohio, E. D.
December 29, 1967.
On Motion for New Trial January 29, 1968.
*675 Thomas V. Koykka of Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, Edward A. Haight of Haight, Simmons & Hofeldt, Chicago, Ill., Harold J. Kinney and Stanley G. DeLaHunt of Carpenter, Kinney & Coulter, St. Paul, Minn., for plaintiffs.
George H. Rudolph, Jones, Day, Cockley & Reavis, Cleveland, Ohio, and John W. Malley, Allen Kirkpatrick, Carl G. Love and Wm. K. West, Jr., of Cushman, Darby & Cushman, Washington, D. C., Hugh E. Smith, Troy, N. Y., for defendants.
MEMORANDUM OPINION
GREEN, District Judge.
This is an action alleging infringement of United States Letters Patent No. 2,958,593, hereinafter referred to as the Hoover patent. Claims one through eight, of a total of thirteen claims, are in issue herein. Plaintiff is the assignee of the inventors, Howard L. Hoover, Eugene J. Dupre and Walter J. Rankin, each of whom was in plaintiff's employ at the time the patented product was developed.
The patent in suit covers an abrasive pad described in the specifications thereof as follows:
The present invention relates to nonwoven fibrous abrasive articles of extremely open structure having an extremely high void volume (i. e. low density), which articles have a special utility in the floor maintenance trade, in hand scouring operations such as performed in domestic kitchens by homemakers, as well as in various industrial abrasive operations.
Claim One of the patent, which plaintiff states is typical of the claims in suit, is as follows:
1) An open low-density abrasive article comprising a uniform lofty open non-woven three dimensional web formed of many interlaced randomly extending flexible durable tough resilient organic fibers which have a diameter of from about 25 microns to about 250 microns, web fibers being firmly adhesively bonded together at points where they cross and contact one another to form a three-dimensionally integrated structure throughout said web and abrasive particles distributed within said web and firmly bonded to web fibers by a relatively hard rigid binder, interstices between adjacent fibers being open and substantially unfilled by adhesive binder or abrasive, there being defined throughout said article a tri-dimensionally extending network of intercommunicated voids constituting at least 75 percent of the volume of said article, said article being flexible and readily compressible, and upon release of pressure, capable of recovering substantially completely to its initial uncompressed form.
The commercial products manufactured by plaintiff under the patent bear the trade name "Scotch-Brite." The defendant Norton's[1] products are marketed under the "Bear-Tex" brand.
The patent in suit traces its origins back to an application Serial No. 641,714, filed February 20, 1957. That application, as filed, stated that:
This invention relates to non-woven fibrous abrasive articles. More particularly it relates to extremely porous resilient non-woven fibrous skeletal structures which contain abrasive grain.
* * * * * *
The article of our invention comprises a non-woven 3-dimensional skeletal network *676 of resilient fibrous members. Adhered to the individual fibrous members and randomly bonding them together are many small globules of adhesive or binder containing abrasive granules. A preferred embodiment of our invention is a rotary wheel-like fibrous abrasive device.
The patent specifications contained four examples of wheels manufactured in accordance with the claims of the application. Each of the said examples disclosed that the starting point of the product was a nylon web manufactured on a machine known as a "Rando-Webber," the said machine being covered by patents to other persons.
The specifications stated that the ratio of total volume of solid material present to the total volume of voids, and the ratio which the solid components bore to each other, was of critical importance to the invention. The range of proper proportions was therein stated. In each of the four previously mentioned examples the applicants noted the extremely high range of void volume the product possessed.
In describing the components to be used in the product the specifications stated that untreated sisal, jute, glass, hemp, asbestos, steel wool, and cotton fibers have proved completely unsatisfactory for the purposes stated.
The original application contained nine claims, claims 10 and 11 being method claims. Claims 1 through 5 did not claim abrasive grain and read on the web structure itself. Claim 6 is representative of the product claims in which abrasive was claimed as a part thereof, and is as follows:
A strong flexible, resilient abrasive article comprising a non-woven skeletal structure of many fibrious members, said members having a length of from at least about ½ inch to not more than about 4 inches and a diameter from at least about 25 microns to not more than about 250 microns, a fiber- and mineral-adherent adhesive randomly bonding said members to each other and bonding abrasive grain thereto, said abrasive article containing from at least about 75% to not more than about 95% substantially uniformly distributed voids.
The initial application was rejected as unpatentable over the prior art. After two attempts to convince the patent examiner that the entire claimed invention was distinguishable over the prior art by reason of its disclosure of the high void volumes, the claims embracing abrasive as a component thereof were cancelled without prejudice to further presentation. Thereafter the remaining claims were finally rejected and the application abandoned.
On October 7, 1958, approximately six weeks before the abrasive claims were cancelled in application Serial No. 641,714, a second application for patent was filed on behalf of the same inventors. After some controversy with the Patent Office this second application, Serial No. 777,167, was designated as a continuation-in-part of the earlier application. The specifications and claims of the second application were directed solely to abrasive pads with abrasive grain as a constituent thereof. The specifications of Serial No. 777,167 as originally filed are essentially the same as those of the patent in suit, although some additions were made thereto in a third application, Serial No. 1453, on which the patent issued.
The second application as originally filed contained seven claims. Claim 4, which was representative of the original claims, is as follows:
An open low-density rotary abrasive floor maintenance pad suitable for extremely effective use in floor scouring or polishing operations, in conjunction with rotary floor maintenance equipment, without leaving undesirable residue as it wears through use, capable thereafter of being readily cleaned by simple flushing with water and then wrung out and left overnight or for days or weeks, and of then being reused, said pad comprising a uniform *677 lofty open non-woven three-dimensional web having a thickness in the order of one-fourth inch formed of many interlaced randomly extending flexible durable tough resilient organic fibers which exhibit substantial resiliency and strength upon prolonged soaking in water, web fibers being firmly bonded together at points where they cross and contact one another by globules of a waterproof relatively hard rigid organic binder to form a three-dimensionally integrated structure throughout said web, fiber bonding occurring substantially only at and adjacent to said points, and abrasive particles distributed throughout said web and bonded to web fibers by globules of said binder, interstices between adjacent fibers being open and substantially unfilled by said adhesive or abrasive defining throughout said pad a network of intercommunicated voids comprising at least about 75 percent of the volume of said pad, said pad further being flexible and readily compressible, and upon subsequent release of pressure, capable of recovering substantially completely to its initial uncompressed form.
All claims were initially rejected on the basis that they were broad and indefinite and as unpatentable over the Sternfield Patent No. 2,665,528.
Following that action by the Patent Office, the applicants' solicitors met with the Assistant Primary Examiner and the Examiner, and thereafter filed a response to the rejection. The response reflects that at the meeting samples of the commercial product of the patent were exhibited to the Patent Office representatives. The feature of openness of the product appears to have been the subject of considerable discussion at the interview. The response contained no amendments to the claims,[2] and reconsideration of the rejection was requested.
In response to the request for reconsideration a different examiner again rejected all the claims. His reasons for rejection were:
1) All claims were prolix as they contained long recitations of unimportant details in the preamble which hid or obscured the invention.
2) All claims did not particularly point out and distinctly claim the invention, and were considered too broad and indefinite.
3) All claims were unpatentable over the prior art.
The rejection based upon the prior art included references in addition to Sternfield, but Sternfield was cited as a primary reference, along with Browne Patent No. 2,571,334, in light of Till, Patent No. 2,810,426.
In response to that action the claims were amended to meet the objections of prolixity and indefiniteness. In addition, two new claims were added. With regard to the question of the prior art, a dual argument was advanced. The prior art references cited by the Examiner were distinguished as not disclosing a three-dimensional structure of extreme openness and low density, i. e., with a high void volume, and as covering structures of an entirely different character. It was pointed out that the Sternfield patent related to a disposable cleansing tissue similar to that commonly known as "Kleenex." Heavy emphasis, however, was also placed upon the commercial aspects of the product. It was represented to the Patent Office that:
Notwithstanding the fact that abrasive structures formed generally of some fibrous material, abrasive grains and a unifying binder have been known for several decades, no one, prior to Applicants' invention has provided the man in the market place, with a commercial product having the important and unique combination of properties provided through Applicants' structures. For example, in the floor maintenance trade, a floor maintenance pad has never been commercially available *678 which is extremely effective in stripping and polishing floors, and yet which does not leave undesirable residue through use, which could be readily cleaned by simple rinsing in water and then wrung out and left for long periods of time then re-used. In the pickling line in the steel mill, no structure for cleaning out pits and crevices in the steel prior to pickling has ever been present which would work so fast, so effectively.
* * * * * *
Moreover, over the last 50 years many patents have issued relating to structures made up (in one form or another) of fibers, abrasive binder, and abrasive grains. Several of these patents have been cited in Applicants' specification. See for example page 3 of Applicants' specification. On the other hand, over an equally long period or longer, many patents and publications, just as pertinent as the Browne patent have issued relating to batt materials.
* * * * * *
With all this prior art available, no one, insofar as Applicants are aware, has provided the man in the floor maintenance industry, and the man in the industrial abrasives plant with the unique and highly successful structures disclosed in Applicants' application and and defined in Applicants' claims. (Emphasis as in original).
Following that response the Patent Examiner allowed two claims and rejected the remaining four. The rejection was as unpatentable over Till, and was a Final Rejection.
Subsequent to that action another interview was had by counsel with the Assistant Primary Examiner and the Examiner, and further amendments were made to the application. Three of the previously rejected claims were cancelled, and three new claims submitted in their place. The remarks of the amendment reflect that at the interview the Till patent was discussed, and it was contended by Applicants' solicitors that Till was not concerned with abrasives at all, and in fact covered no structure, but rather was a method patent. The remarks further indicate that the openness and low density of the Applicants' structures was again argued to the Patent Office representatives as providing a novel abrasive structure worthy of the grant of a patent. It was stated that the Examiners agreed with that position, subject to amendments being made to certain of the claims to more clearly reflect that fact. The amendments tendered were urged as meeting the standards required by the Examiners at the interview.
The amendments were apparently acceptable to the Patent Office, for on May 4, 1960 a notice of allowance was forwarded by the Patent Office.
While application Serial No. 777,167 was pending a third application was filed on behalf of the same applicants, Serial No. 1453, stated to be a continuation-in-part of the co-pending application SN 777,167. The specifications of the third application were essentially the same as those of the second application, with some additional disclosures, and five claims were presented in conjunction therewith.
All claims of Application SN 1453 were rejected as unpatentable over the then two allowed claims of application No. 777,167 and also as unpatentable over Till.
Responsive to that action one claim was cancelled, the language of the other four claims amended, and seven claims which by that time had been allowed in application No. 777,167 were carried forward by amendment into the third application. It was stated in the response that upon allowance of the third application the second application containing the seven allowed claims would be abandoned.
On June 10, 1960 Notice of Allowance of the third application was sent out, and soon thereafter the second application was formally abandoned. Following the allowance of the application certain technical *679 amendments were made, and on November 1, 1960 United States Letters Patent No. 2,958,593 were issued on Application Ser. No. 1,453.
In evaluating this patent it is essential to delineate between the alleged inventive concept thereof and those features of the structure which are not the product of the inventors.
Although in the prosecution of the patent, and also in the trial of this case, the low density web of the structure has received heavy emphasis, the fact remains that the web per se was not the creation of these inventors. The web is produced on a machine known as a Rando-Webber which is the subject of patents to other persons. Further, the Maisel patent, United States Letters Patent No. 2,784,132, describes a batt, or web, essentially the same as that utilized in the manufacture of the "Scotch-Brite" and "Bear-Tex" products, without the feature of abrasive grain.
The ingredients of the structure, i. e., the web materials, types of abrasive and types of adhesive binder, are not novel with this invention. The patent itself recites that well-known materials may be utilized, and the claims of the patent are such that plaintiff could not claim any of the materials as being covered thereby.
The methods of manufacture of the product could not be claimed to be the invention of the patent, for the patent contains no method claims. Further, the evidence is quite clear that the methods described in the patent are, in general, disclosed by the prior art.
It appears to the Court, therefore, that all the components of the structures claimed in the Hoover patent are disclosed by the prior art. It necessarily follows that the alleged inventive concept of this patent must reside in the bringing together of these known elements in the combination of an open lofty web with abrasive grain therein.
The testimony of Messrs. Hoover and Dupre confirms this conclusion.
Mr. Hoover testified that for many years he had felt a better product than steel wool could be made to perform the same type of cleaning functions. In 1953 he observed an open, lofty web coming off a Rando-Webber, and it occurred to him that the web might be useful as a new technique that might lead to some new products, although he had nothing specific in mind at the time. He then experimented with spraying the web with an adhesive, and was quite surprised to find that it accepted the adhesive and maintained its loft.
Although the web was utilized for experimental purposes on other products, it was not until 1955 that Mr. Hoover began work on its utility as an abrasive pad. Mr. Hoover testified that prior to the adoption of the Rando-Webber web as the base for an abrasive pad employees of the plaintiff had experimented with introducing other different ingredients into the web for developmental purposes.
He further stated that prior to his work on this product he had had no prior experience in spraying an adhesive and abrasive mix, which was the method he used to incorporate the abrasive grain into the web. Such a procedure was, however, disclosed by the prior art. Although the main thrust of the developmental program was through the use of the spray method, Mr. Hoover also testified that other methods of incorporating the abrasive mix were attempted, including a prior art process known as roll-coating, and the patent is broad enough to cover a product made in a manner other than spraying.
Prior to arriving at the structure which Mr. Hoover considered to be commercially feasible, and which was used in support of the patent application, the developers experimented with many fibers for the web, including natural and synthetic fibers, and many different binders and abrasives. The evidence, in fact, reflects that one of the most substantial problems which the developers had to overcome was finding the most suitable materials and the proper proportions thereof to create a good commercial product, and the development of equipment *680 to carry out the manufacturing process.
In defining what he considered to be the inventive concept of the patent Mr. Hoover testified as follows:
We have here an open, lofty, abrasive, resilient, fibrous web, * * * the abrasive distributed throughout, well bonded to the fiber. I believe that's new. That's the invention.
It was his further testimony that he also believed that putting adhesive into the open randomly disposed fibers of a web as it came off a Rando-Webber, which he initially did, was also new. He admitted that he was not familiar with the prior art in this field, and after exhibiting a sample of the product to plaintiff's patent department and explaining its manufacture he was not consulted by the patent department in the course of the preparation and presentation of the patent applications.
Further light was shed on the history of this structure by the testimony of Mr. Eugene J. Dupre, a stated co-inventor. He testified that he first became familiar with the basic web when it was being used by plaintiff for automobile door panel trim. Thereafter he and Mr. Hoover had the idea of incorporating other substances into the web. They drew up a list of eleven possible substances which might be introduced into the web, included in which was "abrasive particles."
Although it appears that the basic concept of combining an abrasive grain with the Rando-Webber web occurred to Mr. Hoover when he first saw the web in 1953, and although the first sample was hand-made by Mr. Hoover and Mr. Dupre around September, 1955,[3] soon after the list of possible additives was drawn, the progress toward a commercial product was slow. On this point, Mr. Dupre testified:
It was a long period of progression of improvement, oh, over a period of years, but I don't know if I can tell you when we arrived at what you call a good product.
The Court believes, from the record herein, that this slow progression was attributable to solving the mechanics of producing a commercially marketable product.
In considering a combination patent, such as the Hoover patent, the Court must apply a strict construction. Simplicity Mfg. Co. v. Quick Mfg. Inc., 355 F.2d 1012, (CA 6, 1966); Bobertz v. General Motors Corp., 228 F.2d 94 (CA 6, 1955). In the landmark decision of Great A & P Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 71 S. Ct. 127, 95 L. Ed. 162 (1950) it was stated:
Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained, when on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men. id. 152-153, 71 S. Ct. 130.
Many years earlier Justice Bradley stated in Atlantic Works v. Brady, 107 U.S. 192, 2 S. Ct. 225, 27 L. Ed. 438 (1883):
It was never the object of those [patent] laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. id. p. 200, 2 S.Ct. p. 231.
Although in its most recent consideration of the patent law the Supreme *681 Court was again considering a combination patent, Graham v. John Deere Co., 383 U.S. 1, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966), the commentary therein which this Court believes is most important herein relates to the element of nonobviousness in general. Therein the Court stated:
Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which adds to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must "promote the Progress of * * * useful Arts." This is the standard expressed in the Constitution and it may not be ignored. id. p. 6, 86 S.Ct. p. 688.
* * * * * *
Patentability is to depend, in addition to novelty and utility, upon the "nonobvious" nature of the "subject matter sought to be patented" to a person having ordinary skill in the art. id. p. 14, 86 S.Ct. p. 692.
* * * * * *
Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. id. pp. 17-18, 86 S.Ct. p. 694.
* * * * * *
We have observed a notorious difference between the standards applied by the Patent Office and by the courts. While many reasons can be adduced to explain the discrepancy, one may well be the free rein often exercised by Examiners in their use of the concept of "invention." In this connection we note that the Patent Office is confronted with a most difficult task. Almost 100,000 applications for patents are filed each year. Of these, about 50,000 are granted, and the backlog now runs well over 200,000. This is itself a compelling reason for the Commissioner to strictly adhere to the 1952 Act, as interpreted here. This would, we believe, not only expedite disposition but bring about a closer concurrence between administrative and judicial precedent. (Emphasis added) id. pp. 1819, 86 S.Ct. p. 694.
The Supreme Court also quoted from the Congressional reports on § 103 of the 1952 Patent Act, wherein it was stated:
An invention which has been made, and which is new in the sense that the same thing has not been made before, may still not be patentable if the difference between the new thing and what was known before is not considered sufficiently great to warrant a patent, * * * If this difference is such that the subject matter as a whole would have been obvious at the time to a person skilled in the art, then the subject matter cannot be patented. id. pp. 14-15, 86 S.Ct. p. 692.
Applying the foregoing standards to the patent in suit, the Court has reached the conclusion that the patent is invalid, in that the alleged inventive concept thereof should have been obvious to one skilled in the art.
Before discussing the relevant prior art, a key historical fact should be set forth. Although the patent does not claim any specific fiber for its web, it does recite nylon and polyesters such as "Dacron" as preferred components. The commercial products manufactured under the patent primarily use nylon for their webs and the Court believes the use of the nylon base for the web is essential to the quality of the said products.
*682 Although plaintiff, in its brief filed herein, states that one of defendant's witnesses admitted that nylon was commercially available in 1939, that contention is not an accurate reflection of the record. The witness stated that nylon as a commercially available product was described in 1938, first came on the market in a limited fashion as women's hosiery in 1939, but did not become available in any significant quantities as nylon textile waste until about 1947 or 1948. Another witness testified that nylon waste did not become available in commercial quantities until the early 1950's, although it was known prior to that time.
In considering the prior art the Court has, for the purposes of this opinion, separated same into three categories:
(1) Prior art not before the Patent Office;
(2) Prior art before the Patent Office;[4]
(3) Prior public use.
PRIOR ART NOT BEFORE PATENT OFFICE
Several patents have been cited to the Court which were not before the Patent Office in conjunction with any of the three applications leading to the patent in suit.
U. S. Letters Patent No. 2,284,739 were issued to E. Hurst on June 2, 1942, being a method patent relating to the manufacture of webs of flexible abrasive material. This patent is one of a group referred to as backless sandpaper patents, and does teach and claim a dense, compacted product. The Court believes, however, that certain disclosures thereof are important to the state of the art as it regards the patent in suit. In his method Hurst discloses the production of a light, open uncompacted web formed of loosely adhering independent fibers of natural fibers or synthetic materials into which an adhesive-abrasive mixture is introduced. He states that "The mixture of abrasive grain and adhesive binder readily penetrates the interstices of the web and permeates throughout." The method of introducing the adhesive-abrasive binders into the web which he describes is that of roll-coating, although the patent claims are not restricted to that method. Hurst then teaches a compacting of this previously open web.
It is on this basis of a compacted web that plaintiff differentiates Hurst from the patent in suit. While this is correct, the Court must note the similarity of concept between Hoover and Hurst up to the compacting step, including the critical aspect of the combined adhesive-abrasive binder.
Another relevant patent is Rimer, No. 2,375,585, issued May 8, 1945. Rimer relates to "improvements in the manufacture of scouring pads and, more particularly, to fibrous masses of such material and a method of producing the same from extruded molten plastic materials containing an abrasive scouring substance." Although this patent does not specifically disclose an open structure with the particularity of the Hoover patent, it does refer to the production of a fibrous padlike mass which, if flattened, can be rolled into the form of a tubular batt. This would indicate a degree of openness in the original pad. Rimer discloses the introduction of an adhesive-abrasive binder into the pad by either dipping or spraying (P. 2, Col. 1, Lines 10-17).
The Rimer patent also states that:
Pads made by any of the foregoing methods are strong and durable in that they are unaffected by water, will not readily disintegrate, are free from rusting characteristics, do not transfer finely divided splinters to the hands of the user and, particularly, are entirely free from characteristic odors such as *683 those which adhere to conventional forms of pads shortly after use.
These are the same virtues which are stated to be inherent in the Hoover structures. Of particular interest is the statement that the pad would be free from odor. This is another indication that an open structure is described, for in discussing the Hoover patent it was pointed out that its openness permitted flushing of food particles, which if trapped in a closed pad decompose and produce annoying odors.
Another patent of substantial interest not before the Patent Office is that to L. H. Englund, No. 2,413,551, dated December 31, 1946. The Englund patent "pertains to plastic abrasive spongiform cleansing or scouring pads and a method for manufacturing the same."
Englund describes the creation of a plastic spongiform mass having an irregular shape and intricate pattern, into which abrasive material is introduced. (Col. 2, Lines 24-36). He states that spraying of the filaments and abrasive is his preferred method. The patent specifications contain a full exposition of the claimed advantages of his pad, and they are essentially the same as those attributed to the Hoover patent structures. As to the exact character of the pad, neither the specifications nor the claims contain disclosures specifically teaching the open, lofty, low-density web of the patent in suit. The Englund patent does, however, refer to the pad as resilient and states in the specifications:
Since the filaments are still in a plastic state for a short time after they are deposited, the abrasive material will not only coat each individual thread but become impregnated therein. After a suitable thickness of the spongiform fibrous mass has been built up upon the reciprocating member, the various overlapping and adjacent threads at their points of contact will have begun to set or cool and become welded together. (Emphasis added).
Similarly, Claims 3, 4, 7, 8 and 9 claim structures where the filaments meet at points of contact, indicating that the structures are not compressed and unitized. Claims 5, 8 and 10 claim structures providing an interstitial mass, further indicating a degree of openness in the structure. There is no specific disclosure or teaching of compression of the Englund structure, as there is in the Hurst patent, previously discussed herein, or as in certain patents cited to the Patent Office in the Hoover application.
Plaintiff contends that Englund is distinguishable from the patent in suit in that Englund fills the interstices with an abrasive substance, whereas Hoover teaches bonding the abrasive to the fibers and leaving the interstices of the web structure open and substantially unfilled by adhesive binder or abrasive. The Englund structure is also distinguished on the basis of a web structure entirely different from that of Hoover.
As to the variation in web structures, that is not a sufficient basis of differentiation. The Hoover patent cannot, and does not, claim the web structure as a creation of its inventors. As to the plaintiff's claim that Englund teaches a pad with the interstices filled by abrasive, the Court has carefully read the Englund claims and specifications and nowhere finds a statement that the interstices are, or should be, filled with abrasive. With regard to plaintiff's assertion that Englund does not teach bonding the abrasive to the filaments, the Court believes that the statement in Englund that the deposition of the abrasive materials on the filaments causes the filaments to be coated and impregnated with abrasive does disclose a bonding technique. Claim 6 of Englund reads on:
An article of manufacture, which comprises a spongiform pad composed of a plurality of intertwined threads of plastic from a molten plastic mass, said threads being interlocked together into an irregularly dispersed pattern *684 to form an interstitial mass having adjacent and overlying threads autogenously bonded together, and said mass of threads being coated and impregnated with an abrasive substance.
The Court is of the opinion that a fair reading of this claim does not support plaintiff's arguments regarding the nature of the Englund structure.
An important prior art patent not before the Patent Office is that to E. N. Maisel, No. 2,784,132, March 5, 1957. This patent does not cover an abrasive article, but rather is on an "insulating batt," or mat, or web, of "great resilience and loft." Without reciting in detail from the patent, this Court is convinced that the Maisel patent discloses and claims a bonded web structure essentially the same as is incorporated in the Hoover patent. The essential difference between the Maisel and Hoover patents is the absence of abrasive in Maisel.
The evidence in fact discloses that when Mr. Hoover produced an adhesive bonded web, without abrasive, using a web as it came from the Rando-Webber, he believed that he had developed a new product. The specifications of the first Hoover application No. 641,714 described such a product and patent protection thereon was sought in original claims 1, 2, 3, 4, 5 and 10 of the said application. It was the said claims which were eventually abandoned and they cannot now be revived by reading them into the patent in suit as finally allowed.
The Maisel patent is the basis of an argument by defendant that plaintiff was guilty of misconduct before the Patent Office. Defendant contends that plaintiff knew of the existence of the Maisel patent and its importance in relation to the pending Hoover application, but withheld that information from the Patent Office. When an inventor knows of prior art highly relevant to the alleged inventive concept of his claimed invention he has an obligation to disclose that information to the Patent Office. Minnesota Mining & Mfg. Co. v. Projection Optics Co., 256 F. Supp. 354, 365 (D.C.W.D.N.Y., 1966); United States v. Standard Electric Time Co., 155 F. Supp. 949, 952 (D.C.Mass., 1957).
The record is clear that in none of the three Hoover applications is there any mention of the Maisel patent. The record further discloses that plaintiff obtained a copy of the Maisel patent by February, 1958, and that certain of its officers and employees knew of its content.[5] While there is no direct proof, the circumstantial evidence is quite strong that whoever drafted the second Hoover patent application, filed in October, 1958, knew of and borrowed from the Maisel patent in drafting the Hoover application. The second Hoover application, No. 777,167, contains words and phrases that did not appear in the original Hoover application, No. 641,714, which bear a resemblance to, or are identical with, terminology contained in the issued Maisel patent. The possibilities of that being coincidental are highly unlikely.
The Court does not believe that, for the purpose of decision herein, a finding need be made on whether or not plaintiff willfully withheld disclosure of the Maisel patent or whether such action would be fatal to the validity of the Hoover patent. The fact does remain that there is no evidence that the Patent Office measured the alleged inventive concept of the Hoover application against the prior art in light of Maisel.
PRIOR ART BEFORE PATENT OFFICE
Turning now to a consideration of the prior art patents before the Patent Office in the prosecution of the Hoover applications, the Court does not consider the references cited by the Patent Examiner to be particularly significant.
The more pertinent prior art before the Patent Office is that recited in Lines *685 23 through 32 of Column 2 of the Hoover patent specifications. Cited therein are Hurst Patent No. 2,284,738, Benner et al. Patents Nos. 2,284,715 and 2,284,716, Westcott Patents Nos. 1,668,475 and 1,668,476 and Loeffler Patent No. 2,327,199. As to all these patents it is stated that: "Such references point away from and are antithetical to extremely open abrasive structures of extreme low density." Webster's Third Edition of the New International Dictionary (Unabridged) defines antithetical as "marked by direct opposition: exactly opposite."
As to the two Westcott patents, it can be said that they would be considered as antithetical to the Hoover concept. Their conception was a reinforced hard rubber wheel, with abrasive bonded therein. The remainder of the patents under consideration are not quite so diametrically opposed to the Hoover structures.
Although both Benner patents teach a compacted structure as their end products, the said products are "flexible abrasive webs," and not a hard compacted structure. The specifications of each of the said patents recite:
The present invention, therefore, provides a flexible fibrous abrasive web material in which the abrasive grain is distributed internally of a loose flimsy web of any suitable fibrous material. (Emphasis added).
Each of the Benner patents also discloses incorporating abrasive into this open, loose, flimsy web by several methods, including spraying an adhesive-abrasive binder mix and roll-coating. After the open web is completed, Benner then states that "it is ready to be compacted to a greater density for added strength."
The Hurst patent cited in the Hoover specifications, No. 2,284,738, is a companion to Hurst Patent No. 2,284,739, previously discussed herein. Hurst No. '739 is a method patent, whereas No. '738 covers a product.
Hurst patent No. '738 is stated by plaintiff as teaching a compacted structure as its end product. While this may be correct, if Hurst '738 is read in the light of Hurst '739, the patent itself describes no compressing or compacting step in the creation of the product, and the degree of compaction and density of the finished product is not spelled out therein. The Court considers as relevant to the state of the art prior to the date of the Hoover patent the following disclosures in Hurst:
The carded membranes are formed webs of loosely adhering independent fibers and may consist of any animal, vegetable, mineral or synthetic fibrous material capable of being carded into web form.
* * * * * *
Generally, a suitable adhesive binder is then applied to the web to bond the consolidated fibers together at their intersections and produce adhesive gussets at such intersections.
In the manufacture of abrasive articles according to the present invention the abrasive grain, as well as any other modifying agents, may be included in the web after it is formed, or the abrasive and adhesive binder may be included within the fibrous web structure prior to the consolidation of the web and while the interlocked membranes present numerous interstices between the fibers for reception of the grain and adhesive.
* * * * * *
The abrasive grains may be introduced into the loosely woven web structure by first mixing the abrasive grains with a suitable liquid adhesive and applying the abrasive contained adhesive to the web.
* * * * * *
Another type of included fibrous web which is suitable for many purposes may be produced by the application of abrasive material into the surface of a previously formed and consolidated web. The abrasive particles may be distributed over the surface of the web and permitted to filter into the *686 interstices thereof or the grain may be projected therein. In either case the grains penetrate the surface and into the interstices where they become lodged between the interwoven fibers and sufficiently well anchored for many abrading operations.[6]
* * * * * *
A fibrous base constructed in the manner briefly described above is the type used in forming the abrasive products of the present invention and has the appearance shown in the upper half of figure 3, in which it will be seen that a multiplicity of the fibers 5 of the base are interwoven and interlocked, leaving between them, however, a multiplicity of interstices 2, generally of diamond shape, and substantially all of which have gussets 3 formed by the adhesive binder, these gussets filling in the angles between the fibers although leaving the interstices. The present type of fibrous web material is distinct from a matted base of macerated fibers such as is formed from a watery pulp, in which type of base the fibers are softened and weak from the effect of the water and macerating, and also are matted together with little or no interstitial spaces.
* * * * * *
Figures 2, 6 and 7 show another embodiment of the invention in which the abrasive grain 4 is held within, as well as at the surface of the fibrous web not only by the interlocking fibers 5 but also by incorporating an adhesive binder within the web. Although the adhesive surrounds the fibers of the web and forms gussets in the angles between adjoining fibers, it is not present in sufficient amounts to fill the interstices of the web. These interstices are left substantially open for reception of the abrasive grain.
* * * * * *
One of the important advantages of the invention is that an abrasive article made in accordance with the invention has a resiliency and flexibility which it is impractical to obtain with either paper or cloth.
* * * * * *
The base material is a strong, interwoven structure, especially when internally re-inforced by binding materials or like strengthening agents, but at the same time has interstices which serve to anchor the abrasive particles much better than can be done when they are superimposed upon the face of a backing and are entirely above the surface.
* * * * * *
Claim 1. An abrasive article comprising a fibrous web formed from a plurality of carded fibrous membranes the individual fibers of which are interlocked and interwoven forming interstices there-between and making a substantially unlaminated web structure, the interstices of said web containing included abrasive grains anchored with a suitable adhesive. (Emphasis added throughout).
It is clearly seen from these excerpts that the Hurst '738 patent describes a fibrous web with substantially open interstices for the reception of abrasive grain, the said grain being capable of application in an adhesive-abrasive binder. While it is correct that Hurst does not describe in detail an open, lofty, low-density structure as does Hoover, Hurst does not say that the interstices in his structure are "filled" by abrasive. He describes and claims a web which contains abrasive grain within the interstices, anchored to the adjacent fibers. The Hurst '738 patent does not, on its face, as clearly teach a compacted structure as do the Benner patents.
While the Court does not believe that it would be correct to state that Hurst '738 directly anticipates the patent in suit, the Court is of the opinion that it is *687 likewise incorrect to consider the said patent as pointing away from the Hoover concept. Certainly the Hurst structure is not comparable to the hard rubber wheels of the Westcott patents, and should not properly be viewed in the same light.
This leaves for consideration the patent to C. R. Loeffler, No. 2,327,199, dated August 17, 1943. Although plaintiff has consistently endeavored to downgrade the importance of the Loeffler patent in the course of this trial, the Court is of the opinion that it is among the most significant of the prior art patents. This impression would appear to be somewhat supported by the fact that of the six patents referred to in the Hoover specifications, Loeffler was the one selected by the draftsman of the patent application for extended discussion therein. Due to the importance which the Court believe attaches to the Loeffler patent it is appended hereto as an exhibit.
The Loeffler patent is the subject of considerable controversy between the parties, starting with the question of its presentation to the Patent Office.
It is plaintiff's position that the Loeffler patent has been considered and rejected by the Patent Office as prior art, thereby strengthening the statutory presumption of validity under 35 U.S.C. § 282, Firestone v. Aluminum Co. of America, 285 F.2d 928 (CA 6, 1960).
Defendant, on the other hand, contends that plaintiff was guilty of a willful misrepresentation and distortion of Loeffler in the Hoover specifications, thereby destroying any presumption of validity that the Hoover patent carries.[7] Amerline Corp. v. Cosmo Plastics Co., 153 U.S.P.Q. 707, 716 (D.C.N.D.Ill., 1967).
In the Hoover specifications the Loeffler patent is cited with the other prior art patents heretofore discussed, which as a group were stated to be antithetical to an extremely open abrasive structure of extremely low density. In the particular discussion of Loeffler in the Hoover specifications it is stated that the fibers of the Loeffler pad are "impregnated apparently completely in the outer portions thereof with resin and abrasive," (Col. 2, Lines 35-37) that a center core free from resin or abrasive "is provided for the purpose of allowing some resilience in the resulting structure," (Col. 2, Lines 36-40), and that in the manufacture of the article it is impregnated, then compacted and then cured (Col. 2, Lines 40-43). It is this Court's opinion that the inclusion of Loeffler in a general category with prior art patents such as those to Westcott and Benner was not proper, and that the specific statements made regarding Loeffler are incorrect.
In describing the finished product to be achieved in accordance with his invention, Loeffler states:
The thus hardened and insoluble binder strongly adheres the abrasive grain to filaments of fibrous material, and yet leaves the mass of abrasive coated filaments in the outlying zone B of the body mass still of somewhat open or porous texture, and such zone sufficiently resilient to substantially conform its exterior face to a surface to which the wad is applied and over which it is rubbed for scouring effect in use. (Emphasis added).
In Claim 1 of Loeffler he claims a product created from a "substantially noncompacted body of non-metallic fibrous material." Claim 2 describes a finished product with "the thus coated filaments forming an external abrasive mass of substantially open texture surrounding said central elastic core portion." From the foregoing it is clear that the representation in the Hoover specifications that the outer portion of the Loeffler structure is completely impregnated with *688 resin and abrasive is incorrect. It would be equally erroneous to suggest that Loeffler teaches a dense product, when he in fact claims a pad with a substantially open exterior face.
The suggestion that the center core of Loeffler "is provided for the purpose of allowing some [indicating a mild degree] resilience in the resulting structure" is rebutted by Loeffler's statement that the outer portion of his structure is itself resilient. He in fact states that the resiliency of his product is "further assured" by the inner core.
Finally, as to the recitation of the manner of producing a Loeffler product, the Hoover patent specifications in describing Loeffler, omit an intermediate step of partial drying before the structure is molded and cured to its final form.
It is, therefore, this Court's conclusion that the characterization of Loeffler in the Hoover specifications is totally incorrect. Whether or not this was intentional is immaterial. In the file wrapper of the Hoover applications no reference is made to Loeffler by the Patent Examiner. It must, therefore, be assumed that the description of Loeffler as set forth in the Hoover patent application was accepted by the Patent Examiner. If that is so, he clearly could not have tested the Hoover application in the true light of the prior art. The patent specifications state that the Loeffler conception was exactly opposite to the Hoover conception and included Loeffler in a category with hard rubber bonded wheels such as were disclosed by Westcott.
In addition to teaching a base material for an abrasive pad comprised of an open fibrous wad, Loeffler teaches introducing the abrasive grain into the base material by means of spraying in an adhesive-abrasive binder. (Page 1, Col. 2, Line 37 Page 2, Col. 1, Line 20). Loeffler states that the preferred base material for his pad was jute waste, although it could be made from various vegetable or mineral fibers adapted to readily entangle together into a more or less loosely matted and compacted mass.
In attempting to distinguish Loeffler from the patent in suit plaintiff relies upon samples constructed by its witness, Robert A. LePage, which produced a product having a hard outer crust with "pinholes" therein, lacking resiliency and conformability. The samples which Mr. LePage made were of a jute base. In reviewing the evidence regarding the manner in which the LePage samples were made, the Court finds that the steps which the witness described did not include the intermediate step of partial drying before the pad was molded and cured. This is the same step omitted in the summary of Loeffler in the Hoover patent specifications. The importance of that omission will be considered hereinafter.
Mr. LePage testified regarding use in his home of other samples he had made from jute based on the Loeffler patent. He stated that:
The shape of the pad when used on a pot and pan is maintained for just about one use. The problem is that the water gets into the jute, the jute absorbs it, and of course it dries out very slowly, and as a result you get food particles trapped in the pad, the pad loses its shape, and of course it begins to smell very badly.
As to the deficiencies in the performance of the pad, it is clear from Mr. LePage's testimony that they were basically problems arising from the utilization of jute as a base material. In earlier testimony he had stated that jute would be a poor base material for such a pad because of its natural absorbent qualities. It may be recalled that in the original Hoover application, No. 641,714, the use of jute as a base material was stated to be "completely unsatisfactory."[8] As has previously been noted herein, the solution to the problems encountered by Mr. LePage with his jute scouring pad were set forth *689 in prior art patents covering scouring pads composed of other synthetic materials.
Defendant's witness, Carl H. Rowe, also constructed sample pads according to his interpretation of the Loeffler patent. His samples, however, did not use jute as a base material but rather had wool and nylon as the base. He testified that in constructing the samples he followed the teachings of Loeffler, simply applying them to these non-woven fibrous webs.
As to the Rowe samples, plaintiff contends that they were not made in accordance with the Loeffler patent without the use of some other knowledge, and that they do not fairly represent the structure disclosed by Loeffler. The record references cited by plaintiff in support of those contentions, however, do not support the conclusions asserted.
As to the contention that the Rowe samples do not fairly represent Loeffler, the only record reference cited in the plaintiff's brief filed herein is a statement by Mr. LePage that in his opinion that was the case.
With regard to the claim that the Rowe samples were made utilizing other knowledge than the disclosures of the Loeffler patent plaintiff has cited a comment of the Court in support of that assertion. What in fact the Court stated was:
Whether or not he [Rowe] made it in accordance with the Loeffler patent or used some other knowledge he had is something else that the Court is not at this time prepared to make a decision on, but I will permit them into evidence.
To say that the said comment is an indication that other knowledge was used by Mr. Rowe is a distortion of the record.
In further support of this argument plaintiff cites the entire cross-examination of Mr. Rowe and an excerpt from his recross-examination.
If by the reference to the full original cross-examination of Mr. Rowe plaintiff means to imply that Mr. Rowe used special knowledge in that he used base materials other than those recommended by Loeffler, the Court cannot accept that contention. It is true that Mr. Rowe did not start out with a mass of jute as did Mr. LePage and as is described in the Loeffler patent. On the other hand, this Court believes that Mr. Rowe did in fact follow the procedures specified in the Loeffler patent in creating the "Regular Method" abrasive pads from the nylon and wool fibrous webs that he used as starting points. The Court does not consider that to be the application of special knowledge by Mr. Rowe, but rather the substitution of materials.
The recross-examination discloses that Mr. Rowe made two sets of samples: One applying what he believed to be the full teaching of Loeffler; the other omitting from the Loeffler procedure the intermediate step of partial drying before compression and curing.
As to the creation of two sets of samples, one by the "Regular Method" following Loeffler in full and the other by the "Special Method" omitting the intermediate step, Mr. Rowe testified:
Q. Why did you employ the special method?
A. Well, I wanted to see if it was possible to produce any different type of product or surface by an immediate drying rather than a normal drying. I mean, immediate compression, rather than a normal drying followed by compression.
There was in fact a different type of product produced. The pads produced under the "Special Method" had a hard glazed surface and were comparable in exterior appearance and texture to the jute pad which plaintiff's witness LePage had created based upon his alleged understanding of the Loeffler patent.
The sample pads produced by Mr. Rowe in accordance with the regular *690 method closely resembled the structures resulting from following the teachings of the Hoover patent as exemplified by certain samples from the plaintiff's early development program of the "Scotch-Brite" product and by the said product as reduced to commercial form. It is the Court's conclusion that the Rowe "Regular Method" samples do represent an accurate application of the Loeffler disclosures to a different type of "mass having a desired degree of stability, and yet affording a resultant body which is open enough in texture to admit of reception, to a desired degree of penetration, of an abrasive binder mix for incorporation therewith and therein." (Loeffler, pg. 1, Col. 2, Lines 24-28), producing a finished product of substantially open texture.
This concludes the prior art and leaves for consideration only the question of prior public use.
PRIOR PUBLIC USE
The defendant set out as a defense prior public use more than one year prior to the date of the application for patent in the United States, 35 U.S.C. § 102(a). Defendant sought to sustain that defense by proving that the art of the Hoover patent had been practiced by the Fiberbond Company of Chicago, Illinois as early as 1953.
Although this Court is of the opinion that the evidence adduced by defendant is not sufficient to establish an invalidating prior public use under the standards enunciated in Goodwin v. Borg-Warner Corp., 157 F.2d 267 (CA 6, 1946), nevertheless it is relevant to the question of the obviousness of the Hoover concept.
The record reflects that as early as 1954 Fiberbond was manufacturing a non-woven web on a Rando-Webber machine and binding the fibers thereof with an adhesive. The description of the web produced by Fiberbond reflects that it corresponds with the web used by plaintiff in the Hoover product, that it also responds to the web described in the Maisel patent, and corresponds to the pre-bonded web used by defendant Norton as the starting point in the manufacture of its "Bear-Tex" products. It is interesting to note that in 1954 Fiberbond was using the said bonded web for automobile door-panel material, which is the use to which plaintiff was putting the Rando-Webber product when Mr. Hoover first became aware of its existence.
Mr. Joseph J. Klein, who had been President of Fiberbond, testified that the web produced by that concern was an open, lofty, three-dimensional web which was compressible and resilient. He stated that Fiberbond had added "extenders" to the web, in the form of various solid materials. The solids included clay and metallic particles. One of the metallic particles was aluminum oxide, an abrasive material. The purpose of adding the aluminum oxide, however, was not specifically for creation of an abrasive article. The manner of incorporating the solids into the web was by adding the raw material to the adhesive resin and spraying the mix into the web. Mr. Klein stated that after such spraying operation the voids still remained in the web.
Mr. Max Dressler, who had been counsel for Fiberbond, also described the web as open, lofty, three-dimensional, compressible and resilient. He stated that he was familiar with both the Fiberbond product and the Maisel patent, and that:
"These were fibrous compressible pads which were sold by Fiberbond Corporation of the defendant, which differed from the conventional pad in that they had an additive, included it with the binder, when the binder was sprayed to hold the fibers in a three-dimensional relationship as called for in the Maisel Patent No. 2,784,132."
Mr. Dressler characterized the Fiberbond product as having "endless voids; a myriad of voids."
*691 Harry Mednick, who had been general foreman and factory supervisor for Fiberbond, testified as to the manner of production of the Fiberbond structure. He stated that as a web came off the Rando-Webber machine in an open, lofty condition it was sprayed with an adhesive and dried. Mr. Mednick further testified that between the years 1958 and 1960 Fiberbond had, at the request of other concerns, experimented with incorporating grit products into the web for the purpose of developing new commercial products.
As previously stated herein, the concept of the Hoover patent to be tested against the prior art is the combination of abrasive grain with a web material such as is described in the said patent.
Although none of the prior art patents considered and discussed herein specifically taught the combination of a lofty open non-woven three-dimensional web exactly as described and claimed in the Hoover patent as the carrying agent for abrasive grain, the concept of incorporating abrasive grain into non-woven webs of varying degrees of density was well established in the prior art. This Court believes that to one skilled in the prior art it would have been obvious to incorporate abrasive grain into the web produced by the Rando-Webber.
Mr. Hoover admittedly was not skilled in the relevant prior art. Nevertheless, by his own admission the potential of the web structure produced on the Rando-Webber machine as a base point for new commercial products was immediately obvious to him. He did, however, believe that he had created a new product when he adhesively bonded the open web, when in fact that was the subject of the Maisel patent.
With regard to the Maisel patent, it was obvious to the Fiberbond Corporation personnel who were producing such a web to incorporate solid materials into the web for their own purposes, and others had recognized the possible utility of the web as a carrying agent for other materials and had requested Fiberbond to experiment in that direction.
Application of the general concepts of the Loeffler patent by Mr. Rowe to a web structure resembling that produced on a Rando-Webber resulted in the creation of a finished product closely resembling that of Hoover. The Court believes that Loeffler clearly indicated an abrasive pad of substantially open structure, although not with the particularity of the Hoover patent. It should be remembered that in 1943, when the Loeffler patent issued, nylon waste was not a commercially available product.
Although prior art patents such as those to Benner and Hurst did not teach extremely open structures, they pointed away from hard and dense abrasive structures and, up to the point of final compression of the products disclosed therein, closely paralleled the general concept of Hoover. If the other features of those patents up to the point of compression were applied to a Maisel patent web the end result would approximate that of Hoover.
It is this Court's opinion that the best that can be said for the development of the Hoover structures is that they represented the first commercial embodiment of abrasive grain to an extremely open, lofty, three-dimensional nylon web. The Hoover patent is reflective of that conception.
In order to be entitled to patent protection an invention must have novelty and utility, and be non-obvious. Graham v. John Deere Co., 383 U.S. 1, 14, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). Undoubtedly the Hoover structures had novelty and utility, being the first of their exact kind. That, however, is not sufficient to meet the test of patentability. The third criteria of "nonobviousness" must also be satisfied, Ludwig Drum Co. v. Solar Musical Instrument Co., 376 F.2d 827 (CA 6, 1967), and it is that essential element which is lacking herein.
There can be no invention in an obvious substitution of new materials for old in a known combination. Seiberling *692 Rubber Co. v. I. T. S. Co., 134 F.2d 871, 875 (CA 6, 1943). A peculiarly appropriate precedent cited by defendant in this regard is the decision in S. O. S. Co. v. Triangle Mfg. Co., 156 F. Supp. 665 (D.C.N.D.Ill.1957), aff'd General Foods Corp. v. Triangle Mfg. Co., 253 F.2d 227 (CA 7, 1958), wherein a patent on a plastic scouring pad was held invalid. Therein it was stated:
Where a patented article, by virtue of a substituted material, differs from the old article in degree of excellence only, where it merely accentuates, or achieves to a greater degree, desirable qualities possessed to a less degree by the old article, and where the alleged new properties or wider range of uses claimed for the patented article were not unexpected or surprising in view of the known properties or characteristics of the substituted materials, patentable invention cannot exist. id. at 672. (Emphasis added).
The particular pertinence of the foregoing can best be appreciated by reference back to the LePage testimony regarding the deficiencies of jute (in the pre-nylon era) and the teachings of the Englund and Rimer patents regarding the inherent advantages of utilizing new plastic synthetics in a scouring pad. See also, Martin-Marietta Corp. v. United States, 373 F.2d 972 (Ct.Cl., 1967), wherein the substitution of nylon for an old ingredient producing an improved commercial product was held to lack invention as being an obvious advance in the art.
The Court believes that certain of the contentions made, and arguments advanced, by plaintiff in support of the Hoover patent should be considered herein.
It appears to the Court that plaintiff's basic thesis regarding the Hoover patent is exemplified by the following quote from plaintiff's principal brief:
The discovery rests upon a concept of floating abrasive grains in space, which is novel to the abrasives art, and qualifies also as invention in the novel means the patent discloses for bringing that concept to realization. Nothing like it appears in the prior art. The inventors, in coming to the invention traveled boldly in a direction contrary to all that was taught by the prior art.
The rather romantic description of the Hoover structures as "floating abrasive grains in space" is repeated many times in the plaintiff's brief. Likewise, the assertions that the concept is a bold departure in a new direction completely unlike any teaching of the prior art is reiterated in the course of the plaintiff's arguments.
The deficiency in this theory is that it is not supported by the evidence in the record.
In the first instance, it is abundantly clear that the abrasive grains in the Hoover structures do not like stars in the sky, float in space. The grain is quite securely and firmly bound by adhesive to the fibers of the open web. Binding of abrasive grain to web fibers did not originate with Hoover.
The Court believes that the argument that the Hoover structures constituted a totally new avenue of approach to the abrasives field is disproved by the review of the prior art previously considered herein. The movement from the dense hard rubber wheels of Westcott in 1927 to the compressed flexible webs of Hurst in early 1942 to the open structure of Loeffler in late 1943 to the plastic pads of Rimer and Englund in 1945 and 1946 to the usage of the Maisel web by Fiberbond in 1953 does not, in this Court's opinion, point away from the Hoover structures.
The record references relied upon by plaintiff in support of this argument are to plaintiff's own work in the abrasives field and an advertising piece of the defendant.[9] The Court does not consider *693 these two items of evidence as probative or reflective of the true state of the art prior to the Hoover patent.
Plaintiff contends that nothing that preceded the Hoover structures was constructed in the same manner, functioned in the same way, performed the same services, or met the same needs. While it is true that there were no prior commercial products constructed exactly as plaintiff's "Scotch-Brite" line (the Hoover patent reduced to commercial form), the remainder of this proposition is not supported by the record. There were, and still are, other abrasive products which function in the same way, perform the same services and meet the same needs as does "Scotch-Brite," although the "Scotch-Brite" products may do a better or more efficient job.
A similar argument is the one advanced by plaintiff that the "Scotch-Brite" products have fulfilled long-existing needs. Again, the evidence reflects that the Hoover structures did not fill any existing voids, but rather have replaced to some degree other products in areas in which the nature of the "Scotch-Brite" composition renders it a more efficient cleaning agent.
These contentions regarding the commercial aspects of the Hoover structures lead to the argument that the commercial success of the "Scotch-Brite" line is evidence of the validity of the patent in suit. Commercial success, although relevant, is a secondary consideration, Graham v. John Deere Co., 383 U.S. 1, 17, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966), but commercial success without invention will not make patentability. Great Atlantic & Pacific Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 153, 71 S. Ct. 127, 95 L. Ed. 162 (1950).
While this record clearly indicates that both the "Scotch-Brite" and "Bear-Tex" products were commercial successes, the record does not prove that such success is attributable to the alleged Hoover inventive concept. It appears to the Court that the vast acceptance of these products is quite likely attributable to utilization of a Maisel type nylon web as a base thereof. The characteristics of the products to which plaintiff points as making them such a success, such as soft and yielding texture, flushability, resistance to rust and disintegration, are all virtues inherent in the open nylon web itself, are identified in the Rimer and Englund patents, and do not represent any contribution by the Hoover inventors to the state of the art.
There is one segment of plaintiff's brief, entitled "The Inventors Encountered, and Solved, Difficult Problems" which the Court believes is reflective of the fact that the creation of Mr. Hoover and his fellow workers was mechanical rather than inventive. The statements made therein must, of course, be considered in light of the testimony by Mr. Hoover that the commercial possibilities of the Rando-Webber lofty, open, three-dimensional web structure were immediately obvious to him when he first saw it, and that abrasive grain was but one of many substances considered for incorporation into the web.
It is argued by plaintiff that the inventors had problems selecting the correct fiber diameter for the web; that they had difficulty with the correct technique of applying the abrasive and adhesive; that problems were encountered in determining the correct abrasive-resin slurry; that the inventors had to determine the best type of fiber for use in the web. Although the Court believes that the seriousness of these problems is slightly overstated by plaintiff, the fact remains that the problems do not relate to the original Hoover conception of introducing abrasive grain into a Rando-Webber produced web, but rather in refining the product to the point where it represented a good commercial product.
Although the resolution of many of these problems is claimed to be revealed in the patent, such as fiber type, length, diameter, void volume, and the like, Mr. Hoover stated that the disclosures of the patent in these regards did not originate with him. From the evidence in this case it is this Court's opinion that the specific disclosures of these details were *694 developed by plaintiff's patent department in the drafting and prosecution of the patent application, and were designed primarily to secure maximum patent protection.
Plaintiff also asserts several times in its brief that all the materials and equipment necessary to create the Hoover product had long been available, needing only creative genius to bring them together. This, in fact, is one of plaintiff's chief arguments. The record reflects, however, that the essential element necessary to make the Hoover structure function, nylon waste in commercially available quantities, was only recently available at the time in question, and that the Rando-Webber machine on which the basic web was produced was not on the market until the late 1940's or early 1950's. This contention, therefore, that all the ingredients were long available to the prior art cannot be sustained on the record herein.
Having concluded that the patent in suit is invalid, this Court is not required to pass on the issue of infringement, Bobertz v. General Motors Corp., 228 F.2d 94, 101 (CA 6, 1955). Nevertheless, some observations thereon are relevant to the question of validity of the patent.
It is this Court's opinion that many of the "Bear-Tex" products manufactured by defendant[10] do respond to Claim One of the Hoover patent, and if the same were valid would be infringements thereof. And yet, the evidence indicates that the defendant's products are produced in substantial accordance with the prior art.
The starting point of the Norton products is a pre-bonded web, which is referred to in the Hurst Patent No. 2,284,739, substantially similar to that covered by the Maisel Patent No. 2,784,132. This web material is then passed through a slurry bath of adhesive-abrasive binder, the process known as roll-coating, during which process the web passes between a pair of pressure squeeze rolls. The roll-coating method of impregnating non-fibrous webs with abrasive, as well as the use of the adhesive-abrasive binder, was disclosed by several of the prior art patents discussed herein. The web is then passed through a drying oven so that the surface solvent is evaporated, and emerges in a tacky condition. At this point the product responds to the concept disclosed in the Loeffler patent and also resembles those described by Benner and Hurst in their patents prior to the compression step. The tacky web, in most cases, is then rolled into a convolute form, cured, and from the rolled product slices are cut to produce the commercial pads.[11] The process of creating pads from a convoluted roll is also derived from the prior art. In the course of passing the web between the pressure squeeze rolls in the roll-coating and the winding of it into convolute form there is a degree of compression of the web involved.
It thus appears that while all the steps followed by defendant in the creation of the alleged infringing products can be identified with the teachings of the prior art, Claim One of the Hoover Patent is sufficiently broad as to read on such products. This is but another indication that the patent in suit cannot withstand the test of measurement for nonobviousness in light of the prior art.
It is this Court's finding that United States Letters Patent No. 2,958,593 are invalid for lack of invention.
In view of this finding the Court does not consider it necessary to pass upon the foreign licensing defense which has been asserted herein.
This Memorandum is adopted as Findings of Fact and Conclusions of Law, in accordance with Rule 52 of Federal Rules of Civil Procedure.
*695 APPENDIX
*696
Patented Aug. 17, 1943 2,327,199
UNITED STATES PATENT OFFICE
2,327,199
NONMETALLIC FIBROUS ABRASIVE WAD AND METHOD OF PRODUCING SAME
Clarence Robert Loeffler, Newark, N. J., assignor to Downy Products Company, Orange, N. J., a corporation of New Jersey
Application June 9, 1942, Serial No. 446,344
2 Claims. (Cl. 51293)
This invention relates to fibrous abrasive wads treated fibrous mass after baking to set the same
and method of producing the same. against undue deformation.
This invention has for an object to provide a In making up the non-metallic fibrous abrasive
novel non-metallic fibrous abrasive wad and wad according to this invention, an irregular
method of producing the same, whereby the wad 5 mass of non-metallic fibrous material A is provided
possesses high scouring and cleansing efficiency, (see Fig. 1); the fibers of which are entangled;
substantially similar in action and effect to that the bulk of such mass being suitably
obtained by steel wool wads, and thus being especially sized to furnish that quantity of fibers calculated
well adapted for service as a pot and pan to produce an ultimate wad of desired selected
scraper, as well as for general cleansing and polishing 10 size.
operations requiring abrasive action. The fibrous material may suitably comprise
This invention has for another object to provide that derived from various vegetable or animal
a novel method of incorporating a pulverulont sources which provides filaments of substantial
abrasive and binder mix with at least and length and form adapted to readily entangle together
preferably the outlying portions of a body or wad 15 into a more or less loosely matted and
of non-metallic fibrous material, and then shaping compacted mass. For example, fibrous material
the body or wad to a desired symmetrical such as textile waste, sisal waste, jute waste, wool
form, and finally fixing and consolidating the waste or the like, having reasonably long entangled
abrasive-binder mix with the fibrous mass so as filaments, may be utilized. It has been
to substantially assure maintenance of the 20 found that a very satisfactory fibrous material
shaped character of the wad, as well as to render for the intended purpose is afforded by jute
the same reasonably resistant to too rapid disintegration waste. The fibers or filaments of jute waste are
in use, and consequently not only of substantial length and readily entangle into
providing a wad of efficient abrasive characteristics, a mass having a desired degree of stability, and
but also one of reasonably long useful life. 25 yet affording a resultant body which is open
Another object of this invention is to provide enough in texture to admit of reception, to a desired
an abrasive wad of the general character above degree of penetration, of an abrasive binder
referred to, but one wherein the abrasive charged mix for incorporation therewith and therein.
outlying portions of its fibrous mass are cushioned Furthermore, the jute fibers or filaments are
by an internal substantially abrasive free 30 reasonably tough; i. e. possess a degree of tensile
internal fibrous mass or core, so that, when strength which is calculated to sufficiently resist
pressing and running its abrasive charged portions breaking, so that the mass thereof is reasonably
against and over a surface to be scoured, stable against too rapid disintegration after being
cleansed or polished thereby, said latter portions loaded with the abrasive binder mix and finished
will be so cushioned as to make effective but not 35 into the ultimate abrasive wad, and when said
too harsh rubbing contact with said surface. wad is subjected to the use it is designed to serve.
Other objects of this invention, not at this time Having provided a body A of fibrous material
more particularly enumerated, will be understood of suitable size, the next step is to apply thereto,
from the following detailed description of the for incorporation therewith and therein, a pulverulent
same. 40 abrasive binder mix. The abrasive
Certain steps in the method of producing constituent of such mix may suitably comprise
fibrous abrasive wads and the resultant wad any desired form of pulverulent abrasive grain,
structure are schematically shown in the accompanying such e. g. as powdered pumice stone, emery, carborundum,
drawing, in which: rottenstone, silica or the like. The
Fig. 1 is a schematic sectional view of a mass 45 binder constituent of the abrasive-binder mix
of non-metallic fibrous material ready for application may suitably comprise an adhesive substance
of a pulverulent abrasive binder mix adapted to harden and become water insoluble
thereto; Fig. 2 is a schematic sectional view of under heat, but initially being capable of reduction
the mass of non-metallic fibrous material after to solution form by a volatile solvent.
the application of the pulverulent binder mix 50 Preferably solutions of synthetic resins or resinoid
thereto; Fig. 3 is a schematic sectional view of substances, or lacquers containing such resins,
the abrasive binder treated fibrous mass in the resinoids or similar substances, or lacquers of
process of being molded or pressed to the ultimate other composition which harden and become water
shape desired; and Fig. 4 is a schematic insoluble, provide a satisfactory binder
sectional view of the shaped abrasive binder 55 agent. The pulverulent abrasive is thoroughly
*697
mixed into the binder solution so as to be evenly In the preferred form of finished wad (illustratively
disposed therethrough; the relative proportions shown in Fig. 4), the abrasive charged
of abrasive and binder solution being such as to outlying zone B surrounds and is internally
provide good flowability as to the resultant mixture. backed by the elastic cushioning section of core
5 C which is substantially free of abrasive, and
Having prepared the abrasive-binder mix, the consequently the conformability of the wad to
same is applied to the body A of fibrous material. surfaces treated thereby in use is not only further
This is preferably done by spraying the former assured, but also pressure and rubbing contact
onto the latter by means of a spray gun, air brush of abrasive charged zone is substantially
or similar operation; although rolling or dipping 10 equalized and prevented from being unduly harsh.
the exterior surfaces of the body A in the It has been found that the abrasive according
abrasive-binder mix may in some instances be to this invention has much the same abrading
resorted to. The spraying operation is, however, effect in use as has a wad of steel wool, and, in
deemed the more satisfactory method of fact, may even be given the appearance of steel
application, since the forced flow of the sprayed 15 wool, if a grey or steel color pigment is added
mix permits the latter to quickly penetrate the to the abrasive-binder mix applied thereto. The
body A to a substantial depth; the depth of penetration wad produced by the method and embodying the
being subject to control by modifying the structural features according to this invention is
force of the spray or by varying the length of well adapted to cleansing and polishing uses for
time of sprayed application. As a result of the 20 which steel wool has heretofore been utilized, and
operation, the body A of fibrous material is provided is well adapted for household cleaning and scouring
with an external zone B of desirably predetermined operations, especially such as the scouring of
depth comprising its outlying portions, pots, pans and other kitchen utensils.
which is charged with the abrasive-binder Having now described my invention, I claim:
mix, but so as to preferably leave a central elastic 25 1. The method of producing abrasive wads
core C of fibrous material substantially free which comprises roughly shaping a substantially
of abrasive (see Fig.2). non-compacted body of non-metallic fibrous material
After the fibrous body A has received the application formed by entangled filaments of substantial
of abrasive-binder mix, whereby to length, applying to outlying portions of said
form the external abrasive charged zone B, the 30 body a pulverulent abrasive mixed with a liquid
body is racked for partial drying. The period binder to form an abrasive-binder mix adapted
and conditions of this drying is such as to permit to penetrate the surface sections of said body to
some of the solvent in the applied abrasive-binder a substantial depth and coat the fibrous filaments
mix to evaporate, until the applied mix thereof but leaving an interior soft elastic core
attains a tacky and comparatively soft and workable 35 within said body substantially free of abrasive-binder
condition. Such partial drying is preferably mix, said binder being adapted to harden
carried on as an air drying operation at room and become insoluble under heat, partially drying
temperature. the body thus treated to reduce the binder to a
After the described partial drying is completed, tacky condition, then molding said body to an
the body A with its applied abrasive-binder mix 40 ultimately desired shape, and finally baking the
B is ready for compression or molding into the molded body to set and render the binder insoluble
symmetrical shape desired to be given to the finished and thereby affix the abrasive to the fibrous
wad. This, illustratively, may be done by body filaments.
depositing the body in the cavity of a mold or 2. An abrasive wad comprising a body of a non-metallic
press 10 provided with a compression plunger 11, 45 fibrous material formed by entangled
whereby to compact and shape the body (see Fig. filaments of substantial length, outlying portions
3). The mold may be cold or moderately heated, only of said body being penetrated to a substantial
but preferably the former. depth by a quantity of pulverulent abrasive
After the body A with its applied abrasive-binder mixed with a binder adapted to coat the fibrous
mix has been thus shaped, the same is 50 filaments of said outlying portions while leaving
finally submitted to a baking operation at an an interior portion of the body substantially free
oven temperature sufficiently high to drive off of the abrasive-binder mixture whereby to form
any remaining solvent of the abrasive-binder a central elastic core portion which backs said
mix, and thereupon set and render insoluble the outlying abrasive charged portions of the body,
binder constituent. The thus hardened and insoluble 55 said body being molded to shape, and said binder
binder strongly adheres the abrasive grain being hardened and rendered insoluble by heat
to filaments of fibrous material, and yet leaves whereby to affix the abrasive to outlying body
the mass of abrasive coated filaments in the outlying filaments, the thus coated filaments forming an
zone B of the body mass still of somewhat external abrasive mass of substantially open texture
open or porous texture, and such zone sufficiently 60 surrounding said central elastic core portion.
resilient to substantially conform its exterior face
to a surface to which the wad is applied and over CLARENCE ROBERT LOEFFLER.
which it is rubbed for scouring effect in use.
On Motion for New Trial
Plaintiff has moved for a new trial herein and also moved that the Court amend its findings and judgment in certain respects. Plaintiff further seeks to reopen the action to take additional testimony concerning the making of certain sample products by its witness, Robert A. LePage.
The entire motion is predicated on the proposition that the Court was led into error by a misinterpretation of the *698 testimony of Mr. LePage as it related to his production of the sample products.
This Court found that in making his samples Mr. LePage omitted an intermediate step recited in the Loeffler patent.
Plaintiff now urges that such finding was erroneous, and in support of that argument has submitted an affidavit by Mr. LePage in which he states that his method of production did in fact include such intermediate step.
The Court has reviewed the trial testimony of Mr. LePage on this subject and finds that when he was asked to detail his procedures he did not include the intermediate step.
The Court does not believe, however, that the judgment herein would be affected by a resolution of this issue. The Court's conclusion that the patent in suit is invalid was not controlled by, or motivated by, the matter of the LePage samples. That aspect of the case was simply one of the many matters which the Court took into consideration.
Assuming for the purpose of the motion the plaintiff's assertion that Mr. LePage did in fact follow Loeffler, there would remain a conflict between the testimony of Mr. LePage and that of defendants' witness, Mr. Carl Rowe. Each made a product allegedly according to the teachings of the Loeffler patent. The Rowe product corresponded to that of the patent in suit, whereas the LePage product did not. Some of the Rowe products had as the base material nylon waste, a preferred ingredient according to the patent in suit, whereas the LePage product utilized jute waste, a base product which the Hoover inventors stated would be unsatisfactory for the use to which the patent was directed.
It is this Court's conclusion that even if the record generated by plaintiff at the trial on this question was misleading, a change on this point would not alter the Court's overall determination.
Plaintiff's motion denied in all its particulars.
NOTES
[1] Defendant Norton, manufacturer of the accused products, is the primary defendant herein. Defendants Studebaker-Packard Corporation and Hadco Corporation are vendors of such products. For the purposes of this opinion the singular term "defendant" will be used and is intended to refer to defendant Norton only.
[2] Claim 7, which had been rejected as nonstatutory, was cancelled in a separate communication with the Patent Office.
[3] Mr. Dupre testified that this first attempt "didn't work too well," and that the product "was sort of `kunky' looking."
[4] The terms "before the Patent Office" and "not before the Patent Office" are used by reason of the fact that there is a considerable controversy as to the actual consideration by the Patent Office of certain prior art references cited in the Hoover patent applications and specifications.
[5] There is, however, no evidence that any of the three alleged inventors were aware of the Maisel disclosures.
[6] This simple paragraph from the Hurst '738 specifications very nearly describes the manner in which defendant manufactures the accused products.
[7] It should be noted that the responsibility for this alleged misrepresentation is not attributed to the inventors, but rather to those persons in plaintiff's patent department who drew up the application.
[8] That statement was not carried over into the later applications.
[9] The same advertising material is the sole reference cited by plaintiff in support of the proposition that prior to Hoover the teaching in the abrasives art bent its efforts toward increasing the aggressiveness of its products.
[10] For the purposes of this discussion the Court does not deem it necessary to designate which of the defendants' products would fall within the scope of Claim 1.
[11] A limited amount of the defendant's product is produced in non-convolute sheet form. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607762/ | 366 So. 2d 1221 (1979)
Nina DIAMOND, Adele Diamond and William Diamond, Appellants,
v.
E.R. SQUIBB AND SONS, INC., Appellee.
No. 78-980.
District Court of Appeal of Florida, Third District.
January 30, 1979.
Rehearing Denied February 19, 1979.
*1222 Weinstein & Krasnow, Miami Beach, for appellants.
Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
Before HAVERFIELD, C.J., and HUBBART and KEHOE, JJ.
PER CURIAM.
Plaintiffs Nina Diamond and her parents, Adele and William Diamond, appeal a summary final judgment for the defendant drug manufacturer based upon the determination that their action for product liability is barred by the applicable statute of limitations.
Defendant, E.R. Squibb and Sons, Inc., manufactured a drug for pregnant women called "Stilbetin", more commonly referred to as DES (diethylstilbestrol). During the period of her pregnancy with Nina from July 1955-April 1956, Adele was prescribed and ingested Stilbetin. Subsequently in May 1976 the Diamonds learned that Stilbetin was a cancer producing agent and females whose mothers had ingested the drug were developing cancerous or precancerous vaginal contamination as a result. Thereupon, the Diamonds in April 1977 filed the instant complaint for damages against Squibb on the grounds of negligence and strict liability. They alleged that (1) Squibb knew or should have known[1] that Stilbetin was a defective and a cancer producing agent prior to the administration of the drug to Adele Diamond and (2) Nina has developed or will develop cancerous lesions. Squibb moved for summary judgment on the ground that this action was commenced well in excess of 12 years after the last date of delivery of the drug (i.e. April 1956) and, therefore, was barred by the applicable statute of limitations, Section 95.031(2), Florida Statutes (1977).[2] After a hearing, summary judgment was entered for Squibb and the Diamonds appeal.
Section 95.031(2), Florida Statutes (1977) clearly requires that product liability actions as in the instant case be brought within 12 years after the date of delivery of the completed product to the original purchaser regardless of when the defect in the product should have been discovered. The present action being filed well after this 12-year period, the trial court correctly entered summary judgment for Squibb. See *1223 Bauld v. J.A. Jones Const. Co., 357 So. 2d 401 (Fla. 1978).
Affirmed.
NOTES
[1] by proper testing.
[2] "§ 95.031
LIMITATIONS
* * * * * *
"(2) Actions for products liability and fraud under subsection (3) of § 95.11 must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection (3) of § 95.11, but in any event within twelve (12) years after the date of delivery of the completed product to its original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered." [Emphasis Supplied] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607776/ | 366 So. 2d 385 (1978)
STATE of Florida, Appellant,
v.
George M. ROU, Jr., Appellee.
No. 50301.
Supreme Court of Florida.
November 9, 1978.
Rehearing Denied February 13, 1979.
Robert L. Shevin, Atty. Gen., Gary L. Conover and Joe Belitzky, Asst. Attys. Gen., Tallahassee and Stephen L. Boyles, State's Atty., Palatka, for appellant.
Ben Daniel, Jr., Ocala, for appellee.
BOYD, Justice.
An information was filed in the County Court of Marion County charging Marion County Commissioner George M. Rou, Jr. with a criminal violation of Section 112.313(3), Florida Statutes (1973). It was alleged that Rou used his official position to secure a "special privilege" for Cedric M. Smith, Jr. by locating a public road adjacent to Smith's property, contrary to the established Marion County road program, and thereby enhancing the value of Smith's property. The trial judge dismissed the information and held the statute unconstitutionally vague.
By direct appeal we are asked to review the order of the Court.[1] Section 112.313(3), Florida Statutes (1973), provided:
"No officer or employee of a state agency, or of a county ... shall use, or attempt to use, his official position to secure special privileges or exemptions for himself or others, except as may be otherwise provided by law."
We agree with the court below. The statute is unconstitutionally vague and leaves its enforcement to the whims of prosecutors. It does not "conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." State v. Lindsay, 284 So. 2d 377, 379 (Fla. 1973). The terms "special privileges or exemptions" afford one no guidelines, no "ascertainable standard of guilt," Locklin v. Pridgeon, 158 Fla. 737, 30 So. 2d 102 (1947), no barometer by which a public official may measure his specific conduct.
In this instance, a penalty is sought to be imposed against the accused County Commissioner by virtue of his having placed a *386 public road contiguous to certain private property resulting in improvement to the owner of said property. It is a customary duty of County Commissioners to make determinations relating to construction of new roads and improvement of old ones. In making such determinations certain private owners are benefited instead of others. To say that such decisions are criminal in nature is incredible and justifies the conclusion of many highly qualified citizens to refuse to serve in public office.
It is argued that the prosecution must prove beyond a reasonable doubt that the officeholder acted with a specific intent of benefiting himself or another in derogation or disregard of the general public welfare. But this is an after-the-fact determination. An adjudication of not guilty may clear the name of the official charged with the ethical violation, but it cannot undo the harm inflicted upon him and his career by such a charge. The public official must be able to gauge his actions against a specific code of conduct, not a loosely worded statement of public policy, no matter how desirable the goal. Clearly such standards can be defined and should be embraced in the body of the law.
But to impose punishment under this statute violates the very fundamental precepts of due process. The order of the trial court is affirmed.
It is so ordered.
ADKINS, OVERTON and HATCHETT, JJ., concur.
ENGLAND, C.J., dissents with an opinion, with which SUNDBERG and ALDERMAN, JJ., concur.
ENGLAND, Chief Justice, dissenting.
Both parties agree on the standard for determining whether the statute is unconstitutionally vague; that is, whether its language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. See Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). They disagree as to the application of that standard to the phrase "special privilege." The state contends that a "special privilege" is commonly understood to be a benefit or advantage given to one person which is not made available to other citizens. Rou contends that the phrase, if so understood, would encompass virtually all decisions made by an elected public official where more than one choice is available, so that the statute inadequately identifies the class of benefits which are proscribed as opposed to those which are permitted.
As will be seen, Rou's contention suggests that Section 112.313(3) may be ill-suited to achieve the legislative goal. It does not, however, demonstrate that the legislative proscription has made the statute impermissibly vague. The term "special privilege," as used in the context of the state's code of conduct for public officers,[1] has a meaning which is readily apparent to a person of common understanding. Viewed in their plain and ordinary sense[2] the words of the statute "give reasonable notice that a person's conduct is restricted by the statute."[3] The words themselves are simple enough and contain no inherent complexities or ambiguities.[4]Webster's Dictionary defines "special privilege" as a "privilege granted ... to an individual or group to the exclusion of others and in derogation of common right."[5] Black's Law Dictionary *387 explains that a "privilege" is a "particular and peculiar benefit or advantage enjoyed by a person ... beyond the common advantages of other citizens."[6] No mystery, then, surrounds the vocabulary used by the legislature. In fact, the United States Supreme Court offered essentially the same sense to this precise term as long ago as 1913 in Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 115, 33 S. Ct. 967, 57 L. Ed. 1410 (1913), where it quoted with approval the definition of the Supreme Court of Nebraska in City of Plattsmouth v. Nebraska Telephone Co., 80 Neb. 460, 464, 114 N.W. 588, 590 (1908):
"[A] privilege granted to, or vested in, a person or class of persons, to the exclusion of others and in derogation of common right... ."
I would hold that this subsection of the state's ethics code is not vague, and that the statute proscribes the use of governmental office to bestow benefits in furtherance of a private goal and without regard to the public welfare, or despite it.
Since conduct proscribed under the 1973 statute would result in a criminal prosecution (a violation would be a misdemeanor[7]) and necessarily implicate the officeholder's state of mind, the prosecution must prove beyond a reasonable doubt that the officeholder acted with a specific intent of benefiting himself or another in derogation or disregard of the general public welfare. It would not be sufficient for the state to prove that a single person was aided or bettered, for public officeholders may and should advance the common weal through acts favoring individuals (such as those who are oppressed or underrepresented). These favored acts occur not only in judicial and quasi-judicial proceedings, where individual claims always compete for governmental approval, but also in legislative and quasi-legislative settings,[8] such as Rou's. It is for that reason that acts performed in good faith toward a general public goal are not proscribed by this statute any more than perversions of governmental power through incompetence. Intent is imperative to demonstrate criminal conduct.[9]
SUNDBERG and ALDERMAN, JJ., concur.
NOTES
[1] We have jurisdiction under Art. V, § 3(b)(1), Fla. Const.
[1] Ch. 112, Part III, Fla. Stat. (1973). As to the basis for more recent provisions of the code, see Article III, Section 18, Florida Constitution, and Goldtrap v. Askew, 334 So. 2d 20 (Fla. 1976).
[2] American Bankers Life Assurance Co. v. Williams, 212 So. 2d 777 (Fla. 1st DCA 1968). Contrast State v. Wershow, 343 So. 2d 605 (Fla. 1977), in which no common meaning could be found to sustain the term "malpractice in office."
[3] State v. Lindsay, 284 So. 2d 377, 379 (Fla. 1973).
[4] Contrast State v. Llopis, 257 So. 2d 17 (Fla. 1971).
[5] Webster's Third New International Dictionary 2186 (1968).
[6] Black's Law Dictionary 1359 (4th ed. 1968).
[7] § 112.317, Fla. Stat. (1973).
[8] Legislators, for example, quite properly introduce bills of all types to secure privileges or exemptions for others.
[9] Contrast the need for external references to fix standards of impropriety, rather than individual intent, which doomed Section 112.313(1), Florida Statutes (1973). D'Alemberte v. Anderson, 349 So. 2d 164 (Fla. 1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607646/ | 366 So.2d 768 (1978)
Raymond H. HODGES, As Personal Representative of the Estate of Charles Albert Giramaire, Deceased, Appellant,
v.
Rachael B. SURRATT, Samuel Walter Surratt, Jr., and Flagship Bank of Zephyrhills, Appellees.
No. 77-1745.
District Court of Appeal of Florida, Second District.
December 13, 1978.
Rehearing Denied January 26, 1979.
*769 Jerry A. DeVane of DeVane & Allen, Lakeland, for appellant.
H. Clyde Hobby of McClain & Hobby, Dade City, for appellees Surratts.
Tom Ross of Sumner, Tyner, Williams, McKnight & Ross, Dade City, for appellee Flagship Bank of Zephyrhills.
OTT, Judge.
The personal representative of the Estate of Charles A. Giramaire brought an action against Mr. and Mrs. Surratt jointly for fraud, undue influence, conversion and imposition of a constructive trust. The action was brought against Mrs. Surratt individually for breach of fiduciary duty and to void or set aside the various transfers of real and personal property that resulted therefrom. In due course, the case came on for trial by jury. At the conclusion of the plaintiff's case, the lower court granted Mr. Surratt's motion for directed verdict and ultimately entered a final judgment in his behalf. The case against Mrs. Surratt was submitted to the jury and resulted in the return of the following special verdict:
(1) Do you find from the greater weight of the evidence that the Defendant, Rachael B. Surratt, exerted undue influence on [Giramaire] in order to obtain the signature of [Giramaire] on the Bank Account Signature Card? Yes.
(2) Do you find from the greater weight of the evidence that the only purpose for which [Giramaire] signed the Bank Account Signature Card was to permit the Defendant, [Mrs. Surratt] to pay the bills of [Giramaire]? Yes.
(3) If you have answered yes to either (1) or (2) above, do you find from the greater weight of the evidence that any of such acts of [Mrs. Surratt] caused any damage to the plaintiff? Yes.
The jury also awarded $25,000 damages against Mrs. Surratt.
*770 The lower court ultimately entered judgment for Mrs. Surratt notwithstanding the above verdict.
We reverse and set aside the judgment of the lower court in favor of Mr. Surratt and Mrs. Surratt. We reinstate the jury verdict against Mrs. Surratt. In addition, we reverse the directed verdict entered in favor of Mr. Surratt. We find no error in the summary judgment entered before trial in favor of Flagship Bank of Zephyrhills.
The facts of the case are as follows. Mr. and Mrs. Surratt, appellees, were neighbors of Mr. Giramaire. According to their testimony, Mr. Giramaire executed a will in 1971 that was prepared by Mrs. Surratt and executed on May 31, 1971 at a time when Giramaire's wife was still alive. A copy of this will was received into evidence. Paragraph 6 of the 1971 will provided:
In the event my wife, Vivian Gertrude Giramaire, [predeceases] me, then I hereby give, devise and bequeath to Rachael Britts Surratt and Samuel Walter Surratt, Jr. all my estate, whether real, personal or mixed, wheresoever located, of which I may die seized or possessed ...
Rachael Surratt was appointed as executrix of this 1971 will in the event Mrs. Giramaire was unable to serve for any reason. After Mrs. Giramaire's death, Mr. Giramaire consulted an attorney (appellant/Hodges) and a new will was prepared and executed on May 19, 1972. The 1972 will expressly revoked all prior wills. Mr. and Mrs. Surratt were not mentioned in this will and had no knowledge thereof until after Mr. Giramaire was hospitalized. Under the 1972 will the residue of the estate was left to the Bank of Pasco County, in trust, for the sight conservation work and other assistance to the blind by the Lions Club of Zephyrhills, Florida. In the 1972 will Hodges was appointed to be executor with a bank trust department named to be executor if Hodges could not serve.
Giramaire became ill and was taken to the hospital by another neighbor Mr. Sbraccia on November 19, 1975. At Mr. Giramaire's instance Mr. Sbraccia evaded the inquiry of the Surratts that evening as to the whereabouts of Mr. Giramaire. Upon learning that the Surratts had entered Mr. Giramaire's home Mr. Sbraccia decided to tell them of his hospitalization and did not want to be further involved. Once the Surratts learned of Giramaire's hospitalization they began to visit him with great frequency. Mr. Surratt testified that he was "there every day" and stated that his wife was at the hospital practically all of the time even more than he was.
On the day Mr. Sbraccia took Giramaire to the hospital he was given various personal effects, i.e., some papers, a billfold, checkbook and keys to the house and car. Giramaire requested that Sbraccia deliver all these items to his attorney, appellant/Hodges. Later, Sbraccia sought to return the items to Giramaire and extricate himself from further involvement due to his long-standing acquaintance with the Surratts. Mr. Giramaire tearfully prevailed on Mr. Sbraccia to deliver everything to his attorney, Mr. Hodges.
On the Saturday following Giramaire's hospitalization Mrs. Surratt called Hodges. Hodges was not at home. He eventually returned her call that evening. According to Hodges "[s]he told me that Mr. Giramaire was first of all she wanted to know if I had made a will for him told me he was in the hospital and not expected to live." Hodges promised to go to his office the next day (Sunday) and check on it. He did so, but could not find the will. He called Mrs. Surratt to tell her this. On Monday he found a copy of the will. He called Mrs. Surratt and told her that he had found a copy.
Mrs. Surratt's testimony on this point was at the very best forgetful. The following colloquy occurred:
Q. Did you also tell Mr. Hodges at this point that you understood he had prepared a will for [Giramaire]?
A. I told him I understood that he [Giramaire] had been to him to seek advice. I don't remember what I said about a will or what.
Counsel then referred to Mrs. Surratt's prior deposition testimony as follows:
*771 Q. On page 11, line 23 [of the deposition] do you remember the following question and your answer
Q. And did you further tell him that Mr. Hodges had prepared a will for Mr. Giramaire.
A. I said I understood he had.
A. I probably did say that.
Sbraccia testified that Giramaire had asked him to go into his house and clean out the refrigerator. When Sbraccia did so, he found the refrigerator to have been already cleaned out. Mrs. Surratt testified that it was she who went into Giramaire's house and cleaned out his refrigerator. Although Mrs. Surratt testified that she did not find a copy of the 1972 will in Giramaire's house until after Giramaire's death, the record points strongly to a contrary conclusion. In further cross-examination of Mrs. Surratt, counsel once again made reference to her deposition:
Q. On page 13, line 21 do you recall the following question and answer
Q. And in this conversation ... with Mr. Raymond Hodges at the time Mr. Giramaire was hospitalized, did you also tell Mr. Hodges that you believed he had prepared the will because you had a copy?
and your answer
A. Correct. [Emphasis supplied.]
Mr. Surratt's testimony on this point is also informative:
Q. [Y]ou say that this [the 1972 will] was found by Mrs. Surratt in the house, is that correct?
A. Yes, sir.
Q. And at what time was this?
A. I couldn't tell you the time.
Q. Was it during the period of time that Mr. Giramaire was in the hospital?
A. I presume it was but I couldn't tell you the time.
Mrs. Surratt testified that she could not remember whether or not she read the 1972 will when she found it. She testified that "I could not say whether ... I read it or not." She also testified that "I couldn't swear that I did or didn't [read it]." In addition, Mr. Surratt stated that he "seen [sic] it ... looked at it but ... haven't ever read it."
The Surratts claimed an oral agreement was made with Giramaire on November 28, 1975 by which they were to receive all of his property in return for looking after him for the remainder of his life.
On the next day November 29 Giramaire signed two documents. The first document was a power of attorney. This document was totally handwritten on one lined sheet of stenographic pad paper and read as follows:
I hereby appoint Rachael B. Surratt with my power of attorney to act [with] full power [and] authority.
This document was notarized and the notary acknowledgment was typed. However, it is quite clear from the record that the document was notarized out of Giramaire's presence. Moreover, the nurse who witnessed the execution of the document specifically testified that the notary was not present for the execution of the document.
The second document executed on November 29 was a bank signature card. This was an authorization by the depositor for adding Mrs. Surratt as an additional authorized signatory to the account.
Both of these documents were witnessed by Dr. Brownlee and Nurse Parsons. Their testimony was quite clear that the power of attorney and bank signature card were executed at the same time and were given or signed only for the purpose of allowing Mrs. Surratt to pay current bills and handle the affairs of Giramaire while he was in the hospital not for the purpose of turning over all assets to the Surratts. As stated by Nurse Parsons:
Q. How did you come about to sign the power of attorney?
A... . Mrs. Surratt asked . . if we would just witness her signature so she could pay his current bills while he was in the hospital and he wouldn't have to worry about his lights and water and *772 so forth [being] shut off. [Emphasis supplied.]
Nurse Parsons also stated that:
Mrs. Surratt wanted to take care of his current affairs to relieve him of the responsibility and the worry while he was in the hospital.
On December 2, Mrs. Surratt utilized the power of attorney to convey to Mr. Surratt all of Giramaire's real and personal property the only exception being the bank account for which she had secured the bank signature card. This account she appropriated to herself. The conveyances to her husband were by a warranty deed (the consideration was marked as "gift") and a certificate of transfer of ownership, all of which were drawn and executed by Mrs. Surratt "with Power of Attorney for Charles A. Giramaire."
On December 1, Mrs. Surratt attempted to use the power of attorney to gain entry into Giramaire's safe deposit box. The bank denied entry into the safe deposit box based only on the power of attorney. On December 5, Mrs. Surratt gained entry into the safe deposit box by presenting an "appointment of co-owner" form. This form did not bear the normal signature of Giramaire but was executed by him with an "X". The only witness to this execution was Mr. Surratt.
On December 9, Giramaire died. He left no living relatives.
The jury found that Mrs. Surratt exerted undue influence on Giramaire in order to obtain his signature on the bank account signature card and that the only purpose of the execution of both documents was for Mrs. Surratt to pay his current bills.
In its judgment non obstante veredicto the lower court found that "there was no evidence adduced at trial that is legally sufficient to support a verdict for the Plaintiff." In any case such as this the jury has the right to ignore the uncorroborated testimony of the surviving interested parties. The record is completely devoid outside the testimony of the Surratts of any evidence, oral or written, to support the Surratt claim. To the contrary, all of the remaining evidence strongly supports the jury verdict.
The movant for judgment notwithstanding the verdict "admits all material facts as attested by his adversary" and "all inferences of fact favorable to the adversary that reasonably might be drawn from the evidence as a whole." Deese v. Whitebelt Dairy Farms, Inc., 160 So.2d 543, 545 (Fla.2d DCA 1964).
The granting of judgment notwithstanding the verdict indicates that one side of the case is essentially devoid of probative evidence. Deese, supra. In the instant case, there exist ample inferences of fact and probative evidence to support the jury verdict.
The record as a whole casts serious doubt on the propriety of Mrs. Surratt's actions during Giramaire's last days. It is clear that the jury could well conclude as it did that she violated her fiduciary duty as his attorney in fact. As hereafter pointed out we question whether the oral testimony of the Surratts, standing alone, is sufficient as a matter of law to supply the power to give away the assets of the decedent Giramaire under the general power of attorney. In addition, Mrs. Surratt's testimony was placed in substantial doubt in at least two instances: (1) with reference to whether she had a copy of the will when she called Hodges; and (2) with reference to whether she mentioned the will to Hodges in her telephone call to him. Moreover, her testimony that she did not find the will until after Giramaire's death was hardly credible in the light of her actions and her husband's testimony. Finally, it is difficult to accept her testimony that she did not remember whether or not she had read the 1972 will upon finding it. It hardly seems likely that a beneficiary of a 1971 will who during the declining days of the testator finds a 1972 will would not read it immediately or at least clearly recall that she refrained from doing so. The point is: Why would Mrs. Surratt call Hodges and ask about a will unless she had found the 1972 will; had she not found it, she would have assumed *773 that the 1971 will was still in effect and she and her husband were home free.
Another of the dubious activities engaged in by the Surratts concerns Giramaire's Airstream Trailer. Mrs. Surratt submitted the title to the Division of Motor Vehicles on December 19, 1975 10 days after Giramaire's death for transfer to Mr. Surratt. She maintained that Giramaire gave it as a gift to her husband in 1971 some four years before. An incongruity exists in that the trailer remained on rented land (upon which Giramaire paid rent) from 1971 thru the time of Giramaire's death. Moreover, after Giramaire's death Mrs. Surratt wrote to the owner of the land upon which the trailer rested and told him that the Surratts had purchased the trailer. When questioned about this at trial, Mrs. Surratt maintained that this was simpler than stating that the trailer had been a gift.
Another aspect of the record supporting the jury verdict is found in the testimony of Dr. Brownlee and Nurse Parsons with reference to the purpose involved in the execution of the power of attorney and the bank account signature card. Their testimony is clear that the purpose of the execution of the documents was for the sole purpose of allowing Mrs. Surratt to pay Giramaire's bills for the short run not to turn over all Giramaire's assets to the Surratts.
It is very difficult to believe that Giramaire intended for the Surratts to get all his property. He expressly excluded them from his 1972 will. In addition, his instructions and cautions to Sbraccia suggest his strong desire that Hodges (not the Surratts) be contacted with regard to his illness and be placed in possession of his home, car, checkbook and personal papers. Thus, the record is devoid of any evidence that Giramaire's clear donative intent was to give the Surratts all his property except from the testimony of the Surratts themselves. The jury certainly was free to disregard or seriously discount their testimony as it seems clear they did.
Mr. and Mrs. Surratt strongly argue that they separately and individually entered into agreements with Giramaire. However, this contention is belied by Mrs. Surratt's own testimony. She stated:
Q. Did were you, in fact, to receive any benefits under [the November 29th agreement]?
A. Yes, sir, his checking account.
Q. And is it true that both you and your husband . .. had joint obligations under that agreement?
A. Yes, sir. [Emphasis supplied.]
It would exalt form over substance to separate Mr. and Mrs. Surratt in this affair. Not only is there Mrs. Surratt's above admission, but there are other indications in the record that they were acting in concert to systematically strip Giramaire of his assets. Obviously, Mrs. Surratt's use of the power of attorney to convey almost all of Giramaire's property to her husband indicates a jointness of action and purpose.
Aside from the evidentiary support for the jury's verdict as discussed above we think the power of attorney is fatally defective.
The term "power of attorney" has taken on a distinctive meaning in legal parlance and refers to an instrument authorizing another to act as one's agent or attorney in fact (as distinguished from an attorney at law). Estate of Rolater, 542 P.2d 219, 223 (Okl.App. 1975) citing Black's Law Dictionary 1334 (Rev.4th Ed. 1968).
The Fourth District Court of Appeal in Johnson v. Fraccacreta, 348 So.2d 570 (Fla.4th DCA 1977) faced the question of whether a general power of attorney can authorize an agent to make a gift of the principal's property. Our sister court stated that it had found no Florida case law directly on point. The court quoted the general rule announced in other jurisdictions:
"`A general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without *774 a present consideration inuring to the principal.'"
348 So.2d at 572 citing 73 A.L.R. 884 (1931).
In Fraccacreta the facts were as follows. Carmella Fraccacreta executed a power of attorney appointing her daughter, Delores, as her attorney in fact. Delores then conveyed real property owned by Carmella to Carmella and her husband Paolo as tenants by the entirety. The court held that this was a "gift to Paolo of a portion of Carmella's property by virtue of the creation of an estate by entireties with the right of survivorship." 348 So.2d at 572. The court held:
The court must look to the language of the instrument, as with any other contract, in order to ascertain its object and purpose. The language of the agreement must be construed in such a manner so as to carry out the intent of the principal. We find no language in the subject power of attorney which expressly or impliedly indicates an intention to authorize a gift of the principal's property. An agent has no power to make a gift of his principal's property unless that power is expressly conferred upon the agent by the instrument or unless such power arises as a necessary implication from the powers which are expressly conferred. Nor are we presented with any competent substantial evidence of those circumstances surrounding the execution of the power of attorney that might be utilized as an aid in the construction of the language contained in the instrument. [Emphasis supplied.]
348 So.2d at 572.
In Rolater the court stated the same principle in the following language:
In exercising granted powers, the attorney is bound to act for the benefit of his principal avoiding where possible that which is detrimental unless expressly authorized.
542 P.2d at 223. The facts were as follows. Jennie Rolater then about 95 years old executed a general power of attorney in favor of her nephew. The nephew conveyed bank stock to her brother (the nephew's father). The court held that there was no evidence that Jennie Rolater ever intended to give any of the bank stock to anyone except testamentarily. The court noted that there was a strong suggestion that she did not intend to give any of the bank stock to her brother.
In the landmark case of Brown v. Laird, 134 Or. 150, 291 P. 352, 353 (1930) the facts were as follows. At a time when Mr. Mitchell was very ill and, in the words of the court, "practically non compos mentis", his wife became his attorney in fact. In the words of the court "it required but little effort for Mrs. Mitchell to control the transaction involved in regard to the power of attorney ..." Mrs. Mitchell then executed a deed to her daughter (by a prior marriage) as a gift. This had the effect of disinheriting Mr. Mitchell's natural daughter, who was a beneficiary under the will. The court held that donative intent was lacking. The court stated that a power of attorney to sell was not the same as a power to make a gift. This wrongful use of the power of attorney constituted in the words of the court a "legal fraud." This decision goes on to hold that where an agent exceeds his authority under such a power of attorney even a bona fide purchaser is not protected.
It is unnecessary for us to decide whether we would go so far as the Oregon court as Mr. Surratt is clearly not a bona fide purchaser for value and in good faith. We simply hold that under the circumstances of this case Mrs. Surratt's transfers of property as gifts to her husband and the appropriation to her own use of the funds in the checking account were in violation of her fiduciary capacity in the absence of clear language to that effect in the document itself.
This court does not know why the special verdict forms propounded below omitted reference to the power of attorney. In any event, we hold that Mrs. Surratt as agent for the deceased exceeded her authority in conveying the majority of his property to her husband. The purported transfers of assets to Mr. Surratt under the power of attorney are void and are set aside for the reasons set forth above.
*775 The jury verdict against Mrs. Surratt is reinstated and the trial court is directed to enter judgment against Mrs. Surratt in accord therewith.
The directed verdict and judgment for Mr. Surratt are set aside and the case remanded for further proceedings as to Mr. Surratt, consistent herewith.
We affirm the summary judgment for Flagship Bank of Zephyrhills.
BOARDMAN, Acting C.J., and RYDER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607721/ | 366 So.2d 445 (1978)
Charles E. HOLTER, Appellant,
v.
WLCY T.V., INC., a Florida Corporation, Mike Halloran, an Individual, and Fireman's Fund Insurance Company, a California Corporation, Appellees.
No. 76-1490.
District Court of Appeal of Florida, Second District.
December 1, 1978.
Rehearing Denied January 2, 1979.
Philip W. Dann of Baird, Robinson & Dann, St. Petersburg, for appellant.
Chester L. Skipper of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellees.
OTT, Judge.
The plaintiff brought a libel action. The lower court denied defendants' motion for summary judgment. In due course the case came on for trial by jury. At the close of the plaintiff's case the lower court entered a directed verdict for defendants. We reverse on the ground that the question of actual malice was one for the jury.
In considering the correctness of an order granting a motion for directed verdict the losing party is entitled to every reasonable inference that may be drawn from the evidence. The evidence must be viewed in the light most favorable to the losing party, the usual standard for viewing evidence where a directed verdict is involved. Guam Federation of Teachers, Local 1581, AFT v. Ysrael, 492 F.2d 438, 441 (9th Cir.1974). The Ysrael court pointed out:
The standard against which the evidence must be examined is that of New York Times and its progeny. But the manner in which the evidence is to be examined ... is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury, and it is error to grant a directed verdict, as the trial judge did in this case. [Emphasis in original.] Id.
We, therefore, next turn to the record for the evidence before the lower court. The evidence is best evaluated if laid out separately as to what occurred on each of two successive days.
*446 THE EVENTS OF NOVEMBER 8, 1973
On November 8, 1973 the following story was prepared by Mike Halloran a reporter-photographer for WLCY T.V. The story was included on the 5:30 p.m. broadcast:
A very hush hush undercover probe by the State Attorney General's office[1] into the current operation of local government in Reddington [sic] Beach and it's [sic] sister community Reddington [sic] Shore's [sic] has uncovered possible serious irregularities with officials who are running those government's [sic]. According to reliable sources who refused to be identified the mayor of Reddington [sic] Beach, Charles E. Holter, who's been in office five years, has reportedly resigned effective January first of 1974 under strong suspecision [sic] that he's been implicated in embasselment [sic] and extortion of monies from private contractor's [sic] who wanted to build in the area ... but this has not been confirmed ... I've also been told that one of the three commissioner's [sic] in Reddington [sic] Beach will also step down pending the outcome of the corruption probe. People who live in Reddington [sic] also disclosed to me that a full team of undercover men are looking in to [sic] the practice's [sic] of all local government's [sic] within the beach communities here in Pinellas County because of those extreme irregularities... .
At about 3:00 p.m. on November 8, Mike Halloran received a phone call. The caller refused to identify himself. The caller stated that he was a resident of "one of the beach communities" (in Pinellas County) and suggested that an ongoing investigation was underway in "the beach communities." The caller then hung up. Halloran thought it was a crank call and that the caller didn't seem very reliable. He testified that he "didn't take it very seriously."
At about 4:15 p.m. Halloran received another anonymous phone call. Halloran testified that this "older, very stable voice led me to believe that he was somebody in government." He testified that the "voice even sounded like it possibly might be a county commissioner." When asked at trial whether he had one particular county commissioner in mind, Halloran declined to state which county commissioner it might have been. He said that it might have been one of two county commissioners. He declined to give any names. He also testified that he did not ask the anonymous caller if he were a county commissioner. Halloran related the essence of the call:
[This] person called me and said, "I have some news to relate to you concerning beach communities" that [an investigation] was taking place. I asked the person to disclose who he was. [The] person said, "I cannot disclose who I am because I am involved in the investigation." I asked him, "Well, what is the nature of this investigation?" Source said that, "Auditor General's investigation currently going on here in the beach communities of Redington Shores and Redington Beach." And he said that, "Some people will have to leave office because of the probe into their activities," and he related that Mayor Holter, along with another commissioner, would step down, would resign from their office.
Halloran received a third anonymous phone call at about 5:00 o'clock that afternoon. He stated that the gist of the 5:00 o'clock call was about the same as that of the 3:00 o'clock call, i.e., to the general effect that investigators were about in the beach towns. Caller number three simply said that she was a resident of the beach communities and declined to give her name.
The testimony of Halloran as to the order of events from the time he received the 4:15 anonymous phone call up to the time of the 5:30 news broadcast is at best vague and imprecise. Quite obviously, Halloran himself concluded that the story should be verified.
With reference to the verification, he indicated there were three telephone calls made: two by himself and one by a secretary in the news room. Halloran said that *447 he called both the local State Attorney's office and the Auditor General's office in Tallahassee. In each instance, according to Halloran, there was no one in a responsible position present and thus he was unable to confirm anything not even whether an investigation was going on in the beach communities. According to Halloran, the secretary's call was to the Redington Beach Town Hall and she talked to a "clerk or somebody".[2] According to Mayor Holter, the secretary's call was received by a clerk and switched to him personally. The secretary asked Mayor Holter the correct spelling of his name, his marital status, how long he had served in office and whether he was resigning. Holter testified that the secretary gave no explanation as to why she was making her inquiry. This did not disturb him at the time since he had previously received information requests of this nature from newspapers and others. He accordingly answered her questions and included the fact that he had announced to the Redington Beach commission his intention to resign at the end of the current year. After these attempts at verification Halloran typed up the story and made a sound-on-film recordation for the 5:30 p.m. news telecast.
With reference to Halloran's doubts, we would point out that he characterized the 4:15 p.m. source and the information as "fairly reliable." He testified that he didn't think the contents of his report were false at least prior to the 5:30 broadcast.
Prior to the 5:30 broadcast Halloran discussed the story with his two immediate superiors Keller and Cleaver. Keller pointed out that the anonymous source could be a problem because they were so entirely dependent on this one source.[3] Keller told Halloran that "very much depended upon the reliability of the source." Keller testified that he was concerned about the reliability of the informant, but that Halloran assured him that he knew the person and that he felt that the information was reliable. Halloran stated that he and Keller justified the inclusion of this information in the 5:30 broadcast on the ground that it was consistent with their impressions, i.e., that the building boom in the beach communities was probably causing widespread corruption.[4] Halloran also spoke with Cleaver (news director and Keller's and Halloran's superior) about the story. They conferred just before the 5:30 broadcast. Cleaver asked Halloran whether he had made any calls to verify his information. Halloran said that he had and that the voice of the 4:15 caller "sounds familiar, sounds like maybe somebody on the [county] commission."[5]
After the 5:30 broadcast the WLCY switchboard received approximately ten calls. Halloran testified that he took five of the calls and that the girl on the switchboard took the others[6] Halloran testified that the general thrust of the calls was "positive", i.e., that they should continue their investigation into corruption in the beach communities. Four of the five callers were anonymous. According to Halloran, he took a fifth call which was identifiable at least to a certain extent. The fifth caller *448 identified herself as an elected official of Redington Shores (not Redington Beach). She mentioned that the citizens of Redington Shores had petitioned the Auditor General to make an investigation. She also stated that she was "surprised to hear Mr. Holter's (mayor of Redington Beach) name mentioned in the broadcast."[7]
After receiving these calls, and before departing from the station, Halloran discussed the calls "very briefly" with Cleaver who was in a hurry to make a speaking engagement. Halloran related to Cleaver the general tone of the calls, namely, that WLCY was urged to keep digging into this purported scandal in the beach communities. However, Halloran made no mention of the call from the elected female official of Redington Shores who had expressed surprise over Mayor Holter being mentioned in such a connection.
Mayor Holter[8] first learned of the 5:30 broadcast (he had been out to dinner and did not see the broadcast) when a friend called at about 8:00 p.m.
He immediately called WLCY. The receptionist said that no one would be there until 9:30 and that Holter should call back then. Instead of waiting, Holter called Cleaver's home. He spoke to Mrs. Cleaver who informed him that Mr. Cleaver was at the speaking engagement. Holter finally reached Cleaver at WLCY at about 9:30 p.m. Cleaver told Holter that he did not know too much about what was going on but that he would have Halloran call Holter as soon as he [Cleaver] could reach Halloran. Cleaver succeeded in reaching Halloran and at about 10:15 Halloran called Holter. According to Holter he told Halloran that none of what Halloran had broadcast was true except that he was resigning. Holter said that he told Halloran that he had his own reasons for resigning. He asked Halloran not to rebroadcast at 11:00 o'clock, but Halloran refused to give this assurance. Holter testified that when he asked Halloran where he obtained his information Halloran replied a "reliable source." When Holter asked who, Halloran's answer was "I can't tell you that." They made an arrangement to meet the next morning at Redington Beach Town Hall.
Halloran's version of the call was that the Mayor was "very upset" and talking in an "excitable voice." According to Halloran, Holter said "It's a mistake, couldn't be me, couldn't be my town, are you sure it's me." Halloran said that he did not recall whether the Mayor demanded that the story not be rebroadcast. Rather, Halloran stated that he thought the Mayor merely asked him if the broadcast was going to be repeated at 11:00 p.m. to which Halloran replied that it would be as far as he knew.
Halloran stated that this telephone call was the first instance in which it occurred to him that a "mix-up" could possibly be afoot. He was concerned because Mayor Holter was so upset. He conceded that he felt that there remained a lot of investigative work to be done.
*449 Prior to the 11:00 p.m. news WLCY did no updating and at the broadcast made no comment concerning the Mayor's denial or his assertion of the falseness of the piece. WLCY T.V. admitted that there was no technical reason that the 11:00 p.m. broadcast could not have been re-edited as late as 10:15 or 10:30 p.m. Thus, it was a conscious policy decision to go ahead with the rebroadcast without change or qualification.[9]
THE EVENTS OF NOVEMBER 9, 1973
On the next day Friday, November 9 WLCY radio, both AM and FM, broadcast the story in much the same form as the two television broadcasts of the previous day. There was one broadcast each hour on AM and one on FM. Thus, between the hours of 7:00 a.m. and 3:00 p.m., there were sixteen separate broadcasts containing the story.[10] The radio broadcasts contained references to Holter's resignation because of alleged criminal activities.
In keeping with his promise during their conversation of the night before, Halloran (and Keller) arrived at the Redington Beach Town Hall at about 9:30 a.m. Present in the Mayor's office were two Redington Beach commissioners and the Chief of Police. Halloran and Keller (Keller armed with camera, lights and tape equipment) walked into the Mayor's office with television lights blazing, microphone on and tape recorder rolling and began firing questions at him. According to Mayor Holter, the tenor of the questions was to accuse him of extortion and embezzlement. He described Halloran and Keller as being brash, sarcastic, rude and abusive. Another witness described Halloran's attitude as one of "gross indifference."
Mayor Holter testified that Halloran said words to the effect that any time a politician resigns it is obvious he is a crook and that "all politicians are crooked." Moreover, another witness stated that either Halloran or Keller said that "whenever a politician resigns ... there is something wrong with the situation" and that "anybody in politics is suspect." In addition, Halloran testified that Keller made reference to Watergate.
At the outset we must distinguish between the 5:30 p.m. and 11:00 p.m. broadcasts. In its denial of defendants' motion for summary judgment, the trial judge suggested that if only the 5:30 broadcast were involved he would have little hesitancy in granting summary judgment for the defendants. With reference to the 11:00 broadcast, however, the trial judge felt differently:
A material question is whether Mike Halloran acted with respect to the [11:00 p.m. broadcast] with knowledge that a material portion thereof was false or with reckless disregard of whether it was false or not.
*450 The question of whether or not Mike Halloran acted in a manner which would give the plaintiff a right to recovery is a question for a jury to determine... .
At the close of plaintiff's evidence, however, the trial judge entered a directed verdict for defendants.
Our position is that the lower court erred in directing a verdict for defendants because reasonable men could very well conclude that the events transpiring prior to the 11:00 p.m. telecast and the repeated radio broadcasts on the following day constitute reckless disregard of whether or not the story was false (as to Mayor Holter), if not that Halloran actually knew it to be false. While it may be true that the reckless disregard test is too strict to support a conclusion that actual malice existed as of the 5:30 broadcast, we hold with reference to the 11:00 p.m. broadcast that facts exist that would support a conclusion that actual malice existed.
This case involves the standards or requirements for imposition of liability for libel upon any segment of the mass communications media.
As has occurred in so many areas of the criminal law, this field of civil jurisprudence has now been assumed in large measure, if not totally, by the United States Supreme Court. It is to that Court's decisions that this court must look for determination of the question presented.
The current constitutional standard governing libel actions was first enunciated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
The New York Times decision has been referred to as "unquestionably the greatest victory won by defendants in the modern history of the law of torts." W. Prosser, Law of Torts § 118 (4th Ed. 1971). The cases following New York Times afforded the press even greater protection. However, as evidenced by the many concurring and dissenting opinions, there was a great deal of turbulence within the Supreme Court as to the boundaries of the New York Times rule. This turbulence has been especially noticeable with reference to the tortuous evolution of the "public official" and "public figure" doctrines and the rules governing the status of private persons.
In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) the Court attempted to define the boundaries of the "public official" concept. Later courts, however, have generally disregarded this attempt to delimit the reach of the "public official" concept.
One year later, the Court extended the New York Times privilege to "public figures" in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).
Then, in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) the Court extended the New York Times rule by applying it to all those involved in matters of public or general concern even if they were neither public officials nor public figures.
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), however, the Court renounced the Rosenbloom extension of the constitutional privilege. The Court held that the New York Times privilege did not apply to purely private individuals even though involved in matters of public or general concern. Nevertheless, the Court stated that even a purely private individual could not recover punitive damages in a defamation action unless he established "a showing of knowledge of falsity or reckless disregard for the truth" under the New York Times standard.
In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) the United States Supreme Court reaffirmed the Gertz holdings albeit finding the particular plaintiff did not fall within the Gertz definition of a "public figure."
The New York Times rule is as follows:
The constitutional guarantees require ... a federal rule that prohibits a *451 public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" that is, with knowledge that it was false or with reckless disregard of whether it was false or not. [Emphasis supplied.]
376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706.
The New York Times reckless disregard standard is strict. According to the Court in St. Amant v. Thompson, 390 U.S. 727, 731-32, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262, 267 (1968):
[T]he stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.
As pointed out in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) a standard based upon simple negligence would not be suitable.
In the lower court treatment of the well-known "Pentagon Papers" case, United States v. New York Times Co., 328 F. Supp. 324, 331 (S.D.N.Y.) it was stated:
A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.
In New York Times the Court pointed out that the first and fourteenth amendments embody our
[P]rofound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701.
There are, however, well defined limits upon the free press. In Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964) the Court pointed out that
[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
As was pointed out by Chief Justice Warren in his concurring opinion in Butts:
Freedom of the press under the First Amendment does not include absolute license to destroy lives or careers.
388 U.S. at 170, 87 S.Ct. at 1999, 18 L.Ed.2d at 1120. In Gertz the Court stated:
The need to avoid self-censorship by the news media is, ... not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.
418 U.S. at 341, 94 S.Ct. at 3007, 41 L.Ed.2d at 806.
In Rosenblatt the Court emphasized the importance of reputation and the protection given it by law:
"[I]mportant social values ... underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation."
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself is left primarily to the individual States... . But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
383 U.S. at 92, 86 S.Ct. at 679, 15 L.Ed.2d at 609 [Stewart, J., Concurring.]
The "harm" that results from the publication of false statements is seldom, if ever, made good by a retraction. As the Court in Rosenbloom pointed out:
*452 Denials, retractions, and corrections are not "hot" news, and rarely receive the prominence of the original story.
403 U.S. at 46, 91 S.Ct. at 1821, 29 L.Ed.2d at 313.
In Gertz the Court pointed out:
Of course, an opportunity for rebuttal seldom suffices to undo harm of a defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie.
418 U.S. at 344, n. 9, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.
With reference to verification, in Hill the Court pointed out the pitfalls of a requirement of absolute verification:
We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture or portrait, particularly as related to nondefamatory matter.
385 U.S. at 389, 87 S.Ct. at 542-43, 17 L.Ed.2d at 467.
On its denial of the motion for summary judgment, the lower court in the instant case stated that "what efforts [Halloran] made or caused to be made to verify the contents of the `reliable source' information are very nebulous to say the least." The "nebulous efforts" and the denial by the principal of any wrongdoing are similar to the factual situation in Butts. There, the Court pointed out that "little investigative effort was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that the account, to be published was absolutely untrue." 388 U.S. at 169-70, 87 S.Ct. at 1999, 18 L.Ed.2d at 1119 [Emphasis supplied.].
Also on point with the instant case was the situation in Rosenbloom. There, the respondent/radio station made two sets of defamatory broadcasts. The first set of broadcasts referred to petitioner's arrest for possession of obscene literature and the police confiscation of "obscene books."[11] The second set of broadcasts characterized petitioner's business as the "smut literature racket" and those engaged in it as "girliebook peddlers." Defendant's news director testified that their half-hour deadlines required them to rely on "wire-service copy and oral reports from previously reliable sources subject to the general policy that `we will contact as many sources as we possibly can on any kind of a story'." 403 U.S. at 37, 91 S.Ct. at 1816, 29 L.Ed.2d at 308. [Emphasis supplied.] It is important to note that in Rosenbloom the defendant/radio station relied on information supplied it by a high ranking police official. An identified and thought to be reliable police captain who was in command of the Special Investigation Squad of the Philadelphia Police Department was the source of the defamatory information. This is in stark contrast to the instant case in which the source was an anonymous telephone caller obviously not even an identified or known source let alone a "previously reliable source."
The Rosenbloom Court thought it significant that the radio station had relied on information supplied by a high ranking police official in its finding that there was no evidence in the record to support a conclusion that the radio station "in fact entertained serious doubts as to the truth" of its reports. St. Amant v. Thompson had laid down the requirement that "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed. at 267. The St. Amant Court stated that "[P]ublishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267.
The logic of the Rosenbloom Court is persuasive where the source of information *453 was a high ranking policeman. However, where an anonymous tipster conveys the information, one would be hard put not to have serious doubts about the authenticity of the tip. Halloran, at best, felt the information from the anonymous source to be only "fairly reliable" and felt that quite a bit of investigative work remained to be done. Moreover, Halloran had little or no reason to deem the source reliable. He violated the practice in the trade that anonymous calls are customarily relied upon for direction but not for information.[12] He not only relied upon the source for information, but he even embellished it. Halloran's explanation that he had told Cleaver prior to the broadcast that "the voice sounds familiar, sounds like maybe somebody on the [county] commission" was characterized by the lower court as follows:
[The] "reliable source" [was] subsequently reflected as being not only unreliable but also unknown.
Moreover, the fact that Halloran intimated to his superiors that he knew the source is especially significant. Neither Cleaver nor Keller each of whom were superior to Halloran made any effort to kill the story notwithstanding the fact that Halloran's reliance upon an anonymous source was in violation of trade practice. The major reason for their lack of action may very well have been due to Halloran's lack of candor with them.
Finally, Halloran admitted that after Holter called and told Halloran that the broadcast was totally false save the fact of his resignation, that it occurred to Halloran that a "mix-up" could possibly be afoot.
Halloran himself should certainly have had doubts prior to the 11:00 p.m. newscast. Two cases from the District of Columbia are illustrative on the "serious doubts" issue. In Davis v. Schuchat, 166 U.S.App.D.C. 351, 510 F.2d 731 (1975) the court found actual malice to exist in an action for slander. The defendant was an investigative reporter who made false statements about Davis, i.e., he told three people that Davis "had been convicted of a felony in New York." He made these statements in the ordinary course of his preparations for a news story on Davis pursuant to his admitted technique of "throwing a lot of things out in an interview just to get a response." The court held that at the very least the record could support a finding that there was reckless disregard and that the defendant/reporter in fact entertained substantial doubts about the truth of his statements. Interestingly, the court noted that the record was "replete with instances of evasiveness and contradiction" in the defendant/reporter's testimony. In light of this, stated the court, the trial judge would be justified in believing testimony to the effect that the reporter knew that his statements were false. The jury in the instant case could conclude that Halloran's testimony fit this mold.[13]
In Airlie Foundation, Inc. v. Evening Star Newspaper Co., 337 F. Supp. 421 (D.D.C. 1972) the court found actual malice to lie in a libel action. In this case, after publication of an article alleging covert financing of the plaintiff/foundation by government agencies including the CIA, the editor of the defendant/newspaper received a denial of the charges from the director of the CIA. Nevertheless, the newspaper published the second part of the series the next day. The article stated that "the CIA declined to comment on the charges," a treatment which the court found "portrayed the existing situation in an extremely misleading fashion." 337 F. Supp. at 426. The court *454 noted that "[the newspaper lent] credence to the Higgs charges at a time when it entertained serious doubts as to validity of those charges." 337 F. Supp. at 428. The court stated it was cognizant of "the difficult choices which must be made by the publisher of a story which emanates from a source other than his own reporters," 337 F. Supp. at 429, but that this was no excuse for the libelous publication.
In addition to the "serious doubts" standard, the Court in St. Amant required the defendant to have a high degree of awareness of the probable falsity of the statements at issue. See Garrison v. Louisiana, supra.
In both Gertz and St. Amant the Supreme Court stated that a mere failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, there must be a high degree of awareness of probable falsity.
In Airlie the court held: "while it is well established that a failure to investigate, without more, is insufficient to give rise to liability, once one has undertaken to conduct an investigation he should not be permitted to ignore with impunity the fruits of that investigation." 337 F. Supp. at 427-28.
That such "fruits" and a high degree of awareness existed in the instant case is supported by the record. Moreover, as pointed out in St. Amant:
The defendant in a defamation action brought by a public official cannot, . . automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. [Emphasis supplied.]
390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267-68. This recognition by the United States Supreme Court of the danger of anonymous sources is most persuasive.
The decisions in one lower federal court and two state courts are informative with reference to the standards governing the reliability of sources. In Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.1969) cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970), the defendant published an issue of Fact magazine a few months before the 1964 election. The issue was heralded as "The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater." The court found that among other things the author added innuendos to some quoted statements. The court stated that "[r]epetition of another's words does not release one of responsibility if the repeater knows that the words are false or inherently improbable, or there are obvious reasons to doubt the veracity of the person quoted or the accuracy of his reports." 414 F.2d at 337. [Emphasis supplied.] In contrast to Ginzburg's reliance on newspaper articles, books and campaign literature, the reliance in the instant case was upon an anonymous source surely worse.
In Snowden v. Pearl River Broadcasting Corp., 251 So.2d 405 (La. App.) cert. denied 259 La. 887, 253 So.2d 217 (1971) the court found actual malice. The defendant/radio station had a public interest program which members of the public could call. This was an "open mike" broadcast for which there existed no monitoring equipment or delay devices to edit out offensive comments. An anonymous caller stated that the plaintiffs were in the dope business. The court held that what the station did is the same as "if it received defamatory material from an anonymous source, and broadcast the report without attempting verification." 251 So.2d at 410. [Emphasis supplied.] The court went on to hold that:
The direct broadcast of ... anonymous [the caller chose not to identify *455 himself] defamatory material, without the use of any monitoring or delay device, is no less reprehensible [than using an anonymous source].
251 So.2d at 410.
In Mahnke v. Northwest Publications, Inc., 280 Minn. 328, 160 N.W.2d 1 (1968) the court found actual malice to lie in a libel action. A rewrite man for a newspaper had written a story with only limited verification attempted and even some negative verification present, i.e., a detective had stated that there had been a misunderstanding in the case. The court held:
[The] [d]efendant, prior to publication of the article, relied on one irate person as a source of information, whereas defendant/New York Times [in New York Times Co. v. Sullivan] relied on many reliable people, obtained certification that the individuals had consented to the use of their names in the advertisement claimed to be libelous, and made the determination prior to publication that the advertisement did not contain attacks of a personal character.
160 N.W.2d at 14. [Emphasis supplied.]
The lesson of Ginzburg, Snowden and Mahnke is that anonymous or otherwise suspect sources should be verified with care. Otherwise, as noted in St. Amant, recklessness may be found.
Appellees rely upon Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966) cert. denied 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967) for the proposition that the record in the instant case does not support a finding that Halloran published the defamatory material with a high degree of awareness of its probable falsity. With this we disagree. In Keogh the District of Columbia Circuit Court of Appeals reversed the district court which had denied the defendant/newspaper's motion for summary judgment. The circuit court held that a genuine issue of material fact had not been raised and that, accordingly, summary judgment was proper. The plaintiff (a United States Congressman) argued that the "character and content of the publication itself" was sufficient to show actual malice in light of the newspaper's failure to check the accuracy of the allegedly defamatory materials (syndicated columns by Drew Pearson) before publication. The court held and no more that reckless disregard of the truth could not be premised upon the failure of one of the many newspapers carrying Pearson's column to independently investigate the facts therein.[14]
In the recent Florida case of Cape Publications, Inc. v. Adams, 336 So.2d 1197 (Fla. 4th DCA 1976) cert. denied 434 U.S. 943, 98 S.Ct. 440, 54 L.Ed.2d 305 (1977) the jury returned a verdict in the amount of $114,000 (compensatory) and $100,000 (punitive). The Fourth District Court of Appeal affirmed, holding that the evidence sustained a finding that a newspaper and its employees exhibited reckless disregard of whether charges against a building official were true or false, i.e., that they published the articles with a high degree of awareness of the probable falsity of the statements involved and with serious doubts as to the truth of the publication.
In Cape Publications the plaintiff/Building Official of the City of Vero Beach was the subject of two articles published in Today newspaper. The gist of the articles was to accuse plaintiff of soliciting a bribe and other improper payments. The court noted that prior to publication of the two articles, defendants were aware of a number of facts which strongly suggested plaintiff's innocence. For example, the person (Bernard) from whom the bribe was allegedly solicited denied that this had happened. In addition, Bernard's supervisor (Wilcox), who had originally told Today that Bernard had reported the bribe solicitations to him, was evasive about the entire matter. In addition, the mayor of Indian *456 River Shores, who had purportedly been approached by plaintiff for payments for work which had already been completed, denied that this had happened. The mayor gave one of the defendants copies of relevant files (or told him where they could be obtained) bearing upon the open discussions between plaintiff and the Town Council of Indian River Shores relative to compensation for extra work performed by plaintiff for the town. Also, a neutral professional source who had been contacted by one of the defendant/reporters told that reporter that "he found no basis for any action against appellee and advised [the reporter] not to print any articles on the matter." Finally, it was common knowledge that one of the major sources of information alleging wrongdoing by the plaintiff had a running feud with the plaintiff.
The court held that the two articles were written "[i]n the face of all those red flags flying."
Cape Publications is significant authority for a reversal in the instant case. The "red flags" and negative verification level in the instant case were just as pronounced.
We think that a jury might reasonably have found, inter alia:
1. That the statement in the broadcast that the
[U]ndercover probe ... has uncovered serious irregularities with officials who are running those governments ...
was made without even establishing that an investigation was underway.
2. That although the broadcast referred to "reliable sources" there was, in fact, a completely anonymous and unconfirmed tip.
3. That Halloran violated the standards of his own profession by placing such reliance upon an anonymous source.
4. That Halloran knowingly misled his own superiors as to the reliability of the source.
5. That there was, in fact, no information that Holter had "reportedly resigned ... under strong [suspicion] that he has been implicated in [embezzlement] and extortion."
6. That the claim that "[a] full team of undercover men are looking into ..." was a pure fabrication.
7. That Halloran never had any reliable information that corruption was rife in Redington Beach.
8. That Halloran's efforts at verification were negative.
9. That the call from the elected female official and Holter's express and emphatic denial strongly indicated the falsity of the charges.
The directed verdict is set aside and the case remanded for new trial.
GRIMES, C.J., and BOARDMAN, J., concur.
NOTES
[1] Halloran testified that he meant to say "State Attorney" instead of "State Attorney General."
[2] Inexplicably, Halloran's impression was that the secretary was not able to reach Mayor Holter. At the time of the trial, the secretary did not remember ever making the call.
[3] Halloran admitted at trial that "other than knowing that [Mayor Holter] was resigning" he knew "nothing else other than what the source at 4:15 had told [him]."
[4] Halloran stated the basis of his "general impressions" was the constant growth situation in the small beach municipalities coupled with the incumbent difficulties of supervising such growth and the fact that such small municipalities were not so well equipped to handle such sudden growth. Halloran also stated that "news coming out of Washington", i.e., Watergate, had influenced his general outlook. Halloran admitted that he was without any actual information suggesting corruption in the beach communities until he received the anonymous calls. He testified that he "didn't have anything to substantiate there was any corruption going on."
[5] Cleaver testified that Halloran did not tell him that the source was anonymous.
[6] Keller testified that he took three of the calls. Nowhere in Halloran's testimony is there any mention of this.
[7] Keller testified, however, that he received a call from a female who "said she was at that time a commissioner, or had been a commissioner in a beach community ... that ... there was much problem ... in this beach community, and that there was an ongoing audit... ." Keller believed that this lady gave him her name and that he passed this along to Halloran. The record provides no clue as to whether these constituted two separate calls or were, in fact, one and the same. In his testimony Halloran makes no reference to Keller's role in receiving any of the calls.
[8] Mayor Holter had been mayor of Redington Beach since 1968. He was a retired petroleum engineer who occasionally served as a consultant for a period of two to fifteen weeks for oil refinery construction operations. He received no salary for being mayor, the job being sufficiently casual that in one instance when the sewer pumping station broke down on a weekend he himself went to repair it. In his three campaigns for office, Mayor Holter did no campaigning and received no campaign contributions. Mayor Holter's reasons for resigning were a combination of health (a bad back) and the fact that his consulting activities kept him away from Redington Beach so much. He testified that he "didn't feel [he] was giving the town a fair shake by being away." He had announced his intention to resign on the previous Tuesday night (the 6th of November), the resignation to be effective the first of the next year.
[9] After the recordation of Halloran's story had run, Cleaver (acting as anchorman) did state that Holter would make an on-camera statement the next day.
[10] RADIO:
According to Arbitron (ARB) reports, the following audience listened to WLCY AM and FM on a weekday between October 25, 1973 and November 14, 1973:
AM: 6-10 a.m. 251,000 persons in any given quarter hour
AM: 10 a.m.-3 p.m. 215,000 persons in any given quarter hour
FM: 6-10 a.m. 53,000 persons in any given quarter hour
FM: 10 a.m.-3 p.m. 80,000 persons in any given quarter hour
With reference to "cume persons" (the estimated number of persons who listened to a station for a minimum of five minutes within a specified day part), the following was estimated:
AM: 6-10 a.m. 1,842,000 persons
AM: 10 a.m.-3 p.m. 1,485,000 persons
FM: 6-10 a.m. 501,000 persons
FM: 10 a.m.-3 p.m. 537,000 persons
TV:
According to ARB, the four-week average of Thursdays, including November 8, 1973 shows that 30,000 households (49,000 persons) watched WLCY's 5:30 broadcast; 28,000 households (44,000 persons) viewed the 11:00 broadcast.
According to Nielson, 28,000 households (47,000 persons) watched the 5:30 broadcast; 16,000 households (24,000 persons) viewed the 11:00 broadcast.
[11] After the broadcasts, the radio station referred to the seizure of "reportedly obscene books." [Emphasis supplied.]
[12] Keller testified that stories were frequently killed where an anonymous caller refused to give a name and address.
[13] For example, it was pointed out at trial that Halloran when being deposed stated that the anonymous source did not actually use the word "embezzlement." Halloran stated that "he [the source] didn't come right out and say that." Halloran related that the source did use the phrase "possibility of extortion." Halloran maintained that although the source did not specifically name Holter as an embezzler or an extorter, the source merely said that Holter would possibly be involved in the investigation which was looking into embezzlement and extortion. In contrast, Halloran testified at trial that the word "embezzlement" was used.
[14] Cf. Menendez v. Key West Newspaper Corp., 293 So.2d 751, 752 (Fla. 3d DCA 1974) (also relied upon by appellees) which cited Keogh for the proposition that "where the issue is recklessness employed in the publication of alleged false and libelous information, that summary judgments should be more liberally granted." In Menendez, the court affirmed the circuit court's granting of summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607734/ | 366 So.2d 1065 (1979)
Succession of James Ware GARDINER.
No. 6774.
Court of Appeal of Louisiana, Third Circuit.
January 3, 1979.
Rehearing Denied February 6, 1979.
Writs Refused March 23, 1979.
*1066 Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for plaintiff-appellant.
Liskow & Lewis, Stephen T. Victory, Marilyn C. Maloney, J. Barnwell Phelps, New Orleans, Stockwell, Sievert, Viccellio, Clements & Shaddock, Oliver P. Stockwell, Richard E. Gerard, Edward D. Myrick, Gary A. Book, Reid K. Herbert, Lake Charles, William Booker Ferguson, Houston, Tex., Francis A. Dressler, Daniel K. Rester, Lake Charles, for defendant-appellee.
Before CULPEPPER, FORET and CUTRER, JJ.
CULPEPPER, Judge.
This is an action to annul a testament. The testament of James Ware Gardiner, a domiciliary of Connecticut at his death, was admitted to probate in that state. In an ancillary proceeding in Louisiana, the validity of the will was recognized insofar as it pertained to immovable property of the deceased located in Louisiana. The will provides that all of the immovable property owned by the deceased located outside of Connecticut, along with the remainder of his estate not otherwise disposed of in the will, shall make up the corpus of a trust. The trustees are bound to reserve the immovables as the last corpus asset to be alienated. Upon the death of the last income beneficiary of the trust, the ownership of the remaining corpus descends to the then living grandnephews of the deceased and to St. Patrick's Hospital in Lake Charles, the St. Joseph's Hospital in Connecticut, and Washington and Lee University in Virginia. The plaintiff, Katherine Garrison Brewer, a niece of the deceased, alleges the trust, as well as other provisions of the will affecting the disposal of the Louisiana property, are null and void under Louisiana law, and therefore the property should descend by the Louisiana laws of intestacy. The defendants, who include the executors, income beneficiaries, and the corpus beneficiaries, filed exceptions of no right of action and no cause of action. The trial court sustained these exceptions and dismissed the plaintiff's suit. From this judgment, the plaintiff appealed.
The issues before us are: (1) Does the plaintiff have a right of action? (2) Does the plaintiff allege a cause of action?
There are fundamental differences between the exception of no right of action and the exception of no cause of action. The exception of no right of action questions the right of the plaintiff to institute the suit, i. e., his interest in the subject matter of the proceeding and/or his capacity to sue. The exception of no cause of action questions the sufficiency in law of the petition and the exhibits attached thereto or made a part thereof. LSA-C.C.P. Articles 681 and 927; Hargroder v. Columbia Gulf Transmission Company, 290 So.2d 874 (La.1974); Parks v. Winnfield Life Insurance *1067 Company, 336 So.2d 1021 (3rd Cir. 1976). Evidence is admissible at the hearing of an exception of no right of action, but no evidence may be introduced to support or convert the objection that the petition fails to state a cause of action, the latter being triable entirely on the face of the petition, together with any documents made a part thereof. LSA-C.C.P. Article 931; Hargroder v. Columbia Gulf Transmission Company, supra; Parks v. Winnfield Life Insurance Company, supra.
Of particular application to the present proceedings is LSA-C.C.P. Article 2972, dealing with oppositions filed in succession proceedings. Comment (b) under that article states:
"(b) No person should be permitted to file an opposition in a succession proceeding unless he has a justiciable interest in doing so. The definition of this interest has been left for the determination of the courts' and the requirement has been stated only implicitly in the term "interested person.'"
NO RIGHT OF ACTION
In the case at bar, plaintiff alleges that she is a niece of the deceased, that there were no direct ascendants or descendants surviving at the death of the testator and that the plaintiff is therefore a legal heir and will inherit in the event of intestacy. No evidence was introduced at the trial of the exception of no right of action to contradict these allegations. Other possible legal heirs alleged are David L. Garrison, Jr., a nephew of the deceased, and Odille Gardiner, a half-sister of the deceased who has died since the death of the testator. They have been made parties to this suit upon the plaintiff's motion.
As a legal heir, the plaintiff would inherit, or share in the inheritance, if the will were declared null insofar as it affects the Louisiana immovable property. Under these circumstances, she has a right of action to contest the validity of the testament. Succession of Feitel, 187 La. 597, 175 So. 72 (La.1937); Succession of Wilson, 210 So.2d 602 (2d Cir. 1968).
NO CAUSE OF ACTION
The defendants contend plaintiff's petition states no cause of action because of two portions of article Fortieth of the testament. The first portion in question contains a penal clause and reads as follows:
"FORTIETH: If any devisee, legatee or beneficiary under this Will or any person claiming under or through any devisee, legatee or beneficiary or any person who would be entitled to share in my Estate through inheritance or intestate succession shall, in any manner whatsoever, directly or indirectly contest this will or attack, oppose or in any manner seek to impair or invalidate any provision hereof, or shall in any manner whatsoever conspire or cooperate with any person or persons attempting to do any of the acts or things aforesaid or shall acquiesce in or fail to oppose such proceedings, then in each of the above mentioned cases, I hereby bequeath to such person or persons the sum of One ($1.00) Dollar only, and all other bequests devises and interest in this Will given to such person and the spouse and/or issue of such person shall be deemed to have lapsed and shall become part of my Residuary Estate hereunder to be administered in accordance with the terms thereof."
The validity of such a clause in Louisiana has not been judicially determined with finality. Commentators have stated the governing statutory provision is LSA-C.C. Article 1519:
"In all dispositions inter vivos and mortis causa impossible conditions, those which are contrary to the laws or to morals, are reputed not written."
Oppenheim, 10 La.Civil Law Treatise, Sec. 129; Aubrey and Rau, Droit Civil Francais, Civil Law Translations 3, Section 692, p. 295; and Wood Brown, Provisions Forbidding Attack On A Will, 4 Tulane Law Review 421 (1929). Article 1519 is taken directly from the Code Napoleon and is found almost verbatim in nearly every civil law jurisdiction. Oppenheim, supra; and Brown, supra. The French solution is to *1068 look to the effect of the penal clause. Aubrey and Rau state the French rule:
"The penal clause . . . will be valid and obligatory if the purpose thereof is to insure the execution of dispositions that, containing nothing contrary to public order or good morals, would be susceptible of attack only for causes of private interests.. . . (Sec. 692, p. 296, supra)
Wood Brown, in 4 Tulane Law Review, 421, at 423, explains:
". . . where the principal dispositions of the will (those which it is forbidden the legatee or heir to attack) have nothing of public import in them, and where the right against which the penal clause operates is only of a private or pecuniary nature, the penalty is good and if an attack is made it will operate to divest the unfortunate litigant of his share. However, if the principal disposition is against good morals, then the penal clause automatically becomes against good morals also, since it is surely, so the commentators argue, to the public interest that such dispositions in wills be attacked."
One Louisiana case appears to favor the French rule. In Succession of Kern, 252 So.2d 507 (4th Cir. 1971), the testament contained a penalty clause that if it be challenged in "any way by any heir it becomes null and void and my entire estate is to be given to "The Crippled Children Hospital. . ."A nephew, not named in the will, attacked the disposition in favor of the hospital, contending they were prohibited substitutions. The court refused to uphold this type of penal clause but implied that a penal clause which is restricted to protest by a special legatee may be considered valid. The court stated:
"If the clause in question were restricted to protests or challenges by the legatees receiving a benefit from the will, there would be little problem in the absence of forced heirs. However, the clause in question prohibits protest by `any heir,' whether or not he is a party to the will or benefits thereby. Under the circumstances, the legatees are virtually helpless and at the mercy of any heir not mentioned in the will.
* * * * * *
"Such a provision is repugnant to law and good morals and cannot be sanctioned by the courts LSA-R.C.C. art. 1519."
We conclude it is unnecessary to decide the validity of the penal clause at issue here. Even assuming, as plaintiff contends, that the penalty clause is invalid, the effect of such a holding would be to strike the penalty clause from the testament, leaving the remainder of the will as written. Succession of Walters, 261 La. 59, 259 So.2d 12 (1972); Carter v. Succn. of Carter, 332 So.2d 439 (La.1976); and Succession of Burgess, 359 So.2d 1006 (4th Cir. 1978).
If we eliminate the penalty clause from the testament, this does not affect the validity of the second portion of article Fortieth which reads as follows:
"If as a result of any attack or contest of this Will an intestacy would otherwise result as to all or any portion of my estate, then in such event, with respect to any such portion of my estate, I hereby give, devise and bequeath such portion of my estate in equal shares to and among the charitable entities named as ultimate remaindermen of my Residuary Estate, excluding any persons and the spouse and ascendents and descendents of any persons attacking, contesting, opposing and/or cooperating or acquiescing in any such attack, contest or opposition. For the purpose of this article, an action for declaratory relief or for instructions or any similar action shall be deemed to constitute an attack upon this Will where the purpose of the institution of such action for declaratory relief or for instructions would be to oppose, impair or invalidate any provision hereof."
It is clear from this provision that even if the attack by plaintiff on the testament were upheld, any donations which are declared invalid would fall to the enumerated charities as residuary legatees. A testamentary provision for residual beneficiaries is not prohibited by Louisiana and is permissible. *1069 See the somewhat similar case of Succession of Feitel, supra, in which it was held that the opponent of the testament had no right of action since the nullity of the special legacies attacked would result only in their going to the residuary legatee, and not to the plaintiff in nullity.
This result is supported by the rule that in the interpretation of testaments the court must seek to carry out the intention of the testator. This intention must be ascertained from the will as a whole, and effect must be given to every part of the will insofar as the law will permit. Carter v. Succession of Carter, 332 So.2d 439 (La. 1976). Reading as a whole the testament in this case, it is clear the testator intended the charities to be residuary legatees, and that no part of his estate would descend by the laws of intestacy.
The plaintiffs argue the above quoted provision making the charities residuary legatees as to any invalid donations is inseparable from the "penalty clause" contained in the first sentence of article Fortieth. We find this contention without merit. From the language of the two provisions it is clear they are intended as alternatives. The purpose of the penalty clause is to ward off attack on the will by any legatee or heir. The purpose of the second provision of article Fortieth, quoted above, is to provide for the disposition of any invalid donations in the event an attack is made and is successful. This interpretation is required by the rule that the courts must endeavor to carry out the intention of the testator as ascertained from the will as a whole and must give effect to every part of the will as far as the law will permit. Carter v. Succession of Carter, supra.
We conclude that plaintiff has no cause of action to annul the testament at issue.
We are aware that paragraph 10 of plaintiff's original petition alleges "The decedent lacked testamentary capacity to execute a last will and testament, and, as such, said will is invalid in its entirety insofar as the same disposes of Louisiana property." On appeal, plaintiff makes no argument regarding these allegations. Even if plaintiff did contend she states a cause of action under this paragraph of her petition, the argument would be without merit. Our jurisprudence is settled that although an exception of no cause of action admits all well pleaded facts, it does not admit conclusions of law contained in the petition. State ex rel Garland v. Guillory, 184 La. 329, 166 So. 94 (1935); Ward v. Leche, 189 La. 113, 179 So.2d 52 (1938). The allegations of plaintiff's petition that the decedent lacked testamentary capacity, and that the will is therefore invalid are not well pleaded facts. This is simply a conclusion of law, and is not sufficient to state a cause of action.
Having concluded that plaintiff's petition fails to state a cause of action, it is unnecessary for us to decide the merits of the difficult questions raised by plaintiff with regard to whether the trust provisions contain prohibited substitutions or fidei commissa, whether the trust provisions violate laws dealing with the length of time immovables can be kept out of commerce and the rule that all beneficiaries of a mortis causa trust must be "in being" at the death of the testator, and whether certain provisions of the trust are invalid in granting too much discretion to the trustees in distributing the corpus and income of the trust. Like the trial judge, we do not reach a consideration of the merits of these questions.
For the reasons assigned, the judgment of the trial court is reversed and set aside insofar as it sustains the exception of no right of action. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.
REVERSED IN PART, AFFIRMED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4219378/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY LEE MONTGOMERY, No. 16-16878
Plaintiff-Appellant, D.C. No. 2:12-cv-00817-RFB-NJK
v.
MEMORANDUM*
GUY LOUIS TURNER, LVMPD Officer
Badge No. 13518; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, II, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Bobby Lee Montgomery appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging a Fourth Amendment false arrest
claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Haupt
v. Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment because the record
shows that Montgomery had a full and fair opportunity to litigate the issue of
probable cause in his prior state criminal action, and, thus, he is collaterally
estopped from relitigating this issue in this action. See id. at 288-90 (explaining
that under Nevada law, a probable cause determination at a preliminary hearing
provides a full and fair opportunity to litigate the issue sufficient to support
collateral estoppel in a subsequent § 1983 action).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 16-16878 | 01-03-2023 | 11-09-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3035790/ | FILED
NOT FOR PUBLICATION MAR 31 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30307
Plaintiff - Appellee, D.C. No. 1:07-cr-00271-EJL
v.
MEMORANDUM *
TOMAS GONZALEZ ROLDAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
N. Randy Smith, Circuit Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Tomas Gonzalez Roldan appeals from his jury-trial conviction and
concurrent 120-month sentences for conspiracy and attempted distribution of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)(A), 846; and possession
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sko/Research
with intent to distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1)(A), (b)(1)(A).
Pursuant to Anders v. California, 386 U.S. 738 (1967), Gonzalez Roldan’s
counsel has filed a brief stating there are no grounds for relief, along with a motion
to withdraw as counsel of record. We have provided the appellant the opportunity
to file a pro se supplemental brief. No pro se supplemental brief has been filed,
however the government has filed an answering brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, Roldan’s pro se
motion for appointment of new counsel is DENIED, and the district court’s
judgment is AFFIRMED.
sko/Research 2 08-30307 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2587541/ | 29 Kan. App. 2d 75 (2001)
25 P.3d 142
RONALD EDWARDS, Appellant,
v.
STATE OF KANSAS, Appellee.
No. 84,116.
Court of Appeals of Kansas.
Opinion filed May 11, 2001.
Daniel C. Estes, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.
Angela M. Wilson, assistant district attorney, Christine Kenney Tonkovich, district attorney, and Carla J. Stovall, attorney general, for appellee.
Before PIERRON, P.J., GREEN and BEIER, JJ.
BEIER, J.:
Ronald Edwards appeals the district court's denial of his K.S.A. 60-1507 motion alleging ineffective assistance of counsel. We conclude Edwards' claim that his counsel should have taken issue with evidence arising from his accomplice's plea bargain is without merit.
When reviewing the denial of a K.S.A. 60-1507 motion, an appellate court must determine whether the district court's findings of fact are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998). In order to prevail on a claim of ineffective assistance of counsel, a movant must show counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment and that counsel's deficient performance prejudiced the defense, depriving movant of a fair trial. State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000).
Movant argues his counsel was ineffective because he failed to object or move to suppress an accomplice's testimony. The accomplice had entered into a plea agreement and received leniency in exchange for his testimony on behalf of the State in Edwards' case. *76 Edwards contends the deal violated the rules governing lawyers' ethical conduct and K.S.A. 21-3807(a)(1).
Kansas Rule of Professional Conduct (KRPC) 3.4(b) (2000 Kan. Ct. R. Annot. 389) provides that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law."
K.S.A. 21-3807(a)(1) provides: "Compounding a crime is accepting or agreeing to accept anything of value as consideration for a promise: (1) Not to initiate or aid in the prosecution of a person who has committed a crime."
KRPC 3.4(b) prohibits only unlawful inducements, and the inducement offered Edwards' accomplice was not unlawful under K.S.A. 21-3807(a)(1). The statute does not apply even if one assumes for the purposes of argument that the accomplice's testimony was something "of value" to the prosecutor, and the prosecutor's willingness to deal was something "of value" to the accomplice. Neither side in the plea negotiation agreed in exchange for something of value not to prosecute Edwards or the accomplice. In fact, both were prosecuted.
We also note that applying K.S.A. 21-3807(a)(1) as Edwards suggests would contradict K.S.A. 21-4713, which provides:
"The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea to a charged offense or to a lesser or related offense, the prosecutor may do any of the following:
"(a) Move for dismissal of other charges or counts;
"(b) recommend a particular sentence within the sentencing range applicable to the offense or to the offense to which the offender pled guilty;
"(c) recommend a particular sentence outside of the sentencing range only when departure factors exist and shall be stated on the record;
"(d) agree to file a particular charge or count;
"(e) agree not to file charges or counts; or
"(f) make any other promise to the defendant ...."
Our Supreme Court has set forth the proper analysis when such a conflict appears to exist:
"In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire act if it is *77 reasonably possible to do so. [Citation omitted.] "`General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.'" [Citation omitted.]" State v. Le, 260 Kan. 845, 847-48, 926 P.2d 638 (1996).
K.S.A. 21-4713 is a specific statute that sets forth the lawful actions a prosecutor can take in offering a plea bargain. This contrasts with the general prohibition against compounding a crime in K.S.A. 21-3807. It also is noteworthy that K.S.A. 21-3807 was enacted first, and it is thus unlikely the legislature intended every plea bargain entered into in compliance with K.S.A. 21-4713 to be a crime.
This conclusion is bolstered by the Supreme Court's related ruling in State v. Barksdale, 266 Kan. 498, 515, 973 P.2d 165 (1999). In that case, the defendant relied on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), overruled upon rehearing en banc 165 F.3d 1297 (10th Cir. 1999), cert. denied 527 U.S. 1024 (1999), to argue that the district court erred in allowing a witness' testimony because it was obtained in return for the State's promise to contact the parole board on his behalf. The Supreme Court found Singleton was inapplicable to the case because Kansas did not have a statute comparable to 18 U.S.C. § 201(c)(2) (1994), which prohibits the giving, offering, or promising of anything of value to a witness for his or her testimony. The court further stated: "[T]here is no constitutional prohibition against the testimony of a witness who receives benefits in exchange for testimony." 266 Kan. at 515.
Although the district court based its decision in this case on a rationale different from ours, the reason for its decision is immaterial if its ruling is correct for any reason. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997). In view of our interpretation of KRPC 3.4(b) and K.S.A. 21-3807(a)(1), the district judge was correct in denying Edwards' K.S.A. 60-1507 motion.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608045/ | 662 N.W.2d 150 (2003)
Linda LONGRIE, individually and o/b/o/ Taylor Longrie, Respondent,
v.
Rick LUTHEN, Defendant,
Peggy Luthen, Appellant, and
Peggy Luthen, Appellant,
v.
Linda G. Longrie, Respondent,
Itasca County, Respondent.
Nos. CX 02-1875, CX 02-1889.
Court of Appeals of Minnesota.
June 3, 2003.
*151 Ellen E. Tholen, Ellen E. Tholen Law Office, Grand Rapids, MN, (for respondent Linda Longrie).
Marshall H. Tanick, Teresa J. Ayling, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, (for appellant Peggy Luthen).
Dyan J. Ebert, Quinlivan & Hughes, P.A., St. Cloud, MN, (for respondent Itasca County).
*152 Considered and decided by WRIGHT, Presiding Judge, RANDALL, Judge, and SHUMAKER, Judge.
OPINION
SHUMAKER, Judge.
Appellant challenges the district court's denial of her motion to dismiss respondent's fraudulent-conveyance claim and the district court's grant of summary judgment to respondent on appellant's wrongful-levy claim. Because the district court erred when it denied appellant's motion to dismiss respondent's fraudulent-conveyance claim, we reverse. We also reverse and remand the district court's grant of summary judgment on the wrongful-levy claim because genuine issues of material fact exist.
FACTS
Before us are two consolidated appeals involving Rick and Peggy Luthen, formerly husband and wife; two private corporations, known generically as L & M Supply, owned by Rick Luthen's family and in one of which Rick Luthen is listed as a shareholder; Linda Longrie, the mother of a child fathered by Rick Luthen while he was still married to Peggy Luthen; and Itasca County (the county), the provider of public funds for the support of Longrie's and Rick Luthen's child. The principal focus of the appeals is Longrie's and the county's efforts to obtain dividends from L & M stock to apply to child support. Rick and Peggy Luthen contend that all L & M stock that Rick Luthen owned was awarded to Peggy Luthen. Longrie and the county contend that Rick Luthen still owns both the stock and the dividends paid on that stock.
When Rick and Peggy Luthen signed the martial-termination agreement in their marriage dissolution, Rick Luthen owned stock in L & M Supply, Incorporated and L & M Supply Virginia, Inc. By their agreement, which the district court eventually approved and incorporated into its judgment of dissolution, Peggy Luthen was awarded "L & M Supply stock certificates, titled in Wife's name." The Luthens interpreted this provision to mean that Rick Luthen was to transfer all of his L & M stock to Peggy Luthen so that the shares could be titled in her name.
Rick Luthen assigned all his L & M stock to Peggy Luthen. L & M Supply Virginia, Inc. recorded on its corporate books Peggy Luthen as owner of the stock formerly held by Rick Luthen. The L & M Supply Incorporated stock contained a restriction that required the signature of Rick Luthen's father to effect a transfer and, because the father had not executed the assignment, the company continued to show on its records Rick Luthen as owner. Both companies paid dividends to record shareholders. Rick Luthen acknowledges receipt of dividends from L & M Supply, Incorporated, but contends that he paid them to Peggy Luthen.
At some point, Longrie obtained a child support award against Rick Luthen. In 2002, his support obligation fell into arrears, and the district court awarded judgment to Longrie for the arrearages. Longrie and the county levied on the L & M Supply Incorporated stock, contending that, despite Rick Luthen's assignment of that stock to Peggy Luthen, he remains the true owner of the stock and the dividends. Longrie also started a lawsuit against the Luthens on the theory that Rick Luthen's transfer of L & M stock to Peggy Luthen was a fraudulent conveyance, made to avoid Rick Luthen's child support obligation. Contending that she is the sole owner of the stock and dividends on which Longrie and the county levied, *153 Peggy Luthen sued both parties on a theory of wrongful levy.
The parties brought various motions. The district court denied the Luthens' motion to dismiss Longrie's fraudulent-conveyance claim, and denied Longrie's motions for punitive damages, attorney fees, and rule 11 sanctions. The court granted the summary judgment motion of Longrie and the county and dismissed the wrongful-levy action, ruling that, because Rick Luthen's name remained on the corporate books as owner of the L & M Supply, Incorporated stock, the levy was not wrongful.
Peggy Luthen appeals from the grant of summary judgment in her wrongful-levy action and was granted discretionary review of the district court's denial of her motion to dismiss the fraudulent-conveyance claim. Longrie requests review of the court's denial of her motions for attorney fees, punitive damages, and rule 11 sanctions.
ISSUES
1. Is a third-party child support obligee collaterally estopped from challenging, as a fraudulent conveyance, a judicially approved property transfer from the child support obligor to his spouse in their marriage dissolution when the obligee's claim through a different procedural vehicle had previously been determined against the obligee in a final judgment?
2. Where there is a genuine dispute as to whether corporate stock is owned by a judgment debtor or by his transferee, is summary judgment inappropriate?
ANALYSIS
1. Fraudulent-Conveyance Claim
The district court denied Peggy Luthen's motion to dismiss the fraudulent-conveyance claim because the court found that Longrie was a judgment creditor of Rick Luthen and had standing under Minn.Stat. § 513.44 (2002) to show that the purpose of the L & M stock transfer in the Luthens' marriage dissolution was to put a child support obligor's assets out of the reach of the obligee. Standing to sue and the interpretation of a statute are legal issues, and we are not bound by, nor need we defer to, the district court's rulings. Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984); Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996).
This is the second time, albeit through a different procedural vehicle, that Longrie and the county have attempted to challenge the L & M stock transfer as fraudulent. After the district court allowed Longrie and the county to intervene in the Luthens' marriage-dissolution proceeding, Peggy Luthen appealed. We reversed the order permitting intervention and held:
There is no legal authority to support the contention that a child born out of wedlock is entitled to a portion of the father's marital property for the purposes of child support.
Luthen v. Luthen, 596 N.W.2d 278, 281 (Minn.App.1999).
Longrie contends in her separate lawsuit under Minn.Stat. § 513.44, the Fraudulent Transfer Act, that she is a child support creditor of a debtor who transferred some of his assets to hinder, delay, or defraud her in her efforts to obtain satisfaction of the debtor's child support obligation. Under the act,
[a] transfer made * * * by a debtor is fraudulent as to a creditor * * * if the debtor made the transfer * * * with actual intent to hinder, delay, or defraud [the] creditor.
Minn.Stat. § 513.44(a)-(a)(1).
Whether a creditor of a party to a marriage dissolution has standing to challenge *154 a judicially approved award of property in that dissolution as being a fraudulent conveyance is a question of first impression in Minnesota, but is one that we need not reach.
In Luthen, we held not only that Longrie could not intervene in the dissolution but also that she could not reach Rick Luthen's marital property to satisfy a child support obligation. Luthen, 596 N.W.2d at 281. In both Luthen and this action, the parties were identical; the claim, namely entitlement to reach Rick Luthen's stock and dividends, was the same; the matter culminated in a final judgment; and Longrie did not petition for further review. Thus, Longrie is collaterally estopped from relitigating the issue of the alleged fraudulent transfer of the stock and dividends. See Loo v. Loo, 520 N.W.2d 740, 743-44 and n.l (Minn.1994) (addressing res judicata, collateral estoppel, and law of the case in marriage dissolution proceedings).
Because Longrie is collaterally estopped from challenging the stock transfer in this action, the district court erred in failing to dismiss Longrie's claim.
Longrie also contends that she is entitled to assert a claim for punitive damages and to an award of attorney fees, and that rule 11 sanctions are appropriate. These were adjunct claims to Longrie's fraudulent-conveyance action. Because Longrie could not properly bring that action, these subordinate claims cannot stand. Thus, the district court did not err in dismissing these claims.
2. Wrongful Levy
Peggy Luthen argues that the district court erred in granting summary judgment dismissing her wrongful-levy claim. In an appeal from a summary judgment, we inquire as to whether there exists any genuine issue of material fact for trial and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).
Peggy Luthen claims that, by judicial decree, the L & M stock was awarded to her and that Rick Luthen assigned the stock to her. The district court held that because the stock remains in Rick Luthen's name, a levy under a judgment against him could not have been wrongful.
There are genuine issues of material fact regarding the L & M stock that prevent summary judgment on the wrongful-levy claim. For example, there is a question as to what stock was awarded. Rick Luthen owned shares in two corporations, neither of which is properly named in the dissolution judgment. Rather, there is reference only to "L & M Supply." Furthermore, the property to be transferred was "L & M Supply stock certificates, titled in Wife's name." Were there L & M stocks titled in Peggy Luthen's name prior to the dissolution and, if so, are those the only stocks she was to receive? The vague and curious language of the award creates a fact issue.
Even after the stocks to be transferred are clearly identified, there remains a fact issue as to whether or not, despite the award, a transfer was ever truly made. There is evidence of Rick Luthen being listed in the records of one corporation as the owner of stock, and there is evidence that he received dividends. He claims that he paid those dividends to Peggy Luthen, but that claim raises credibility issues. If Rick Luthen never actually transferred the stock or paid the dividends to Peggy Luthen, the stock and dividends remain his assets and are reachable by creditors to the extent the law allows. Because genuine issues of material fact exist, we conclude that the district court erred in granting *155 summary judgment on the wrongful-levy claim.
Finally, because Longrie did not file a notice of review of her motion for rule 11 sanctions respecting the wrong-levy claim, she waived review of this issue. See Minn. R. Civ.App. P. 106; Northern State Bank v. Efteland, 409 N.W.2d 541, 544 (Minn. App.1987).
DECISION
The district court erred when it denied appellant's motion to dismiss Longrie's fraudulent-conveyance claim because Longrie is collatterly estopped from relitigating the issue of the alleged fraudulent transfer of stock and dividends. The district court also erred when it granted Longrie's motion for summary judgment on the wrongful-levy claim because genuine issues of material fact exist regarding L & M Supply stocks in dispute.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
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